Title 1. General Provisions (top)
1.1. Purpose of Bylaws.
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These bylaws constitute the code of rules for the regulation and management of DP3, Inc., (Delta Pilots Pension Preservation Organization), a non-stock corporation, with two classes of members, as authorized by its Certificate of Incorporation. The Certificate states the corporation shall be a non-profit organization. As used in these bylaws, this corporation is referred to as DP3, organized under the Delaware General Corporations Law, Title 8, Chapter 1 of the Code of Delaware referred to as the "code" or "code section". These bylaws are adopted to fulfill the objectives of DP3 as stated in the Certificate and code sections 101 and 102 and to exercise the powers conferred upon DP3 under code section 121. The governing body of the corporation shall be the members entitled to vote comprising the Board of Directors, also known as and hereafter referred to as the Board of Trustees..
1.2. Registered Office and Agent.
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The Board of Trustees will designate a registered agent and registered office for service of legal process. These designations are to be filed with the Delaware Secretary of State as required by the code. The Board may change these designations at any time. In the event the Board fails to make a designation, or a registered agent resigns without a new designation of a registered agent and office, then the Chairman of the Board and the Chairman's address are to be filed with the Delaware Secretary of State as the registered agent and office of DP3 until the Board of Trustees makes some other affirmative designation.
1.3. Business Office(s) Authorized.
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The Board of Trustees of DP3 may establish one or more offices for the conduct of business within the State of Georgia whenever circumstances warrant.
Title 2. Board of Trustees (top)
2.1. Establishment and Function.
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A governing body known as the Board of Trustees manages DP3 as the class of members entitled to vote. As used in these bylaws, a reference to the Board of Trustees or Trustees refers to the entire board collectively or to a member of the board generically. The Board of Trustees conducts its proceedings as provided in the Certificate of Incorporation, these bylaws and the code.
2.2. Composition and Term.
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The Board of Trustees is composed of nine (9) retired Delta pilots elected
for a term of three years beginning on July 1 and ending when the Trustee’s
three year term is complete, or when he or she resigns, vacates the office
or is removed. Terms of office of the Board will be staggered so that
three (3) of the nine (9) positions are vacated and filled by election
each year. The membership of DP3 elects each Trustee by mail or email
ballot in accordance with the provisions of section 2.3. A member of DP3
is defined as a person who is either a retired or active Delta pilot or
the survivor of a Delta pilot who has met the current financial obligations
set by the Board of Trustees of DP3.
2.3. Election, Nomination and Qualifications.
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The annual election of Trustees will be conducted in accordance with the
procedures outlined in this Title or elsewhere in these bylaws, and the
following:
(1) Any member of the Board of Trustees for whom an election is required
is chosen from a group of nominees, with those nominees who obtain the
greatest plurality of votes being elected. Election of all positions is
by plurality.
(2) The Nominations Committee will solicit nominations from the membership for each position on the Board, and may make nominations in its own right. Nominations may be made by any Trustee, or by the Nominations Committee. No nomination will be placed on the annual election ballot unless: (a) the nominee is eighteen years of age, as required by the Code, (b) the nominee has affirmatively consented to the nomination, and (c) the nominee is a member of DP3 as defined in Section 2.2. The Nominating Committee will present to the Board of Trustees for approval a slate consisting of a maximum of twice the number of vacant trustee positions to be filled by the election no later than April 15. The Board of Trustees will submit the approved list to the Secretary who will conduct the election by the membership.
(3) The election is to be conducted by email or U.S. mail. An email or
mail ballot will be sent to each member not later than April 15. The ballot
will list the six nominees and space for write-in candidates will be provided
on the ballot. Each marked ballot is to be promptly returned to the Secretary
either by email, U.S. mail or in person. All returned ballots must be
received no later than June 1. The Secretary, or the designee of the Secretary
shall promptly proceed to ascertain and certify each ballot and the results
of the election, and announce these results in official DP3 correspondence
to the Board of Trustees and the membership of the DP3. The Board of Trustees
is authorized to adopt any procedures or rules reasonably necessary to
insure the integrity of the election.
2.4. Powers.
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(1) The Board of Trustees may exercise all powers granted to it as they
determine to be expedient and necessary for the interests of the DP3,
subject to the articles of incorporation, these bylaws, or the Code.
(2) If some catastrophic event occurs that precludes the Board of Trustees
from assembling, then those Trustees who are capable of assembling, either
in person or through a communications system permitting all of the participants
to hear each other, shall convene as required and take any necessary action
to preserve the DP3 until the emergency ceases. Quorum shall consist of
one-half of the Trustees who participate in the initial emergency session.
