(a California Nonprofit Public Benefit Corporation)
Amended and rectified on May 1, 2008
OFFICES AND FISCAL YEAR
Section 1.1 Registered Office. The registered office of The BayHelix Group (“BayHelix”) in the State of California shall be located at 268 Bush Street, #3846, San Francisco, CA 94104.
Section 1.2 Fiscal Year. The fiscal year of BayHelix shall end on the 31st of December in each year.
Section 2.1 Membership. BayHelix shall have one class of members. An individual may become a member of BayHelix upon referral by two (2) members and approval by the Membership Committee. The Membership Committee may establish and amend from time to time the criteria for admitting members (the “Membership Criteria”), which criteria shall become effective upon approval by a majority vote of the entire Board of Directors. Members shall be individuals only and no organization may be admitted as a member.
Section 2.2 Voting Right. Each member in good standing shall be entitled to one vote in person or by proxy on each matter submitted to a vote of the membership.
Section 2.3 Duty. Each member shall pay membership fee to the Treasurer. The amount of membership fee and payment procedures thereof shall be determined and adjusted from time to time by the Board of Directors. Each member shall abide by the Bylaws and the Membership Criteria.
Section 2.4 Membership Not Transferable or Assignable. A member may not assign or transfer his/her membership.
Section 2.5 Termination of Membership. Membership is terminated upon a member’s death, resignation or removal. Any member may resign at any time by giving a written notice to the Membership Committee and such resignation shall take effect at the time specified therein or, if no time is specified, at the time of acceptance thereof. A member may be removed for cause if such removal is proposed by the Membership Committee, approved by a majority vote of the entire Board of Directors and conducted in accordance with Section 5341 of the Nonprofit Corporation Law of the State of California (“NCL”). The cause may include, but is not limited to, conviction of a crime, failure to pay the membership fee, and failure to comply with the Bylaws or the Membership Criteria.
MEETINGS OF MEMBERS
Section 3.1 Place of Meetings. Meetings of the members shall be held at any place designated by the Board of Directors.
Section 3.2 Regular Meetings. A regular meeting of the members shall be held every two years for the purpose of electing Directors pursuant to Section 4.6 of these Bylaws and transacting any other proper business which may be brought before the meeting.
Section 3.3 Special Meetings. A special meeting of the members may be called at any time by the Board of Directors, the chairperson or at least ten (10) members.
Section 3.4 Calling Meetings by Members. If a special meeting is called by members other than the chairperson, the request shall be submitted by such members in writing, specifying the general nature of the business proposed to be transacted, and shall be delivered personally or by registered mail to the Secretary General of BayHelix. The Secretary General shall cause notice to be promptly given to the voting members, in accordance with Section 3.5 and Section 3.6. If the notice is not given within twenty (20) days after the Secretary General’s receipt of the request, the members requesting the meeting may give the notice.
Section 3.5 Notice Requirements. Whenever members are required or permitted to take any action at a meeting, a written notice of the meeting shall be given to each member entitled to vote at such meeting. The notice shall specify the place, date and time of the meeting, and the general nature of the business to be transacted.
Section 3.6 Manner of Giving Notice. Notice of any meeting of members shall be given not less than ten (10) nor more than ninety (90) days before the date of the meeting. The notice shall be given either personally, or by facsimile or electronic mail transmission, or registered or certified mail, or by other means of written communication, and shall be addressed to each member at the address of such member appearing on the books of BayHelix or given by the member to BayHelix for purpose of notice.
Section 3.7 Quorum and Voting. One-sixth (1/6) of the members, represented in person or by proxy, shall constitute a quorum at a meeting of members. If a quorum is present, the affirmative vote of the majority of the voting power represented at the meeting shall be the act of the members, unless the vote of a greater number or voting by classes is required by the NCL. The members present at a duly called and held meeting at which a quorum is present may continue to transact business until adjournment notwithstanding the withdrawal of enough members 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. Voting may be by voice or ballot, provided that any election of directors must be by ballot.
Section 3.8 Adjournment. In the absence of a quorum, any meeting of members may be adjourned from time to time by the vote of a majority of the voting members represented either in person or by proxy at the meeting.
Section 3.9 Waiver of Notice. Attendance by a member at a meeting shall constitute a waiver of notice of that meeting, except when the member objects at the beginning of the meeting to the transaction of any business due to the inadequacy or illegality of the notice. Attendance at a meeting shall not constitute a waiver of any right to object to the consideration of any matters not included in the notice of the meeting, if that objection is expressly made at the meeting.
