Gilbertsville Free Library
Corporate By-Laws
Article I.
Name, Territory,
Office & Corporate Status
Section
1. Name. The Corporation shall be known as: Gilbertsville Free Library (hereinafter “The
Corporation”).
Section 2. Territory. The Corporation shall conduct activities
primarily in the Village of Gilbertsville County of Otsego in the State of New
York, unless otherwise stipulated in the Corporation’s Certificate of
Incorporation, as may be amended.
Section 3. Office. The principal office of the Corporation shall
be located in the Village of Gilbertsville, County of Otsego, State of New
York. This office shall direct corporate
activities and be the depository for all corporate records
Section 4. Corporate Status. The Corporation is a New York Not-for-Profit
Corporation, a “Charitable Corporation” as defined by the Not-for-Profit
Corporation Law, and exempt from income taxation pursuant to Section 501(c)(3)
of the Internal Revenue Code.
Article II.
Section
1. Corporate
Purposes. The purposes of the
Corporation are set forth in the Certificate of Incorporation; qualify the
Corporation for exemption from income taxation pursuant to Section 501(c) (3)
of the Internal Revenue Code of 1986. The Certificate of Incorporation may only
be amended by filing a request for an Articles of Amendment with the NY State
Attorney General.
Section
2. Document
Construction. Any amendment to the
purposes of the Corporation must be rendered in accordance with the
requirements of Article XIV herein. If
there is any conflict between the provisions of the Certificate of
Incorporation, as may be amended, and these By-Laws, provisions of the
Certificate of Incorporation, shall govern.
Article III.
Membership
Section 1. Classes
of Membership Authorized.
1. The membership
of the corporation shall consist of the duly elected members of the Board of
Trustees, and Life Members of the Gilbertsville Free
Library, age 18 and over.
1.2. Any person
paying the sum of $100.00 may become a Life Member with voting privileges upon
reaching age eighteen. The Board of Trustees may elect Life Members of the
Corporation at
any meeting. The
Board of Trustees may fix a date as the record date for the purpose of determining
the new Members entitled to vote at any Meeting of the Corporation, or to
express consent to or dissent of any proposal without a Meeting. The record date shall not be more than fifty
(50) nor les than ten (10) business days before the date of the Meeting.
Section 2. Evidence of Membership.
2.1. Each Member shall be issued appropriate
evidence or proof of Membership, which shall be nontransferable.
Section 3. Termination of Membership.
3.1 Termination of Membership. Termination
of Membership. by Members themselves,
shall be authorized, by a majority (50% +1) vote of the Corporation at the
Annual Meeting or a Special Meeting of the Corporation called for that purpose.
3.2. Termination by the Board of Trustees. Termination of Membership by the Board of
Trustees shall be authorized, for cause, by a majority (50% +1) vote of the
Board at any Regular or Special Meeting of the Corporation called for that
purpose.
Article IV.
Governance
Section
1. Trustees and Officers
1.1. Management
of Corporation. All powers except
such as are reserved to the Corporation by these By-Laws, or by the Law, shall
be vested in the Board of Trustees who shall manage the affairs of the
Corporation.
1.2 Trustees. The Board of Trustees of the Corporation
shall consist of nine members [SEE Articles of Incorporation]. Officers shall be elected at the annual
meeting for one year only, but shall
hold office until the election of their successors. .
1.3. Officers.
The Officers of the Corporation; President, Vice President, Treasurer,
and Secretary, shall be chosen from the members of the Board of Trustees and
elected by the Corporation at the annual meeting immediately after the election
of the Trustees. Other members of the Corporation shall be
eligible for appointment to Ad hoc committees.
They may be appointed by the
President with approval of the Board to bring special capabilities for the
resolution of problems confronting the Committees. All committee actions are
subject to approval by a majority of the Board.
1.4. Vacancies. Vacancies occurring on the
Board of Trustees, or in an of the offices by reason of
Death, resignation, refusal to act or other disability,
may be filled for the unexpired term by vote of the Board of Trustees at any
meeting.
1.5. Regular
Meeting. There shall be a minimum of
four regular meetings of the Board of Trustees each year.
1.6. Quorum. A majority of the Board of
Trustees shall constitute a quorum at any meeting. The
members present at any meeting of the Corporation regularly called shall
be deemed a quorum for every purpose.
1.7. Voting. All votes at meetings of the Corporation
and the Board of Trustees shall be viva
voce unless ballet is demanded, in which case a vote shall be by ballot.
Article V.
Meetings
Section 1. Annual Meetings. The annual meeting of the Corporation shall
be held on the second Thursday of April of
each year for the election of Trustees and Officers and transaction of such
business as may properly come before the meeting. If for any reason an annual
meeting shall not be held on the day fixed by the By-Laws, it may be held on
any subsequent date fixed by a resolution of the Board of Trustees. The notice
of such deferred annual meeting shall specify that it is to be held for the purpose
of election of the Trustees and Officers.