Each emergency session shall be convened by any manner of notice reasonable,
prudent or practicable in the circumstances. The available Trustees shall
designate as many persons as necessary to serve as acting Trustees so
that there are eight persons acting as Trustees for the DP3 until the
emergency conditions cease. The acting Board of Trustees may exercise
any and all emergency powers authorized under the Code, in the name of
the DP3, without regard to requirements of membership approval, if the
action taken is reasonably necessary during the presence of emergency
conditions.
2.5. Meetings.
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The Board of Trustees will hold at least one (1) regular meeting during
each calendar year, and may call other regular meetings of the Board of
Trustees, or special meetings of the Board of Trustees, at the call of:
(a) the Chairman,
(b) any two Trustees.
Any matter relating to the affairs of the DP3 may be brought before the
Board at such called meeting unless notice of the matter is required to
be included in the notice of the Board of Trustees meeting. Notice of
each special meeting is to be sent to each Trustee by email at least two
(2) days prior to a special meeting. Where circumstances require a meeting
on less than two days’ written and mailed notice, such notification
to each member of the Board of Trustees may also be made by any other
reasonable method. At meetings of the Board of Trustees, quorum consists
of a majority of the Board.
No proxy votes may be used for the purpose of establishing a quorum. After
a quorum is established, however, proxy votes may be used. A member present
at the meeting may only hold one (1) proxy for voting purposes.
2.6. Procedure Rules at Meetings.
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It is understood that in the transaction of its business, the meetings
of the DP3, its Board of Trustees and its committees may be conducted
with informality; however, this informality does not apply to procedural
requirements required in the articles of in DP3, these bylaws, or the
Code. When circumstances warrant, any meeting or a portion of a meeting
will be conducted according to generally understood principles of parliamentary
procedure as stated in the articles of incorporation, these bylaws, or
a recognized procedural reference authority. The procedural reference
authority for DP3 is designated as the latest edition of Robert’s
Rules of Order, Newly Revised.
2.7. Use of Contemporaneous Communications
Systems for Board Meetings.
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The Board of Trustees, or any DP3 committee, may utilize a contemporaneous
communications system in which all participants in the meeting can hear
each other; and participation in a meeting by this system constitutes
the presence of the participant at the meeting.
2.8. Voting; Quorum.
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Each Trustee has one vote on the Board of Trustees. Once quorum is established,
all matters put to a vote before the Board of Trustees will require the
affirmative vote of a majority of Trustees voting on the matter, in the
presence of a quorum, unless a greater majority is required by these bylaws,
the articles of incorporation or the Code. The participation of a majority
of the Trustees, whether present in person or through a contemporaneous
communications system, constitutes a quorum of the Board in order to conduct
business. In the event that fewer than a majority, but at least one-third
of the Trustees are participating, then the Board is authorized to consider
and make recommendations on any matter action upon which is viewed as
appropriate in the circumstances for action either at a subsequent meeting,
by mail ballot or by written consent, or to call a special meeting of
the Board of Trustees.
2.9. Removal of Trustee.
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(1) One or more Trustees may be removed for a stated cause by the affirmative
vote of a two thirds majority of the remaining members of the Board of
Trustees of DP3 at a regular or special meeting of the Board of Trustees,
and where notice of a Trustee’s intention to present a motion for
removal has been given prior to the meeting of the Board of Trustees.
A separate vote on removal must be made as to each Trustee proposed for
removal.
(2) In the event of removal, the provisions of Section 2.3 (Election,
Nomination and Qualifications) and 2.9 (Removal of Trustee) will apply;
however, if the removal of Trustees results in a total of four or more
vacancies on the Board, the remaining Trustees shall organize and expedite
the election of new Trustees to the vacancies on the Board of Trustees
by convening a special meeting of the Board of Trustees, on some later
date at least ten but within fifteen days after the date of the meeting
at which Trustees were removed, or after the vacancies arose, with all
remaining Trustees voting either in person or by proxy, and without utilizing
mail voting, for the purpose of filling these vacancies.
2.10. Vacancies.
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(1) Whenever a vacancy occurs on the Board of Trustees between regular
annual Trustee elections by the membership, then that vacancy will be
filled temporarily by the Board of Trustees at a regular meeting; with
such new Trustee serving until the next regular annual election; unless
three or fewer Trustees remain, in which case, the expedited procedure
in Section 2.8 will be implemented by the Nominations Committee. When
a position on the Board is filled by a temporary appointment by the Board,
such position will be filled by the membership vote at the annual election.
