(a) Standards. Each Constituent Organization and each applicant for Constituent Organization status must promote the educational objectives of the Foundation, including the educational purposes connected with the elevation of the legal profession, the stimulation of legal research in mineral or natural resources law and the discussion of mineral or natural resources law issues, and shall satisfy the appropriate standards as follows:
(i) Law Schools. United States law schools must be members of the Association of American Law Schools and must provide a curriculum, that when completed, entitles a graduate to a degree of LL.B., LL.M., J.D., S.J.D. or equivalent. Such degree must satisfy all legal education requirements of the state where the school is located for admission to practice before the courts of general jurisdiction of that state. A law school located in a jurisdiction outside of the United States must establish that it meets the requirements of the highest accrediting body or agency within the jurisdiction and that its degree program satisfies all legal education requirements of the particular jurisdiction where the school is located for admission to practice before the courts of general jurisdiction of that jurisdiction. Law schools that are Constituent Organizations must provide a program of, and demonstrate a continuous interest of faculty or school in, mineral or natural resources law sufficient to promote the educational objectives of the Foundation. Attendance and participation in Foundation programs and access to mineral and natural resources materials produced by the Foundation and other organizations will be considered in determining the interest of the faculty and the school.
(ii) Industry Associations. Industry associations must be exclusively concerned with problems of one or more of the mineral or natural resources industries, must draw a majority of their membership from persons employed in such industries, must represent an area no smaller than a single state or province, must have sufficient membership so that they fairly represent the class of persons or industries located within the geographical areas that they purport to represent and must be non-profit organizations.
(iii) Bar Associations. Bar associations within the United States must represent an area no smaller than a single state; and Bar associations outside of the United States must represent an area no smaller than a single province or territory. Bar associations must have a membership consisting of a majority of the attorneys, lawyers or other persons with similar functions licensed to practice law within the geographical area that they represent and must demonstrate a continuous interest in promoting scholarship and education in mineral or natural resources law.
(b) Admission. Admission of new Constituent Organizations shall be accomplished by petition of the governing body of the organization and the acceptance thereof by the Trustees Council, but no such petition shall be submitted to the Trustees Council unless and until a determination has been made by the Board of Directors in consultation with the Credentials Committee that the organization applying for Constituent Organization status satisfies the standards herein set forth that may be applicable to such organizations.
(c) Withdrawal. Except as hereinafter provided, status as a Constituent Organization shall continue until the governing body of the Constituent Organization gives notice of withdrawal in writing to the President or Executive Director. Withdrawal shall not discharge the organization from obligations and responsibilities imposed upon that Constituent Organization before the effective date of the withdrawal. Such withdrawal shall be effective only upon receipt of notice of withdrawal as specified above by the President or Executive Director or at such later date as may be specified in the notice of withdrawal.
(d) Suspension. A Constituent Organization may be suspended from its status as a Constituent Organization for lack of participation in Foundation activities, noncompliance with these Bylaws or other just cause, as determined in accordance with this Subsection 2.3(d). The procedure with respect to any such suspension shall be as follows: Whenever it may appear that a Constituent Organization may be subject to suspension, the Board of Directors shall consider the matter without unnecessary delay. If the Board of Directors finds that there is reasonable ground for the Trustees Council to consider the matter of such suspension, it shall cause written notice to be given to the Constituent Organization at least thirty (30) days in advance of the meeting of the Trustees Council at which the matter will be considered and send a copy thereof to each Trustee. The notice shall briefly state the reasons and state the time and place of such Trustees Council meeting. The Trustee or other representative of the Constituent Organization shall have an opportunity to be heard at such meeting. In the case of non-attendance by a representative of a Constituent Organization at the Annual Trustees Meeting, the Board of Directors may take the actions outlined in Subsection 2.3(e) in lieu of any action taken by the Trustees Council to suspend a Constituent Organization under this Subsection 2.3(d).
