AMENDED AND RESTATED
INTERNATIONAL AUTOMOTIVE REMARKETERS ALLIANCE
a California nonprofit mutual benefit corporation
ARTICLE I: AMENDEND AND RESTATED BYLAWS
These Amended and Restated Bylaws (these “Bylaws”) amend and fully restate any and all prior versions of the bylaws for International Automotive Remarketers Alliance, a California nonprofit mutual benefit corporation (“the Corporation”).
ARTICLE II: PRINCIPAL OFFICE
2.1 PRINCIPAL OFFICE. The Board of Directors (the “Board”) shall fix the location of the principal office of the Corporation at any place within or without the State of California.
2.2 OTHER OFFICES. The Board of Directors may at any time establish branch or subordinate offices at any place or places where the corporation is qualified to do business.
ARTICLE III: OBJECTIVES AND PURPOSES
The purposes of the Corporation (the “Purpose”) shall be as set forth in this Article III.
3.1 GENERAL PURPOSE. The Corporation is a nonprofit mutual benefit corporation organized under the Nonprofit Mutual Benefit Corporation Law of California. The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under such law.
3.2 SPECIFIC PURPOSE. Without limiting the generality of the foregoing, the specific purpose of the Corporation shall be to strengthen, support, and promote education and excellence of the Corporation’s member businesses in the field of automotive remarketing.
3.3 LIMITATIONS. Notwithstanding any of the foregoing statements of purposes, nothing contained in the foregoing statements of purposes shall be construed to authorize the Corporation to carry on any activity for the profit of its members, or to distribute any gains, profits or dividends to any of its Directors or members as such, except upon dissolution or winding up of the Corporation. On liquidation or dissolution, all properties and assets and obligations shall be distributed pursuant to the nonprofit provisions of the California Corporations Code then in effect. The Corporation shall not carry on any activities not permitted to be carried on (i) by a corporation exempt from federal income taxation under Section 501 (c)(6) of the Internal Revenue Code of 1986, as now in effect or as may hereafter be amended (the “Code”), and (ii) by a corporation, contributions to which are deductible under Section 170 (c)(2) of the Code. No part of the earnings of the Corporation shall inure to the benefit of any member or individual.
3.4 CONSTRUCTION AND DEFINITIONS. Unless the context requires otherwise, the general provision rules of construction, and definitions in the California Nonprofit Corporation Law shall govern the construction of these Bylaws of the Corporation (these “Bylaws”). Without limiting the generality of the preceding sentence, the masculine gender includes the feminine, the singular includes the plural, the plural includes the singular, and the term “person” includes both a legal entity and a natural person.
ARTICLE IV: MEMBERS
4.1 QUALIFICATIONS, CLASSES AND RIGHTS.
(a) Qualifications and Classes. Any individual, firm, association, corporation, partnership, or other legal entity that is an institutional owner of automotive products that are used for the purposes of personal transportation, manufacturers of such products, and vendors/suppliers providing remarketing-related services or products to institutional owners and manufacturers shall be eligible to apply for membership in the Corporation. The Corporation shall have one class of members designated as “Active Members,” which shall include the incorporators. Any person dedicated to the purposes of the Corporation and meeting the above requirements and subject to the limitations set forth by the Board, from time to time, shall be eligible for membership on timely payment of such dues and fees as the Board may fix from time to time.
(b) Rights of Active Members. Active Members shall have the right to vote, as set forth in these Bylaws, on the election of directors, on the disposition of all or substantially all of the assets of the Corporation, on any merger and its principal terms or any amendment of those terms, on any election to dissolve the Corporation, and on any amendments to these Bylaws that require approval of the Members under the California Nonprofit Mutual Benefit Corporation Law. In addition, Active Members shall have the rights afforded members under the California Nonprofit Mutual Benefit Corporation Law. If the Corporation is dissolved, Active Members shall receive a pro rata distribution of all assets, exclusive of those held in charitable trust, remaining after payment or provision of payment of the obligations and debts of the Corporation and provision for any other payment required under applicable law.
4.2 DUES, FEES AND ASSESSMENTS. Each Active Member must pay, within the time and on the conditions set by the Board, the dues, fees and/or assessments in amounts to be fixed from time to time by the Board. Those Active Members who have paid the required dues, fees and/or assessments in accordance with these Bylaws and who are not suspended shall be Active Members in good standing.
4.3 TERMINATION OF MEMBERSHIP. The membership of any Member shall terminate upon the occurrence of any of the following event:
(a) The death or resignation of the Member;
(b) The failure of a Member to pay dues, fees or assessments as set by the Board.
(c) Any event that renders the Member ineligible for membership, or failure to satisfy membership qualifications; or
(d) Termination of membership by a two-thirds (2/3) vote of the directors, based on a good faith determination of the Board, or a committee designated by the Board to make such determination, that the Member, or individual employee of said Member, has failed in a material and serious degree to observe the rules of conduct of the Corporation, as promulgated by the Board from time to time, or has engaged in conduct materially and seriously prejudicial to the Corporation’s purposes and interests.
