Section 1.01. Name The name of this corporation is THE GORDON R. IRLAM CHARITABLE FOUNDATION.
Section 1.02. Principal Office The principal office for the transaction of the activities and affairs of the corporation (principal office) is located at 326 A Street, Redwood City, San Mateo County, California.
Section 1.03. Other Offices The Board of Directors (Board) may change the principal office from one location to another. Any change of location of the principal office shall be noted by the Secretary on these bylaws opposite this Section, or this Section may be amended to state the new location. The Board may at any time establish branch or subordinate offices at any place or places where the corporation is qualified to conduct its activities.
Section 2.01. General Purposes This corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the Nonprofit Public Benefit Corporation Law for charitable purposes. This corporation is organized exclusively for charitable and educational purposes within the meaning of Section 501 (c)(3) of the Internal Revenue Code of 1954 or the corresponding provision of any future United States internal revenue law. Notwithstanding any other provision of these Articles, this corporation shall not, except to an insubstantial degree, engage in any activities or exercise any powers that are not in furtherance of the purposes of this corporation, and the corporation shall not carry on any other activities not permitted to be carried on (a) by a corporation exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code of 1986 or the corresponding provision of any future United States internal revenue law, or (b) by a corporation, contributions to which are deductible under Section 170(c)(2) of the Internal Revenue Code of 1986 or the corresponding provision of any future United States internal revenue law.
Section 2.02. Specific Purposes Within the context of the general purposes stated above, this corporation is organized to raise and disburse funds for the following charitable purposes:
(a) Promote the relief of poverty.
(b) Improve public health, including mental health and well-being.
(c) Enhance consumer and environmental protection measures.
(d) Support the creation and maintenance of publicly available information in the arts and sciences.
(e) Preserve and defend civil liberties and human rights.
(f) Prevention of cruelty to animals.
(g) Other general philanthropic purposes as needs are perceived in the global community by the Board of Directors.
Section 2.03. Limitations
(a) No substantial part of the activities of this corporation shall consist of lobbying or propaganda, or otherwise attempting to influence legislation, except as provided in Section 501(h) of the Internal Revenue Code of 1986, and this corporation shall not participate in or intervene in (including publishing or distributing statements) any political campaign on behalf of or in opposition to any candidate for public office.
(b) All corporate property is irrevocably dedicated to the purposes set forth in Sections 2.01 and 2.02, above. No part of the net earnings or assets of this corporation shall inure to the benefit of any of its Directors, trustees, officers, private shareholders or members, or to individuals.
(c) On the winding up and dissolution of this corporation, after paying or adequately providing for the debts, obligations, and liabilities of the corporation, the remaining assets of this corporation shall be distributed to such organization (or organizations) organized and operated exclusively for charitable and educational purposes, which has established its tax-exempt status under Section 501(c)(3) of the Internal Revenue Code of 1986 (or the corresponding provision of any future United States internal revenue law) and which has established its tax-exempt status under Section 23701(d) of the California Revenue and Taxation Code (or the corresponding section of any future California revenue and tax law).
(d) The corporation will distribute its income for each tax year at such time and in such manner as not to become subject to the tax on undistributed income imposed by Section 4942 of the Internal Revenue Code of 1986 or corresponding provisions of any later federal tax laws.
(e) The corporation will not engage in any act of self-dealing as defined in Section 4941(d) of the Internal Revenue Code of 1986, or corresponding provisions of any later federal tax laws.
(f) The corporation will not retain any excess business holdings as defined in Section 4943(c) of the Internal Revenue Code of 1986, or corresponding provisions of any later federal tax laws.
(g) The corporation will not make any investments in such manner as to subject it to tax under Section 4944 of the Internal Revenue Code of 1986, or corresponding provisions of any later federal tax laws.
(h) The corporation will not make any taxable expenditures as defined in Section 4945(d) of the Internal Revenue Code of 1986, or corresponding provisions of any later federal tax laws.
Section 3.01. Members Prohibited This corporation shall have no members.
Section 3.02. Effect of Prohibition Any action which would otherwise require approval by a majority of all members shall require only the approval of the Board of Directors. All rights which would otherwise vest under the Non Profit Public Benefit Corporation Law in the members shall vest in the Directors.
