ARTICLE I. NAME AND OFFICES
Section 1.1. Name. The name of the corporation is “OCS PTO INC” (the “Organization”).
Section 1.2. Offices. The Organization may have such offices within or without the State of Delaware as the Board of Directors (the “Board”) may from time to time designate.
- Section 1.3. Purpose; Nature of Business; Powers; 501(c)(3) Status. The Organization is formed as a non-stock, non-profit corporation under the General Corporation Law of the State of Delaware (the “DGCL”) for the following purpose or purposes:
- (a) The Organization is formed exclusively for charitable, scientific, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code of 1986 (together with any successor statute, the “Code”), and particularly, but not limited, to:
- (i) solicit, receive, acquire, hold, invest, administer, dispose of and distribute property and funds for the above purposes, and for no other purpose;
- (ii) do such acts and carry on such business as may be permitted by non-stock, non-profit corporations under the DGCL and other laws of the State of Delaware and the United States in order to accomplish the above purposes; and
- (iii) subject to the limitations set forth in paragraphs (b), (c), (d) and (e) of this Article I, do all other things and acts and exercise all other powers, rights and privileges which a non-stock, non-profit corporation may now or hereafter be organized or authorized to do or to exercise under the DGCL, as amended from time to time.
- (b) The Organization does not contemplate pecuniary gain or profit, incidental or otherwise. No part of the net earnings of the Organization shall inure to the benefit of, or be distributable to, any Member, director, officer or other private person, except that the Organization shall be authorized and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of the purposes of the Organization set forth in Section 1.3(a).
- (c) No substantial part of the activities of the Organization shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the Organization shall not participate or intervene in (including the publishing or distribution of statements) any political campaign on behalf of or in opposition to any candidate for public office. Notwithstanding any other provision of this Agreement, the Organization shall not carry on any other activities not permitted to be carried on (i) by a corporation exempt from Federal income tax under Section 501(c)(3) of the Code (or the corresponding provision of any future United States Internal Revenue Law), or (ii) by a corporation, contributions to which are deductible under Section 170(c)(2) of the Code (or the corresponding provision of any future United States Internal Revenue Law).
- (d) Upon the dissolution of the Organization, the Members shall, after paying or making provision for the payment of all of the liabilities of the Organization, dispose of all of the assets of the Organization exclusively for the purposes of the Organization in such manner, or to such organization or organizations organized and operated exclusively for charitable, educational or scientific purposes, as shall at the time qualify as an exempt organization or organizations under Section 501(c)(3) of the Code (or the corresponding provision of any future United States Internal Revenue Law), as the Members shall determine. Any such assets not so disposed of shall be disposed of by a court of competent jurisdiction of the county in which the principal office of the Organization is then located exclusively for such purpose or to such organization or organizations as said court shall determine which are organized and operated exclusively for such purposes.
- (e) Notwithstanding any other provision of this Agreement to the contrary, if the Organization is subject to the provisions of Sections 4941 through 4945 of the Code (or the corresponding provision of any future United States Internal Revenue Law), the Members are prohibited from engaging in any act of self-dealing as defined in Section 4941(d) of the Code, from retaining any excess business holdings as defined in Section 4943(c) of the Code which would subject the Organization to tax under Section 4943 of the Code, from making any investments which would subject the Organization to tax under Section 4944 of the Code, and from making any taxable expenditures as defined in Section 4945(d) of the Code. In addition, the Organization shall make distributions at such time and in such manner as not to subject the Organization to tax under Section 4942 of the Code.
- Section 1.4. Business Transactions of a Member with the Organization. A Member may, but shall not be required to, lend money to, borrow money from, act as surety, guarantor or endorser for, guarantee or assume one or more obligations of, provide collateral for, and transact other business with, the Organization and, subject to applicable law, shall have the same rights and obligations with respect to any such matter as a person who is not a Member. In no event shall the Organization transact any business with a Member that would result in the Organization losing its status as a 501(c)(3) Organization.
- Section 1.5 Organization Property. No real or other property of the Organization shall be deemed to be owned by any Member individually, but shall be owned by and title shall be vested solely in the Organization.
ARTICLE II. MEMBERSHIP.
Section 2.1. Membership. The directors of the Organization shall be the Members of the Organization (each, in such capacity, a “Member”). A person shall automatically cease to be a Member at such time as he or she ceases to be a director of the Organization.
Section 2.2 Annual Meeting. An annual meeting of the Members, for the election of directors and for the consideration of other matters as may properly come before the meeting, shall be held immediately preceding the annual meeting of the Board at such place, on such date, and at such time as shall have been established by the Board. Any and all business may be transacted at the annual meeting.
