ASC BYLAWS
BYLAWS OF AUBURN SOCCER CLUB (an Alabama nonprofit corporation) As Amended April 14, 2023
_______________________________________________________________________________________________________________________________________________
BYLAWS OF AUBURN SOCCER CLUB
ARTICLE I INTRODUCTION
Bylaws. The Bylaws constitute the code of rules adopted by AUBURN SOCCER CLUB (the “Corporation”) for the regulation or management of the affairs of the Corporation.
Section 1.2 Purpose. The Corporation is organized exclusively for charitable, religious, educational, and scientific purposes under section 501(c)(3) of the Internal Revenue Code, or corresponding section of any future federal tax code with emphasis on fostering, developing, promoting, advancing, and administering the sport of soccer among youth players registered within the organization and the community in which the Corporation operates.
Notwithstanding any other provision of these Bylaws, the Corporation shall not carry on any activities not permitted to be carried on by an organization exempt from Federal Income tax under Section 501(c)(3) of the Internal Revenue Code, or corresponding section of any future federal tax code.
ARTICLE II OFFICES
Section 2.1 Principal Office. The principal office of the Corporation in the State of Alabama shall be located at 300 North Dean Road, Suite 5 – 184, Auburn, Alabama, 36830 inLee County. The Corporation may have such other offices, either within or without the State of Alabama, as the Board of Directors may designate or as the business of the Corporation may require from time to time.
Section 2.2 Registered Office. The registered office of the Corporation required by the Alabama Nonprofit Corporation Act (the “Act”) to be maintained in the State of Alabama may be, but need not be, identical with the principal office in the State of Alabama. The Corporation’s registered agent or the address of its registered office may be changed from time to time by the Board of Directors by causing the Corporation to deliver to the Secretary of State for filing a statement of change setting forth the information required by the Act.
ARTICLE III. MEMBERS
Section 3.1 Place of Meetings. The Board of Directors may designate any place, either within or without the State of Alabama, as the place of meeting for any annual meeting or for any special meeting called by the Board of Directors. A waiver of notice signed by all members entitled to vote at a meeting may designate any place, either within or without the State of Alabama, as the place for the holding of such meeting. If no designation is made, or if a special meeting is otherwise called, the place of the meeting shall be the principal office of the Corporation in the State of Alabama.
Section 3.2 Annual Meeting. The regular meeting of the members of the Corporation shall be held at 6:00 p.m. on the second Thursday in May of each year, or at such other time as the Board of Directors may designate, or if that be a holiday then at the same hour on the next day not a holiday, for the purpose of electing Directors for the ensuing term and of receiving reports from the Officers of the Corporation and for the transaction of such other business as may properly come before the meeting. If the day fixed for the annual meeting shall be a legal holiday in the State in which the meeting is to be held, such meeting shall be held on the next succeeding business day. If the election of directors shall not be held on the day designated herein for an annual meeting of the members, or at any adjournment thereof, then the Board of Directors shall cause the election of directors to be held at a special meeting of the members as soon thereafter as conveniently may be.
Section 3.3 Special Meetings. Special meetings of the members may be called at any time by the President, Vice President, Treasurer, the Board of Directors of the Corporation or by the Secretary at the request of not less than 20% of all the members of the Corporation entitled to vote at the meeting.
Section 3.4 Notice of Meeting. Written notice stating the place, day and hour of the meeting and, in case of a special meeting, or of a meeting which is required by statute to be held for any special purpose, or of an annual meeting at which special action is to be taken, the purpose or purposes for which the meeting is called, or the special action which is proposed to be taken, shall, unless otherwise prescribed by statute or the Constitution of Alabama of 1901, be delivered not less than 10 nor more than 50 days before the date of the meeting to each member of record entitled to vote at such meeting. Electronic (email and or web site notices) delivery of meeting notices shall constitute valid delivery of notice.
Section 3.5 Fixing of Record Date. For the purpose of determining members entitled to notice of or to vote at any meeting of the members or any adjournment thereof, or in order to make a determination of members for any other proper purpose, the Board of Directors of the Corporation may fix in advance a date as the record date for any such determination of members, such date in any case to be not more than 70 days and not less than 10 days prior to the date on which the particular action, requiring such determination of members, is to be taken.
Section 3.6 Voting Lists. After fixing a record date for a meeting of members, the Corporation shall prepare an alphabetical list of the names of all members who are entitled to notice of the meeting. Such list must be available for inspection by any member, beginning two business days after notice of the meeting is given for which the list was prepared and continuing through the meeting, at the Corporation’s principal office. The Corporation shall make such list of members available at the meeting for inspection by a member, his or her agent, or attorney at any time during the meeting or any adjournment.