The term for such position shall be for the balance of the vacated term.
(2) If any Trustee-elect declines election, or fails to assume the responsibilities
of Trustee, that position is considered vacant when the term begins, and
is filled under paragraph (1) of this Section.
(3) If any office of DP3 becomes vacant for any reason, the vacancy shall
be filled by election in accordance with the provisions of this Section.
2.11. Written Consent Action by
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Any action required by law, or permitted to be taken at any meeting of
the Board of Trustees, may be taken without a meeting, if a written consent,
setting forth the action so taken, is signed by a majority of the Trustees.
This written consent may be accomplished through electronic means such
as email. This consent is the equivalent to a vote of the Board of Trustees
during a meeting with a quorum, and is to be filed and recorded with the
minutes of DP3’s Board of Trustees. The Trustees who did not sign
the consent action shall be given notice of the action as soon as practicable,
but no later than the next meeting of the Board of Trustees after the
written consent action is signed by a sufficient number of Trustees.
2.12. Officers.
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(a) Number and Tenure
The officers of the Corporation shall be a Chairman, a Vice-Chairman, a Secreary and a Tresurer and other officers as shall from time to time be elected or appointed by the Board of Trustees. Each officer shall be elected biannually by the Board of Trustees and shall serve a two-year term of office or until his successor is chosen, his earlier resignation, death or removal. Any person may hold any two or more offices, however the Chairman may not be also the Secretary.
(b) Removal
Any officer or agent elected or appointed by the Board of Trustees may be removed by a majority of the Board, with or without cause, whenever in its judgment the best interests of the Corporation will be served.
(c) Duties of Officers
Each Officer of DP3 exercises the following responsibilities pertaining to their office,
in addition to any other duty imposed on that office by the articles of
incorporation, these bylaws, the Code or by vote of the membership or
the Board of Trustees of DP3, as follows:
(1) The Chairman presides at all meetings of the Board of Trustees of
DP3; reports on the activities of DP3 at each annual meeting of DP3; oversees
the activities of DP3, and reports to the members of DP3 on those other
matters determined appropriate to the Board of Trustees.
(2) The Vice Chairman presides at all meetings of the Board of Trustees
of DP3 in the absence of the Chairman, and in the case of a vacancy in
the office of Chairman, acts as Chairman until a new Chairman is elected.
In addition, the Vice Chairman oversees the operations of the Board and
DP3 committees and reports on those matters determined to be appropriate
to the Board of Trustees of DP3 and to the membership of DP3 and performs
other duties as assigned by the Chairman or by a vote of the Board.
(3) The Secretary maintains and provides access to the records of
DP3, records the minutes of
all proceedings of the Board of Trustees of DP3; reports on these matters
to the Board of Trustees and the membership of DP3; and will perform other
duties assigned by the Chairman or by a vote of the Board.
(4) The Treasurer maintains the financial records of DP3; prepares the
annual accounting and financial statement of DP3 for the annual meeting
of DP3 (which may be prepared by a certified public accountant when authorized
by the Board of Trustees); and reports on these matters to the Board of
Trustees of DP3. The Treasurer will assist the Secretary in the counting
of ballots in any election for the Board of Trustees or officers of DP3
and will perform other duties assigned by the Chairman or by a vote of
the Board.
2.13. Financial Regulations.
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This section outlines certain policies and practices as to the financial
procedures of DP3:
(1) Any expenditure, of more than five hundred dollars ($500.00) of DP3
funds, may not be made unless specifically approved by the Board of Trustees
of DP3, or unless the expenditure is part of an ongoing project approved
by the Board of Trustees of DP3.
(2) No other expenditure may be made unless approved by the Board of Trustees
by specific motion or as part of a general budget.
(3) Expenditures from a special account, based upon revenues into that
account for a designated project or activity are subject to review only
by the supervising committee, but the status of that account will be regularly
reported to the Board of Trustees.
(4) The signatory on any bank account and the depository institution for
that account is established by the Board of Trustees by an appropriate
resolution.
(5) Any Trustee, committee chairman, or committee member of DP3 may be
reimbursed for their actual and necessary expenses when reasonably incurred
on behalf of DP3. No Trustee, committee chairman, or committee member
of DP3 may receive any salary, fees, compensation, commission or other
payment for rendering specific services to DP3.
(6) DP3’s fiscal year is January 1 - December 31.
