BY-LAWS FOR THE REGULATION OF THE COOPERATIVE ASSOCIATION OF RESORT EXCHANGERS, INC.
ARTICLE I - OFFICES
The principal office of the Corporation shall be fixed and located at such place, as the Board of Directors (herein called the ´Board´ shall determine. The Board is granted full power and authority to change the principal office from one location to another. The Corporation may have such other offices (branch or subordinate offices) as established by the Board at any time and at any place or places.
ARTICLE II - MEMBERSHIP
A ´C.A.R.E. Member´ or ´Member´ shall include any resort, development, corporation, partnership, sole proprietorship, or entity which has made application to and been accepted as a bona fide member of the Corporation and shall further include those categories of Membership as may be set forth in these By-laws.
A. Classes of Membership.
There shall be two (2) classes of memberships in the Corporation; 1) General; and 2) Associate.
(1) General members of the Corporation shall be those resorts, developments, corporations, partnerships, sole proprietorships, or entity engaged in the vacation industry, who have paid a membership fee, as determined by the Board, and whose application for membership in the Corporation has been submitted to and accepted by the Board. Each General member shall possess and/or be in the control of either by direct ownership (title), lease, or right-to-use, resort inventory for the purpose of exchange, direct trade, rental or wholesale. The General member shall have voting rights in the Corporation as set forth in these By-laws.
(2) Associate member of the Corporation shall be those firms, corporations, partnerships, individuals, or associations, other than General members, which are interested in the vacation industry and who have paid a membership fee to the Corporation, as determined by the Board, and whose application for membership has been submitted to and accepted by the Board. Each Associate member shall not possess or be in the control of resort inventory, but shall have interest in membership in the Corporation as a means of business enhancement as a service provider to the General members. An Associate member shall not have voting rights in the Corporation.
The Board may from time to time establish other categories of membership, which may be classified as voting or non-voting memberships. Nothing in this Section A shall be construed as limiting the right of the Corporation to refer to persons or entities associated with it as ´members´ even though such persons or entities are not members as defined above, and no such reference shall constitute anyone a member within the meaning of the Arkansas Nonprofit Corporation Act or the foregoing provisions of this Section A unless such persons or entities shall have applied for membership as above set forth.
Each class of Membership shall designate a C.A.R.E. Member Responsible Party which party shall be that individual designated as being the person responsible for all actions of that C.A.R.E. Member.
Each General Membership shall designate one (1) individual as the Authorized Member Representative of that General Membership. ´Authorized Member Representative´ shall be defined as an individual that is gainfully employed by said General Membership who shall be designated to exercise all the voting rights of that General Membership.
B. Voting Rights
Each voting General Membership shall have the right to designate one (1) individual as the Authorized Member Representative, who shall be gainfully employed by said General Membership, to exercise all the voting rights of said voting Membership. Each voting General Membership shall be entitled to one (1) vote on each matter submitted to a vote of the members. Voting Memberships who fail to be in good standing, as set forth in Section G of this Article II, shall not be entitled to vote on any matter.
Membership is limited to resorts, developments, corporations, partnerships, sole proprietorships, and entities that actively participate directly in or have an interest in the vacation industry or travel and leisure related industry, and who subscribe to the purposes, ideals, standards and ethics of the Corporation. Membership in the Corporation shall be granted only in the event (1) proper application is made; (2) of majority acceptance by the Board; (3) proper membership fees are received by the Corporation at the time of application; and (4) that proper qualifications as stated on the Corporation´s application for membership are provided.
D. Membership Fees
Each Membership shall pay membership fees and dues in such amounts and at such times as shall be determined by the Board. Such amounts shall be based upon each class of Membership.
E. Transfer of Membership
The Board may provide for the transfer of Memberships, subject to such restrictions, fees or limitations, as the Board deems appropriate, including merger, reorganization, or dissolution of a member. Such transfer of Membership shall be subject to the approval of the Board. Any and all subsidiary entities of a member of the Corporation may be required by the Board to become a separate bona fide member as set forth in Section A and Section C of this Article II.