Section 2.3 Special Meetings. Special meetings of the Members may be called by the President, for any purpose or purposes. Such request shall state the purpose or purposes of the proposed meeting.
Section 2.4 Notice. Notice of any annual or special meeting of the Members shall be sent to each Member by mail, email or facsimile, at his or her last known address, email address and/or facsimile number, as shown on the records of the Organization. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, with postage thereon prepaid. If sent by email or facsimile, such notice shall be deemed to be delivered when sent.
Section 2.5 Action by Written Consent. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken by the Members may be taken without a meeting if the Members consent in writing to the adoption of a resolution authorizing the action. The resolutions and the written consents thereto by the Members shall be filed by the President with the permanent records of the proceedings of the Members.
ARTICLE III. BOARD OF DIRECTORS.
Section 3.1. Duties and Powers. The affairs of the Organization shall be managed by the Board. The Board shall be responsible for implementing the mission, establishing policies, managing resources and determining programs and services of the Organization. The actions of the Board in matters within its authority shall be final and conclusive.
Section 3.2. Number. The size of the Board may be increased or decreased from time to time by formal action of the then sitting directors. No decrease in the number of directors shall have the effect of shortening the term of any incumbent director.
Section 3.3. Election and Term. Each director shall hold office for a term not to exceed five (5) years and shall serve until the expiration of his or her term and/or until his or her successor has been elected and qualified. Upon the election of a director, such director shall automatically (and without any further necessary action) be elected as a Member.
Section 3.4. Vacancies. Any vacancy occurring in the Board may be filled by the affirmative vote of a majority of the directors at any regular or special meeting. A director elected to fill a vacancy shall be elected for the unexpired term of his or her predecessor in office and until his or her successor is elected and qualified.
Section 3.5. Removal of Directors. A director may be removed from office for any reason, with or without cause, by a vote of two-thirds (66.67%) of the Members.
Section 3.6. Resignations. Except as otherwise required by law, any director may resign at any time by giving written notice to the Board or to the President. Such resignation shall take effect at the time specified therein, and unless otherwise specified therein, no acceptance of such resignation shall be necessary to make it effective.
Section 3.7. Quorum of Directors and Action by the Board. Unless a greater proportion is required by law, a majority of the directors then in office shall constitute a quorum for the transaction of any business. Except as otherwise provided by law or by the Certificate of Incorporation or these Bylaws, the act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board.
Section 3.8. Meetings of the Board of Directors.
(a) The Board shall hold an annual meeting each year. Notice of such annual meeting shall be delivered not less than ten (10) days before the date of the meeting, either personally or by mail, email, or facsimile, to each director entitled to vote at such meeting. The Board may provide, by resolution, the time and place, for the holding of regular meetings of the Board without notice other than such resolution.
(b) Special meetings of the Board may be called by the President or by one-third (33.33%) of the directors. Any special meeting may be held at such time and place as the President may determine. Written or printed notice stating the place, day and hour of the meeting, and the purpose or purposes for which the meeting is called, shall be delivered not less than ten (10) days before the date of the meeting, either personally or by mail, email, facsimile by or at the direction of the President, to each director entitled to vote at such meeting. At such special Board meeting, only the matters stated in the notice of the meeting shall be considered.
(c) Notice of any regular or special meeting shall be sent to each director by mail, email, or facsimile, at his or her last known address, email address and/or facsimile number, as shown on the records of the Organization. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, with postage thereon prepaid. If sent by email or facsimile, such notice shall be deemed to be delivered when sent.
(d) A director’s attendance at any meeting shall constitute waiver of notice of such meeting, excepting such attendance at a meeting by the director for the purpose of objecting to the transaction of business because the meeting is not lawfully called or convened.
Section 3.9. Action by Written Consent; Meetings by Conference Telephone.
(a) Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken by the Board or a committee of the Board (each, a “Committee”) may be taken without a meeting if all directors or Committee members, respectively, consent in writing to the adoption of a resolution authorizing the action. The resolution and the written consents thereto by the directors or the Committee members, respectively, shall be filed with the President and filed by the President with the permanent records of the proceedings of the Board.
(b) Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any or all directors may participate in any regular or special meeting of the Board or of a Committee by means of telephone conference call or by any means of communications by which all persons participating in the meeting are able to hear one another, and such participation shall constitute presence in person at the meeting.
Section 3.10. Reimbursement of Directors. The Organization shall not pay any compensation to directors for services rendered to the Organization in their capacity as directors. Directors may be reimbursed for expenses that are pre-approved by the President or the Treasurer and that are incurred in the performance of their duties to the Organization in reasonable amounts.