4.4 PROCEDURE FOR TERMINATION OF MEMBERSHIP BY THE BOARD:
Following the determination that a Member should be expelled under Section 4.3 (d) above, the following procedure shall be implemented:
(a) A notice shall be sent by mail by prepaid, first-class, or registered mail to the most recent address of the Member on file with the Corporation, setting forth the expulsion, suspension or termination, and the reason, therefore. Such notice shall be sent at least fifteen (15) days before the proposed effective date of the expulsion.
(b) The Member being expelled shall be given an opportunity to be heard, either orally or in writing, at a hearing to be held not fewer than five (5) days before the effective date of the proposed expulsion. The hearing will be held by the Board or committee designated by the Board to make such determination. The notice to the Member of the proposed expulsion shall state the date, time, and place of the hearing on the proposed expulsion.
(c) Following the hearing, the Board or committee designated by the Board, shall decide whether the Member should in fact be expelled, suspended, or sanctioned in some other way. The decision of the committee shall be final.
(d) Any person expelled from the Corporation shall receive a refund of dues or assessments already paid. The refund shall be prorated to return only that portion of the time remaining for the period of the dues’ payment.
4.5 MEETINGS OF MEMBERS
(a) Place of Meeting. Meetings of the Members shall be held at such place as may be designated by the Board of Directors. The Board may authorize Members who are not present in person to participate by electronic transmission or electronic video screen communication.
(b) Authority for Electronic Meetings. If authorized by the Board in its sole discretion, and subject to the requirements of consent in California Corporations Code §20(b) and guidelines and procedures the Board may adopt, Members not physically present in person (or, if proxies are allowed, by proxy) at a meeting of Members may, by electronic transmission by and to the Corporation or by electronic video screen communication, participate in a meeting of Members, be deemed present in person (or if proxies are allowed, by proxy), and vote at a meeting of the Members whether that meeting is to be held at a designated place or in whole or in part by means of electronic transmission by and to the Corporation or by electronic video screen communication, subject to the requirements of these Bylaws.
(c) Requirements for Electronic Meetings. A meeting of the Members may be conducted, in whole or in part, by electronic transmission by and to the Corporation or by electronic video screen communication (1) if the Corporation implements reasonable measures to provide Members in person (or if proxies are allowed, by proxy) a reasonable opportunity to participate in the meeting and to vote on matters submitted to the Members, including an opportunity to read or hear the proceedings of the meeting concurrently with those proceedings, and (2) if any Members votes or takes other action at the meeting by means of electronic transmission to the Corporation or electronic video screen communication, a record of that vote or action is maintained by the Corporation. Any request by a corporation to a shareholder pursuant to clause California Corporations Code §20(b) for consent to conduct a meeting of the Members by electronic transmission by and to the Corporation shall include a notice that, absent consent of the Member pursuant to California Corporations Code §20(b), the meeting shall be held at a physical location in accordance with these Bylaws.
(d) Annual Meeting. An annual meeting of the Members shall be fixed by the Board of Directors. At the annual meeting, any proper business may be transacted, subject to applicable provisions of these Bylaws.
(e) Special Meetings. It shall be the duty of the President to call a special meeting of the Members if directed by the Board, or by a majority of the Executive Committee, or upon a petition signed by twenty percent (20%) of the Members and presented to the Secretary. The notice of any special meeting shall state the time and place of such meeting and the purpose thereof. No business shall be transacted at a special meeting except as stated in the notice.
(f) Notice Requirements for Members’ Meetings.
(1) General Notice Requirements. Whenever Members are required or permitted to take any action at a meeting, a written notice of the meeting shall be given, in accordance with Section 4.4(f)(3) of these Bylaws, to each Member entitled to vote at that meeting. The notice shall specify the place, date and hour of that meeting and, (1) for a special meeting, the general nature of the business to be transacted, and that no other business may be transacted, or (2) for the annual meeting, those matters that the Board, at the time notice is given, intends to present for action by the Members. Except as provided in Section 4.4(f)(2) of these Bylaws, any proper matter may be presented at the meeting.
(2) Notice of Certain Agenda Items. Approval by Members of any of the following proposals, if required by these Bylaws or otherwise required by law, other than by unanimous approval of those entitled to vote, is valid only if written notice or written waiver of notice states the general nature of the proposals:
(i) Removing a director without cause;
(ii) Amending the Articles of Incorporation;
(iii) Amending these Bylaws;
(iv) Electing to wind up and dissolve the Corporation;
(v) Approving a contract or transaction between the Corporation and one or more directors, or between the Corporation and any entity in which a director has a material financial interest; or
(vi) Approving a plan of distribution of assets, other than money, not in accordance with liquidation rights of any class or classes as specified in the Articles of Incorporation or Bylaws, when the Corporation is in the process of winding up.