Section 4.01. General Corporate Powers Subject to the provisions and limitations of the California Nonprofit Public Benefit Corporation Law and any other applicable laws, and subject to any limitations of the articles of incorporation or bylaws regarding actions that require approval of the members, the corporation's activities and affairs shall be managed, and all corporate powers shall be exercised, by or under the direction of the Board.
Section 4.02. Specific Powers Without prejudice to the general powers set forth in Section 4.01 of these bylaws, but subject to the same limitations, the Directors shall have the power to:
(a) Appoint and remove, at the pleasure of the Board, all the corporation's officers, agents, and employees; prescribe powers and duties for them that are consistent with law, with the articles of Incorporation, and with these bylaws; and fix their compensation and require from them security for faithful performance of their duties.
(b) Change the principal office or the principal business office in California from one location to another; cause the corporation to be qualified to conduct its activities in any other state, territory, dependency, or country and conduct its activities within or outside California; and designate any place within or outside California for holding any meeting of members.
(c) Adopt and use a corporate seal; prescribe the forms of membership certificates; and alter the forms of the seal and certificates.
(d) 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, hypothecation's, and other evidences of debt and securities.
Section 4.03. Number and Qualifications of Directors The authorized number of Directors shall be one (1). The qualifications for Directors are the following:
(a) Directors need not be residents of the State of California.
(b) The Directors of the Corporation shall be individuals of good character.
Section 4.04. Restriction on Interested Persons as Directors No more than 49 percent of the persons serving on the Board may be interested persons. An interested person is:
(a) any person compensated by the corporation for services rendered to it within the previous 12 months, whether as a full-time or part-time employee, independent contractor or otherwise, excluding any reasonable compensation paid to a director as director; and
(b) any brother, sister, ancestor, descendant, spouse, brother- in-law, sister-in-law, son-in-law, daughter-in-law, mother-in-law, or father-in- law of such person. However, any violation of the provisions of this paragraph shall not affect the validity or enforceability of any transaction entered into by the corporation.
Section 4.05. Election, Designation, and Term of Office
(a) Election The Directors of this Corporation shall be designated by GORDON R. IRLAM.
(b) Term Each such director shall hold office for one (1) year except when filling an unexpired term, and in such case, shall be for the unexpired term; and shall hold office until a successor has been designated and qualified.
Section 4.06. Vacancies on Board A vacancy or vacancies on the Board shall exist on the occurrence of the following:
(a) the death, resignation, or removal of any director;
(b) the declaration by resolution of the Board of a vacancy in the office of a director who has been declared of unsound mind by an order of court, convicted of a felony, or found by final order or judgment of any court to have breached a duty under Article 3 of Chapter 2 of the California Nonprofit Public Benefit Corporation Law; or
(c) the increase of the authorized number of Directors.
Section 4.07. Resignations Except as provided below, any director may resign by giving written notice to the Chairman of the Board, the President, the Secretary, or the Board. The resignation shall be effective when the notice is given unless it specifies a later time for the resignation to become effective. If a director's resignation is effective at a later time, the Board may elect a successor to take office as of the date when the resignation becomes effective. No director may resign if the corporation would be left without a duly elected director or Directors in charge of its affairs.
Section 4.08. Filling Vacancies Vacancies on the Board may be filled by designation as provided in Section 4.05(a) of these ByLaws or, if no such designation is made, by a majority of the directors then in office, whether or not there is less than a quorum, or by a sole remaining director. If there is a vacancy on the Board and there are no Directors remaining to fill said vacancy or vacancies, then the Directors of this Corporation shall be designated by GORDON R. IRLAM's personal representative or the then acting Trustee of his living trust.
Section 4.08. No Vacancy on Reduction of Number of Directors No reduction of the authorized number of Directors shall have the effect of removing any director before that director's term of office expires.
Section 4.09. Place of Meetings
(a) Regular Meetings Regular meetings of the Board shall be held at any place within or outside California that has been designated from time to time by resolution of the Board or in the notice of the meeting. In the absence of such designation, regular meetings shall be held at the principal executive office of the corporation.
(b) Special Meetings Special meetings of the Board shall be held at any place within or outside the State of California that has been designated in the notice of the meeting or, if not stated in the notice, or if there is not notice, at the principal executive office of the corporation. Notwithstanding the above provisions of this Section 4.09, a regular or special meeting of the Board may be held at any place consented to in writing by all the Board members, either before or after the meeting. If consents are give, they shall be filed with the minutes of the meeting.