2.14. Board Committees.
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The Board of Trustees may establish such committees as it determines to
be necessary and proper from time to time. Membership on committees established
by the Board shall be composed solely of members of DP3 as defined in
Section 2.2. A Trustee appointed by the Chairman shall supervise each
committee. Board committees may not exercise the authority of the Board
of Trustees when prohibited by the Code.
2.15. DP3 Committees.
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Standing or temporary committees of DP3 may be created by action of the
Board of Trustees. The charge of each standing committee is to be reflected
within this section of these bylaws. The Board of Trustees is to designate
the chair of each standing committee. The charge and chair of each temporary
committee will be stated in the motion creating a temporary committee.
The chair of each committee will appoint the remaining members of that
committee; unless its full membership is designated at the time a temporary
committee is created. Each committee will report regularly to the Board
of Trustees of DP3 at meetings, or through the official newsletter of
DP3, and make any recommendation to the Board of Trustees as it determines
to be appropriate. The chair and membership of each committee serve at
the pleasure of the Board of Trustees. Each standing committee is to be
established by the inclusion of its name, charge and appointing authority
in the following paragraphs of this section, and adopted in accordance
with Section 7.2 of these bylaws:
(1) Nominations Committee. This committee will discharge the responsibilities
delegated to it under Title 2 of these bylaws. The Board of Trustees is
the appointing authority of this committee, which shall consist of at
least three (3) members. This committee is appointed annually not later
than August 10.
The Board of Trustees may expand the charge of any committee generally
or for a specific project when circumstances warrant.
Title 3. Code Provisions Incorporated. (top)
3.1. Indemnification.
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(1) Authority to Indemnify. Except as otherwise provided
in this section, DP3 may indemnify an individual who is a party to a proceeding
(whether threatened, pending or completed action, suit or proceeding,
and whether civil, criminal, administrative, arbitrative, or investigative,
and whether formal or informal) because he or she is or was a Trustee
against liability to pay a judgment, settlement, penalty, fine (including
the obligation to pay an excise tax assessed with respect to an employee
benefit plan), or reasonable expenses, including counsel fees, incurred
with respect to the proceeding if:
(A) Such individual conducted himself or herself in good faith; and
(B) Such individual reasonably believed:
(i) In the case of conduct in his or her official capacity as Trustee
of DP3, that such conduct was in the best interests of DP3;
(ii) In all other cases, that such conduct was at least not opposed to
the best interests of DP3; and
(iii) In the case of any criminal proceeding, that the individual had
no reasonable cause to believe such conduct was unlawful.
A Trustee’s conduct with respect to an employee benefit plan for
a purpose he or she believed in good faith to be in the interests if the
participants in and beneficiaries of the plan is conduct that satisfies
the requirement of subparagraphs (A) and (B) of this paragraph 1. Further,
the termination of a proceeding by judgment, order, settlement, or conviction,
or upon a plea of nolo contendere or its equivalent is not, of itself,
determinative that the Trustee did not meet the standard of conduct described
in this section. DP3 may not indemnify a Trustee under this section in
connection with a proceeding by or in the right of DP3, except for reasonable
expenses, including counsel fees, incurred in connection with the proceeding
if it is determined that the Trustee has meet the relevant standard of
conduct under this section, or in connection with any other proceeding
with respect to conduct for which the Trustee was adjudged liable on the
basis that a personal benefit was improperly received by him or her, whether
or not involving action in his or her official capacity as a Trustee of
the DP3.
(2) Mandatory Indemnification. DP3 shall indemnify a Trustee
who was wholly successful, on the merits or otherwise, in the defense
of any proceeding (whether threatened, pending or completed action, suit
or proceeding, and whether civil, criminal, administrative, arbitrative,
or investigative, and whether formal or informal) to which the Trustee
was a party because he or she was a Trustee of DP3 against the reasonable
expenses, including counsel fees, incurred by the Trustee in connection
with the proceeding.
(3) Advance for Expenses. Before the final deposition of a proceeding
(whether threatened, pending or completed action, suit or proceeding,
and whether civil, criminal, administrative, arbitrative, or investigative,
and whether formal or informal), DP3 may advance funds to pay for or reimburse
the reasonable expenses, including counsel fees, incurred by a Trustee
who is a party to that proceeding because he or she is a Trustee if he
or she delivers to DP3:
(A) A written affirmation of his or her good faith belief that he or she
has met the relevant standard of conduct described in paragraph A of this
Section 5.1 (and in O.C.G.A. § 14-3-851), or that the proceeding
involves conduct for which liability has been eliminated under a provision
of the articles of incorporation (as authorized by O.C.G.A. § 14-3-202(b)(4));
and
(B) His or her written undertaking to repay any funds advanced if it is
ultimately determined that the Trustee is not entitled to indemnification
under the provisions of Part 5 of Article 8 of the Georgia Business Corporation
Code or under these bylaws. This undertaking must be an unlimited general
obligation of the Trustee but need not be secured and may be accepted
by DP3 without reference to the financial ability of the Trustee to make
repayment.