(3) Manner of Giving Notice. Notice of any meeting of the Members shall be in writing and shall be given at least ten (10) but no more than ninety (90) days before the meeting date. The notice shall be given either personally, by electronic transmission by the Corporation, or by mail or other means of written communication, at the address of the Member appearing on the books of the Corporation or at the address given by the Member to the Corporation for purposes of notice. In addition, at the discretion of the Corporation, notice may be given by publication on the association website or in a national trade publication.
(a) Percentage Required. The presence, either in person or by proxy, of at least fifteen percent (15%) of the Members of record of the Corporation shall constitute a quorum for the transaction of business at any meeting of the Members held in accordance with the notice requirements of Section 4.5(f) of these Bylaws.
(b) Loss of Quorum. Subject to Section 4.5(f)(2) of these Bylaws, the Members present at a duly called or held meeting at which a quorum is present may continue to transact business until adjournment, even if enough Members have withdrawn to leave less than a quorum, if any action taken (other than adjournment) is approved by at least a majority of the Members required to constitute a quorum.
(a) Eligibility to Vote. Subject to the provisions of the California Nonprofit Mutual Benefit Corporation Law, Members entitled to vote at any meeting of the Members shall be those Active Members in good standing as of the record date determined in accordance with the California Nonprofit Mutual Benefit Corporation Law.
(b) Manner of Casting Votes. Voting may be by voice or by ballot, except that any election of directors must be by ballot if demanded by any Member at the meeting before the voting begins.
(c) Voting. There shall be one vote for each Member entitled to vote. The Members entitled to vote shall be entitled to cast a single vote for such Member on each matter submitted to a vote of the Members.
(d) Approval by a Majority Vote. If a quorum is present, the affirmative vote of a majority of the voting power represented at the meeting, entitled to vote and voting on any matter, shall be the act of the Members, unless otherwise required by law or by the Corporation’s Articles of Incorporation.
(e) Waiver of Notice or Consent by Absent Members.
(1) Written Waiver or Consent. The transactions of any meeting of the Members, however called or noticed and wherever held, shall be as valid as though taken at a meeting duly held after regular call and notice if (1) a quorum is present either in person or by proxy, and (2) either before or after the meeting, each Member entitled to vote, not present in person or proxy, signs a written waiver of notice, a consent to the holding of the meeting, or an approval of the minutes of the meeting. The waiver of notice, consent or approval need not specify either the business to be transacted or the purpose of any meeting of the Members, except that if an action is taken or proposed to be taken for approval of any of those matters specified in Section 4.5(f)(2) of these Bylaws, the waiver of notice, consent, or approval shall state the general nature of the proposal. All such waivers, consents, or approvals shall be filed with the corporate records or made a part of the minutes of the meeting.
(2) Waiver by Attendance. Attendance at a meeting shall also constitute waiver of notice of and presence at that meeting, unless the Members object at the beginning of the meeting to the transaction of any business because the meeting was not lawfully called or conveyed. Also, attendance at a meeting is not a waiver of any right to object to the consideration of matters required to be included in the notice of the meeting but not so included, if that objection is expressly made at the meeting.
(f) Action by Written Ballot. Any action which may be taken at a regular or special meeting of the Members may be taken without a meeting if the Corporation distributes a written ballot to every Member entitled to vote on the matter. If approved by the Board, such written ballot and any related material may be sent by electronic transmission to the Corporation. The ballot shall set forth the proposed action, provide an opportunity to specify approval or disapproval of any proposal, and provide a reasonable time within which to return the ballot to the Corporation. Approval by written ballot pursuant to this Section shall be valid when the number of votes cast by ballot within the time period specified equals or exceeds the quorum required to be present at a meeting authorizing the action, and the number of approvals equals or exceeds the number of votes that would be required to approve at a meeting at which the total number of votes cast was the same of the number of votes by ballot without a meeting. Ballots shall be solicited in a manner consistent with the notice requirements of Section 4.5(f) of these Bylaws. Directors may be elected by written ballot under this Section 4.7(f).
(a) Rights of Members. Each Member entitled to vote shall have the right to do so either in person or by one or more agents authorized by a written proxy, signed by the person and filed with the Secretary of the Corporation. A proxy shall be deemed signed if the Member’s name is placed on the proxy, (whether by manual signature, typewriting, telegraphic transmission, or otherwise) by the Member or the Member’s attorney in fact.
(b) Requirement that General Nature of Subject of the Proxy be Stated. Any proxy covering matters for which a vote of the Members is required shall not be valid unless the proxy sets forth the general nature of the matter to be voted on or, with respect to an election of directors, the proxy lists those who have been nominated at the time the notice of the vote is given to the Members.