Section 3.7 Quorum. One-tenth of the existing members of the Corporation are entitled to vote, represented in person, via online platform, email, or by proxy, shall constitute a quorum at a meeting of members. At a meeting where an election of a Director to the board exists, votes will be tallied at the start of the general membership meeting.If less than one-tenth of the existing members of the Corporation entitled to vote are represented at a meeting a majority of the members so represented may adjourn the meeting from time to time without further notice. At such adjourned meetings at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. If a quorum is present when a vote is taken, action on a matter is approved if the votes cast favoring the action exceed the votes cast opposing the action unless the Constitution of Alabama of 1901, statutes, or the Articles of Formation require a greater number of affirmative votes. Once present, a shareholder is, unless established to the contrary, presumed present for quorum purposes for the remainder of the meeting.
Section 3.8 Proxies. At all meetings of the members, an existing member entitled to votes may vote in person, via online platform, email, or by proxy executed in writing by the member or by his or her duly authorized attorney in fact. Such proxy shall be filed with the Secretary of the Corporation before or at the time of the meeting. Such monthly meetings of the Board of Directors, a form shall be filled out, prior to the meetings, by a non-present Director, to represent a proxy vote. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy.
Section 3.9 Voting of Membership. Each existing member in good standing entitled to vote shall be entitled to one vote upon each matter submitted to a vote at a meeting of the members. A membership period is represented from July 1st through June 30th of the current club season. A member is a parent or guardian of a current club player.
ARTICLE IV. BOARD OF DIRECTORS
Section 4.1 General Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.
Section 4.2 Number, Classification, Term, Qualifications and Vacancies. The number of Directors which shall constitute the whole Board shall be fixed, from time to time, by the members at their annual meeting, or at any special meeting called for that purpose, or by resolution of the Board of Directors, but shall not be less than five persons. Each Director shall hold office for two years, or until his or her successor is elected and qualified, or until his or her earlier retirement, death, resignation or removal. Directors need not be residents of the State of Alabama. Directors must be at least 21 years of age. Directors should have at least one child playing at ASC during the fall season but shall not have all children playing at neighboring clubs, within 60 miles, posing a conflict of interest. Non-voting members have no such criteria. No Director shall be nominated that is currently employed by the club. Any board member whose family receives scholarship monies from the club, shall recuse themselves during the voting of scholarship recipients.
Any vacancy in the office of Director, for any reason, may be filled by the affirmative vote of all remaining Directors then in office. Any Director so chosen shall hold office until the next election for which such Director shall have been chosen and until his or her successor shall be elected and qualified. No decrease in the number of Directors shall shorten the term of any incumbent Director.
The Executive Director shall serve as an honorary member of the Board Directors with no voting powers. The Executive Director has the right to attend and participate at all meetings of the Board of Directors, except when the Board enters executive session. The Executive Director may be removed as an honorary member of the Board of Directors by the affirmative vote of the majority of the entire Board of Directors. The Immediate Past President may serve as an honorary member of the Board Directors with no voting powers.
Section 4.3 Nominations and Election of Directors. Nominations for the election of Directors may be made by the current Board of Directors or by any member entitled to vote for the election of Directors. Nominations by a member shall be made prior to the meeting by notice in writing, delivered, mailed by first class United States mail, postage prepaid, or emailed to the Secretary of the Corporation not less than 10 days nor more than 50 days prior to any meeting of the members called for the election of Directors, or in person or by proxy at the meeting; provided, however, that if less than 21 days' notice of the meeting is given to the members, such written notice of nominations shall be delivered, mailed or emailed to the Secretary of the Corporation not later than the close of business on the tenth day following the day on which notice of the meeting was posted, mailed or emailed to the members. Notice of nominations which are proposed by the Board of Directors shall be given by the President of the Board, or his or her designee, on behalf of the Board of Directors.
Notice of nominations shall set forth (1) the name, age, qualifications and address of each nominee.
The President of the Board may, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded.
For the election of Directors, those nominees who receive the highest number of votes shall be deemed to have been elected.
Section 4.4 Place of Meeting. All meetings of the Board of Directors shall be held at the principal place of business of the Corporation in Auburn, Alabama, unless otherwise specified in notice thereof, in which event the meeting shall be held where specified in the notice.