Authorizations under this section shall be made by the Board of Trustees:
(a) where there are two or more disinterested Trustees, by a majority
vote of all of the disinterested Trustees (a majority of whom shall for
such purpose constitute a quorum) or by a majority of the members of a
committee of two or more disinterested Trustees appointed by such a vote;
or (b) when there are fewer than two disinterested Trustees, then by the
affirmative vote of a majority of Trustees present, in the presence of
a quorum, unless the vote of a greater number of Trustees is required
for action by the Board (in accordance with O.C.G.A. § 14-3-824(c))
and in which authorization Trustees who do not qualify as disinterested
Trustees may participate.
(4) Court Ordered Indemnification or Advance for Expenses. A
Trustee who is a party to a proceeding (whether threatened, pending or
completed action, suit or proceeding, and whether civil, criminal, administrative,
arbitrative, or investigative, and whether formal or informal), because
he or she is a Trustee may apply for indemnification or advance for expenses
(including counsel fees) to the court conducting the proceeding or to
another court of competent jurisdiction. After receipt of the application
and after giving any notice it considers necessary, the court shall order
indemnification or advance for expenses if it determines:
(A) that the Trustee is entitled to indemnification under this Section
3.1, or
(B) in view of all of the relevant circumstances, that it is fair and
reasonable to indemnify or advance expenses to the Trustee, even if the
Trustee has not met the relevant standard of conduct in paragraph 1 of
this Section 3.1, or failed to comply with the procedure in paragraph
3 of this Section 3.1, or was adjudged liable in a proceeding by or in
the right of DP3, except for reasonable expenses, including counsel fees,
incurred in connection with the proceeding if it is determined that the
Trustee has meet the relevant standard of conduct under this section,
or in connection with any other proceeding with respect to conduct for
which the Trustee was adjudged liable on the basis that a personal benefit
was improperly received by him or her, whether or not involving action
in his or her official capacity as a Trustee of DP3.
If the court determines that the Trustee is entitled to indemnification
or advance for expenses, it may also order DP3 to pay the Trustee’s
reasonable expenses, including counsel fees, to obtain court-ordered indemnification
or advance for expenses.
(5) Procedure for Determination. DP3 may not indemnify a Trustee
under Paragraph 1 of this Section 3.1 unless authorized under the terms
of Paragraph 1 of this Section 3.1, and a determination has been made
for a specific proceeding (whether threatened, pending or completed action,
suit or proceeding, and whether civil, criminal, administrative, arbitrative,
or investigative, and whether formal or informal), that indemnification
of the Trustee is permissible in the circumstances because the Trustee
has met the relevant standard of conduct set forth in Paragraph 1 of this
Section 3.1. The determination shall be made:
(A) If there were two or more disinterested Trustees, by the Board of
Trustees by a majority vote of all of the disinterested Trustees (a majority
of whom shall for such purpose constitute a quorum) or by a majority of
the members of a committee of two or more disinterested Trustees appointed
by such a vote);
(B) By special legal counsel selected in the manner described in paragraph
(A) of this subparagraph or, if there are fewer than two disinterested
Trustees selected by the Board of Trustees (in which selection Trustees
who do not qualify as disinterested Trustees may participate); or
(C) By the members, but a Trustee who at the time does not qualify as
a disinterested Trustee may not vote on the determination.
Authorization of indemnification or of an obligation to indemnify and
the evaluation as to the reasonableness of expenses, including counsel
fees, shall be made in the same manner as the determination that indemnification
is permissible, except that if there are fewer than two disinterested
Trustees or if the determination is made by special legal counsel, the
authorization of indemnification and the evaluation as to the reasonableness
of expenses shall be made by those Trustees who could select special legal
counsel (when there are fewer than two disinterested Trustees) under subparagraph
(2) of this section.
(6) Authorization of Indemnification Exceeding Statutory Levels.