F. Termination of Membership
The Board may, upon two thirds (2/3) vote of the Board, terminate or suspend a Membership for non-payment of fees and/or dues, for conduct which the Board shall deem inimical to the best interests of the Corporation, including without limitation, flagrant violation of any provision of these By-laws or of the Code of Standards and Ethics, or failure to satisfy Membership qualifications or requirements on a continuing basis.
The Board shall give the member who is the subject of the proposed action not less than fifteen (15) days prior notice of the proposed termination or suspension, and the reasons therefore. The member may submit a written statement to the Board regarding the proposed action not less than five (5) days before the effective date of the proposed termination or suspension of membership. The Board shall, prior to the effective date of proposed termination or suspension of membership, review any such statements and shall determine the mitigating effect, if any, of the information contained therein. A suspended member shall not be entitled to exercise any of the voting rights of a voting Membership as set forth in these By-laws, but shall be required to maintain a current status of all fees and dues to the Corporation. Member companies shall be notified of any suspension or termination of a Membership.
G. Good Standing.
Any Membership who shall be in arrears in the payment of any fees or dues shall not be a member in good standing with the Corporation. Good standing status may be suspended or revoked as set forth in the Bylaws of the Corporation and the Code of Standards and Ethics. Memberships not in good standing with the Corporation shall not be entitled to vote upon any matter until such time as the status of such Membership is returned to good standing.
H. Place of Meetings
Meetings of the Membership shall be held at such place within or without the State of Arkansas which place may be designated by the Board or by majority vote of the Membership.
Meetings of the Membership shall be held on such dates and at such times and places as may be fixed by the Board. Elections for Board members shall be conducted at the meeting of the Membership as may be fixed by the Board. Any other proper business may be transacted at the meeting of the Membership in accordance with the provisions of these By-Laws.
J. Special Meetings
Special meetings of the Membership may be called at any time by the Board, by the president, or by not less than ten percent (10%) of the Membership. Upon request in writing from the required number of Memberships to the president, the president forthwith shall cause notice to be given to the Memberships entitled to vote, that a meeting will be held at a time fixed by the Board, not less than thirty-five (35) nor more than ninety (90) days after the receipt of the request. If the notice is not given within twenty (20) days after receipt of the request, the voting Memberships entitled to call the meeting may give the notice themselves.
K. Notice of Annual or Special Meetings
Written notice of each annual or special meeting of the Membership shall be given not less than ten (10) or more than ninety (90) days prior to the date of the meeting to each Membership entitled to notice thereof. Such notice shall state the place, date, and hour of the meeting, and (a) in the case of a special meeting, the general nature of the business to be transacted, and no other business may be transacted, or (b) in the case of the semi-annual meeting, those matters which the Board, at the time of the mailing of the notice, intends to present for action by the Membership, but, subject to the provisions of applicable law and Section L of this Article II, any proper matter may be presented at the meeting for such action. It is understood that the time between annual meetings shall constitute one year, even if such time should be more or less than 365 days.
Notice of a Membership meeting shall be given either by mail, orally, or by other means of written or electronic communication, addressed to the C.A.R.E. Member Responsible Party at the address of such Member appearing on the books of the Corporation or given by the Member to the Corporation for the purpose of notice, or, if no such address appears or is given, at the place where the principal office of the Corporation is located, or by publication at least once in a newspaper of general circulation in the county in which the principal office is located. Notice by mail shall be deemed to have been given at the time a written notice is deposited in the United States mail, postage prepaid. Any other written notice shall be deemed to have been given at the time it is personally delivered to the recipient, or is delivered to a common carrier for transmission, or is actually transmitted by the person giving the notice by electronic means, to the recipient. Oral notice shall be deemed to have been given at the time it is communicated, in person or by telephone, or wireless, to the recipient or to a person at the office of the recipient whom the person giving the notice has reason to believe will promptly communicate it to the recipient.