(e) Voting on Admission and Suspension; Probation and Termination. Except for the provisions relative to attendance set forth below, new organizations shall be admitted as Constituent Organizations, and existing Constituent Organizations shall be suspended, only upon the affirmative vote of not less than two-thirds of the Trustees present at the meeting of the Trustees Council considering such admission or suspension, provided a quorum is present at such meeting and provided further not less than a majority of the entire Trustees Council votes in favor of such admission or suspension. Non-attendance at the Annual Trustees Meeting for two (2) consecutive years by the Constituent Trustee of any Constituent Organization or a duly appointed alternate shall result in automatic placement of such Constituent Organization on probation, provided the Board of Directors, upon good cause shown by the Constituent Organization, may suspend such automatic action for one (1) year. For purposes of the foregoing provision, attendance at the Annual Trustees Meeting shall require attendance at the primary business meeting as designated on the agenda published for such meeting. The period of such probation shall be for three (3) years during which time non-attendance at any Annual Trustees Meeting by the Constituent Trustee or a duly appointed alternate shall result in automatic termination of Constituent Organization status. At the expiration of the period of probation, the Board of Directors shall recommend action to the Trustees Council at the next Annual Trustees Meeting that the Constituent Organization be either (i) terminated, (ii) reinstated to full status or (iii) retained on probation for a specified period of time. Action by the Trustees Council to terminate Constituent Organization status shall require the two-thirds vote as specified above. Any other action shall require a simple majority of those Trustees present at the meeting, provided a quorum is present at such meeting. Notice of the imposition of probation, suspension or termination of Constituent Organization status shall be given in writing to the Dean of the law school or the president, chief executive officer or any other officer of the Constituent Organization holding similar power and authority.
Section 2.4. Term. Trustees-at-Large shall have one (1) year terms, commencing upon adjournment of the Annual Trustees Meeting at which they are elected and continuing until the conclusion of the next Annual Trustees Meeting or until their successors are elected. Trustees-at-Large shall not be elected as Trustees-at-Large for more than three consecutive one-year terms. Constituent Trustees shall be appointed for a term of three (3) years and shall continue until they are reappointed or replaced, provided: (a) a Trustee who no longer qualifies to be a Constituent Trustee shall be deemed to have resigned as a Constituent Trustee as of the date such Trustee no longer meets such qualifications and (b) the failure of a Constituent Organization to reappoint or replace its Constituent Trustee within one (1) year after the expiration of the term of such Constituent Trustee shall be grounds for the Board of Directors to declare the position vacant. Officers shall serve as Trustees for a term equal to their term in office as an Officer; and At-Large Board Members shall serve as Trustees for a term equal to their term as an At-Large Board Member. Past Presidents and Honorary Trustees shall serve a term equal to the remaining life of the Past President or Honorary Trustee.
Section 2.5. Removal. Any Trustee may be removed as a Trustee by the Trustees Council for conduct determined by the Trustees Council to be inconsistent with the values or mission of the Foundation.
Section 2.6. Vacancies. In case of vacancy in the Trustees Council due to death, resignation, removal or disqualification of a Constituent Trustee, a successor shall be appointed by the applicable Constituent Organization. In case of vacancy in the Trustees Council due to death, resignation, removal or disqualification of a Trustee-at-Large (other than Officers and At-Large Board Members), a successor may be appointed by the Board of Directors to serve through the next Annual Trustees Meeting.