Section 2. Special
Meetings. Meetings
of the Corporation may be held at other times when the Trustees, by vote,
direct. No business shall be conducted that is not included in the issued
Notice as stipulated herein.
Section 3. Meeting
Notice.
3.1 Notice Requirements. Notice shall be
given to each Member of the Corporation prior to each Meeting of the
Corporation, stating the place, date and hour of the Meeting. Notice of a
Special Meeting shall in addition, identify;
i. the person, or
persons, calling the meeting; and
ii. the purpose, or purposes, for which said meeting is
being called.
3.2 Written Notification. Written notice of any Meeting of the
Corporation shall be given personally or by first class mail, facsimile or by
electronic mail, not less than ten (10) days nor
more than fifty (50) days before the date of the
Meeting. Notice shall be deemed given as
stipulated below:
i. if personally, upon receipt by the Member;
ii. if mailed, when deposited in the United States Mail,
with postage prepaid, directed to the Member at the Member’s current address of
record as it appears on the list of Members; or,
iii. if sent by electronic mail or facsimile, when
forwarded to the facsimile number, or electronic mail address, as either appear
on the list of Members of the Corporation excepting that any such notice shall
not be considered properly delivered if the Corporation is:
a)unable to deliver two (2) consecutive notices to the
designated electronic mail address or
facsimile number or,
b) is otherwise made aware that notice cannot be
delivered to the Member or electronic mail or facsimile.
3.3 Waiver of
Notice
i. Should any Member fail to receive proper notice of a
Meeting of the Corporation, as otherwise required by these By-Laws, the Member
shall waive his/her right to any such notice if:
ii the Member attends the Meeting of the Corporation
without objection to the lack of proper notice, prior to said Meeting being
called to order; or,
iii. either before or after the Meeting, the Member
submits a waiver of notice, which if tendered personally, in writing or by facsimile, shall be
validated by written or electronic signature; or if submitted by electronic mail, shall include
information from which the Corporation can reasonably determine that the waiver
was properly authorized.
Section
4. Presumption
of Concurrence.
4.1. Meeting
Participation. A Trustee who
participates in a meeting of the Board of Trustees at which an act, or action,
on any corporate matter is taken shall be presumed to have concurred to the
action taken unless said Trustee:
i
.assures that his/her dissent is entered in the minutes of the meeting;
ii.
files a written dissent to such act or action with the Secretary of the meeting
before the adjournment thereof, or;
iii. forwards
a written dissent, by regular mail, facsimile, electronic communication or personal delivery,
to the Secretary, immediately after the adjournment of the meeting.
4.2. Meeting
Absence. A
Trustee who is absent from a meeting of the Board at which an act, or
action, on any corporate matter is taken shall be presumed to have concurred to
the action taken unless said Trustee;
i.forwards a written dissent, by personal delivery
and/or registered mail, to the Secretary; or
personally delivers, or, sends by registered mail, his/her written dissent
thereto to the Secretary; or,
ii.assures that his/her dissent is
entered in the minutes of the meetings of the Board within a reasonable time after learning of such
action.
Section 5. Special and Regularly scheduled meetings: Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given
or electronically transmitted to the news media and shall be conspicuously
posted in one or more designated public locations at least seventy-two hours
before such meeting.
Section 6.. Attendance. A Trustee who has missed the majority (50%
+1) of the Meetings of the Board of Trustees within the calendar year shall be
asked to resign. In the event it is
determined that a given Trustee will not fulfill the majority (50% +1) meeting
requirement if he or she is not
present at the next scheduled Regular Meeting of the
Board, the Secretary shall submit a notice, by
regular mail, facsimile and/or electronic mail, to
such a Trustee advising him/her that if he/she does not attend
said Meeting, a motion to this effect will be made for his/her permanent
removal.
Article VI.
Organization
Section 1, Organization
1.1. President. At all meeting of the Corporation, the
President, or in his/her absence, the Vice-President or , in his or her
absence, another Trustee chosen by the Membership shall preside.
1.2. Vice President.
The Vice President shall, in the case of death, resignation, absence or
other disability of the President, exercise the power and perform the duties of
the President.
1.3. Secretary. At
all meetings of the Corporation, the Secretary, or in his or her absence, any
Assistant Secretary, or in his absence, another Trustee chosen by the
Membership shall act as secretary at the Meeting. The Secretary shall give
notice of meetings and keep records of the meetings; keep a complete list of
all Life Members of the Corporation and transactions of the Corporation, the
Board of Trustees and all other committees.
1.4. Treasurer. The Treasurer shall be custodian of all
funds and securities of the Corporation and shall receive, hold, invest and
disburse the same as directed by the Finance Committee such portions of the
funds as shall be devoted by the Trustees t general purposes. The Treasurer shall keep full and complete
accounts and vouchers for all payments, and shall make full reports of the
financial condition of the Corporation to the Corporation
at its annual meetings and to the Board of Trustees at its stated meetings and
at other times when required by the Board of Trustees.