Section 4.10. Meetings by Telephone Any meeting, regular or special, may be held by conference telephone or similar communication equipment, so long as all Directors participating in the meeting can hear one another. All such Directors shall be deemed to be present in person at such a meeting.
Section 4.11. Annual Meeting At such time and place fixed by the Board, the Board shall hold a regular annual meeting for the purposes of organization, election of officers, and transaction of other business. Notice of this meeting is not required. The Board shall meet at least one (1) time each year.
Section 4.12. Other Regular Meetings Other regular meetings of the Board may be held without notice at such time and place as the Board may fix from time to time.
Section 4.13. Special Meetings
(a) Authority To Call Special meetings of the Board for any purpose may be called at any time by the Chairman of the Board, if any, the President, any Vice President, the Secretary, Treasurer, or any two (2) Directors.
(i) Manner of Giving Notice Notice of the time and place of special meetings shall be given to each director by one of the following methods:
(1) by personal delivery of written notice;
(2) by first-class mail, postage prepaid;
(3) by telephone communication, either directly to the director or to a person at the director's office who would reasonably be expected to communicate that notice promptly to the director; or
(4) by telegram, charges prepaid. All such notices shall be given or sent to the director's address or telephone number as shown on the records of the corporation.
(ii) Time Requirements Notices sent by first-class mail shall be deposited in the United States mail box at least four days before the time set for the meeting. Notices given by personal delivery, telephone, or telegraph shall be delivered, telephoned, or given to the telegraph company at least forty-eight (48) hours before the time set for the meeting.
(iii) Notice Contents The notice shall state the time and place of the meeting. However, it need not specify the purpose of the meeting, or the place of the meeting, if it is to be held at the principal office of the corporation.
Section 4.14. Quorum A majority of the then acting number of Directors shall constitute a quorum for the transaction of business, except to adjourn. Every action taken or decision made by a majority of the Directors present at a duly held meeting at which a quorum is present shall be regarded as the act of the Board, subject to the more stringent provisions of the California Nonprofit Public Benefit Corporation Law, including, without limitation, those provisions relating to (a) approval of contracts or transactions in which a director has a direct or indirect material financial interest, (b) approval of certain transactions between corporations having common Directorships, (c) creation of and appointments to committees of the Board, and (d) indemnification of Directors. A meeting at which a quorum is initially present may continue to transact business, despite the withdrawal of Directors, if any action taken or decision made is approved by at least a majority of the required quorum for that meeting.
Section 4.15. Waiver of Notice The transactions of any meeting of the Board, however called and noticed or wherever held, shall be as valid as though taken at a meeting duly held after regular call and notice, if (a) a quorum is present, and (b) either before or after the meeting, each of the Directors not present signs a written waiver of notice, a consent to holding the meeting, or an approval of the minutes. The waiver of notice or consent need not specify the purpose of the meeting. All such waivers, consents, and approvals shall be filed with the corporate records or made a part of the minutes of the meetings. Notice of a meeting shall be considered given to any director who attends the meeting without protesting before or at the commencement of the meeting about the lack of notice to him or her.
Section 4.16. Adjournment A majority of the Directors present, whether or not constituting a quorum, may adjourn any meeting to another time and place.
Section 4.17. Notice of Adjourned Meeting Notice of the time and place of holding an adjourned meeting need not be given unless the original meeting is adjourned for more than twenty-four (24) hours. If the original meeting is adjourned for more than twenty-four (24) hours, notice of any adjournment to another time and place shall be given, before the time of the adjourned meeting, to the Directors who were not present at the time of the adjournment.
Section 4.18. Action Without a Meeting Any action that the Board is required or permitted to take may be taken without a meeting, if all members of the Board consent in writing to the action; provided, however, that the consent of any director who has a material financial interest in a transaction to which the corporation is a party and who is an "interested director" as defined in Section 5233 of the California Corporations Code shall not be required for approval of that transaction. Such action by written consent shall have the same force and effect as any other validly approved action of the Board. All such consents shall be filed with the minutes of the proceedings of the Board.
Section 4.19. Compensation and Reimbursement Directors may receive such compensation, if any, for their services as Directors or officers, and such reimbursement of expenses, as the Board may determine by resolution to be just and reasonable as to the corporation at the time that the resolution is adopted.
Section 4.20. Removal A director may be removed from office for cause by the vote of a majority of the Directors.