Section 2.7. Compensation and Reimbursement. Trustees shall not receive compensation for their services as Trustees or as members of the Board of Directors, nor shall they be reimbursed for their expenses in attending meetings of the Trustees Council, provided Trustees may be reimbursed for their expenses (i) while acting as a speaker or (ii) by resolution of the Board of Directors. Furthermore, if a Dean of a law school that is a Constituent Organization in good standing states to the Executive Director that budgetary factors limit its contribution to the Foundation to the services of its faculty, staff and research facilities and preclude cash reimbursement of part or all of its Constituent Trustee’s expenses for attendance at the Annual Trustees Meeting, such Trustee may be reimbursed only to the extent of: (a) the actual expenses incurred by the Trustee for travel between the Trustee’s home city and the place of the Annual Trustees Meeting, not to exceed the amount of the lowest timely arranged roundtrip airfare or transportation package available, with actual expenses for the use of a private automobile limited to the then current mileage reimbursement rate allowed by the IRS and (b) single room expense for a maximum of four nights for the Annual Trustees Meeting and during the Annual Institute, unless it can be shown that an additional layover would result in correspondingly lower transportation expenses. Subject to limitations imposed by ethical rules applicable to governmental personnel, a Trustee who is an employee of the legislative, executive or judicial branches of a government may be reimbursed for the expense of attending the Annual Trustees Meeting on the same basis as a Constituent Trustee of a law school if such Trustee states to the Executive Director that budgetary constraints or government policy preclude cash reimbursement of the Trustee’s expenses by the Trustee’s employer.
Section 2.8. Annual Trustees Meeting. The Trustees Council shall hold an annual meeting (each, an “Annual Trustees Meeting”) at the place where the Annual Institute is held, starting either on the day before the Annual Institute or on the day of the final session or the day after and continuing until adjourned.
Section 2.9. Special Trustees Meetings. Special Trustees Meetings. Special meetings of the Trustees Council (each, a “Special Trustees Meeting”) may be held upon the call of the President specifying the matters to be considered at such meeting upon the sending of not less than five (5) days’ written notice to each Trustee. Any ten (10) or more Trustees may call such a Special Trustees Meeting upon at least thirty (30) days’ written notice to all Trustees specifying the matters to be considered. Notice of any Special Trustees Meeting may be waived by any Trustee in writing before or at such meeting.
Section 2.10. Waiver of Notice. A Trustee may waive any notice required under these Bylaws before or after the time and date of the meeting for which such notice was required. Except as otherwise provided in this Section 2.10, the waiver shall be in writing. A Trustee’s attendance at or participation in a meeting waives any required notice to that Trustee in connection with the meeting unless at the beginning of the meeting, or promptly upon the Trustee’s arrival, the Trustee objects to transacting business with respect to the purpose for which the notice was required and does not thereafter vote for or assent to action taken at the meeting with respect to such purpose.
Section 2.11. Quorum and Voting. A quorum of the Trustees Council shall consist of a majority of the total Trustees, other than past Presidents and Honorary Trustees who shall not be counted in determining a quorum. Each Trustee designated, appointed, or elected as specified in Section 2.2, including past Presidents and Honorary Trustees, present in person at a meeting of the Trustees Council, shall have one vote. Trustees may not vote by proxy; provided the forgoing shall not prohibit a duly appointed alternate voting on behalf of a Constituent Trustee. If a Trustee is serving as a Trustee in more than one capacity, such Trustee nevertheless shall be counted only once in determining a quorum and shall be entitled to only one (1) vote. Except as expressly provided in these Bylaws, a majority of those attending a meeting of the Trustees Council when a quorum is present may take any action in the conduct of the business of the Foundation authorized or required to be taken by the Trustees Council pursuant to these Bylaws or referred to the Trustees Council by the Board of Directors.
Section 2.12. Manner of Acting. Any action required or permitted to be taken by the Trustees Council may be taken without a meeting if a majority of the entire Trustees Council consents thereto in writing. Any consent by means of electronic mail or other electronic transmission shall be deemed signed on the date on which such electronic transmission was transmitted. Trustees may participate in any meeting of the Trustees Council by teleconference, videoconference or other means of electronic communication where the Trustees in attendance can hear or otherwise participate in any discussion, and participation in a meeting by such means shall constitute presence in person at such meeting.