Section 4.5 Regular Meetings. The Board of Directors shall meet regularly not less than four times each year, with the regular annual meeting of the Board of Directors to be held immediately after the adjournment of and at the place of holding the regular annual meeting of members. No prior notice of such regular meetings shall be required to be given. Three-fifths of the Board of Directors shall be present, in person, for a quorum to be established at a regular meeting. If a quorum of Directors should not be present at such time and place, the regular meeting may be adjourned by the Directors present and notice of the time and place of the rescheduled regular meeting shall be given to each Director in accordance with notice required for special meetings of the Board of Directors as hereinafter provided.
Section 4.6 Special Meetings. Special meetings of the Board of Directors may be held whenever called by the President, by the Vice President, by the Treasurer, by a majority of the members of the Board of Directors or upon waiver of notice by all of the Directors.
Section 4.7 Notice of Meetings. Special meetings of the Board of Directors shall be preceded by at least five days’ notice to each Director of the date, time, and place of the meeting. Any Director may waive notice of any meeting. The attendance of a Director at a meeting shall constitute a waiver of notice of such meeting, except where a Director attends a meeting for the express purpose of objection to the transaction of any business because the meeting is not lawfully called or convened. The purpose of any regular or special meeting of the Board of Directors need not be specified in the notice or waiver of notice of such meeting.
Section 4.8 Waiver of Notice. A Director may at any time, either before or after the holding of a meeting, waive notice of any regular or special meeting. The presence of any Director in person or pursuant to Section 4.12 of this Article at any meeting of the Board of Directors shall be deemed such waiver.
Section 4.9 Quorum. A majority of all of the voting members of the Board of Directors shall constitute a quorum for the transaction of business.
Section 4.10 Compensation. Directors of the Corporation shall not receive compensation for service as a Director.
Section 4.11 Directors Protected. Each Director shall in the performance of his or her duties be fully protected in relying in good faith upon reports made to the Directors by the officers of the Corporation or by state or federal Corporation examiners or by any independent accountant or by any appraiser selected with reasonable care, or by counsel, or by a committee of the Board, or in relying in good faith upon other records or books of account of the Corporation.
Section 4.12 Attendance at Meetings. A member of the Board of Directors may participate in all or a portion of a meeting of the Board or a committee thereof by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at such meeting.
Section 4.13 Removal by Vote of Directors. Notwithstanding any provision of the Certificate of Formation, these Bylaws, or law, any Director of the entire Board of Directors of the Corporation may be removed at any time, with or without cause by the affirmative vote of a majority of the entire Board of Directors in a meeting of Directors called for the purpose.
Section 4.14 Removal by Vote of Members. Notwithstanding any provision of the Certificate of Formation, these Bylaws, or law, any Director of the entire Board of Directors of the Corporation may be removed at any time, but only for cause and only by the affirmative vote of 60% or more of the members of the Corporation entitled to vote generally in the election of Directors cast in a meeting of members called for the purpose.
ARTICLE V. OFFICERS
Section 5.1 Officers, Elections, Terms. The voting officers of the Corporation shall be a President, Vice President, Treasurer, Secretary, and Community Liaison. The Past President shall serve as a non voting member. Other officers as the Board of Directors may from time to time deem proper, who shall be elected annually by the Board of Directors at its regular annual meeting to serve for a term of two years and until their respective successors are elected and qualified. If the Officers, or any of them, for any reason should not be elected at the regular annual meeting of the Board of Directors, they may be elected at any special meeting of the Board called for that purpose. After the general election, board members will meet to assign each member to a position for the fall and spring seasons. One person may hold any two or more of the offices of the Corporation with the exception that the offices of President and Vice President may not be held by the same person at the same time. No one person may hold the same office for more than two consecutive terms. A term shall be defined as two years. After completing a two year term board members are eligible to be nominated and re-elected again. If a board member shall be re-elected, they may choose to step down after one year.
Section 5.2 President. The Board of Directors shall at its annual meeting or from time to time thereafter at its pleasure designate one officer of the Corporation to serve as President of the Corporation. Said officer shall be vested with authority to act for the Corporation in all ordinary matters and shall have general supervision of the Corporation and of its business affairs, including authority over the detailed operations of the Corporation and over its personnel, with full power and authority during intervals between sessions of the Board to do and perform in the name of the Corporation all acts and deeds necessary or proper, in his or her opinion, to be done and performed and to execute for and in the name of the Corporation all instruments, contracts, and agreements which may be authorized to be executed on behalf of the Corporation or which may be required by law.