Section 2. Voting. Each Member shall have one (1) vote for the
purposes of the election of Trustees and the transaction of any other business
considered by the Corporation
Section 3. Parliamentary
Law. In all matters of
parliamentary procedure not covered or contradicted by these By-Laws, or
applicable statute, regulation or contractual obligation, Roberts Rules of Order, newly revised, shall be used as a
guideline in answering all questions of proper parliamentary procedure.
Section 4. Action by the Membership.
4.1. Action
Defined. Except as otherwise
provided by statute and/or these By-Laws, an “act,” or “action,” of the
Membership shall mean an action at a Meeting of the Membership authorized by
vote of a majority (50% +1) of the Members present at the time of the vote,
provided a sufficient quorum is present.
4.2. Electronic
Communication. Any, or all,
Members may participate in any Meetings of the Corporation, by means of a
conference telephone, electronic video screen communication or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time.
Participation by such means shall constitute presence in person at a
meeting of the Membership.
4.3. Proxies.
Every Member entitled to vote at a Meeting of the Corporation may
authorize another person or persons, to act in his/her behalf by use of
proxy. To be valid and enforceable each
proxy must be submitted before, or presented at the Meeting of the Corporation
for which i5t is intended.
Section 5. Reports.
5.1. In a manner
sufficient to comply with applicable statutory obligations, the Board of Trustees
shall annually present to the Corporation a report, verified by appropriate
Officers, outlining inappropriate detail the Corporation’s fiscal status,
including an annual balance sheet and income and expense statement or a
financial statement performing a similar function for the preceding fiscal
year, confirming assets (restricted and unrestricted) and liabilities, revenues
and receipts and expenses and disbursements, together with any and all
necessary and/or required supporting documentation.
5.2 Each such
report shall be filed with the records of the Corporation and a copy, or an
abstract thereof, shall be entered in the minutes of the proceedings of the Meeting
of the Corporation at which the report is presented.
ARTICLE VII.
Board of
Trustees/Officials
Section 1. General Management. The Board of Trustees shall have ultimate
authority in governing the operations, finances and affairs of the Corporation. The Board, with the advice of
various committees, if so authorized, shall implement,
monitor and modify, as may be needed, policies and procedures necessary for
proper corporate management. It shall be
empowered to employ necessary staff, retain necessary professional assistance,
authorize agreements and expenditures and take all necessary and proper steps
to advance the purposes and promote the best interests of the Corporation.
Section 2.
Number. There shall be nine (9) seats on the Board of
Trustees, SEE Articles of Incorporation.
Section 3.
Qualifications. All Officers
and Trustees must be at least eighteen (18) years of age and committed to
advancing the purposes of the Corporation.
Section 4. Terms of Office, Newly
Created Trusteeships & Vacancies
4.1. Terms of Office. The
term of office for a Trustee shall be one (1) year in duration. The terms of
office for all trustees shall begin on the day of their election and shall
conclude upon the election of their successors.
4.2. Vacancies. A vacancy in office shall arise upon the
resignation, removal, incapacitation or death of a Trustee. A vacancy on the Board
of Trustees occurring in the interim between Annual Meetings may be filled by
an interim successor appointed by the Board of
Trustees.
4.3. Resignation. A Trustee may resign, at any time, by
giving written notice to the Board of Trustees, the President, or
the Secretary. The resignation shall
take place effective upon receipt thereof.
4.4. Suspension. Any Trustee may be temporarily suspended for
cause, by a two-thirds (2/3rds) majority vote of the Board of Trustees at any
regular meetings or Special Meeting of the Corporation called for that
purpose. The period of suspension can
last only until such time as the next Annual Meeting. At any Meeting where a vote is to be taken to
suspend a Trustee, the Trustee in
question may attend and shall be given a reasonable opportunity to argue in
his/her defense.
4.5. Removal. Any, or all of the Trustee(s) may be
permanently removed for cause, by a two-thirds (2/3rds) majority vote of
Special Meeting of the Corporation called for that purpose, at any Annual
Meeting or Special Meeting of the Corporation called for that purpose. At any Meeting where a vote is to be taken to
remove a Trustee, the Trustee is question may attend and shall be given a reasonable opportunity to argue in
his/her defense
5.1. Duties,
President. The President
shall be the principal volunteer executive officer of the Corporation and shall
in general monitor and supervise the business and affairs of the
Corporation. He/she shall preside at all
meetings of the Board of Trustees and shall be a voting member of all
Committees of the Board and Committees of the Corporation, unless otherwise
precluded by statute, regulation and/or these By-Laws. The President is authorized to
sign any deeds, mortgages, bonds, contracts or other instruments that the Board
has authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Board, these By-Laws and/or
applicable regulation or statute to some other Officer or agent of the
Corporation. The President is the sole
Officer or Trustee authorized to speak on behalf of the Corporation, unless the
President and/or the Board of Trustees have otherwise delegated such authority
to another Officer, Trustee and/or representative or otherwise directed by
these By-Laws. The President shall
perform such other
duties as from time-to-time may be assigned to him/her by the Board.