(c) Revocability. A validly executed proxy that does not state that it is irrevocable shall continue in full force and effect until (a) revoked by the Member executing it, before the vote cast pursuant to that proxy, (i) by a writing delivered to the Corporation stating that the proxy is revoked, or (ii) by a subsequent proxy executed by such Member and presented to the meeting, or (iii) by personal attendance and voting at a meeting by such Member, or (2) written notice of the death or incapacity of the maker of the proxy is received by the Corporation before the vote under that proxy is counted; provided, however, that no proxy shall be valid after the meeting for which the proxy is intended. The revocability of a proxy that states, on its face, that it is irrevocable shall be governed by the provisions of the California Nonprofit Mutual Benefit Corporation Law.
(d) Form of Solicited Proxies. In any election of Directors, any form of proxy that is marked by a Member “withhold,” or otherwise marked in a manner indicating that the authority to vote for the election of Directors is withheld, shall not be voted either for or against the election of a Director. Failure to comply with this Section 4.8(d) shall not invalidate any corporate election taken but may be the basis for challenging the proxy at a meeting.
5.1 GENERAL AND SPECIFIC POWERS OF BOARD
(a) General Powers. Subject to the provisions of the California Nonprofit Mutual Benefit Corporation Law, and subject to any limitations in the Corporation’s Articles of Incorporation, or other limitations contained in these Bylaws, 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 Directors.
(b) Specific Powers. Without prejudice to these general powers set forth in Section 5.1(a) of these Bylaws, and subject to the same limitations, the Directors shall have the power to:
(i) Select, appoint, and remove all corporate officers, agents, and employees of the Corporation; prescribe any powers and duties for them that are consistent with law, with the Articles of Incorporation, and with these Bylaws; and fix their compensation;
(ii) Change the principal office in the State of California from one location to another; cause the Corporation to be qualified to do business in any other state, territory, dependency, or country and conduct business within or outside the State of California; and conduct its activities in or outside the State of California, including the holding of any Members’ meeting; and,
(iii) To make disbursements from the funds and properties of the Corporation as are required to fulfill its Purpose and generally to make rules and regulations not inconsistent with the law, with the Articles of Incorporation, or with these Bylaws, as they may deem best.
(iv) Borrow money and incur indebtedness on behalf of the Corporation and cause to be executed and delivered for the Corporation’s purposes, in the corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations, and other evidences of debt and securities.
5.2 NUMBER AND QUALIFICATIONS OF DIRECTORS
(a) Number and Qualifications: The Board shall consist of not less than twelve (12) nor more than twenty (20) directors, each of whom shall be Members of the Corporation, unless changed by amendment to these Bylaws. Preferably, the Board of Directors shall be composed of at least two (2) Members representing automobile manufacturers or manufacturer captive finance companies, at least two (2) Members representing financial institutions, at least four (4) Members representing fleet/lease, daily rental companies or remarketing services, and at least two (2) Members representing vendors, suppliers, auctions, or affiliated companies to the remarketing industry. Among all Directors, at least two (2) Directors are to be from Canadian entities. Recognizing that the Corporation is an organization of and for consignors of automobiles in the remarketing industry, a determined effort by the Board members shall be made to maintain a simple majority of the Board members as such.
(b) Past President. The past President of the Corporation, upon the end of his term, may become the Chair of the Board for a period of up to two years in order to provide continuity, head up special projects, provide guidance and advice, and finish work in progress. After a two-year term as Chair, this person returns to regular membership whereby he or she may run for a vacant Board seat, or be appointed to a vacant Board seat, as set forth in these Bylaws.
5.3 ELECTION OF DIRECTORS.
(a) Method. Election of Directors may be held at the annual meeting of the Members, at any special meeting of the Members held for that purpose, or by written ballot pursuant to these Bylaws. Each Director, including a director elected to fill a vacancy or elected at a special meeting of the Members or by written ballot, shall hold office until expiration of the term for which elected or until a successor is elected and qualified.
(b) Designated Directors. At least two Directors within the range specified in Section 5.2 (a) and (b), may be designated by the Board of Directors (each a “Designated Director”). The Designated Directors shall be those individuals who the Board has determined will be in the Presidential rotation, provided that those individuals in the presidential rotation have served at least one year on the Board.
5.4 TERMS ON BOARD. The Directors, other than Designated Directors, shall serve terms of three (3) years each. The term of each Designated Director shall be consistent with the term of his or her presidential rotation.
5.5 VACANCIES ON THE BOARD.
(a) Events causing Vacancies on the Board. A vacancy or vacancies on the Board shall occur in the event of: (i) the death, removal, or resignation of any director; (ii) the declaration by Board resolution of a vacancy in the office of a director who has been declared of unsound mind by a court order, convicted of a felony, or, if the Corporation holds assets in charitable trust, found by a final order or judgment of any court to have breached a duty arising under California law; (iii) an increase in the number of directors; (iv) a failure of the Members, at any meeting of the Members at which any director or directors are required to be elected, to elect the number of directors required to be elected at that meeting.
(b) Removal of Directors. At any regular or special meeting duly called in accordance with the notice requirements in Section 4.5(f) above, any one or more of the directors elected by the Members may be removed by approval of the Members. Any director whose removal has been proposed shall be given an opportunity to be heard at the meeting at which the director’s removal will be voted upon by the Members.