One third (1/3) of the voting Membership, represented in person or by proxy, shall constitute a quorum at any meeting of Members for which proper notice has been given. If a quorum is present, the affirmative vote of the majority of the voting Membership represented at the meeting, entitled to vote, and voting on any matter shall be the act of the Members, unless the vote of a greater number or voting by class is required by law, by the Articles of Incorporation, or by these By-laws, except as provided in the following sentence. The Members present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough Members to leave less than a quorum, if any action taken (other than adjournment) is approved by at least a majority of the Membership required to constitute a quorum.
M. Adjourned Meeting and Notice Thereof
Any Membership meeting, whether or not a quorum is present, may be adjourned from time to time by the vote of a majority of the votes represented either in person or by proxy, but in the absence of a quorum (except as provided in Section L of this Article II) no other business may be transacted at such meeting.
It shall not be necessary to give any notice of the time and place of the adjourned meeting or of the business to be transacted thereat, other than by announcement at the meeting at which adjournment was taken; provided, however, when any Membership meeting is adjourned for more than forty-five (45) days, or, if after adjournment a new record date is fixed for the adjourned meeting, or if new matters are to be added to the agenda of the meeting, notice of the adjourned meeting shall be given as in the case of the meeting as originally called, whether a regular or special meeting.
The Members entitled to notice of any meeting or to vote at any meeting shall only be those in whose names Membership stands on the records of the Corporation on the record date for notice determined in accordance with Section O of this Article II. Voting rights shall be exercised by the Authorized Member Representative of the General Member on the books of the Corporation or through such individual´s proxy.
Elections need not be by written ballot. Voting on matters to be presented at a Membership meeting need not be by written ballot.
Voting shall in all cases be subject to the provisions of the Arkansas Nonprofit Corporation Act.
O. Record Date
The Board may fix, in advance, a record date for the determination of the Membership entitled to notice of any meeting of the Membership or entitled to exercise any rights in respect of any lawful action. The record date so fixed shall be not more than sixty (60) days or less than ten (10) days prior to the date of the meeting, or more than sixty (60) days prior to any other action. When a record date is so fixed, only Members of record on that date are entitled to notice, to vote, or to exercise the right for which the record date was fixed. A determination of Members of record entitled to notice of a meeting of the Membership shall apply to any adjournment of the meeting unless the Board fixes a new record date for the adjourned meeting. If a record date was set for a meeting, the Board shall fix a new record date if the meeting is adjourned for more than forty-five (45) days.
If no record date is fixed by the Board, the record date for determining Members entitled to notice of a meeting of the Membership shall be at the close of business on the business day next preceding the date on which notice is given, or if notice is waived, at the close of business on the business day next preceding the date on which the meeting is held. If no record date is fixed by the Board, Members on the date of the meeting who are otherwise eligible to vote are entitled to vote at the meeting of the Membership or, in the case of an adjourned meeting, Members on the day of the adjourned meeting who are otherwise eligible to vote are entitled to vote at the adjourned meeting of Members. The record date for determining Members for any purpose other than as set forth in this Section O or Section K of this Article II shall be at the close of business on the date on which the Board adopts the resolution relating thereto, or the sixtieth (60th) day prior to the date of such other action, whichever is later.
P. Consent of Absentees
The transactions of any meeting of the Membership, however called and noticed, and wherever held, are as valid as though a meeting had been duly held after regular call and notice, if a quorum is present either in person or by proxy, and if, either before or after the meeting, each of the persons entitled to vote, not present in person or by proxy, signs a written waiver of notice, or a consent to the holding of the meeting, or an approval of the minutes thereof. All such waivers, consents and approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Attendance of a person at a meeting shall constitute a waiver of notice of, and presence at such meeting, except when the person objects, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and except further, that attendance at a meeting is not a waiver of any right to object to the consideration of matters required by the Arkansas Nonprofit Corporation Act to be included in the notice but which is not included, if such objection is expressly made at the meeting. Neither the business to be transacted nor the purpose of any regular or special meeting of the Membership need be specified in any written waiver of notice, consent to the holding of the meeting, or approval of the minutes thereof, except as provided by the Arkansas Nonprofit Corporation Act.