ARTICLE IV. OFFICERS, AGENTS AND EMPLOYEES
Section 4.1. Officers. The Board shall, by majority vote, elect a President, a Treasurer, and it may, if it so determines, elect or appoint one or more additional Vice Presidents and such other officers and assistant officers as may be deemed necessary. If the Board so determines, the officers of the Organization may be designated by such other titles as may be provided in the Certificate of Incorporation or these Bylaws.
Section 4.2. Term of Office. Each officer shall hold office for a term of two (2) years or until his or her successor has been elected or appointed and qualified. Unless otherwise provided by resolution of the Board, all officers shall be elected or appointed at the annual meeting of the Board. Except as otherwise provided in a separate written agreement, the election or appointment of an officer shall not of itself create contract rights. A person may hold one or more offices.
Section 4.3. Removal. Any officer may be removed or suspended with or without cause by a vote of a majority of the Board, at any regular or special meeting of the Board at which the matter is presented.
Section 4.4. Resignation. Except as otherwise required by law or as set forth in any written agreement between an officer and the Organization, any officer of the Organization may resign at any time by giving written notice to the Board. Such resignation shall take effect at the time specified therein, and unless otherwise specified therein, no acceptance of such resignation shall be necessary to make it effective.
Section 4.5. Vacancies. In case any office of the Organization becomes vacant for any reason, the vacancy may be filled by a majority vote of the Board. Any officer so elected shall hold office until the next annual meeting of the Board and until his or her successor shall have been duly elected and qualified.
Section 4.6. Powers and Duties of Officers. Subject to the control of the Board, all officers shall have such authority and perform such duties in the management of the property and affairs of the Organization as may be provided in these Bylaws or by resolution of the Board and, to the extent not so provided, as generally pertain to their respective offices.
(a) President. The President shall be the chief executive officer of the Organization and shall carry on the administrative functions and operations of the Organization subject to the supervision of the Board and the other officers. The President shall preside at all meetings of the Board, shall perform all duties customary to that office, and shall have the power to call meetings of the directors as provided in these Bylaws. The President and any Vice President appointed by the Board shall each also independently have Banking Authority (as defined below), in addition to the Treasurer.
(b) Treasurer. The Treasurer shall be responsible for all funds and securities of the Organization. He or she shall keep or cause to be kept complete and accurate accounts of receipts and disbursements of the Organization and shall deposit, or have deposited, all monies and other valuable property of the Organization in the name and to the credit of the Organization in such banks or depositories as the Board may designate (the “Banking Authority”). Whenever required by the Board, the Treasurer shall render a statement of accounts. He or she shall at all reasonable times exhibit the books and accounts to any officer or director of the Organization and shall perform all other duties incident to the office of Treasurer, subject to the supervision of the Board. The Treasurer shall, if required by the Board, give such bond or security for the faithful performance of his or her duties as the Board may require, for which the Treasurer shall be reimbursed.
Section 4.7. Agents and Employees. The Board may appoint agents and employees who shall have such authority and perform such duties as may be prescribed by the Board or, if the Board delegates such appointment power to any officer or officers, then by such officer or officers. The Board, if the power of appointment is delegated to any officer or officers then such officer or officers, may remove any agent or employee at any time with or without cause. Removal without cause shall be without prejudice to such person’s contract rights, if any; provided, however, that the appointment of such person shall not itself create contract rights.
Section 4.8. Reimbursement of Officers. The Organization shall not pay any compensation to officers for services rendered to the Organization in their capacity as officers. Officers may be reimbursed for expenses that are pre-approved by the President or the Treasurer and that are incurred in the performance of their duties to the Organization in reasonable amounts.
ARTICLE V. COMMITTEES
Section 5.1 Number, Tenure and Qualifications. The Board may designate one or more Committees, each to be comprised of one or more directors, to serve at the pleasure of the Board.
Section 5.2 Powers. The Board may delegate to Committees any of the powers of the Board, except as prohibited by law or the Certificate of Incorporation or these Bylaws.
Section 5.3 Vacancies. In the event of absence or disqualification of any member of any Committee, the members of that Committee present at any meeting, whether or not they constitute a quorum, may unanimously appoint a director to act in the place of the absent or disqualified member. The Board shall have the power at any time to change the membership of any Committee, to fill any vacancy, to designate an alternate member to replace any absent or disqualified member or to dissolve any Committee.