5.2. Vice President. In the absence of the President, or in the
event of his/her inability or refusal to act, the Vice President shall perform
the duties of the President, and when so acting shall have all the powers of
and be subject to all the restrictions upon the President. The Vice President shall
perform such other duties
as from time-to-time may be assigned to him/her by the President and/or the
Board.
5.3. Secretary. The
Secretary shall generally be responsible for assuring that the records of the
Corporation are properly recorded, documented and stored and that all informal
or formal notices that may be issued by the Corporation are tendered in a
manner in compliance with all applicable statutes, regulations, contracts,
ethical obligations, the Certificate of Incorporation, as may be amended, and
these By-Laws. The Secretary shall
assure that the minutes of the meetings of the Board of Trustees, and
Committees of the Board or Corporation, if any, are properly recorded,
documented and stored; keep a record of the post office address, telephone
number and, when possible electronic address of each Member, Trustee, Officer
and member of a committee who does not serve on the Board, if any; notify
Trustees of election and members of committees of appointment; and, generally
serve as custodian of the records of the Corporation. He/she may delegate recording, documentation
and storage and other duties, as deemed appropriate, to other Officers,
excepting the President, Trustees, or employees of the Corporation. The Secretary shall
perform such other duties as from time-to-time may be
assigned to him/her by the President and/or the Board.
5.4
Treasurer. The
Treasurer shall be responsible for the supervision and accounting of all funds
received or expended by the Corporation and shall keep the Board of Trustees
informed on
all
pertinent financial matters. If an
Independent Trustee, he/she shall ordinarily, but need not necessarily, serve
on the Finance Committee, or its functional equivalent, if applicable, and, but
not as Chair of any such Committee of the Board, of the Finance Committee. The Treasurer shall provide a financial
report at all Regular Meetings of the Board in a format prescribed by the
Board. The Treasurer shall perform other
duties as from time-to-time may be assigned to him/her by the President and/or
the Board.
ARTICLE VIII.
Committees
Section 1. Each Committee of the Board, Committee
of the Corporation, and every member thereof, shall serve at the pleasure of
the Board. All committees shall keep
minutes of all proceedings, to be regularly submitted to the Secretary for
subsequent distribution to the Entire Board, and report to the Board, all
activities and determinations. At its next scheduled Regular Meeting.
Section 2. A Finance Committee of three Board
Members to include the Treasurer and two members of the Corporation appointed
by the President. The duties of this
committee shall be to manage the endowment funds of the Corporation, to
recommend financial policies, and to report thereon as necessary, and at the
Annual Meeting.
Section 3. A Building
Committee consisting of at least one members of the Board of Trustees and
one member of the Corporation appointed by the President. This committee shall be responsible for the
maintenance and improvement of the Library building and facilities and to
report thereon as necessary and at the Annual meeting.
Section 4. A Nominating Committee consisting of one
member of the Board of Trustees and one member of the Corporation appointed by
the President. The duties of this committee shall be to prepare a slate of
Trustees and Officers to be acted upon at the next annual meeting.
Section 5. An Archives Committee, chaired by the
Archivist, who shall be appointed by the Board of Trustees. The Archivist shall select the other members,
one of whom shall keep a financial record to be turned over to the Treasurer of
the Board of Trustees at the endof each year.
This committee shall be responsible for the management of the Historical
section and all historical book and materials, and arrangement for its use by
the public.
Section 6. A Personnel Committee shall consist of
the President and one other member of the Board of Trustees.
.
Section 7. A
Fund Raising Committee shall consist of the Vice President, one
member of the Board other members of the Corporation as needed.
Section 8. An
Auditing Committee, consisting of two members of the Corporation, not on
the Finance Committee, appointed by the
President who shall audit all the accounts and securities of the Corporation
and report thereon at the annual Meeting of the Corporation.
ARTICLE IX.
Fiscal Year &
Independent Financial Audit
Section 1. Fiscal
Year. The fiscal year of the
Corporation shall commence on the 1st day of January and conclude on
the 31st day of December.
Section 2. Independent
Financial Audit. Should it be
required pursuant to stipulated statutory thresholds dictated by revenue annually received and/or other
applicable regulation and/or Contractual obligation, demanded by the Office of
Attorney General, requested by another regulatory agency or funder as a
condition of funding, or otherwise recommended and authorized by the Board of
Trustees, the accounts of the Corporation shall be subject to an annual audit
report or audit review report prepared by “Independent Auditor” (as defined by
Attachment “A”) to be overseen by the Audit and Finance Committee of the Board,
comprised solely of “Independent Trustee” (as defined by Attachment “A”).
ARTICLE X.