Q. Action Without a Meeting
Any action including election of directors which, under any provision of the Arkansas Nonprofit Corporation Act may be taken at any regular or special meeting of Membership, may be taken without a meeting if (1) the written ballot of every Member is solicited, (2) the required number of signed approvals in writing, setting forth the action is taken, is received, (3) the number of ballots cast within the time period specified equals or exceeds the quorum required to be present at a meeting authorizing the action, and (4) the number of approvals equals or exceeds the number of votes that would be required to approve the action at a meeting at which the total number of votes cast was the same as the number of votes cast by ballot. Unless a record date for voting purposes is fixed by the Board as provided in Section O of this Article II, the record date for determining Members entitled to cast written ballots pursuant to this Section Q, shall be the day on which the first written ballot is mailed or solicited, whichever is first.
Every person entitled to vote a Membership has the right to do so either in person or by written proxy executed by such Member and filed with the Secretary of the Corporation. Any proxy duly executed shall remain in full force and effect until revoked by the person executing it prior to the vote for which it is given. Such revocation may be effected (1) by a writing delivered to the Secretary of the Corporation stating that the proxy is revoked, (2) by a subsequent proxy, executed by the person executing the prior proxy and presented to the meeting, or (3) as to any meeting, by attendance at the meeting and voting in person by the person executing the proxy; provided, however, that no proxy shall be valid after the expiration of eleven (11) months from the date of its execution unless otherwise provided in the proxy. All proxies shall be in the form authorized by the Board and shall be issued to the Membership by the Board.
S. Conduct of Meeting
The president shall preside as chairman at all meetings of the members. The chairman shall conduct each meeting in a businesslike and fair manner, but shall not be obligated to follow any technical, formal or parliamentary rules or principles of procedure unless requested to do so by at least ten percent (10%) of the Membership attending the meeting. Upon such request and to the extent that they are not inconsistent with these By-laws, Articles of Incorporation, or the Arkansas Nonprofit Corporation Act, Roberts Rules of Order shall govern the conduct of meetings. The chairmen´s rulings on procedural matters shall be conclusive and binding on all Members, unless at the time of the ruling a request for a vote is made to the Membership entitled to vote and which are represented in person or by proxy at the meeting, in which case the decision of a majority of such Members shall be conclusive and binding on all Members. Without limiting the generality of the foregoing, the chairman shall have all of the power usually vested in the chairman of a meeting of Members.
ARTICLE III - DIRECTORS
Subject to the limitation of the Articles of Incorporation, of these By-laws, and of the Arkansas Nonprofit Corporation Act relating to action required to be approved by the Membership or by a majority of the Membership, the activities and affairs of the Corporation shall be conducted, and all corporate powers shall be exercised by or under the direction of the Board of Directors (´Board´). The Board may delegate the management of the activities of the Corporation to any person or persons, a management company, or committees however composed, provided that the activities and affairs of the Corporation shall be managed and all corporate powers shall be exercised under the ultimate direction of the Board. Without prejudice to such general powers, but subject to the same limitations, it is hereby expressly declared that the Board shall have the following powers in addition to the other powers enumerated in these By-laws:
(1) To select and remove all of the officers, agents, and employees of the Corporation, prescribe powers and duties for them not inconsistent with the law, the Articles of Incorporation, or these By-laws, fix their compensation, and require from them security for faithful service.
(2) To conduct, manage, and control the affairs and activities of the Corporation and to make such rules and regulations therefore not inconsistent with the law, the Articles of Incorporation, or these By-laws.
(3) To adopt, make and use a corporate seal, to prescribe the forms of certificates of membership, and to alter the form of such seal and of such certificates from time to time as they determine.
(4) To authorize the issuance of memberships of this corporation from time to time, upon terms and/or considerations as may be lawful.
(5) To borrow money and incur indebtedness for the purposes of this Corporation, and to cause to be executed and delivered, in the corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations, and other evidences of debt and securities for debt.