This section authorizes DP3 to indemnify or obligate itself to indemnify
a Trustee made a party to a proceeding (whether threatened, pending or
completed action, suit or proceeding, and whether civil, criminal, administrative,
arbitrative, or investigative, and whether formal or informal), including
a proceeding brought by or in the right of DP3, without regard to the
limitations contained in Part 5 of Article 8 of the Georgia Nonprofit
Corporation Code, or of other provisions of this Section 5.A, but the
shares owned or voted under the control of a Trustee who at the time does
not qualify as a disinterested Trustee with respect to any existing or
threatened proceeding that would be covered by the authorization may not
be voted with respect to the authorization. DP3 shall not indemnify a
Trustee under this section for any liability incurred in a proceeding
in which the Trustee is adjudged liable to DP3 or is subjected to injunctive
relief in favor of DP3 for:
(A) Any appropriation, in violation of the Trustee’s duties, of
any business opportunity of DP3,
(B) Acts or omissions which involve intentional misconduct or a knowing
violation of law,
(C) The types of liability respecting improper corporate distributions
under O.C.G.A. §14-3-831, or
(D) Any transaction from which the Trustee received an improper personal
benefit.
Before DP3 may advance or reimburse expenses of a Trustee prior to the
final disposition of a proceeding, as approved or authorized under this
section, the Trustee is to furnish to DP3 a written affirmation of his
or her good faith belief that his or her conduct does not constitute behavior
described in the preceding sentence of this section and furnishes to DP3
a written undertaking, executed personally or on his or her behalf, to
repay any funds advanced if it is ultimately determined that the Trustee
is not entitled to indemnification under this section.
(7) Indemnification or Advance of Expenses for Officer of DP3;
Indemnification or Advance of Expenses for Employees and Agents.
(A) DP3 may indemnify and advance expenses under this Section 3.1 to an
officer of DP3 who is a party to a proceeding (whether threatened, pending
or completed action, suit or proceeding, and whether civil, criminal,
administrative, arbitrative, or investigative, and whether formal or informal),
because he or she is an officer of DP3 to the same extent as a Trustee,
as provided in this Article. If an officer of DP3 is not a Trustee, or
although the officer is also a Trustee, because the sole basis on which
he or she is made a party to the proceeding is an act or omission solely
as an officer, DP3 may indemnify or advance expenses to such further extent
permitted by the laws of Georgia, except for liability arising out of
conduct that constitutes:
(i) Appropriation, in violation of his or her duties as an officer, of
any business opportunity of DP3,
(ii) Acts or omissions which involve intentional misconduct or a knowing
violation of law,
(iii) The types of liability for improper corporate distributions (as
specified in O.C.G.A. § 14-3-831), or
(iv) the receipt of an improper personal benefit.
An officer of DP3 who is not a Trustee is entitled to mandatory indemnification
under paragraph 2 of this Section 3.1, may apply for to a court for indemnification
or advances for expenses under paragraph (4) of this Section 5.A to the
same extent to which a Trustee may be entitled to indemnification for
advances for expenses.
(B) DP3 shall indemnify and advance expenses to an employee or agent of
DP3 who is not a Trustee to the fullest possible extent, consistent with
public policy and to the fullest extent permitted by the laws of Georgia.
The procedures for such indemnification or advance shall be consistent
with those for Trustees or officers of DP3.
(8) Insurance. DP3 may purchase and maintain insurance on behalf
of each individual who is a Trustee, officer, employee, or agent of DP3,
or who, while a Trustee, officer, employee, or agent of DP3, serves at
DP3’s request as a Trustee, officer, partner, trustee, employee,
or agent of another domestic or foreign corporation, partnership, joint
venture, trust, employee benefit plan, or other entity against liability
asserted against or incurred by him or her in that capacity or arising
from his or her status as a Trustee, officer, employee, or agent, whether
or not DP3 would have power to indemnify or advance expenses to him or
her against the same liability under this Article.
(9) Prior Obligation to Indemnify or Advance Expenses. Pursuant
to the provisions of O.C.G.A. § 14-3-858, DP3 is authorized to obligate
itself in advance of the act or omission giving rise to a proceeding (whether
threatened, pending or completed action, suit or proceeding, and whether
civil, criminal, administrative, arbitrative, or investigative, and whether
formal or informal), to provide indemnification or advance funds to pay
for or reimburse expenses of a Trustee, officer, employee or agent to
the fullest extent permitted by the laws of Georgia. DP3 has power to
pay or reimburse a Trustee or officer in connection with his or her appearance
as a witness in a proceeding (whether threatened, pending or completed
action, suit or proceeding, and whether civil, criminal, administrative,
arbitrative, or investigative, and whether formal or informal), at a time
when he or she is not a party. Further, except to the extent limited in
Paragraph 7 of this Section 3.1, this Section 5.A does not otherwise limit
DP3’s power to indemnify, advance expenses to, or provide or maintain
insurance on behalf of an employee or agent.