Fiduciary Duties
Section 1. Duty of
Care. All Trustees shall exercise
the same standard of care that a reasonable person, with similar abilities,
acumen and sensibilities, would exercise under similar circumstances at all
times. Each Trustee shall endeavor to
understand all, or substantially, all of the consequences of his/her actions
and/or omissions.
Section 2. Duty of Loyalty. No Trustee shall be permitted to engage
in, or condone, any conduct that is disloyal, disruptive, damaging or competes
with the Corporation. No Trustee shall
be permitted to take any action, or establish any interest, that compromises
his/her ability to represent the Corporation’s best interest. All Trustees are
expected to represent the interests of this Corporation at all times while
serving on the Board.
Section 3. Duty of Obedience. No Trustee shall be permitted to disobey or
publically contradict an authorized decision of the Board.
ARTICLE
XI
Statutory
Compliance
Section 1. Definitions.
Should any term, phrase or understanding relative to any topic
addressed in these By-Laws and/or the policies of the Corporation be
specifically defined in a document entitled, By-Law and Corporate Policy
Definitions,” a copy of which is annexed hereto, and made a part hereof these
By-laws as Appendix “A,” the stipulated definition of such term in
said document shall govern for purposes of interpreting the By-Laws and or
Corporate policies.
Section 2. Conflicts of Interest & Related Party
Transaction Conflicts Policy. The Conflicts of Interest and Related Party
Transaction Policy of the Corporation required in order to comply with mandates
of Section 2 of this Article is annexed hereto, and made a part hereof as Appendix
“B.” This policy may only be amended,
modified or repealed b y the two-thirds (2/3’rds) majority vote of the Board of
Trustees present at any Annual Meeting, Regular Meeting or Special Meeting of
the Corporation called for that purpose with the change
in policy to not be applicable to any pending, or currently being reviewed,
real or potential conflicts of interest or Related Party Transaction.
Section 3. Potential
Conflicts Disclosure Statement. The
Potential Conflicts Disclosure Statement of the Corporation required in order
to comply with the mandates of Section 2 of this Article is annexed hereto, and
made a part hereof as Appendix “C”.
ARTICLE
XII
Prohibited
Conduct, Obligation & Related Policies
Section
1. Prohibited Conduct. Neither bullying, harassment nor
discrimination shall be tolerated by the Corporation. Any individual bond by these By-Laws who is
subject to bullying, abusive behavior, harassment, inappropriate physical
touching or suggestive language, unfair behavior or discrimination relating to
race, ethnicity, national origin, gender, religion, age, disability, veteran
status, marital status, sexual orientation, political or union affiliation, or
records of arrests or convictions, or who experiences same is encouraged to
report it immediately to a member of the Personnel Committee.
Section
2. Obligations.
Any individual bound by these By-Laws who is aware of conduct that would
reasonably violate the terms of Section 1 herein is required to report such
activity immediately.
Section 3. Related Policies. Appropriate policies concerning workplace
bullying, harassment or discrimination will be stipulated in the personnel
policies and procedures promulgated by the Corporation. However, nothing in this Article will bind
the staff of the Corporation, who will instead be covered by the procedures
contained in their personnel policies and procedures.
Article XIII.
Indemnification
of Trustees, Officers & Employees
Section 1. Indemnification Obligations. Provided that it first obtains, and
subsequently maintains a Trustees and Officers (D&O) liability insurance
policy with coverage limits deemed reasonably appropriate by qualified
professionals, the Corporation shall indemnify its Members, Trustees, Officers,
employees and volunteers against judgments, fines, amounts paid in settlement
and reasonable expenses and costs, including attorneys fees, in connection with
any claim asserted against the Member, Trustee, Officer, employee or volunteer
by court action, or otherwise, by reason of the fact that such person was a
Trustee, Officer, employee or volunteer of the Corporation and acting in
good-faith for a purpose which such person reasonably believed to be in the
best interest of the Corporation, and was not unlawful, unethical or immoral.
Article XIV.
Fundamental
Corporate Changes
Section 1. By-Law
Amendment. These By-Laws may be
amended, repealed or altered, by a two-thirds (2/3) majority vote of the
Trustees present at any Annual Meeting, Regular Meeting or Special Meeting of
the Board called for that purpose, excepting that the Board shall have no
authority to amend, repeal or alter Article III, this Article XIV or any other
By-Law applicable to the rights, entitlements and/or obligations of the
Members. Any amendment, repeal or
alteration of the By-Laws authorized by the Board shall be presented to the
Membership at the next Annual Meeting or Special Meeting of the Membership
called for that purpose, and may be vetoed, in whole or in part, or otherwise
modified by majority (50% +1) vote of the Members present. The Membership may by majority (50% +1) vote
of the Members present at any Annual Meeting or Special Meeting of the
Membership called for that purpose, amend, repeal or alter Article III, this
Article XIV, any other By-Law applicable to the rights, entitlements and/or
obligations of the Members or the By-Laws, in their entirety, with or without
the consent of the Board,
Section 2. Certificate
of Incorporation.