B. Number of Directors
The authorized number of directors shall be not less than five (5) nor more than nine (9) until changed by amendment of the Articles of Incorporation or by a By-law duly adopted by the Membership amending this Section B. Each of the directors shall be an officer of the Corporation as set forth in Article IV, Section A. In addition, the immediate past President shall serve on the Board in an advisory position and as a non-voting director.
Each director shall be the Authorized Member Representative of a voting Membership, as defined in Article II, Section A and shall have successfully completed Level I of the C.A.R.E. Accreditation Program. Directorships are not transferable.
D. Election and Term of Office
Directors shall be elected at the meeting of the Membership and shall be elected to serve for a term of three years. With the exception of the office of the President, all other directors and officers of the Corporation shall not carry a limit to the number of consecutive terms an individual can be elected. The office of President shall be limited to a maximum of three consecutive terms. It is understood that the time between spring semi-annual meetings shall constitute one year, even if such time should be more or less than 365 days.
Any director may resign effective upon giving written notice to the president, the secretary, or the Board, unless the notice specifies a later time for its effectiveness. If resignation is effective at a future time, a successor may be appointed before such time to take office when the resignation becomes effective.
Vacancies on the Board may be filled by appointment approved by a majority of the remaining directors, although less than a quorum, or by a sole remaining director, and each director so appointed shall hold office until the expiration of the term of the replaced director and until such replaced director´s successor has been elected and qualified.
A vacancy or vacancies on the Board shall be deemed to exist in cases of death, resignation, or removal of any director, or if the authorized number of directors is increased, or if the Members fail at any regular or special meeting of the Membership at which director or directors are elected to elect the full authorized number of directors to be voted for at that meeting. If any director during his or her term of office ceases to be employed by or affiliated with a voting Member or ceases to be the Authorized Member Representative of that voting Membership, then such director shall tender his or her resignation within thirty (30) days unless he or she shall become the Authorized Member Representative of a voting Member in good standing. The Board at its discretion shall be authorized to extend the time period.
The Board by a 2/3 majority vote may declare vacant the office of a director who has been declared of unsound mind by a final order of court, convicted of a felony, been found by a final order or judgment in any court to have breached any duty arising under the Arkansas Nonprofit Corporation Act, or has failed to attend either in person or telephonically three (3) consecutive meetings of the Board.
No reduction of the authorized number of directors shall have the effect of removing any director prior to the expiration of that director´s term of office.
F. Place of Meeting
Regular or special meetings of the Board shall be held at any place within or without the State of Arkansas, which has been designated from time to time for such purpose by the Board. Said meetings shall be in person or by teleconference. In the absence of such designation, regular meetings shall be held at the principal office of the Corporation.
G. Regular Meetings
During the first quarter of each calendar year and in advance of each meeting of Members, the Board shall hold a regular meeting for the purpose of organization, nomination, and the transaction of other business.
Other regular meetings of the Board shall be held without call or notice on such dates and at such times as may be fixed by the Board.
H. Special Meetings
Special meetings of the Board for any purpose or purposes may be called at any time by the president or any three (3) directors.
Special meetings of the Board shall be held upon ten (10) days notice by first class mail, or forty-eight (48) hours (excluding weekends and holidays) notice given personally or by telephone, telegraph, telex, facsimile, or other similar means of communication. Any such notice shall be addressed or delivered to each director at his or her address as it is shown upon the records of the Corporation or as may have been given to the Corporation by the director for purposes of notice or, if such address is not shown on such records or is not readily ascertainable, at the place in which the meetings of the directors regularly are held.
Notice by mail shall be deemed to have been given at the time a written notice is deposited in the United States mails, postage prepaid. Any other written notice shall be deemed to have been given at the time it is personally delivered to the recipient, or is delivered to a common carrier for transmission, or actually transmitted to the recipient by the person giving the notice by electronic means. Oral notice shall be deemed to have been given at the time it is communicated, in person or by telephone or wireless, to the recipient or to a person at the office of the recipient whom the person giving the notice has reason to believe will promptly communicate it to the recipient.