Section 5.01. Committees of the Board The Board, by resolution adopted by the majority of the Directors then in office, provided a quorum is present, may create one or more committees, each consisting of two or more Directors and no persons who are not Directors, to serve at the pleasure of the Board. Appointments to committees of the Board shall be by majority vote of the Directors then in office. The Board may appoint one or more Directors as alternate members of any such committee, who may replace any absent member at any meeting.
Section 5.02. 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, except that the time for regular meetings of such committees and the calling of special meetings of such committees may be determined either by Board resolution or, if there is none, by resolution of the committee of the Board. Minutes of each meeting of any committee of the Board shall be kept and shall be filed with the corporate records. The Board may adopt rules for the government of any committee, provided they are consistent with these bylaws or, in the absence of rules adopted by the Board, the committee may adopt such rules.
Section 5.03. Term of Office Each member of a committee shall continue as such until the next annual meeting of the Directors of the corporation and until his successor is appointed, unless the committee shall be sooner terminated, or unless such member be removed from such committee, or unless such member shall cease to qualify as a member thereof.
Section 5.04. Vacancies Vacancies in the membership of any committee may be filled by appointments made in the manner as provided in the case of the original appointments.
Section 5.05. Quorum Unless otherwise provided in the resolution of the Board designating a committee, a majority of the whole committee shall constitute a quorum and the act of a majority of the members present at a meeting at which a quorum is present shall be the act of the committee.
Section 5.06. Rules Each committee may adopt rules for its own government not inconsistent with these bylaws or with rules adopted by the Board.
Section 5.07. Limitations Any such committee, to the extent provided in the Board resolution, shall have all the authority of the Board, except that no committee, regardless of Board resolution, may:
(a) Fill vacancies on the Board or on any committee that has the authority of the Board;
(b) Fix compensation of the Directors for serving on the Board or on any committee;
(c) Amend or repeal bylaws or adopt new bylaws;
(d) Amend or repeal any resolution of the Board that by its express terms is not so amendable or repeatable;
(e) Create any other committees of the Board or appoint the members of committees of the Board;
(f) Expend corporate funds to support a nominee for director after more people have been nominated for director than can be elected; or
(g) Approve any contract or transaction (i) to which the corporation is a party and in which one or more of its Directors has a material financial interest; (ii) 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.
Section 6.01. Officers of the Corporation The officers of the corporation shall be a President, a Secretary, and a Treasurer. The corporation may also have, at the Board's discretion, a Chairman of the Board, one or more Vice Presidents, one or more assistant secretaries, one or more assistant treasurers, and such other officers as may be appointed in accordance with the provisions of this Article. Any number of offices may be held by the same person.
Section 6.02. Election of Officers The officers of the corporation, except those appointed under Section 6.03 of this Article 6, shall be chosen by the Board and each shall hold his office until he or she shall resign or shall be removed or otherwise disqualified to serve, or his or her successor shall be elected and qualified, subject to the rights, if any, of an officer under any contract of employment. New offices may be created and filled at any meeting of the Board. Each officer shall hold office until that officer's successor shall have been duly elected and shall have qualified.
Section 6.03. Other Officers The Board may appoint and may authorize such other officers, including one or more assistant secretaries and one or more assistant treasurers, as it shall deem desirable, each such officer to have the authority and perform the duties prescribed from time to time by the Board and to hold office until he shall resign or shall be removed or otherwise disqualified to serve.
Section 6.04. Removal of Officers Any officer may be removed, either with or without cause, by a majority of the Directors at the time in office, at any regular or special meeting of the Board, or, except in case of an officer chosen by the Board, by an officer upon whom such power of removal may be conferred by the Board. Such removal shall be without prejudice to the contract rights, if any, of the officer so removed.
Section 6.05. Resignation of Officers Any officer may resign at any time by giving written notice to the Board, or to the President or to the Secretary of the corporation. The resignation shall take effect as of the date the notice is received or at any later time specified in the notice; and, unless otherwise specified in the notice, the resignation need not be accepted to be effective. Any resignation shall be without prejudice to the rights, if any, of the corporation under any contract to which the officer is a party.
Section 6.06. Vacancies in Office A vacancy in any office, because of death, resignation, removal, disqualification, or any other cause may be filled by the Board for the unexpired portion of the term.