2.1. Amendment. The Certificate
of Incorporation of the Corporation may be changed or amended, in whole or in
part, by a two-thirds (2/3) majority vote of each the Board of Trustees and
those entitled to cast ballots for a resolution of the Membership, provided all
statutory approvals are subsequently secured and any Certificate of Amendment
or Restated Certificate of Incorporation is accepted for filing by the New York
Department of State.
2.2. Governing Effect. If there
is any conflict between the provisions of the Certificate of Incorporation and
these By-Laws, the provisions of the Certificate of Incorporation shall govern.
Section 3. Purchase, Lease, Sale, Mortgage or
Disposition of Real Property or Other Assets. The purchase, lease (for five (5)-or more
years), sale, mortgage or disposition of all, or substantially all, of the real
property or other assets of the Corporation shall only be authorized by a
two-thirds (2/3) majority vote of the Corporation..
Section 4. Creation
of Corporate Affiliate Relationship.
The Corporation may only enter into any affiliate arrangement, such as a
parent/subsidiary relationship with another corporation, or form a new
corporation for purposes of establishing an affiliate relationship, by a
two-thirds (2/3) majority vote of the Corporation.
Section 5. Merger
or Consolidation. This Corporation
may be merged or consolidated by a two-thirds (2/3) majority vote of the
Corporation provided all statutory
approvals are subsequently secured and any Certificate of Merger or
Consolidation is accepted for filing by the New York State Department of State.
Section 6. Dissolution.
6.1. Procedure. This Corporation
may be dissolved by a two-thirds (2/3) majority vote of the Corporation, provided all statutory approvals are
subsequently secured and a Certificate of Dissolution is accepted for filing by
the New York Department of State.
6.2. Residual Assets. In seeking approvals necessary for Dissolution, the
Corporation shall exercise its best efforts to assure that any residual assets
shall be donated to another Not-for-Profit Corporation qualified under Section
501(c)(3) of the Internal Revenue Code with purposes similar to those of this
Corporation.
~End~
APPENDIX A—By-Law & Corporate Policy Definitions
1. Charitable Corporation.
Any Not-for-Profit
Corporation formed, or deemed to be formed, for charitable purposes, including
those formerly considered by the Not-for-Profit Corporation Law to be Type “B”
or “C” Corporations, as well as former Type “D” with charitable purposes.
2. Non-Charitable Corporation.
Any Not-for-Profit Corporation
formed, or deemed to be formed, for other than the purposes of a Charitable
Corporation, including, but not limited to one formed for any one, or more of
the following non-pecuniary purposes: civic, patriotic, political, social,
fraternal, athletic, agricultural, horticultural, or animal husbandry, or for
the purpose of operating a professional, commercial, industrial, trade or
service association, including those formerly considered by the Not-for-Profit
Corporation Law to be Type “A” Corporations, as well as former Type “D” with
non-charitable purposes.
3. Related Party.
A “Related Party"
means (i) any Trustee, Officer or Key Employee of the Corporation, or any
Affiliate; (ii) any Relative of any Trustee, Officer or Key Employee of the
Corporation, or any Affiliate; or (iii) any entity in which any individual
described in clauses (i) and (ii) herein has a
thirty-five percent (35%) or greater ownership or beneficial interest
or, in the case of a partnership or professional corporation, a direct or
indirect ownership interest in excess of five percent (5%).
4. Affiliate.
An “Affiliate” of the
Corporation means any entity controlled by, in control of, or under common
control with the Corporation.
5. Member.
A “Member” means any person afforded rights, entitlements
or obligations with respect to the governance and operations of the
Corporation, as identified in the By-Laws and/or the Certificate of
Incorporation, as may be amended.
6. Trustee.
A “Trustee” means any
member of the governing board of the Corporation, whether designated as Trustee,
trustee, manager, governor, or by any other title.
7. Officer.
An “Officer” means any Trustee,
trustee, manager, governor, or by any other title, any individual holding an
office of the Corporation identified in the Certificate of Incorporation and/or
By-Laws.
8. Key Employee.
A “Key Employee” means
any person who is in a position to exercise substantial influence over the
affairs of the Corporation.
9. Relative.
A “Relative” of an
individual means his or her spouse, domestic partner, ancestors, brothers and
sisters (whether whole or half-blood), children (whether natural or adopted),
grandchildren, great-grandchildren, and spouses or domestic partners of
brothers, sisters, children, grandchildren and/or great-grandchildren
10. Related Party Transaction.
A “Related Party
Transaction” means any transaction, agreement or any other arrangement in which
a Related Party has a financial interest and in which the Corporation, or any
Affiliate, is a participant. The
assessment of, and any determination concerning, any Related Party Transaction,
must be considered in strict compliance with the adopted policies and
procedures of the Corporation.
11. Entire
Board.