ARTICLE VI. INDEMNIFICATION
Section 6.1. Indemnification in Actions Suits or Proceedings Other than Those by or in the Right of the Organization. Subject to the provisions of this Article VI, the Organization may indemnify any director or officer, any former director or officer, and any person who may have served at the Organization’s request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, from and against any and all expenses (including attorneys’ fees), liabilities, judgments, fines or amounts paid in settlement actually incurred by such person in connection with any claim, action, suit or proceeding (whether actual or threatened, civil, criminal, administrative, or investigative, including appeals, other than an action by or in the right of the Organization) to which such person is made a party by reason of the fact that the person is or was a director or officer of the Organization, or is or was serving at the request of the Organization as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Organization, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the Organization, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.
Section 6.2. Indemnification in Actions, Suits or Proceedings by or in the Right of the Organization. Subject to the provisions of this Article VI, the Organization may indemnify any director or officer, any former director or officer and any person who may have served at the Organization’s request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Organization to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the Organization, or is or was serving at the request of the Organization as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise from and against expenses (including attorneys’ fees), liabilities, judgments, fines or amounts paid in settlement actually incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Organization.
Section 6.3. Mandatory Indemnification. To the extent that a present or former director or officer of the Organization has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Sections 6.1 or 6.2, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees), liabilities, judgments, fines or amounts paid in settlement by such person in connection therewith.
Section 6.4. Determination as to Indemnification. Any indemnification under Section 6.1 or 6.2 (unless ordered by a Court) shall be made by the Organization only as authorized in the specific case upon a determination that indemnification of such person is proper in the circumstances because the person has met the applicable standard of conduct set forth in said Section 6.1 or 6.2, as applicable. Such determination shall be made in all cases by a majority vote of the members of the Board who are not parties to such action, suit or proceeding, even though less than a quorum.
Section 6.5. Advance of Expenses, Costs, Judgments and Fines. Expenses (including attorneys’ fees) incurred by a person pursuant to this Article VI in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the Organization in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Organization as authorized in this section. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents of the Organization or by persons serving at the request of the Organization as directors, officers, employees or agents of another corporation, partnership, joint venture, trust or other enterprise may be so paid upon such terms and conditions, if any, as the Organization deems appropriate.
Section 6.6. Good Faith Defined. For purposes of any determination required under or authorized by this Article VI, a person shall be deemed to have acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Organization, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his conduct was unlawful, if his action is based on the records or books of account of the Organization, or on information supplied to him by the officers of the Organization in the course of their duties, or on the advice of legal counsel for the Organization or on information or records given or reports made to the Organization by an independent certified a public accountant or by an appraiser or other expert selected by the Organization. The provisions of this Section 6.6 shall not be deemed to be exclusive or to limit in any way the circumstances under which a person may be deemed to have met the applicable standard of conducts set forth in Section 6.1 or 6.2, as applicable.
Section 6.7. Non-Exclusivity. The indemnification and advancement of expenses provided by, or granted pursuant to, the other sections of this Article VI shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office. A right to indemnification or to advancement of expenses arising under a provision of the Certificate of Incorporation or these Bylaws shall not be eliminated or impaired by an amendment to such provision after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought, unless the provision in effect at the time of such act or omission explicitly authorizes such elimination or impairment after such action or omission has occurred.
Section 6.8. Insurance. The Organization may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Organization, or is or was serving at the request of the Organization as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Organization would have the power to indemnify such person against such liability under this section.
Section 6.9. Survival of Indemnification. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VI shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
ARTICLE VII. MISCELLANEOUS
Section 7.1. Fiscal Year. The Board shall set the fiscal year of the Organization.
Section 7.2. Checks, Notes and Contracts. The Board shall determine who shall be authorized from time to time on the Organization’s behalf to sign checks, drafts or other orders for payment of money; to sign acceptances, notes, or other evidences of indebtedness; to enter into contracts; or to execute and deliver other documents and instruments.
Section 7.3. Regulations Pertaining to Fundraising. The Board may promulgate from time to time by resolution any rules, regulations or restrictions it deems to be necessary or desirable with regard to the acceptance of gifts, bequests and/or contributions by the Organization, including without limitation restrictions as to the amount and/or source of such gifts, bequests and/or contributions.
Section 7.4. Books and Records to be Kept. The Organization shall keep at its principal office: (1) correct and complete books and records of account; (2) minutes of the proceedings of the Board and any Committee having any of the authority of the Board, and (3) a record of the names and addresses of the directors. All books and records of the Organization may be inspected by any director, or his agent or attorney, for any proper purpose at any reasonable time.
Section 7.5. Amendment of Bylaws. The Bylaws may be adopted, amended, or repealed by a two-thirds (66.67%) vote of the directors every four years.
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