Section 6.07. Chairman of the Board If there is a Chairman of the Board, he or she shall preside at meetings of the Board and shall exercise and perform such other powers and duties as the Board may assign from time to time. If there is no President, the Chairman of the Board shall also be the chief executive officer and shall have the powers and duties of the President of the corporation prescribed by these bylaws.
Section 6.08. President The President shall be the general manager of the corporation and shall in general supervise, direct, and control the corporation's activities, affairs, and officers. The President may sign, with the Secretary or any other proper officer of the corporation authorized by the Board, any deeds, mortgages, bonds, contracts, or other instruments that the Board has authorized to be executed, except in cases where the signing and execution thereof shall be specially designated by the Board or by these bylaws or by statute to some other officer or agent of the corporation; and in general he or she shall perform all duties incident to the office of President and such other duties as may be prescribed from time to time by the Board.
Section 6.09. Vice President In the absence of the President, or in the event of his inability or refusal to act, the Vice President, (or if there be more than one Vice President, the first Vice President), shall perform all duties of the President. When so acting, a Vice President shall have all powers of and be subject to all restrictions on the President. The Vice President shall have such other powers and perform such other duties as the Board or the bylaws may prescribe.
Section 6.10. Treasurer The Treasurer shall keep and maintain, or cause to be kept and maintained, adequate and correct books and accounts of the corporation's properties and transactions. The Treasurer shall send or cause to be given to the Directors such financial statements and reports as are required to be given by law, by these bylaws, or by the Board. The books of account shall be open to inspection by any director at all reasonable times.
The Treasurer shall deposit, or cause to be deposited, all money and other valuables in the name and to the credit of the corporation with such depositories as the Board may designate, shall disburse the corporation's funds as the Board may order, shall render to the President, Chairman of the Board, and the Board, when requested, an account of all transactions as treasurer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as the Board or the bylaws may prescribe.
If required by the Board, the Treasurer shall give the corporation a bond in the amount and with the surety or sureties specified by the Board for faithful performance of the duties of the office and for restoration to the corporation of all of its books, papers, vouchers, money, and other property of every kind in the possession or under the control of the Treasurer on his death, resignation, retirement, or removal from office.
Section 6.11. Secretary The Secretary shall keep or cause to be kept, at the corporation's principal office or such other place as the Board may direct, a book of minutes of all meetings, proceedings, and actions of the Board, of committees of the Board, and of members' meetings. The minutes of meetings shall include the time and place that the meeting was held, whether the meeting was annual, regular, or special, and, if special, how authorized, the notice given, the names of those present at Board and committee meetings, and the number of members present or represented at members' meetings. The Secretary shall keep or cause to be kept, at the principal office in California, a copy of the articles of incorporation and bylaws, as amended to date.
Section 6.12. Membership Records If applicable, the Secretary shall keep or cause to be kept, at the corporation's principal office or at a place determined by resolution of the Board, a record of the corporation's members, showing each member's name, address, and class of membership.
Section 6.13. Notices, Seal, and Other Duties The Secretary shall give, or cause to be given, notice of all meetings of members, of the Board and of committees of the Board required by these bylaws to be given. The Secretary shall keep the corporate seal in safe custody and shall have such other powers and perform such other duties as the Board or the bylaws may prescribe.
Section 6.14. Bond If required by the Board, the Treasurer shall give the corporation a bond in the amount and with the surety or sureties specified by the Board for faithful performance of the duties of the office and for restoration to the corporation of all of its books, papers, vouchers, money, and other property of every kind in the possession or under the control of the Treasurer on his or her death, resignation, retirement, or removal from office.
Section 7.01. Definitions For the purpose of this Article,
(a) "agent" means any person who is or was a director, officer, employee, or other agent of this corporation or is or was serving at the request of this corporation as a director, officer, employee, or agent or another foreign or domestic corporation, partnership, joint venture, trust, or other enterprise, or was a director, officer, employee, or agent of a foreign or domestic corporation that was a predecessor corporation of this 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 incurred in the defense of any claims of proceedings against an agent 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.
Section 7.02. Successful Defense by Agent To the extent that an agent of this corporation has been successful on the merits in the defense of any proceeding referred to in this Article, 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 Section 7.03 through 7.05 shall determine whether the agent is entitled to indemnification.