Section 5.3 Vice President. Any Vice President shall, subject to the control of the Board of Directors and of any committee of the Board having authority, and of the President, have and may exercise the authority vested in the President in matters not otherwise acted upon or directed by the President, including authority over the detailed operations of the Corporation and over its personnel. Any Vice President shall have such other duties as may be designated by the President, or the Board of Directors.
Section 5.4 Treasurer. The Treasurer shall, subject to the control of the Board of Directors and of any committee of the Board having authority in the premises, have and may exercise the authority to act for the Corporation in all ordinary matters. The Treasurer shall in the absence or disability of the President and the Vice President, perform the duties and exercise the powers of the President. Subject to limitations stated, his or her authority shall include authority over the detailed operations of the Corporation and over its personnel with full power and authority during intervals between sessions of the Board to do and perform in the name of the Corporation all acts and deeds necessary or proper, in his or her opinion, to be done and performed and to execute for and in the name of the Corporation all instruments, contracts and agreements which may be authorized to be executed on behalf of the Corporation or which may be required by law and shall have custody of the seal of the Corporation.
Section 5.5 Secretary. The Secretary shall be responsible for general administrative activities on behalf of the Corporation, and shall perform such other duties and exercise such other powers as the Board of Directors may prescribe. The Secretary shall give, or cause to be given, notices of all meetings of the members and all meetings of the Board of Directors of the Corporation, shall keep their minutes, shall perform the duties and functions of corporate secretary, and shall perform such other duties as may be delegated to him or her by the Board of Directors or President.
Section 5.6 Community Liaison. The Community Liaison shall be responsible for managing communication between the general membership and an organization. The Community Liaison is to represent the interest of the organization in meetings of other community organizations as deemed appropriate by the Board of Directors. The Community Liaison shall assume responsibility for ensuring that the organization always works within its established bylaws, the Mission statement, and shall perform such other duties as may be delegated to him or her by the Board of Directors or President.
Section 5.7 Other Officers. Other officers of the Corporation may be appointed by the Board of Directors with the titles of Academy and a Select commissioner, to fill the duties determined by the Board of Directors. These officers will be non voting positions and the commitment is a two year term or timeframe determined by the board.
Section 5.8 Execution of Instruments. The President, the Vice President , or the Treasurer is authorized, in his or her discretion, to do and perform any and all corporate and official acts in carrying on the business of the Corporation, including, but not limited to, the authority to make, execute, acknowledge, and deliver all contracts, mortgages, releases, bills of sale, assignments, transfers, leases, powers of attorney or of substitution, proxies to vote or any other instrument in writing that may be necessary in the purchase, sale, lease, assignment, transfer, management or handling in any way of any property of any description held or controlled by Corporation, either in its own or in its fiduciary capacity and including the authority from time to time to borrow money in such amounts for such lengths of time, at such rates of interest and upon such terms and conditions as any said officer may deem proper and to evidence the indebtedness thereby created by executing and delivering in the name of the Corporation promissory notes or other appropriate evidences of indebtedness. The enumeration herein of particular powers shall not restrict in any way the general powers and authority of said officers. The President, Executive Vice President or the Treasurer is authorized to attest and to affix the corporate seal to any and all instruments requiring such attestation or execution under seal.
Section 5.9 Checks, Drafts, Transfers, etc. The President, and the Treasurer or any other employee designated by the Board of Directors, is authorized and empowered on behalf of the Corporation and in its name to sign and endorse checks and warrants, to draw drafts, to issue and sign cashier's checks, to guarantee signatures, to give receipts for money due and payable to the Corporation, and to make or join in such consents, requests or commitments with respect to the same as may be appropriate or authorized as to the holder thereof, and to sign such other papers and do such other acts as are necessary in the performance of his duties. The authority conveyed to any employee designated by the Board may be limited by general or specific resolution of the Board.
Section 5.10 Pledge of Assets. Any two of the following officers acting jointly, namely, the President, the Vice President, or the Treasurer shall have the authority to pledge assets of this Corporation as security for any purpose.
Section 5.11 Vacancies. Vacancies in office arising from any cause may be but are not required to be filled by action of the Board of Directors at any regular or special meeting of the Board.
Section 5.12 Compensation. The officers of the Corporation shall not receive compensation for their services as such officers.
Section 5.13 Removal of Officers. At its pleasure, the Board of Directors may remove any officer from office at any time by a majority vote of the Board.