The “Entire Board"
means the total number of Trustees entitled to vote which the Corporation would
have if there were no vacancies. If the
By-Laws provide that the Board of Trustees shall consist of a fixed number of Trustees,
then the “Entire Board” shall consist of that number of Trustees. If the By-Laws provide that the Board may
consist of a range between a minimum and maximum number of Trustees, then the
“Entire Board” shall consist of the number of Trustees within such range that were elected as of the most
recently held election of Trustees.
12. Independent Trustee. An “Independent Trustee” means a Trustee who:
13. Independent
Auditor.
An “Independent Auditor”
means any Certified Public Accountant performing the audit of the financial
statements of the Corporation who is not, nor is any member of his/her firm, an
Officer, Trustee, employee or volunteer of the Corporation or has a Relative
who is such an individual.
APPENDIX B—Board of
Trustees Conflicts of Interest Policy & Related Party Transactions Policy
1. Policy
Requirements.
All real or potential
“Related Party Transactions” (as defined by Attachment “A”) and any other
conflicted matter must be addressed in accordance with the terms of this Board
of Trustees Conflicts of Interest and Related Party Transactions Policy. Any Related Party Transaction, or any other
conflicted matter, authorized in a manner that is materially inconsistent with
the terms of this policy may be subsequently rendered void or voidable by a vote
of the majority (50% +1) of the Board of Trustees, excluding any Trustees with
an interest in the subject transaction or matter.
2. General
Disclosure.
Prior to initial
election, and annually thereafter, each Trustee shall be required to complete,
sign and submit to the Secretary, or an authorized designee, as appropriate, a
written statement identifying, to the best of the Trustee's knowledge, any
entity of which such Trustee is an officer, Trustee, trustee, member, owner
(either as a sole proprietor or a partner), or employee and with which the
Corporation has a relationship, and any transaction in which the Corporation is
a participant and in which the Trustee might have a conflicting interest. The Secretary shall provide a copy of all
completed disclosure statements to the Chair of the Audit and Finance
Committee. A copy of each disclosure
statement shall be available to any Trustee on request.
3. Specific
Disclosure.
If at any time during his
or her term of service, a Trustee, Officer or Key Employee (all as defined by
Attachment “A”) acquires an interest, or circumstances otherwise arise, which
could give rise to a real or potential Related Party Transaction, or any other
conflicted matter, he or she shall promptly disclose, in good-faith, to the
Board of Trustees, or an authorized committee thereof, as appropriate, the
material facts concerning such interest.
4. Audit &
Finance Committee Review.
Unless the Board of Trustees
elects to directly assume such responsibility, the Audit and Finance Committee,
or a sub-committee thereof, shall review any real or potential Related Party
Transaction, or matter which might be considered to constitute a conflict of
interest for a particular Related Party (as defined by Attachment “A”).
5. Standard of
Review.
In any instance where a
Related Party Transaction, or other conflicted matter, is being reviewed, and
is so material that it would customarily warrant formal approval by the Board
of Trustees, either the Audit and Finance Committee shall thoroughly review the
transaction or matter and submit to the Board a recommendation as whether or
not it should be approved, or the Board, itself, shall thoroughly review the
transaction and render a binding determination.
6. Authorization
of Related Party Transactions
The Corporation shall not
enter into any Related Party Transaction, or any other conflicted matter,
unless such a transaction, or matter, is determined by the Board to be fair,
reasonable and in the Corporation's best interest at the time of such
determination
7. Authorization
of Transactions Concerning Substantial Financial Interest.
With respect to any
Related Party Transaction, or other conflicted matter, in which a Related Party
has a substantial financial interest, the Board of Trustees, or an authorized
committee, as appropriate shall:
8. Restrictions.
With respect to any
Related Party Transaction, or any other conflicted matter considered by the
Board or an authorized committee as appropriate, No Related Party shall:
Nothing herein shall
prohibit the Board, or authorized committee, as appropriate, from requesting
that a Related Party present information concerning a Related Party
Transaction, or any other conflicted matter, at a Board or authorized committee
meeting prior to the commencement of deliberations or related voting.
9. Nepotism.
If
a “Relative” (as defined by Attachment
“A”),
or a household member, of an employee or Trustee is considered for employment
or retention by the Corporation as an employee or contractor, a presumption of
a Related Party Transaction is created.
The terms of this Conflicts
of Interest and Related Party Transaction Policy will govern the consideration
of such a matter. In cases where a Related Party, or household
member, is found to be the best candidate for a given position and is hired as
an employee or retained as a contractor, the Corporation shall document that
the employee/contractor is qualified and paid a reasonable salary/rate in
accordance with other corporate employees and contractors. In addition, such employee or
contractor
shall not be supervised by, or be in the line of supervision of, the Related
Party or household member.
10. Audit-Related
Disclosure of Conflicts.