Section 2.13. Emergency Powers of Board of Directors. If there shall occur any event outside the reasonable control of The Foundation that the Board of Directors, in its discretion, determines will, or may reasonably be expected to, have a material adverse effect on The Foundation, the Board of Directors may declare an “Emergency.” In the event of an Emergency, the Board of Directors may take any action in the conduct of the business of the Foundation otherwise required to be taken by the Trustees Council pursuant to these Bylaws in response to such Emergency. The President or the Executive Director shall cause notice of the declaration of such an Emergency to be provided to each Trustee within ten (10) days after the date of such a declaration. The powers of the Board of Directors to take action otherwise reserved to the Trustees Council by these Bylaws shall expire six (6) months after the date of the Emergency declaration; provided, that the Board of Directors may extend the Emergency declaration for successive six (6) month periods by sending further notice to each Trustee pursuant to this Section 2.13 before the expiration of each such successive six (6) month period.
Section 2.14. Duties of Trustees. All Trustees are expected to: (a) attend the Annual Trustees Meeting and the Annual Institute, absent extenuating circumstances; (b) make annual or more frequent reports to the appropriate officers of their respective organizations; (c) bring matters of appropriate concern to the Board of Directors and the Trustees Council; (d) respond to requests from the Officers or the Executive Director; (e) actively assist the Foundation on its programs and publications and (f) promote the programs, publications and objectives of the Foundation. Although referred to as “Trustees,” nothing herein is intended to confer any fiduciary duties on the Trustees; and the Trustees shall have only those duties and obligations set forth in these Bylaws and shall not have any other duties or obligations to the Foundation, fiduciary or otherwise.
Board of Directors and Committees
Section 3.3. Governance. The President shall be the Chair of the Board of Directors. The Board of Directors may adopt rules and regulations for the conduct of its business. The Board of Directors shall require minutes of its meetings to be made and preserved in the files of the Foundation.
Section 3.4. Board of Directors Meetings. The Board of Directors shall meet not less than quarterly at the time and place designated at a meeting of the Board of Directors or by notice given by the President, Executive Director or any three (3) members of the Board of Directors upon not less than five (5) days’ notice before the time of the meeting. The notice of any meeting not previously scheduled at a meeting of the Board of Directors shall specify the matters to be considered at such meeting. A majority of the members of the Board of Directors shall constitute a quorum for the transacting of business. The act of a majority of the members of the Board of Directors present at any meeting at which a quorum is present shall be the act of the Board of Directors. In the absence of a quorum, a majority of the members of the Board of Directors present at any meeting may, without notice other than announcement at the meeting, adjourn such meeting to another date or time and to the same or another place.
Section 3.5. Manner of Acting. Any action required or permitted to be taken by the Board of Directors may be taken without a meeting if all directors consent thereto in writing. Any consent by means of electronic mail or other electronic transmission shall be deemed signed on the date on which such electronic transmission was transmitted. Members of the Board of Directors may participate in any meeting by teleconference, videoconference or other means of electronic communication where the members can hear or otherwise participate in any discussion, and participation in a meeting by such means shall constitute presence in person at such meeting.
Section 3.6. Board Committees. By one or more resolutions, the Board of Directors may designate from among the members of the Board of Directors one or more board committees (each, a “Board Committee”), each of which, to the extent provided in the resolution establishing such committee, shall have and may exercise all of the authority of the Board of Directors, except as prohibited by the Act. The delegation of authority to any Board Committee shall not operate to relieve the Board of Directors or any member of the Board of Directors from any responsibility or standard of conduct imposed by law or these Bylaws. Rules governing procedures for meetings of any Board Committee shall be the same as those set forth in these Bylaws or the Act for the Board of Directors unless the Board of Directors or the committee itself determines otherwise.