ARTICLE VI. COMMITTEES
The President shall designate such committees and appoint the members thereof, as he or she may from time to time deem necessary or advisable in the operation of the business and affairs of the Corporation, each of which shall perform such duties and exercise such powers as shall be prescribed by the President. The Board of Directors shall meet to decide which committee they shall each oversee during their term of office. The following shall be the committees that must be represented by at least one board member; Tournament, Fundraising, Special Events..
ARTICLE VII.
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 7.1 Contracts. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances.
Section 7.2 Loans. No loans shall be contracted on behalf of the Corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the Board of Directors. Such authority may be general or confined to specific instances.
Section 7.3 Loans to Directors, Officers or Employees. The Corporation will make no loans to any Director, Officer or employee of the Corporation.
Section 7.4 Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers, agent or agents of the Corporation and in such manner as shall from time to time be determined by resolution of the Board of Directors.
Section 7.5 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks, trust companies or other depositories as the Board of Directors may select.
ARTICLE VIII. MISCELLANEOUS PROVISIONS
Section 8.1 Seal. The Board of Directors may, if it so chooses, select a corporate seal which shall be circular in form and shall have inscribed thereon the name of the Corporation and the state of incorporation and such other words as the Board of Directors may prescribe.
Section 8.2 Waiver of Notice. Whenever any notice is required to be given to any member or Director of the Corporation under the provisions of these Bylaws, the Certificate of Formation, the provisions of the Alabama Nonprofit Corporation Act and any act amendatory thereof, supplementary thereto or substituted therefor, or the Alabama Constitution, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Such waiver shall be delivered to the Corporation for inclusion with the minutes of the Corporation.
Section 8.3 Amendments. These Bylaws (or any section thereof) may be altered, amended or repealed and new Bylaws (or any section thereof) may be adopted by the Board of Directors at any regular or special meeting. Any by law changes heretofore will be publicly announced within 10 days. The membership will have an opportunity to overturn board decision if sixty percent of the membership disputes the changes.
Section 8.4 Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.
Section 8.5 Membership Dues and Fees. Any and all dues and fees, and frequency thereof, will be set by the Board of Directors and may be changed by resolution of the Board of Directors.
Section 8.6 Membership Requirements. Members must be affiliated players, which includes their parent(s) or guardian(s), Directors of the Corporation, active coaches age 18 or older, or employees of the Corporation. For affiliated players and the parents or guardians thereof, one vote is assigned per affiliated player and their family which shall be cast by the affiliated player’s parent or guardian. Each Director of the Corporation, active coach and employee of the Corporation is entitled to one vote on all matters that properly come before a meeting of the Members.
Section 8.7 Membership Standing. Members whose membership dues are delinquent, or have any other delinquent fees due the corporation, are not entitled to vote on any matter that comes before the membership.
Section 8.8 Additional Organizations. The Board of Directors may authorize the formation of such subsidiary, auxiliary, associated and affiliated organizations as will in the opinion of the Board of Directors assist in effecting the purposes of the Corporation. The organizational and governing documents and instruments of any subsidiary, auxiliary, associated or affiliated organization so authorized shall be subject to the approval of the Board of Directors. Each such authorization shall, regardless of its terms, be revocable at any time in the sole discretion of the Board of Directors.
Section 8.9 Executive Director. The Executive Director shall be installed only by the affirmative vote of a majority of the entire Board of Directors. The Executive Director may be removed at any time only by the affirmative vote of a majority of the entire Board of Directors.
- Shall represent the interests of the AUBURN SOCCER CLUB and serve as chief executive officer in regard to club affairs.
- Shall appoint directors (a club employee) and club coaching staff (a club employee).
- Shall be familiar with the Bylaws, Policies and Procedures of the club and the Alabama Youth Soccer Association.
- Shall serve as a general representative of ASC.
- Shall co-sign the Association's bank drafts/checks when needed.
Section 8.10 Voluntary Dissolution.
On dissolution, the assets of the Corporation remaining after the payment or discharge of all liabilities of the Corporation, the return, transfer, or conveyances of assets held on conditions requiring the same, and the transfer or conveyance of assets received and held subject to limitations permitting their use only for charitable, religious, literary, educational, or similar purposes shall be distributed exclusively for one or more exempt purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code or any corresponding future federal tax code.
ARTICLE IX. INDEMNIFICATION
Section 9.1 Action Other Than by or in the Right of the Corporation. The 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 claim, action, suit or proceeding, whether civil, criminal, administrative or investigative, including appeals (other than an action by or in the right of the Corporation), by reason of the fact that he or she is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, or partner of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such claim, action, suit or proceeding if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interest of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any claim, action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Corporation, and with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful.