Two-thirds (2/3) of the number of directors shall constitute a quorum for the transaction of business, except to adjourn as provided in Section L of this Article IV, and every act or decision of a majority of the directors present at a meeting at which a quorum is present, made or done when duly assembled, shall be valid as the act of the Board. A meeting at which a quorum is initially present may continue to transact business, notwithstanding the withdrawal of directors, if any action taken is approved at least a majority of the required quorum for the meeting. Should a meeting be held with less than a quorum present, written consent and approval to any business transacted thereat may be given by any Board members who were absent. If a sufficient number of said Board members who were absent give written consent so as to bring the number present, plus those assenting, up to two-thirds (2/3) or more, then the meeting shall be regarded as being duly and property held and all business transacted thereat shall be final and binding.
J. Participation in Meeting by Conference Telephone
Members of the Board may participate in meetings through the use of conference telephones or similar communication equipment, so long as all Board members participating can hear all other participating Board members.
K. Waiver of Notice
Notice of a meeting need not be given to any director who signs a waiver of notice, a written consent to holding the meeting, or an approval of the minutes of such meeting, whether before or after the meeting, or who attends the meeting without protesting prior to the commencement of the meeting the lack of notice to such director. All such waivers, consents, and approvals shall be filed in the corporate records and made a part of the minutes of the meeting.
A majority of the directors present, whether or not a quorum, may adjourn any directors´ meeting to another time and place. Notice of the time and place of the reconvening of an adjourned meeting need not be given to absent directors if the time and place is fixed at the meeting adjourned, except that if the meeting is adjourned for more than 24 hours, notice of any adjournment to another time or place shall be given prior to the time of the reconvening of the meeting to the directors who were not present at the time of the adjournment.
M. Action Without a Meeting
Any action required or permitted to be taken by the Board may be taken without a meeting if all members of the Board either individually or collectively consent in writing to the action. Such consent or consents shall have the same effect as a unanimous vote by the Board, and shall be filed with the minutes of the proceedings of the Board.
N. Rights of Inspection
Every director shall have the absolute right, at all reasonable times, to inspect and copy books, records and documents of this corporation, and to inspect the physical properties of this corporation.
The Board may appoint one or more committees, each consisting of one or more directors and such other members as it may from time to time appoint, and may delegate to such committees any of the authority of the Board except as hereafter limited in this Section O of this Article III. The Board of Directors, at its sole discretion, may appoint a C.A.R.E. Staff Member, either employee or contractor, to serve as a member of any committee(s) with the exception of the Ethics and Strategic Planning Committees. The Staff Member may serve on the committee as a member or as a Co-Chair as long as another Co-Chair is a Board Member.
No committee of the Board shall exercise the authority of the Board with respect to (1) the approval of any action for which the Arkansas Nonprofit Corporation Act also requires approval of the Member or approval of the majority of the Members; (2) the filling of vacancies on the Board or in any committee of the Board; (3) the fixing of compensation of directors for serving on the Board or on any committee of the Board; (4) the amendment or repeal of Bylaws or the adoption of new By-laws; (5) the amendment or repeal or any resolution of the Board which by its express terms is not so amendable or repealable; (6) the appointment of other committees of the Board or the members thereof; (7) with respect to any assets held in charitable trust, the approval of any self-dealing transaction; (8) any other exceptions listed under applicable provisions of the Arkansas Nonprofit Corporation Act.
Any such committee must be created, and the members thereof appointed, by resolution adopted by a majority of the number of directors then in office, provided a quorum is present, and any such committee may be designated by any name that the Board shall specify. The Board may appoint, in the same manner, alternate members of any committee who may replace any absent member at any meeting of the committee. The Board shall have the power to prescribe the manner in which the proceedings of any committee shall be conducted. In the absence of any such prescription, the committee shall have the power to prescribe the manner in which its proceedings shall be conducted. Unless the Board or the committee provides otherwise, the regular and special meetings and other actions of any committee shall be governed by the provisions of this Article III applicable to meetings and actions of the Board. Minutes shall be kept of each meeting of each committee. Reports of each committee shall be presented to the Board at its next ensuing meeting.