Section 3.7. Non-Board Committees. In addition to any Board Committees established under Section 3.6, the Foundation shall have committees (each, a “Non-Board Committee”) composed all or in part of individuals who may or may not be members of the Board of Directors. The standing Non-Board Committees of the Foundation include the following:
(a) Nominating Committee. The Nominating Committee shall provide recommendations to the Trustees Council at the Annual Trustees Meeting (and any Special Trustees Meeting called for the purpose of filling a vacancy in the office of Vice President) for the positions of Vice-President, Secretary, Treasurer, At-Large Board Members, Trustees-at-Large and Honorary Trustees. The Nominating Committee shall consist of the seven (7) most immediate past Presidents who are available, and shall be chaired by the past President with the most seniority on the Nominating Committee.
(b) Credentials Committee. The Credentials Committee shall review all new petitions for Constituent Organization status, periodically review the compliance of all existing Constituent Organizations and bring to the attention of the Board of Directors and the Trustees Council any matters of concern related to Constituent Organizations.
(c) Financial Advisory Committee. The Financial Advisory Committee shall provide advice to the Board of Directors regarding the appropriate investment of the Foundation’s funds. The Treasurer shall be a member of the Financial Advisory Committee.
(d) Audit and Risk Management Committee. The Audit and Risk Management Committee shall provide advice to the Board of Directors regarding audit and risk management matters. The Board of Directors, in consultation with the Audit and Risk Management Committee and the Foundation staff, shall arrange for an annual or periodic audit of the Foundation’s finances.
(e) Budget Committee. The Budget Committee shall assist the Foundation staff in preparing an annual budget for approval by the Board of Directors and advise the Board of Directors regarding budget matters. The Vice President shall be the chair of the Budget Committee.
(f) Scholarships Committee. Subject to any qualifications or limitations established by the Board of Directors, the Scholarships Committee may award Foundation scholarships to qualified student applicants from Foundation funds budgeted for scholarships.
(g) Awards Committees. Subject to any qualifications or limitations established by the Board of Directors, the Foundation shall have one or more grants, special projects or other awards committees that may make awards of Foundation funds that are budgeted for disposition by any such committee in furtherance of the educational objectives of the Foundation.
(h) Publications Committee. Subject to any qualifications or limitations established by the Board of Directors, the Publications Committee shall provide advice to the Board of Directors regarding Foundation publications.
(i) Site Selection Committee. The Site Selection Committee shall recommend to the Trustees Council the sites of future Annual Institutes for which a site has not already been selected by the Trustees Council.
(j) Annual Institute Program Committee. The Chair of the Annual Institute Program Committee shall be appointed annually by the President, and all other members of such Committee shall be appointed by the Chair. The Annual Institute Program Committee shall plan the Annual Institute program, subject to the direction of the Board of Directors.
(k) Special Institutes Committee. The Special Institutes Committee shall provide advice to the Board of Directors regarding the programs for Special Institutes.
In addition to the standing Non-Board Committees identified above, the Board of Directors or the President may from time to time appoint such other standing or special Non-Board Committees, advisory boards or other bodies, having such objectives, functions and responsibilities as the Board of Directors or the President may direct or deem advisable. Except as expressly provided in Subsections (a) through (k) of this Section or as directed or approved by the Board of Directors, all Non-Board Committees, advisory boards and other bodies shall: (i) be composed of such members, and have such chairs or co-chairs, as the President may direct or deem advisable, and serve at the pleasure of the President and (ii) have such rules and procedures as the President or the committee itself deems appropriate. Except as expressly provided in Subsections (a) through (k) of this Section or as directed or approved by the Board of Directors, Non-Board Committees, advisory boards and other bodies shall not have the authority to incur any Foundation expense or make any representation or commitment on behalf of the Foundation. No Non-Board Committee, advisory board or other body may exercise any power or authority reserved to the Board of Directors by the Act, the Articles of Incorporation or these Bylaws. Members of any such Non-Board Committees, advisory boards or other bodies are expected to regularly attend scheduled meetings and meaningfully participate in furtherance of their designated objectives, functions and responsibilities.