Section 9.2 Action by or in the Right of the Corporation. The 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 claim, action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he or she is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, or partner of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation or was adjudged liable on the basis that personal benefit was improperly received by him or her unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonable entitled to indemnity for such expenses which the court shall deem proper.
Section 9.3 Indemnification Against Expenses of Successful Party.
Notwithstanding the other provisions of this Article IX, to the extent that a director or officer of the Corporation, has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Sections 9.1 and 9.2 hereof or in defense of any claim, issue or matter therein including the dismissal of an action, suit or proceeding without prejudice, the disposition of a claim or issue by partial summary judgment, or any other partial success or the settlement of an action, suit or proceeding without admission of liability he or she shall be indemnified against all reasonable expenses (including attorneys’ fees) incurred by him or her in connection therewith, notwithstanding that he or she has not been successful on any other claim, issue or matter in any such action, suit or proceeding.
Section 9.4 Determination of Right to Indemnification. Any indemnification under Sections 9.1 or 9.2 hereof (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he or she has met the applicable standard of conduct set forth in Sections 9.1 and 9.2 of this Article IX. Such determination shall be made (i) by the Board of Directors of the Corporation by a majority vote of a quorum consisting of directors who are or were not parties to, such claim, action, suit or proceeding, or (ii) if such a quorum is not obtainable, by a majority vote of a committee duly designated by the Board of Directors of the Corporation consisting solely of two or more directors not at the time parties to the proceeding, or (iii) by special legal counsel selected by the Board of Directors or its committee in the manner prescribed in (i) or (ii) above or, if such selection in the manner prescribed in (i) or (ii) above cannot be used, then by a majority vote of the full Board of Directors, or (iv) by a majority vote of the members.
Section 9.5 Advances of Expenses. Expenses (including attorneys’ fees) incurred in defending a civil or criminal claim, action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such claim, action, suit or proceeding as authorized in the manner provided in Section 9.4 hereof upon receipt of a written affirmation of good faith belief that the person indemnified has met the standards of conduct described in Sections 9.1 and 9.2 hereof and a written undertaking by or on behalf of such person to repay such amount if and to the extent that it shall be ultimately determined that such person is not entitled to be indemnified by the Corporation as authorized in this Article IX.
Section 9.6 Right to Indemnification Upon Application; Procedure Upon Application. Any indemnification shall be made promptly upon the written request of the person seeking indemnification, unless with respect to applications under Sections 9.1 or 9.2 hereof, a determination is reasonably and promptly made in the manner prescribed in Section 9.4 hereof that such director or officer acted in a manner set forth in such Sections as to justify the Corporation’s not indemnifying such person.
Section 9.7 Other Rights and Remedies. The indemnification authorized by this Article IX shall not be deemed exclusive of and shall be in addition to any other right to which any director, officer, employee or agent of the Corporation may be entitled under any statute, rule of law, provisions of certificate of formation, articles of incorporation, bylaw, agreement, vote of members or disinterested directors, or otherwise, both as to action in such persons official capacity and as to action in another capacity while holding such office. It is the policy of the Corporation that indemnification of other employees and agents shall be made on a case by case basis, except as otherwise mandated by law. All rights to indemnification under this Article IX shall be deemed to be provided by a contract between the Corporation and its directors and officers who serve in such capacity at any time while these Bylaws and other relevant provisions of the Alabama Business Corporation Act and other applicable laws, if any are in effect. Any repeal or modification thereof shall not affect any rights or obligations then existing.
Section 9.8 Insurance. The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, partner, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person, and incurred by him or her in any such capacity or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or her against such liability under the provisions of this Article IX.
Section 9.9 Indemnity Fund. Upon resolution adopted by the Board of Directors, the Corporation may establish a trust or other designated account, grant a security interest or use other means (including, without limitation, a letter of credit), to ensure the payment of certain of its obligations arising under this Article IX and/or agreements which may be entered into between the Corporation and its directors, officers, employees and agents from time to time
Section 9.10 Survival of Indemnification. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article IX shall continue as to a person who has ceased to be director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such director, officer, employee or agent.
Section 9.11 Savings Clause. Neither the repeal nor modification of this Article IX nor the adoption of any provisions of the Certificate of Formation or Bylaws of the Corporation inconsistent with this Article IX shall adversely affect the rights or any director, officer, employee or agent to indemnification with respect to any action, suit, proceeding or claim that had accrued or arisen prior to such repeal, modification or adoption of an inconsistent provision.