P. Fees and Compensation
Directors and members of committees may receive compensation for their services, and reimbursements for expenses, as the Board may determine.
ARTICLE IV - OFFICERS
Each of the officers of this Corporation shall be the Board of Directors. The officers of this Corporation shall be a president, vice-president(s), a secretary, and a treasurer, all of whom shall be the Authorized Member Representative of a General Member in good standing. The Corporation may also have, at the discretion of the Board, one or more assistant secretaries, one or more assistant treasurers, and such other officers as may be elected or appointed. The offices of secretary and treasurer shall not be held by the same person holding the office of president.
The officers of this Corporation shall be elected by the voting Membership and shall hold their respective offices until their resignation, removal, or other disqualification from service or until their respective successors shall be elected.
C. Removal and Resignation
Any officer may be removed, with cause, by a 2/3 majority vote of the Board at any time.
Any officer may resign at any time by giving written notice to the Corporation, but without prejudice to the rights, if any, of the Corporation under any contract to which the officer is a party. Any such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein; unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
A vacancy in any office because of death, resignation, removal, disqualification, or any other cause, may be filled by appointment approved by a majority of the remaining directors, although less than a quorum, or by a sole remaining director, and such officer so appointed shall hold office until the expiration of the term of the replaced officer and until such replaced officers successor has been elected and qualified. The Board shall have thirty (30) days in which to determine whether or not to fill a vacancy as set forth above.
To be eligible for the office of President, the nominee shall have (1) served a minimum of one elected or appointed term (which shall mean to include the election or appointment to fulfill a Board vacancy) on the Board including the term concluding with the election; (2) shall be the Authorized Member Representative of a General Member, and; (3) successfully completed Level I of the C.A.R.E. Accreditation Program. The president shall be the chief executive officer of the Corporation and shall have, subject to the control of the Board, general supervision, and direction of the business of the Corporation. The president shall preside at all meetings of the Membership and at all meetings of the Board. In the event of absence of the president, such vice president as designated by the president shall preside at such meeting(s).
The president may also appoint such advisory committees as he/she shall determine to perform such acts according to such procedures and to serve for as long as he/she shall determine.
To be eligible for the office of Vice President, the nominee shall (1) be the Authorized Member Representative of a General Member and (2) successfully completed Level I of the C.A.R.E. Accreditation Program. The vice-president(s) shall have such powers and shall perform such duties as shall be assigned to him/her by the Board or the president. In the absence of the president, then a vice-president (appointed by the president) shall preside over all meetings at which the president otherwise would preside.
To be eligible for the office of Secretary, the nominee shall (1) be the Authorized Member Representative of a General Member and (2) successfully completed Level I of the C.A.R.E. Accreditation Program. The secretary shall keep or cause to be kept at the principal office or such other place as the Board may order, a book of minutes of all meetings of Members, the Board, and its committees, with the time and place of holding, whether regular or special, and if special, how authorized and notice thereof given, and the names of those present at Board and committee meetings, the number of Members present or represented at Members meetings, and the proceedings thereof. The secretary shall keep or cause to be kept at the principal office the original or a copy of the Corporation´s Articles of Incorporation and By-laws as amended to date.
Unless otherwise specified in these By-laws, the secretary shall give or cause to be given notice of all meetings of the Members and of the Board and any committees thereof required by these By-laws of him/her or by Law to be given, shall keep the seal of the Corporation in safe custody, and shall have such other powers and perform such other duties as may be prescribed by the Board. The secretary shall maintain or cause to be maintained a current listing of all members of this Corporation, all members of the Board, and all members of all committees of the Board.
To be eligible for the office of Treasurer, the nominee shall (1) be the Authorized Member Representative of a General Member and (2) successfully completed Level I of the C.A.R.E. Accreditation Program. The treasurer is the chief financial officer of the Corporation, and shall keep and maintain, or cause to be kept and maintained, adequate and correct accounts of the properties and business transactions of the Corporation, and shall send or cause to be sent to the Members of the Corporation such financial statements and reports as are by law or these By-laws required to be sent to them. The books of accounts shall at all times be open to inspection by any director.