Section 3.10 Action by Written Ballot. Any action which may be taken at any regular or special meeting of members may be taken without a meeting if a written ballot is distributed to every member entitled to vote on the matter.
(a) The ballot and any related material may be sent by electronic transmission by BayHelix and responses may be returned by electronic transmission to BayHelix. 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.
(b) Approval by written ballot pursuant to this section shall be valid only 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 as the number of votes cast by ballot.
(c) Ballots shall be solicited in a manner consistent with the requirements of Section 3.6. All such solicitations shall indicate the number of responses needed to meet the quorum requirement and, with respect to ballots other than for the election of directors, shall state the percentage of approvals necessary to pass the measure submitted. The solicitation must specify the time by which the ballot must be received in order to be counted.
(d) No written ballot may be revoked after it is delivered to BayHelix.
(e) All written ballots shall be filed with the Secretary General of BayHelix and maintained in BayHelix’ records.
(f) Failure to comply with this section shall not invalidate any corporate action taken, but may be the basis for challenging any written ballot and the superior court may compel compliance therewith at the suit of any member.
Section 3.11 Record Date for Notice, Voting, Written Ballots, and Other Actions. The record date for determining members entitled
(a) to received notice of a meeting of members shall be the business day next preceding the day on which notice is given,
(b) to vote at the meeting shall be the day on which the meeting is held,
(c) to vote by written ballot shall be the day on which the first written ballot is mailed or solicited, and
(d) to exercise any rights with respect to any other lawful action shall be the date on which the Board adopts the resolution relating to that action, or the 60th day before the date of that action, whichever is later. For the purposes of this section, a person that has been approved and remains as a member at the close of business on the record date shall be a member of record.
Section 3.12 Proxies. 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 member and filed with the Secretary General of BayHelix. A validly executed proxy shall continue in full force and effect until revoked by the member executing it before the vote is cast under that proxy, by a subsequent writing delivered to the Secretary General stating that the proxy is revoked, by a subsequent proxy executed by that member and filed with the Secretary General, or by the member’s personal attendance and voting at the meeting; provided, however, that no proxy shall be valid after the expiration of eleven (11) months from the date of the proxy, unless otherwise provided in the proxy, except that the maximum term of a proxy shall be three years from the date of execution.
THE BOARD OF DIRECTORS
Section 4.1 Power. Subject to the provisions of law or any limitations in the Articles of Incorporation or these Bylaws, the business and affairs of BayHelix shall be managed and all corporate powers shall be exercised, by or under the direction of the Board of Directors. The Board of Directors may delegate the management of the day-to-day operation of the business of BayHelix to the Officers or other person, provided that the business and affairs of BayHelix shall be managed and all corporate powers shall be exercised under the ultimate direction of the Board of Directors.
Section 4.2 Assembly. The Board of Directors shall consist of members in good standing elected by the membership of BayHelix.
Section 4.3 Number. The number of directors shall be five (5) or may be fixed from time to time by a resolution adopted by a majority vote of the entire Board of Directors then in office, but in no event may there be less than three (3) directors or more than seven (7) directors.
Section 4.4 Quorum. At each meeting of the Board, three (3) directors or fifty percent (50%) of all directors, whichever is higher, shall constitute a quorum for a board decision. If a quorum is not present at any meeting of the Board of Directors, a majority of the directors present may adjourn the meeting without notice other than an announcement at the meeting, until such a quorum is present.
Section 4.5 Board Decision. Unless explicitly stated herein, the vote of a majority of the directors present at any board meeting at which there is a quorum shall be the act of the Board of Directors.
Section 4.6 Election. The Board shall form a committee which shall be responsible for handling nomination of directorship candidates (the “Nomination Committee”) by appointing at least two members who are not then seeking election. A candidate for directorship shall be a member in good standing, be nominated by the Nomination Committee or by at least five other members in good standing. Each candidate shall submit to the Nomination Committee his/her election statements, which statement shall include, among other requirements that may be set by the Nomination Committee, a description of such candidate’s past contribution to BayHelix. The Nomination Committee shall release the list of candidates and their election statements to the entire membership prior to the election. The election shall be conducted at the regular or special membership meeting by ballot. The candidates receiving the highest number of ballots shall be elected. The ballot shall be recorded by the Nomination Committee, confirmed by the Board of Directors, and the Directors elected for the subsequent term shall be officially declared. All other logistic aspects of the elections may be managed by the Nomination Committee in accordance with these Bylaws and the NCL.