It shall be the duty of
the Secretary to see to it that all newly-received and annually-submitted Trustee
Conflicts Disclosure Statements (as set forth in Attachment “C”) and any
case-specific Related Party Transaction reports, together the minutes of any
related meetings, are promptly provided to the Chair of the Audit and Finance
Committee, if applicable, in an effort to assure that they are properly considered for
auditing purposes.
APPENDIX C—Code of
Ethical Conduct & Annual Potential Conflicts Disclosure Statement
This Corporation is
committed to maintaining the highest standard of conduct in carrying out our
fiduciary obligations in pursuit of our tax-exempt mission and purposes. As such, each and every Trustee, Officer and
Key Employee (to the extent applicable) shall adhere to the following code of
conduct:
By-Laws & Policies.
Informed Participation.
respect and follow the “chain of command”
of the Board and administration
Interpersonal.
—Annual
Potential Conflicts Disclosure Statement—
As a Trustee or Officer
or Key Employee of the Corporation, prior to your being seated on the Board of Trustees
or commencing employment with the Corporation, as appropriate, and annually
thereafter, you are required to truthfully, completely and accurately disclose
all information requested herein and to promptly update all such information as
factual circumstances may change from time-to-time. With regard to this Conflicts Disclosure
Statement, be advised, all material terms identified by quotation marks are
defined by Appendix “A” of the By-Laws of the Corporation, which is entitled
“By-Law & Corporate Policy Definitions.”
please mark ‘Yes’ or ‘No’ & provide
additional information when requested
Financial Information Return Disclosure
Responses to the following questions are
required in order to complete financial information returns annually submitted
to the Internal Revenue Service and the Office of the Attorney General.
______ _ _______
No Yes If Yes, briefly describe below & attach a detailed explanation
______________________________________________________________________
______________________________________________________________________
2. Have you, individually, or through an entity
where you hold a thirty-five percent (35%) or greater ownership or beneficial
interest, or in the case of a partnership or professional corporation a direct
or indirect ownership interest in excess of five percent (5%), during the most
recently completed, or current, fiscal year, had, or are reasonably anticipated
to have, a direct, or indirect, business relationship, with any individual who
is a current or former “Officer,” “Trustee” or “Key Employee” of the
Corporation?
_______ ________
No Yes If Yes, briefly describe below & attach a detailed explanation
Do you have a “Relative” who, during the most
recently completed, or current, fiscal year, had, or is reasonably anticipated
to have, a direct, or indirect, business relationship with the Corporation?
_______ _______
No Yes If Yes, briefly describe below & attach a detailed explanation
______________________________________________________________________
______________________________________________________________________
3. Have you, or did you have a “Relative” who,
during the most recently completed, or current, fiscal year, had, or is
reasonably anticipated to have, any transaction with the Corporation that might
reasonably be considered a real or potential conflict of interest pursuant to
the Corporation’s Board of Trustees Conflicts of Interest Policy, which has not
been otherwise disclosed herein?
_______ _______
No Yes If Yes, briefly describe below & attach a detailed explanation
______________________________________________________________________
______________________________________________________________________
4. Have you been provided with, properly
reviewed and reasonably understand the terms of the Corporation’s current
written Board of Trustees Conflicts of Interest Policy?
_______ _______
No Yes If No, briefly
describe below &/or attach a detailed explanation
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
Independent Trustee Assessment Disclosure.
In order to qualify as an
“Independent Trustee,” as defined by the New York Not-for-Profit Corporation
Law, an Officer or Trustee must respond in the negative to each
of the following questions, although failure to respond to all questions in the
negative
shall not necessarily preclude such an Officer or Trustee from serving on the
Board of Trustees.
_______ _______
No Yes If Yes, briefly describe below & attach a detailed explanation
______________________________________________________________________
______________________________________________________________________
_______ _______
No Yes If Yes, briefly describe below & attach a detailed explanation
______________________________________________________________________
______________________________________________________________________
_______ _______
No Yes If Yes, briefly describe below & attach a detailed explanation
______________________________________________________________________
______________________________________________________________________
_______ _______
No Yes If Yes, briefly describe below & attach a detailed explanation
______________________________________________________________________
_______ _______
No Yes If Yes, briefly describe below & attach a detailed explanation
______________________________________________________________________
______________________________________________________________________
_______ _______
No Yes If Yes, briefly describe below & attach a detailed explanation
______________________________________________________________________
______________________________________________________________________
—Certification—
I, the undersigned,
certify that I have read and understand this Code of Ethical Conduct &
Annual Conflicts Disclosure Statement. I
agree that my actions will comply with the disclosures found in this
document. I further affirm that neither
I, as a Related Party nor any Relative have, or had, an interest, or has taken
any action, that contravenes, or is likely to contravene, the Conflicts of
Interests Policy of the Corporation or, otherwise impedes my ability to act as
a fiduciary and in the best interests of the Corporation, except those that may
have been disclosed herein.
___________________________________ _____________________
Trustee Signature Date