(c) Filling Vacancies on the Board. Vacancies on the Board may be filled by approval of the Board or, if the number of directors then in office is less than a quorum, by (i) the unanimous written consent of the directors then in office; (ii) the affirmative vote of a majority of directors then in office at a meeting held pursuant to notice or waivers of notice complying with California law.
5.6 MEETINGS OF THE BOARD
(a) Place of Board Meetings. Meetings of the Board shall be held at any place as designated by the Board or in the notice of the meeting or, if not so designated, at the principal office of the Corporation.
(b) Meetings by Telephone or Other Telecommunications Equipment. Any meeting of the Board may be held by conference telephone, video screen communication or other communications equipment. Participation in the meeting under this Section 5.6(b) shall constitute a presence in person at the meeting if all the following apply:
(1) Each director participating in the meeting can communicate concurrently with all other directors;
(2) Each director is provided the means of participating in all matters before the Board, including the capacity to propose, or to interpose an objection to, a specific action to be taken by the Corporation;
(3) The Board has adopted and implemented a means of verifying both of the following:
(a) A person participating in the meeting is a director or other person entitled to participate in the Board meeting; and
(b) All actions or votes by the Board are taken or cast only by the directors and not by persons who are not directors.
(c) Regular Meetings.
(1) A regular meeting of the Board of Directors shall be held at such time and place as the Board may fix from time to time. Notice of regular meetings of the Board of Directors shall be given to each Director personally or by mail, electronic mail or telephone at least ten (10) days prior to the day named for such meeting.
(2) Directors are expected to attend at least four of every six regular meetings of the Board meetings. In the event a director misses three of six consecutive regular Board meetings, the President will cause a letter to be sent to said Board member to ascertain their ability to meet the required Board meeting attendance as stated above. If a director misses a fourth meeting out of the previous six meetings, the director shall be considered to have resigned from the Board unless such absence or absences are authorized by a majority of the Board of Directors.
(d) Special Meetings.
(1) Authority to Call Special Meetings. Special meetings of the Board for any purpose may be called at any time by the President, any Vice President, the Secretary or by any two directors.
(2) Notice of Special Meetings. Notice of such meetings shall be given to each director by (1) personal delivery of written notice; (ii) first class mail, postage prepaid; (iii) telephone, including a voice messaging system; (iv) facsimile; (v) electronic mail; or (vii) other electronic means. All such notices shall be given or sent to the director’s address or telephone number as shown on the Corporation’s records. Notices sent by first class mail shall be deposited in the mail at least four (4) days before the time set for the meeting. Notices given by personal delivery, or electronic mail shall be delivered, telephoned or sent, respectively, at least forty-eight (48) hours before the time set for the meeting. Such notice shall state the time of the meeting and place of the meeting.
(e) Waiver of Notice. Before or after any meeting of the Board, any Director may, in writing, waive notice of such meeting and such waiver shall be deemed equivalent to the giving of such notice. The waiver of notice or consent need not specify the purpose of the meeting. Attendance by a Director at any meeting of the Board shall constitute waiver of notice by that Director of the time and place thereof. If all the Directors are either present at any meeting of the Board or have waived notice for said meeting, no notice shall be required, and any business may be transacted at such meeting. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meetings.
(f) Quorum. At all meetings of the Board, a majority of the authorized number of directors shall constitute a quorum for the transaction of business, and the acts of the majority of the directors present at a meeting at which a quorum is present shall be the acts of the Board. If, at any meeting of the Board of Directors, there be less than a quorum present, the majority of those present may adjourn the meeting to another time or place. Directors who are employees of a Member may be represented at meetings of the Board in person or by proxy through other employees of the Member. Proxy representatives do not relieve board members from the minimum attendance requirements in Section 5.6(c)(2). If the meeting is adjourned for more than twenty-four (24) hours, notice of the adjournment to another time or place shall be given prior to the time of the adjourned meeting to the directors who were not present at the time of the adjournment.
5.7 ACTION WITHOUT A MEETING. Any action that the Board is required or permitted to take may be taken without a meeting if all Directors consent in writing to the action. Such action by written consent shall have the same force and effect as any other validly approved Board action. All such consents shall be filed with the minutes of the proceedings of the Board.
5.8 COMPENSATION AND REIMBURSEMENT. No compensation shall be paid to Directors for their services as directors. A director or officer may receive reimbursement for such actual expenses incurred as may be determined by resolution of the Board or Executive Committee to be just and reasonable as to the Corporation at the time that the resolution is adapted.