Section 4.7 Chairperson. Chairperson of BayHelix shall be a Director and elected by the majority of Directors. Chairperson shall direct board meetings, manage Officers of BayHelix, present an annual report to BayHelix, and represent BayHelix in dealing with external affairs.
Section 4.8 Term. Each Director, including a Director elected or appointed to fill a vacancy, shall hold office either until the next regular meeting and until a successor has been elected and qualified, or until his death, resignation or removal. A Director may hold more than one term, provided however, in no event may a Director hold Directorship for more than two (2) consecutive terms.
Section 4.9 Resignation. Any Director may resign at any time by giving written notice to the Board of Directors. Such resignation shall take effect at the time specified therein or, if no time is specified, at the time of acceptance thereof as determined by the Board of Directors.
Section 4.10 Removal. A Director may be removed only for cause by motion proposed to the Board of Directors through a member. The removal shall become effective upon approval by a majority vote of the entire Board of Directors as well as by two-thirds (2/3) of the members that constitute a quorum.
Section 4.11 Vacancy. A vacancy or vacancies on the Board of Directors shall be deemed to exist in case of the death, resignation or removal of any director, or upon increase in the authorized number of directors or if membership fail to elect the full authorized number of directors at a regular or special meeting of members or if, for whatever reason, there are fewer directors on the Board of Directors, than the full number authorized. Such vacancy or vacancies may be filled by a majority of the remaining directors, though less than a quorum, or by a sole remaining director.
EXECUTIVE COMMITTEES AND OFFICERS
Section 5.1 Executive Committees. Executive Committees of BayHelix shall consist of Membership Committee, Nomination Committee and such other executive committees as the Board of Directors may establish from time to time by resolution adopted by a majority of the entire Board then in office.
Section 5.2 Officers. The Officers of BayHelix shall consist of the Chairman of the Board of Directors, a Secretary General, a Treasurer, Executive Directors for each Executive Committee, and such other Officers as the Board of Directors may determine from time to time by resolution adopted by a majority of the entire Board then in office. All Officers shall report to the Chairperson and subject to the supervision and direction of the Board of Directors.
Section 5.3 Functions of Officers. The objectives of all Officers are to promote BayHelix, advance the interests of members, and implement the mission of BayHelix under the guidance and leadership of the Board of Directors.
(a) Executive Director of Membership Committee shall establish, amend, and implement the Rules for Membership Application, Membership Criteria, Membership Removal; screen and select candidates for membership; and remove members for cause.
(b) Executive Director of Nomination Committee shall manage the nomination process, establish and implement the Rules for Election and coordinate the election process of Directors of BayHelix.
(c) The Secretary General shall keep all written records of BayHelix, especially the Secretary General shall serve notices of BayHelix or BayHelix meetings; serve and record ballot; keep the minutes of all meetings of the Board in books to be kept for that purpose; keep official correspondence of the Board and perform all duties incidental to the office of Secretary General and any other duties assigned by the Board.
(d) The Treasurer shall keep or supervise the keeping of complete and accurate accounts of receipts and disbursements of BayHelix and shall deposit all funds of BayHelix in the name and to the credit of BayHelix in the banks or other depositories chosen by the Board. When requested by the Board, the Treasurer shall exhibit the books and accounts to the Board, and shall perform any other duties assigned by the Board. At the end of each term of the Board, the Treasurer, together with the Chairperson, shall present a report to the entire membership showing the balance sheet and cash flow of BayHelix during such term.
Section 5.4 Approval of Rules. The rules or amendments thereof set forth by each Executive Committee or Officer shall be presented to the Board by the Executive Director of such committee and shall become effective upon the approval by a majority of the entire Board.
Section 5.5 Appointment. Each Officer shall be appointed by a majority vote of the entire Board. Officers for newly established Executive Committees shall be appointed by a majority vote by the Board of Directors immediately after such Committee is established. All Officers shall serve at the pleasure of the Board of Directors.
Section 5.6 Committee Member. Executive Director of each Executive Committee may appoint up to five (5) members to join such Committee upon approval by a majority vote of the Board. A Committee Member may be terminated anytime by such Executive Director by whom the Committee Member is appointed.
Section 5.7 Term. An Officer may stay in office as long as a newly elected directorship reaffirms the position through a majority vote, provided however, the Officer’s term shall terminate upon the Officer’s death, resignation, or removal.