(10) Definitions for Section.
As used in this Section 3.1, unless the context clearly requires a different
meaning, the term:
(A) “Corporation” includes any domestic or foreign predecessor
entity of a corporation in a merger or other transaction in which the
predecessor’s existence ceased upon consummation of the transaction;
(B) “Trustee” or “officer” means an individual
who is or who was a Trustee or officer, respectively, of a corporation,
or who, while a Trustee or officer of DP3, is or was serving at DP3’s
request as a Trustee, officer, partner, trustee, employee, or agent of
another domestic or foreign corporation, partnership, joint venture, trust,
employee benefit plan, or other entity. A Trustee or officer is consider
to be serving an employee benefit plan at DP3’s request if his or
her duties to DP3 also impose duties on, or otherwise involve services
by the Trustee or officer to the plan or to participants in or beneficiaries
of the plan. Further, unless the context otherwise requires, “Trustee”
or “officer” includes the estate or personal representative
of a Trustee or officer.
(C) “Disinterested Trustee” means a Trustee who at the time
of a vote or other action by the Board of Trustees of DP3 is not a party
to the proceeding; or is an individual who is a party to a proceeding
having a familial, financial, professional, or employment relationship
with the Trustee whose indemnification or advance for expenses is the
subject of the decision being made with respect to the proceeding, which
relationship would, in the circumstances, reasonably be expected to exert
an influence on the Trustee’s judgment when voting on the decision
being made.
(D) “Expenses” includes counsel fees.
(E) “Liability” means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employee
benefit plan), or reasonable expenses incurred with respect to a proceeding.
(F) “Official capacity” means when used with respect to a
Trustee, the office of Trustee in DP3, and when used with respect to an
officer, as contemplated in paragraph (7) of this Section 3.1, the office
in DP3 held by the officer. “Official capacity” does not include
service for any other domestic or foreign corporation or any partnership,
joint venture, trust, employee benefit plan, or other entity.
(G) “Party” means an individual who was, is, or is threatened
to be made a named defendant or respondent in a proceeding.
(H) “Proceeding” means any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative, arbitrative,
or investigative, and whether formal or informal.
3.2. Procedures Where Trustee Has
Conflicting Interest in Transaction.
(top)
The provisions of Part 6 of Article 8 of the Code, relating to rules governing
the procedures to be applied where a Trustee has a conflicting interest
in a transaction involving DP3, is adopted by DP3 by this reference as
a bylaw of DP3.
3.3. Sales of Assets Outside Regular
Course of Business. (top)
The provisions of Article 12 of the Code, relating to the sale of all,
or substantially all of the assets of DP3 outside the regular course of
business, is adopted by DP3 by this reference, as a bylaw of DP3.
3.4. Corporate Seal.
(top)
The seal of DP3 shall be in such form as the Board of Trustees may from
time to time determine. In the event it is inconvenient to use such a
seal at any time, or in the event the Board of Trustees shall not have
determined to adopt a corporate seal, the signature of DP3 followed by
the word “Seal” enclosed in parentheses or scroll shall be
deemed the seal of DP3. The seal shall be in the custody of the Secretary
and affixed by him or by his assistants on all appropriate papers.
3.5. Bank Accounts and Loans.
(top)
(1) Bank Accounts. Such officers or agents of DP3 as from time
to time shall be designated by the Board of Trustees shall have authority
to deposit any funds of DP3 in such banks or trust companies as shall
from time to time be designated by the Board of Trustees and such officers
or agents as from time to time shall be authorized by the Board of Trustees
may withdraw any or all of the funds of DP3 so deposited in any such bank
or trust company, upon checks, drafts or other instruments or orders for
the payment of money, drawn against the account or in the name or behalf
of DP3, and made or signed by such officers or agents; and each bank or
trust company with which funds of DP3 are so deposited is authorized to
accept, honor, cash and pay, without limit as to amount, all checks, drafts
or other instruments or orders for the payment of money, when drawn, made
or signed by officers or agents so designated by the Board of Trustees,
until written notice of the revocation of the authority of such officers
or agents by the Board of Trustees shall have been received by such bank
or trust company. There shall from time to time be certified to the banks
or trust companies in which funds of DP3 are deposited, the signature
of the officers or agents of DP3 so authorized to draw against the same.