Officers and Duties of Officers
Section 4.1. Officers. The officers of the Foundation (the “Officers”) shall be: a President, a Vice President, a Secretary, a Treasurer and such assistants to such Officers as the Trustees Council may appoint. These Officers shall be elected annually by the Trustees Council at the Annual Trustees Meeting, except that the Vice President will automatically succeed to the office of President upon the adjournment of the Annual Trustees Meeting. If a vacancy in an Officer position occurs between Annual Trustees Meetings, then: (a) in the case of a vacancy in the office of President, the Vice President shall automatically succeed to the office of President for the remainder of the President’s term and the one year term for which such Vice President would have otherwise served as President; (b) in the case of a vacancy in the office of Vice President, such office shall be filled by a vote of the Trustees Council (upon recommendation of the Nominating Committee as provided in Section 3.7(a)) at the next Annual Trustees Meeting or a Special Trustees Meeting called for such purpose and (c) in the case of a vacancy in any other Officer position, the vacancy shall be filled by the Board of Directors.
Section 4.2. Duties of the President. The President shall preside at all meetings of the Board of Directors and the Trustees Council, shall be the general executive officer of the Foundation, shall perform those duties as prescribed in these Bylaws and shall perform such other duties as may be necessary to the accomplishment of the purposes of the Foundation.
Section 4.3. Duties of the Vice President. The Vice President shall perform the duties of the President in the absence of the President and such other duties as prescribed in these Bylaws or that may be delegated by the President, the Board of Directors or the Trustees Council.
Section 4.4. Duties of the Secretary. The Secretary shall prepare and keep minutes of all meetings of the Board of Directors and the Trustees Council, shall be custodian of the corporate records of the Foundation and shall have such other duties as prescribed in these Bylaws in addition to those that are usual and customary to the office of secretary of a corporation and that may be delegated by the Trustees Council or the Board of Directors.
Section 4.5. Duties of the Treasurer. The Treasurer shall be the custodian of all monies and properties of the Foundation not in the custody or control of the Executive Director, and shall have such other duties as prescribed in these Bylaws in addition to those that are usual to the office of treasurer of a corporation and that may be delegated by the Trustees Council or the Board of Directors. Disbursements shall be made under procedures established by the Board of Directors.
Section 4.6. Duties of Assistants. Any assistant Officer appointed by the Trustees Council shall have such duties as the Trustees Council shall designate at the time of appointment.
Investment and Management of Funds
Section 5.1. Investments. The Board of Directors shall have the responsibility for establishing and approving an investment policy (the “Investment Policy”) and providing for the administration of the investment of all funds of the Foundation in a prudent and reasonable manner intended to support current, evolving and future needs of the Foundation’s educational mission on a sustainable basis. The investments shall annually be reported to the Trustees Council. The Board of Directors shall make investment decisions with the advice of the Financial Advisory Committee.
Section 5.2. Funds and Investment of Funds. The monies of the Foundation shall be maintained in one or more separate funds to be managed and invested in accordance with the Investment Policy and otherwise at the direction of the Board of Directors.
The Board of Directors, acting on behalf of the Foundation, shall employ an Executive Director. Subject to the general control of the Board of Directors, the Executive Director shall administer the continuing day-to-day business of the Foundation, give administrative support to the committees of the Foundation and participate in the organization and conduct of the Annual Institutes, Special Institutes and other programs and activities of the Foundation. The Executive Director shall arrange for the publication of the proceedings of the Annual Institutes and shall be responsible for the publications of the Foundation. The Executive Director shall expand existing institutes, activities, publications and other programs, and initiate such additional institutes, activities, publications and programs as may be authorized or directed by the Board of Directors. The Executive Director shall be responsible for maintaining an efficient staff to administer the various activities of the Foundation and shall cause to be maintained books of account of all Foundation assets, liabilities, income and expenses in a manner that fairly presents in all material respects the financial position and results of operations and activities of the Foundation. The Executive Director is authorized to expend such sums, within budgetary limitations approved by the Board of Directors, as are necessary to administer the continuing business of the Foundation. The Executive Director shall have such other powers and perform such other duties as may from time to time be vested in or entrusted to the Executive Director by the Board of Directors. All funds entrusted to the care of the Executive Director shall be deposited in such depositories or with such custodians as designated by the Board of Directors consistent with the authorization set forth in Article V and the investment decisions of the Board of Directors made in accordance with Article V.