5.9 COMMITTEES OF THE BOARD.
(a) Creation and Power of Committees. The Board, by resolution adopted by a majority of the directors then in office, may create one or more committees, including the Executive Committee, each consisting of two or more directors to serve at the pleasure of the Board. Appointments to committees of the Board shall be by a majority vote of the directors then in office. The Board may appoint one or more directors as alternate directors of any such committee. Any such committees shall have all the authority of the Board to the extent provided in the resolution of the Board, but no committee, regardless of Board resolution, may:
(1) Take any final action on matters which, under the California Nonprofit Mutual Benefit Corporation law of California, also requires Members’ approval or approval of a majority of all members; or,
(2) Fill vacancies on the Board or any committee; or,
(3) Amend or repeal these Bylaws, or adopt new Bylaws; or,
(4) Amend or repeal any resolution of the Board which by its express terms is not so amendable or repealable; or,
(5) Create any other committees of the Board or appoint members of those committees; or,
(6) Expend corporate funds to support a nominee for director; or,
(7) Approve any transaction (a) to which the Corporation is a party and one or more directors have a material financial interest; or (b) between the Corporation and one or more of its directors or between the Corporation or any person in which one or more of its directors have a material financial interest.
(b) Meetings and Action of Committees. Meetings and actions of committees of the Board shall be governed by, held and taken in accordance with, the provisions of these Bylaws concerning meetings and other Board actions, with such changes in the context of those provisions as are necessary to substitute the committee and its members for the Board and its members, except that the time for general meetings of such committees may be determined either by resolution of the Board or, if none, by resolution of the committee. Special meetings of committees may also be called by resolution of the Board. Notice of special meetings of committees shall also be given to any and all alternate members, who shall have the right to attend all meetings of the committee. Minutes shall be kept of each meeting of any committee and shall be filed with the corporate records. The Board may adopt rules for the governance of any committee not inconsistent with the provisions of these Bylaws.
(c) Executive Committee. The officers of the Corporation shall constitute the Executive Committee, which shall have, and may exercise between meetings of the Board, all the powers, rights and duties of the Board, provided that amendment of these Bylaws, the naming or removal of officers, and the naming of additional directors shall be reserved exclusively to the Board or to the Members as provided in these Bylaws. The Executive Committee shall consist of at least three (3) Officers. The Executive Committee shall not take action without quorum of a majority of its members and shall keep minutes of each meeting.
5.10 ADVISORY COMMITTEES. From time to time, the Corporation may have advisory committees that do not serve at the pleasure of the Board and shall not be considered committees of the Board as described in Section 5.9 above. While such advisory committees may provide recommendations to the Board and Members on various matters, including the nomination of officers and directors, they do not have the authority to vote or make decisions for the Corporation.
ARTICLE VI: OFFICERS
6.1 DESIGNATION. The officers of the Corporation shall be a Chair of the Board, a President, a First Vice President, a Second Vice President, a Secretary, a Treasurer and the Executive Director. In addition, the Corporation may, but shall not be required to have Assistant Treasurers, Assistant Secretaries, and such other officers as in the judgment of the Board may be necessary.
6.2 ELECTION OF OFFICERS. The officers of the Corporation shall be elected by the Board as vacancies occur, or as their respective terms expire if they are also Directors. All Officers shall hold office at the pleasure of the Board. Any officer elected to the presidential rotation must primarily be a remarketer of vehicles.
6.3 REMOVAL OF OFFICERS. Upon an affirmative vote of a majority of the members of the Board, any officer may be removed, either with or without cause, and a successor elected at any regular meeting of the Board, or at any special meeting of the Board called for such purpose.
6.4 RESIGNATION OF OFFICERS. Any officer may resign at any time by giving written notice to the Board. 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 right, if any, of the Corporation under any contract to which the officer is a party.
6.5 VACANCIES IN OFFICES. A vacancy in any office because of death, resignation, removal, disqualification, or any other cause shall be filled only in the manner prescribed in these Bylaws for regular appointments to that office.
6.6 RESPONSIBILITIES OF OFFICERS:
The President may utilize the Executive Committee as an ad hoc nominating committee for presidential appointments, awards, or other presidential appointments. The President shall preside at all Members’ meetings and at all Board meetings. The President shall have such other powers and duties as the Board, or these Bylaws, may require.
(b) Vice Presidents. The First Vice President shall take the place of the President and perform those duties whenever the President shall be absent or unable to act. If neither the President nor the First Vice President can act, the Second Vice President shall take the place of the President and perform those duties. If neither the President, the First Vice President, nor the Second Vice President, can act, the Board of Directors shall appoint another board member to serve as an interim President. All Vice Presidents shall perform such duties as shall from time to time be imposed upon them by the President and the Board. In the absence of an Executive Director, the Board may appoint a Vice President who shall be charged with the management of the daily affairs of the Corporation.
(c) Secretary. The Secretary shall keep the minutes of all meetings of the Board of Directors and the minutes of all the meetings of the Members of the Corporation, have the custody of the seal of the Corporation, have charge of the membership transfer books and of such other books and papers as the Board of Directors may direct, and generally perform all duties incident to the office of Secretary.