In the event that the Board of Trustees shall fail to designate the persons
by whom checks, drafts and other instruments or orders for the payment
of money shall be signed, as hereinabove provided in this Section, all
of such checks, drafts and other instruments or orders for the payment
of money shall be signed by the Chairman or a Vice Chairman and countersigned
by the Secretary or Treasurer or an Assistant Secretary or an Assistant
Treasurer of DP3.
(2) Loans. Such officers or agents of this Corporation as from
time to time shall be designated by the Board of Trustees shall have authority
to effect loans, advances or other forms of credit at any time or times
for DP3 from such banks, trust companies, institutions, corporations,
firms, or persons as the Board of Trustees shall from time to time designate,
and as security for the repayment of such loans, advances, or other forms
of credit to assign, transfer, endorse and deliver, either originally
or in addition or substitution, any or all stocks, bonds, rights and interests
of any kind in or to stocks or bonds, certificates of such rights or interests,
deposits, accounts, documents covering merchandise, bills and accounts
receivable and other commercial papers and evidences of debt at any time
held by DP3; and for such loans, advances or other forms of credit to
make, execute and deliver one or more notes, acceptances or written obligations
of DP3 on such terms, and with such provisions as to the security or sale
or disposition thereof as such officers or agents shall deem proper; and
also to sell to, or discount or rediscount with, such banks, trust companies,
institutions, corporations, firms or persons any and all commercial paper,
bills receivable, acceptances, and other instruments and evidences of
debt at any time held by DP3, and to that end to endorse, transfer and
deliver the same. There shall from time to time be certified to each bank,
trust company, institution, corporation, firm or person so designated
the signatures of the officers or agents so authorized; and each such
bank, trust company, institution, corporation, firm or person is authorized
to rely upon such certification until written notice of the revocation
by the Board of Trustees of the authority of such officers or agents shall
be delivered to such bank, trust company, institution, corporation, firm
or person.
Title 4. Reimbursement by DP3 Employees (top)
Any payments made to an employee of DP3 in the form of reimbursement, a salary, or bonus payment, that is disallowed, in whole or in part, as a deductible expense to DP3 for Federal or State income tax purposes by the Internal Revenue Service, or by the revenue department of any State, shall be reimbursed by such employee to DP3 to the full extent of such disallowance within six (6) months after the date on which DP3 is assessed a deficiency with respect to such allowance. It shall be the duty of the Board of Trustees of DP3 to enforce payment to DP3 by any such employee for the amount disallowed. DP3 shall not be required to legally defend any proposed disallowance by the Internal Revenue Service or by the revenue department of any State, and the amount required to be reimbursed by such employee shall be the amount, as finally determined by agreement or otherwise, which is actually disallowed as a deduction. In lieu of payment to DP3 by any such employee, the Board of Trustees may, in the discretion of the Board, withhold amounts from such employee’s future compensation payments until the amount owed to DP3 has been fully recovered.
Title 5. Amendments (top)
5.1. Amendments to Articles of Incorporation.
(top)
Any change in the articles of incorporation of DP3 is not adopted unless
each proposal is submitted to the Board of Trustees for a vote as to whether
the proposal should be adopted, be adopted with amendments, or be rejected,
and the Board’s reasons for their recommendation. Proposals may
be initiated by a vote of the Board of Trustees, or by any two Trustees
of DP3. When the proposal is presented for consideration at a meeting
of the membership of DP3, it is open to any amendments or other action
as the Board of Trustees approves, without limitation. No proposal to
change the articles of incorporation is adopted unless two-thirds of the
Trustees affirmatively vote, with a quorum present at a meeting, or with
a quorum of ballots when voted upon by mail to approve the proposal. Once
adopted, no change is effective until it is filed with the Georgia Secretary
of State as required by the Code.
5.2. Amendments to Bylaws.
(top)
Any change in the bylaws of DP3 is not adopted unless each proposal is
submitted to the Board of Trustees for a vote as to whether the proposal
should be adopted, be adopted with amendments, or be rejected, and the
Board’s reasons for their recommendation. Proposals may be initiated
by a vote of the Board of Trustees, or by any two Trustees of DP3. When
the proposal is presented for consideration at a meeting of the membership
of DP3, it is open to any amendments or other action as the Board of Trustees
approves, without limitation. No proposal to change the bylaws is adopted
unless a majority of the Trustees affirmatively vote, with a quorum present
at a meeting, or with a quorum of ballots when voted upon by mail to approve
the proposal. Once adopted, any change to these bylaws is immediately
effective, unless some later date is designated in the proposal.