Institutes and Programs
Section 7.1. Annual and Special Institutes and other Programs. Each year the Foundation shall conduct an institute (each an “Annual Institute”) in conjunction with the Annual Trustees Meeting. Throughout each year the Foundation will hold such institutes (each a “Special Institute”) as the Board of Directors shall approve with the recommendation of the Special Institutes Committee. The Foundation will hold such other programs as the Board of Directors may determine from time to time.
Section 7.2. Dates and Place of Institutes. The Trustees Council shall designate the year, month and place of each Annual Institute, in consultation with the Site Selection Committee. The Board of Directors shall designate the months and places of other institutes and programs of the Foundation.
Section 7.3. Procedure for Institutes and other Programs. All institutes and programs, and the proceedings in connection therewith, shall be under the general direction and control of the Board of Directors. The Board of Directors shall establish guiding principles and minimum standards for such institutes and programs, with compliance with such principles to be assured by the supervision of the Executive Director in collaboration with the chair or co-chairs of the applicable institute or program.
The Board of Directors may establish “Membership” categories in the Foundation for the limited purpose of permitting special access or preferential fees for Foundation sponsored activities or resources. Such Membership shall be open to all attorneys, landmen, law firms, companies, law schools, students and other persons or organizations active in or associated with the mineral or natural resources industries, and benefits shall be as determined by the Board of Directors from time to time. Each such person or organization may be referred to as a “Member” of the Foundation, but such Members shall not be considered or deemed to be “members” of the Foundation as such term is used in the Act, and shall not have any of the rights, duties or obligations attendant to such “members.”
Section 9.1. Scope of Indemnification. To the fullest extent permissible under the laws of the State of Colorado, except as provided in this Section 9.1, the Foundation shall indemnify each member of the Board of Directors, Trustee, Officer, employee and volunteer of the Foundation (but not any Constituent Organization) (each, an “Indemnified Person”) while any such Indemnified Person is serving in that capacity and after they no longer serve in that capacity for any loss, damage, cost or expense (including reasonable attorney’s fees and court costs) (each, a “Loss”), but only to the extent such Loss arises out of or relates to Foundation service or activities or is incurred because the individual is or was a member of the Board of Directors, Trustee, Officer, employee or volunteer of the Foundation. The Foundation shall have no obligation to indemnify any Indemnified Person for any Loss: (a) with respect to any claim, demand, cause of action or proceeding made or brought by the Foundation against the Indemnified Person, (b) in respect of the receipt by the Indemnified Person of any improper personal benefit, whether or not involving action in the Indemnified Person’s official capacity or (c) to the extent arising out of or relating to the gross negligence or willful misconduct of the Indemnified Person or a knowing violation of law by the Indemnified Person. The Foundation may in its discretion purchase insurance insuring its obligations hereunder or otherwise protecting the persons intended to be protected by this Section 9.1. To the fullest extent permissible under the laws of the State of Colorado, with the approval of a majority of the disinterested members of the Board of Directors, the Foundation may pay for or reimburse reasonable expenses incurred by any person identified above who is a party to any proceeding in advance of final disposition of the proceeding, if the majority of the disinterested members of the Board of Directors determines that such person likely will be entitled to indemnification for an adverse judgment or award in such proceeding. With the approval of the Board of Directors, the Foundation may, but shall not be obligated, to indemnify any employee or agent of the Foundation not otherwise covered by this Section 9.1 to the fullest extent permissible under the laws of the State of Colorado.