(d) Treasurer. The Treasurer shall have the responsibility for corporate funds and securities and shall be responsible for keeping full and accurate accounts of all receipts and disbursements in books belonging to the Corporation. The Treasurer shall also be responsible for the management of all bank accounts and other valuable effects in the name, and for matters of credit, of the Corporation in such depositories as may from time to time be designated by the Board or Executive Committee.
(e) Executive Director. The Board may appoint an Executive Director to hold office at its pleasure and to act as the chief executive of the Corporation for day-to-day matters not requiring Board approval. The Executive Director’s specific duties, and compensation, shall be set forth by the Board of Directors or the Executive Committee. The Executive Director shall have day-to-day authority and responsibility for supervising the management, administration, employees and contractors of the Corporation, and the operations of the Corporation, as well as for implementing the decisions of the Board. The Executive Director shall report directly to the President and shall be responsible to the Executive Committee.
ARTICLE VII: CONTRACTS WTH DIRECTORS AND OFFICERS
No director of the Corporation nor any other corporation, firm, association, or other entity in which one or more of the Corporation’s directors have a material, financial interest, shall be interested, directly or indirectly, in any contract or other transaction with the Corporation, unless the material facts regarding such director’s financial interest in such contract or transaction or regarding such common directorship, officership, or financial interest are fully disclosed in good faith and are noted in the minutes or are known to all directors before consideration by the Board of such contract or transaction, as such contract or transaction is authorized in good faith by a majority of the Board by a vote sufficient for that purpose without counting the vote of the interested director.
ARTICLE VIII: LOANS TO DIRECTORS AND OFFICERS
The Corporation shall not lend any money or property to, or guaranty the obligation of, any director or officer of the Corporation or its parent, affiliate, or subsidiary, unless (i) the Board decides that the loan or guaranty may reasonably be expected to benefit the Corporation; and (ii) before consummating the transaction or any part of it, the loan or guaranty is approved by the vote of a majority of the directors then in office, without counting the vote of the director who is to receive the loan or guaranty.
ARTICLE IX: INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS
9.1 DEFINITIONS. For the purpose of this Article IX:
(a) “Agent” means any person who is or was a director, officer, employee, executive director 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, executive director 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.
(b) “Proceeding” means any threatened, pending, or completed action or proceeding, whether civil, criminal, administrative, or investigative; and
(c) “Expenses” includes, without limitation, all attorneys’ fees, costs, and any other expenses actually and reasonably incurred by Agent in the defense of any claims or Proceedings by reason of his position or relationship as Agent and all attorneys’ fees, costs, and other expenses incurred in establishing a right to indemnification under this Article IX.
9.2 SUCCESSFUL DEFENSE BY AGENT. To the extent that an Agent of the Corporation has been successful on the merits in the defense of any Proceeding referred to in this Article IX, 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. If an Agent either settles any such claim or sustains a judgment rendered against him, then the provisions of Sections 9.3 through 9.5 5 shall determine whether the Agent is entitled to indemnification.
9.3 ACTIONS BROUGHT BY PERSONS OTHER THAN THE CORPORATION. Subject to the required findings to be made pursuant to Section 9.5, below, the Corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any Proceeding other than an action brought by, or on behalf of, the Corporation, or by an officer, director or person granted related 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 California Nonprofit Corporation Law Section 5233, or by the Attorney General or a person granted related status by the Attorney General for any breach of duty relating to assets held in charitable trust, by reason of the fact that such person is or was an Agent of the Corporation, for all Expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with the Proceeding.
9.4 ACTION BROUGHT BY OR ON BEHALF OF THE CORPORATION.
(a) Claims settled out of court. If any agent settles or otherwise disposes of a threatened or pending action brought by or on behalf of this Corporation, with or without court approval, the agent shall receive no indemnification for either amounts paid pursuant to the terms of the settlement or other disposition or for any expenses incurred in defending against the proceeding unless it settled with approval of the Attorney General.
(b) Claims and suits awarded against Agent. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action brought by or on behalf of the Corporation by reason of the fact that the person is or was an Agent of this Corporation, for all expenses actually and reasonably incurred in connection with the defense of that action, provided that both of the following are met:
(i) The determination of good faith conduct required by Section 9.5, below, must be made in the manner provided for in that Section; and,
(ii) Upon application, the court in which the action was brought must determine that, in view of all the circumstances of the case, the Agent should be entitled to indemnification 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.
9.5 DETERMINATION OF AGENT’S GOOD FAITH CONDUCT. The indemnification granted to an agent in Sections 9.3 and 9.4 of these Bylaws is conditioned on the following:
(a) Required Standard of Conduct. The Agent seeking reimbursement must be found, in the manner provided below, to have acted in good faith, in a manner s/he 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 in similar circumstances. 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 which s/he reasonably believed to be in the best interest of the Corporation or that s/he had reasonable cause to believe that his/her conduct was unlawful. In the case of a criminal proceeding, the person must have had no reasonable cause to believe that his/her conduct was unlawful.