Section 5.8 Resignation. Any Officer may resign at any time by giving written notice to the Board of Directors. Such resignation shall take effect at the time specified therein or, if no time is specified, at the time of acceptance thereof as determined by the Board of Directors
Section 5.9 Removal. Any Officer may be removed by a vote of a majority of the Board of Directors then in office, with or without cause, at any meeting of the Board at which a quorum is present.
Section 5.10 Vacancy. A vacancy for any office arising from any cause may be filled in the same manner prescribed by these Bylaws for initial appointment to such office.
LIMITATION ON LIABILITY, INDEMNIFICATION AND INSURANCE
Section 6.1 Limitation of Liability. To the fullest extent permitted under the NCL, as it exists on the date hereof or may hereafter be amended, a Director or Officer of BayHelix shall not be personally liable to BayHelix, its members or any third party for monetary damages for breach of fiduciary duty as a Director or Officer. Any amendment to or repeal of ARTICLE 6 shall not adversely affect any right or protection of a Director or Officer of BayHelix for or with respect to any act or omission of such Director or Officer occurring prior to such amendment or repeal.
Section 6.2 Indemnification of Directors and Executive Officers. BayHelix shall indemnify its Directors and Officers to the fullest extent not prohibited by the NCL; provided, that BayHelix shall not be required to indemnify any Director or Officer in connection with any proceeding (or part thereof) initiated by such person or any proceeding by such person against BayHelix or its other Directors or Officers unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors or (iii) such indemnification is provided by BayHelix, in its sole discretion, pursuant to the powers vested in BayHelix under the NCL.
Section 6.3 Determination by the Corporation. Promptly after receipt of a request for indemnification hereunder (and in any event within ninety (90) days thereof) a reasonable, good faith determination as to whether indemnification of the Director or Officer is proper under the circumstances because such Director or Officer has met the applicable standard of care shall be made by:
(a) a majority vote of a quorum consisting of Directors who are not parties to such proceeding;
(b) if such quorum is not obtainable, by independent legal counsel in a written opinion; or
(c) approval or ratification by the affirmative vote of a majority of the members represented and voting at a duly held meeting at which a quorum is present or by action by written ballot pursuant to Section 3.10.
Section 6.4 Expenses. BayHelix shall advance, prior to the final disposition of any proceeding, promptly following request therefor, all expenses incurred by any Director or Officer in connection with such proceeding upon receipt of an undertaking by or on behalf of such person to repay said amounts if it shall be determined ultimately that such person is not entitled to be indemnified under these Bylaw or otherwise.
Section 6.5 Enforcement. Without the necessity of entering into an express contract, all rights to indemnification and advances to Directors and Officers under these Bylaw shall be deemed to be contractual rights and be effective to the same extent and as if provided for in a contract between BayHelix and the Director or Officer.
Section 6.6 Non-Exclusivity of Rights. To the fullest extent permitted by BayHelix’s Articles of Incorporation and the NCL, the rights conferred on any person under this ARTICLE 6 shall not be exclusive of any other right which such person may have or hereafter acquire under any statute, provision of the Articles of Incorporation, agreement, vote of members or disinterested Directors or otherwise.
Section 6.7 Survival of Rights. The rights conferred on any person by this ARTICLE 6 shall continue as to a person who has ceased to be a Director or Officer and shall inure to the benefit of the heirs, executors and administrators of such a person.
Section 6.8 Insurance. BayHelix, upon approval by the Board of Directors, may purchase insurance on behalf of any person required or permitted to be indemnified pursuant to this ARTICLE 6.
Section 6.9 Amendments. Any repeal or modification of this ARTICLE 6 shall only be prospective and shall not affect the rights under this ARTICLE 6 in effect at the time of the alleged occurrence of any action or omission to act that is the cause of any proceeding against any Director or Officer of BayHelix.
Section 6.10 Saving Clause. If this ARTICLE 6 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then BayHelix shall nevertheless indemnify each Director and Officer to the fullest extent permitted by any applicable portion of this ARTICLE 6 that has not been invalidated, or by any other applicable law.
AMENDMENT OF THE BYLAWS
Section 7.1 The Bylaws herein may be amended or repealed by the affirmative approval of the entire Board of Directors except as provided in Section 5150 of the NCL or by the affirmative vote of a majority of the members present at a meeting where a quorum exists, provided that, any amendment or repeal of any provision of the Bylaws adopted by the members shall not be further amended or repealed except by the members voting in accordance with the requirements of these Bylaws.