Section 7.03. Actions Brought by Persons Other than the Corporation Subject to the required findings to be made pursuant to Section 7.05 below, this 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, this 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 Corporations Code Section 5233, or by the Attorney General or by person granted relator 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 this corporation, for all expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with the proceeding.
Section 7.04. 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.
(b) Claims and suits awarded against agent This 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 this 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:
(ii) Upon application, the court in which the action was brought must determine that, in view of all of the circumstances of the case, the agent should be entitled to indemnity for the expenses incurred. If the agent is found to be so entitled, the court shall determine the appropriate amount of expenses to be reimbursed.
Section 7.05. Determination of Agent's Good Faith Conduct The indemnification granted to an agent in Section 7.03 and 7.04 above 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 he believed to be in the best interest of this 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, in itself, create a presumption that the person did not act in good faith or in a manner which he reasonably believed to be in the best interest of this corporation or that he had reasonable cause to believe that his conduct was unlawful. In the case of a criminal proceeding, the person must have had no reasonable cause to believe that his conduct was unlawful.
(b) Manner of determination of good faith conduct The determination that the agent did act in a manner complying with paragraph 7.05(a) above 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 court in which the proceeding is or was pending. Such determination may be made on application brought by this 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 this corporation.
Section 7.06. Limitations No indemnification or advance shall be made under this Article, except as provided in Section 7.02 or 7.05(b)(ii), in any circumstances when it appears:
(a) That the indemnification or advance would be inconsistent with a provision of the articles, 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 by a court in approving a settlement.
Section 7.07. Advancement of Expenses Expenses incurred in defending any proceeding may be advanced by the corporation before final disposition of the proceeding, on receipt by the corporation of an undertaking by or on behalf of the agent to repay the amount of the advance unless it is ultimately determined that the agent is entitled to be indemnified by the corporation for those expenses as authorized in this Article.
Section 7.08. Contractual Rights of Non-Directors and Non-Officers Nothing contained in this Article shall affect any right to indemnification to which persons other than Directors and officers of this corporation, or any subsidiary hereof, may be entitled by contract or otherwise.
Section 7.09. Insurance The Board may adopt a resolution authorizing the purchase and maintenance of insurance on behalf of its officers, Directors, employees, and other agents, against any liability asserted against or incurred by any officer, director, employee, or agent in such capacity or arising out of the officer's, director's, employee's, or agent's status as such, whether or not this corporation would have the power to indemnify the agent against that liability under the provision of this section; provided, however, that the corporation shall not have the power to purchase and maintain such insurance to indemnify any agent of the corporation for a violation of Section 5233 of the California Corporations Code.
Section 7.10. Fiduciaries or Corporate Employee Benefit Plan This Article does not apply to any proceeding against any trustee, investment manager, or other fiduciary or 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 this Article. Nothing contained in this Article 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.
Section 8.01. Maintenance of Corporate Records The corporation shall keep at its principal executive office, or if its principal executive office is not in the State of California, at its principal business office in this state:
(a) Adequate and correct books and records of account;
(b) Written minutes of the proceedings of its members, Board, and committees of the Board; and
(c) If applicable, a record of each member's name, address, and class of membership.
Section 8.02. Maintenance and Inspection of Other Corporate Records The accounting books, records, and minutes of proceedings of the Board and any committee(s) of the Board shall be kept at such place or places designated by the Board, or, in the absence of such designation, at the principal executive office of the corporation. The minutes shall be kept in written or typed form, and the accounting books and records shall be kept either in written or typed form or in any other form capable of being converted into written, typed or printed form.
Section 8.03. Inspection by Directors Every director shall have the absolute right at any reasonable time to inspect the corporation's books, records, documents of every kind, physical properties, and the records of each of its subsidiaries. This inspection by a director may be made in person or by the director's agent or attorney. The right of inspection includes the right to copy and make extracts of documents.
Section 8.04. Annual Report The Board shall cause an annual report to be sent to the Directors within 120 days after the end of the corporation's fiscal year. That report shall contain the following information, in appropriate detail, for the fiscal year:
(a) The assets and liabilities, including the trust funds, of the corporation as of the end of the fiscal year.
(b) The principal changes in assets and liabilities, including trust funds.
(c) The revenue or receipts of the corporation, both unrestricted and restricted to particular purposes.
(d) The expenses or disbursements of the corporation for both general and restricted purposes.
(e) Any information required by California Corporations Code Section 6322.