(b) Manner of Determination of Good Faith Conduct. The determination that the Agent did act in a manner complying with Section 9.5(a) of these Bylaws shall be made by:
(i) the Board by a majority vote of a quorum consisting of directors who are not parties to the Proceeding; or,
(ii) the affirmative vote of a majority of the votes represented and voting at a duly held meeting of Members at which a quorum is present (which affirmative votes also constitute a majority of the required quorum), with the person to be indemnified not being entitled to vote thereon; or,
(iii) 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.
9.6 LIMITATIONS. No indemnification or advance shall be made under this Article, except as provided in Sections 9.2 or 9.5(b)(iii), in any circumstance when it appears:
(a) That the indemnification or advance would be inconsistent with a provision of the Articles of Incorporation, these Bylaws, a resolution of the Board, 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.
9.7 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 IX.
9.8 CONTRACTUAL RIGHTS OF NON-DIRECTORS AND NON-OFFICERS. Nothing contained in this Article IX shall affect any right to indemnification to which persons other than directors and officers of the Corporation, or any subsidiary hereof, may be entitled by contract or otherwise.
9.9 INSURANCE. The Board may adopt a resolution authorizing the purchase and maintenance of insurance on behalf of any agent of the Corporation against any liability asserted against or incurred by the 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 that liability under the provisions of this Article IX.
9.10 FIDUCIARIES OR CORPORATE EMPLOYEE BENEFIT PLAN. This Article IX does not apply to any proceeding against any trustee, investment manager, or other fiduciary of an employee benefit plan in that person’s capacity as such, even though that person may also be an Agent of the Corporation as defined in Section 9.1 of this Article IX. Nothing contained in this Article IX shall limit any right to indemnification to which such a trustee, investment manager, or other fiduciary may be entitled by contract or otherwise, which shall be enforceable to the extent permitted by applicable law.
ARTICLE X: MAINTENANCE OF CORPORATE RECORDS
The Corporation shall keep adequate and correct books and records of accounts, written minutes of the proceedings of the Members, the Board and committees of the Board, and a record of each Member’s and director’s name and address.
ARTICLE XI: INSPECTION RIGHTS
11.1 INSPECTION BY MEMBER.
(a) Books and Records. The accounting books and records and minutes of proceedings of the Members and the Board and committees of the Board shall be open to inspection upon written demand on the Corporation of any Active Member at any reasonable time, for a purpose reasonably related to such person’s interests as an Active Member. Such inspection may be made in person or by an agent or attorney and the right of inspection includes the right to make copies and extracts.
(b) Membership Records. Subject to California Corporations Code §8330, and unless the Corporation provides a reasonable alternative as provided below, an Active Member may do either or both of the following for a purpose reasonably related to the Active Member’s interest as an Active Member:
(1) Inspect and copy the records of all Members’ names, addresses, and voting rights, at reasonable times, upon five (5) business days prior written demand upon the Corporation which demand shall state the purpose for which the inspection rights are requested; or
(2) Obtain from the Secretary of the Corporation, upon written demand and tender of a reasonable charge, a list of names, addresses, and voting rights of those Members entitled to vote for the election of directors, as of the most recent record date for which it has been compiled or as of the date specified by the Active Member subsequent to the date of demand. The demand shall state the purpose for which the list if requested. The membership list shall be made available on or before the later of ten (10) business days after the demand is received or after the date specified therein as the date as of which the list is to be compiled.
The Corporation may, within ten (10) business days after receiving a demand under this Section 11.1(b), make a written offer of an alternative method of reasonable and timely achievement of the proper purpose specified in the demand without providing access or a copy of the membership list. Any rejection of the offer shall be in writing and shall indicate the reasons the alternative proposed by the Corporation does not meet the proper purpose of the demand.
11.2 INSPECTION BY DIRECTOR. Every director shall have the absolute right at any reasonable time to inspect and copy all books, records and documents of every kind and to inspect the physical properties of the Corporation of which such person is a director. Such inspection may be made in person or by agent or attorney and the right of inspection includes the right to copy and make extracts.
ARTICLE XII: REQUIRED REPORTS
The Board shall cause and annual report to be prepared within 120 days after the end of Corporation’s fiscal year.
ARTICLE XIII: MISCELLANEOUS PROVISIONS
13.1 FISCAL YEAR. The fiscal year of the Corporation shall begin on January 1 and end on December 31.
13.2 AMENDMENT OF BYLAWS. These Bylaws, or any part thereof, may be amended or repealed, or new bylaws adopted, by approval of the Board and, if required by the California Nonprofit Mutual Benefit Corporation Law, by approval of the Members entitled to vote. Any provision of these Bylaws that requires the vote of a larger proportion of the Members than otherwise is required by law may not be altered, amended, or repealed except by the vote of the greater number.
13.3 SEVERABILITY. Any provision of these Bylaws which may be prohibited by law or otherwise be held invalid shall be ineffective only to the extent of such prohibition or invalidity and shall not invalidate or otherwise render ineffective any or all remaining provisions of these Bylaws.