Section 9.2. Savings Clause; Limitation. If any provision of the Articles of Incorporation or these Bylaws dealing with indemnification shall be invalidated by any court on any ground, then the Foundation shall nevertheless indemnify each party otherwise entitled to indemnification hereunder to the fullest extent permitted by law or any applicable provision of the Articles of Incorporation or these Bylaws that shall not have been invalidated. Notwithstanding any other provision of these Bylaws, the Foundation shall neither indemnify any person nor purchase any insurance in any manner or to any extent that would jeopardize or be inconsistent with the qualification of the Foundation as an organization described in Section 501(c)(3) of the Internal Revenue Code, as amended or hereafter amended, or that would result in the imposition of any liability under either Section 4941 or Section 4958 of the Internal Revenue Code, as amended or hereafter amended.
Section 10.1. Amendments. These Bylaws may be altered, amended, repealed or replaced only by the affirmative vote of a majority of the entire Trustees Council: (a) at an Annual Trustees Meeting, provided a copy of the proposed amendments shall be communicated to each Trustee at least thirty (30) days before such meeting, (b) at a Special Trustees Meeting called for that purpose, provided a copy of the proposed amendments shall be communicated to each Trustee at least thirty (30) days before such meeting or (c) by vote of the Trustees without a meeting provided a copy of the proposed amendments shall be transmitted to each Trustee and the Trustees shall have thirty (30) days after such transmission in which to vote on the proposed amendments by delivering such vote in writing to the President or Executive Director. All amendments to these Bylaws shall become effective immediately upon their adoption unless otherwise stated in the resolution adopting such amendments.
Section 10.2. Severability. If any provision of these Bylaws is invalid or unenforceable, such provision shall be fully severable from these Bylaws and the other provisions hereof shall remain in full force and effect and the remaining provisions hereof shall be liberally construed to carry out the provisions and intent hereof.
Section 10.3. Notices. Any notices, consents, waivers and other communications required or permitted by these Bylaws to be in writing may be delivered or transmitted in person, by mail, by electronic mail or by any other form of electronic transmission permitted by applicable law, to the physical or electronic address of the intended recipient set forth in the Foundation’s records. The method of notice need not be the same to each intended recipient. A notice or communication shall be deemed delivered and received if provided (a) in person, when delivered, (b) by mail, five (5) calendar days after deposit in first-class mail, postage prepaid or (c) by electronic mail or other form of electronic transmission, twenty-four (24) hours after transmission.
Section 10.4. Construction. All references in these Bylaws to Articles, Sections, Subsections and other subdivisions refer to the Articles, Sections, Subsections and other subdivisions of these Bylaws unless expressly provided otherwise. Titles and headings appearing at the beginning of any Article, Section, Subsection or other subdivision are for convenience only and do not constitute any part of any Article, Section, Subsection or subdivision and shall be disregarded in construing the language contained in these Bylaws. The words “these Bylaws,” “herein,” “hereby,” “hereunder” and words of similar import refer to these Bylaws as a whole and not to any particular Article, Section, Subsection or subdivision unless expressly so limited. The phrases “this Article,” “this Section,” “this Subsection” and similar phrases refer only to the Articles, Sections and Subsections hereof in which the phrase occurs. The word “or” is not exclusive, and “including” (and its various derivatives), means “including without limitation.” Pronouns in masculine, feminine and neuter gender shall be construed to include any other gender. Words in the singular form shall be construed to include the plural and words in the plural form shall be construed to include the singular, unless the context otherwise requires.
The Bylaws were further amended effective as of April 3, 2020, to the extent necessary to allow the Trustees Council to adopt the resolutions of the Trustees Council effective April 3, 2020, related to the rescheduling of the 2020 Trustees Council Meeting and Annual Institute and the location of certain other Annual Institutes in connection with the COVID-19 pandemic, and the ratifications, authorizations and approvals set forth therein.