The annual report shall be accompanied by any report on it of independent accountants or, if there is no such report, by the certificate of an authorized officer of the corporation that such statements were prepared without audit from the corporation's books and records.
Section 8.05. Annual Statement of Certain Transactions and Indemnifications The corporation shall annually prepare and furnish to each Director a statement of any transaction or indemnification of the following kind within one hundred twenty (120) days after the end of the corporation's fiscal year:
(a) Any transaction
(i) in which the corporation, its parent, or its subsidiary was a party
(ii) in which an "interested person" had a direct or indirect material financial interest, and
(iii) which involved more than $50,000, or was one of a number of transactions with the same interested person involving, in the aggregate, more than $50.000. For this purpose, an "interested person" is either of the following:
(1) Any director or officer of the corporation, its parent, or subsidiary (but mere common Directorship shall not be considered such an interest); or
(2) Any holder of more than 10 percent of the voting power of the corporation, its parent, or its subsidiary.
(b) Any indemnifications or advances aggregating more than $10,000 paid during the fiscal year to any officer or director of the corporation under Sections [numbers see 3.115 3.117] of these bylaws, unless that indemnification has already been approved by the members under Section 5238(e)(2)of the California Corporations Code.
The statement shall include a brief description of the transaction. the names of interested persons involved, their relationship to the corporation, the nature of their interest in the transaction and, if practicable, the amount of that interest, provided that if the transaction was with a partnership in which the interested person is a partner, only the interest of the partnership need be stated.
Section 9.01. Contracts The Board, except as otherwise provided in these bylaws, may authorize any officer or officers, agent, or agents, to enter into any contract or execute any instrument in the name and on behalf of the corporation, and such authority may be general or confined to specific instances; and unless so authorized by the Board, no officer, agent of employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or in any amount.
Section 9.02. Checks, Drafts, Etc. All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness, issued in the name of or payable to the corporation, shall be signed or endorsed by such person or persons and in such manner as, from time to time, shall be determined by resolution of the Board. In the absence of such determination by the Board, such instruments shall be signed by the treasurer or an assistant treasurer and countersigned by the President or a Vice-President of the corporation.
Section 9.03. Gifts The Board may accept on behalf of the corporation any contribution, gift, bequest, or devise for the general purpose or for any specific purposes of the corporation.
Section 10.01. Fiscal Year The fiscal year of the corporation shall be on the first day of January and end on the last day of December in each year.
Section 11.01. Unless the context requires otherwise, the general provisions, rules of construction, and definitions in the California Nonprofit Corporation Law shall govern the construction of these bylaws. Without limiting the generality of the preceding sentence, the masculine gender includes the feminine and neuter, the singular includes the plural, the plural includes the singular, and the term "person" includes both a legal entity and a natural person.
Section 12.01. Amendments Bylaws may be adopted, amended, or repealed by the Board. The Board may not extend the term of a director beyond that for which the director was elected.
Section 12.02. Limitation on Amendment of Bylaws Where any provision of these Bylaws requires the vote of a larger proportion of the Directors than otherwise is required by law, such provision may not be altered, amended or repealed except by the vote of such greater number. No amendment may extend the term of a Director beyond that for which such Director was elected.
Section 13.01. Representation of Shares of Other Corporations The President or such other officers as the Board may select for that purpose, are authorized to vote, represent, and exercise on behalf of this corporation all rights incident to any and all voting securities of any other corporations standing in the name of this corporation. The authority herein granted to said officers to vote or represent on behalf of this corporation any and all voting securities held by this corporation in any other corporations may be exercised either by such officers in person or by any person authorized to do so by proxy or power of attorney duly executed by such officer.
Section 13.02. Inspection of Bylaws The corporation shall keep in its principal office for the transaction of business the original or a copy of these bylaws as amended or otherwise altered to date, certified by the Secretary, which shall be open to inspection by the Directors at all reasonable time during office hours.
I certify that I am the duly elected and acting Secretary of THE GORDON R. IRLAM CHARITABLE FOUNDATION, a California nonprofit public benefit corporation, that the above Bylaws, consisting of seventeen (17) pages, are the Bylaws of this corporation as adopted by the Board of Directors on 3/28 , 2000, and that they have not been amended or modified since that date.
Executed on March 28th, 2000 , at San Jose , California.
GORDON R. IRLAM, Secretary