The treasurer shall deposit or cause to be deposited all monies and other valuables in the name and to the credit of the Corporation with such depositories as may be designated by the Board. The treasurer shall disburse or cause to be disbursed the funds of the Corporation as may be ordered by the Board, shall render or cause to be rendered to the president and the directors, whenever they request, an account of all transactions as treasurer, and of the financial condition of the Corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board. The treasurer shall, not less than annually, prepare or cause to be prepared uncertified financial statements for the Corporation.
I. Delegation of Duties
The secretary and treasurer shall have the right to delegate such of their duties and responsibilities as they shall determine to a fellow director, except to the extent that the Board shall otherwise determine. Any officer except shall have the right to delegate such of his/her duties and obligations as he/she shall determine to any other office that shall be willing to accept the delegation, except to the extent the Board shall otherwise determine.
ARTICLE V - MISCELLANEOUS PROVISIONS
A. Inspection of Corporation Records
A Member may do either or both of the following for a purpose reasonably related to the Member´s interest as a Member:
1. Inspect and copy the record of all the Members´ names, addresses and voting rights, at reasonable times, upon five (5) business days prior written demand upon the Corporation, which demand shall state the purpose for which the inspection rights are requested; or
2. Obtain from the secretary of the Corporation, upon written demand and tender of a reasonable charge, a list of the names, addresses, and voting rights of those Members entitled to vote for the election of directors, as of the most recent record date for which it has been compiled, or as of a date specified by the Member subsequent to the date of demand. The demand shall state the purpose for which the list is requested. The secretary shall make the Membership list available on or before the later of ten (10) business days after the demand is received in the offices of the Corporation or after the date specified therein as the date as of which the list is to be compiled.
The Corporation may, within ten (10) business days after receiving the demand, as set forth above in paragraphs 1 or 2 of this Section A, deliver to the person making the demand a written offer of an alternative method of achieving the purpose identified in said demand without providing access to, or a copy of, the Membership list. Any rejection of the Corporation´s offer shall be in writing and shall indicate the reasons the alternative proposed by the Corporation does not meet the proper purpose of the demand made pursuant to paragraphs 1 or 2 of this Section A.
The accounting books and records and minutes of proceedings of the Members and the Board and committees of the Board shall be open to inspection upon written demand upon the Corporation of any Member at any reasonable time for a purpose reasonably related to such person´s interests as a Member.
B. Inspection of Articles and By-laws
The Corporation shall keep at its principal office the original or a copy of its Articles and these By-Laws as amended to date, which shall be open to inspection by Members at all reasonable times during office hours. If the Corporation has no office in the State of Arkansas, it shall, upon the written request of any Member, furnish to such Member a copy of the Articles of Incorporation or By-Laws as amended to date.
C. Endorsement of Documents; Contracts
Subject to the provisions of applicable law, any note, mortgage, evidence of indebtedness, contract, conveyance, or other instrument in writing and any assignment or endorsement thereof executed or entered into between the Corporation and any other person, when signed by the president and the secretary or the treasurer or any vice-president of the Corporation, shall be valid and binding on the Corporation in the absence of actual knowledge on the part of the other persons that the signing officers had no authority to execute the same. Any such instruments may be signed by any other person or persons and in such manner as from time to time shall be determined by the Board, and, unless so authorized by the Board, no officer, agent, or employee shall have any power or authority to bind the Corporation by any contract, or to pledge its credit or to render it liable, for any purpose or amount.
D. Membership Certificate
Subject to the provisions of the Arkansas Nonprofit Corporation Law, every Member of the Corporation shall be entitled to a certificate signed in the name of the Corporation, certifying the fact of Membership and the class of Membership. If any officer who has signed a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were an officer at the date of issuance.
The Board may, if any certificate for Membership is alleged to have been lost, stolen, or destroyed, or if a duplicate is requested, authorize the issuance of a new certificate in lieu thereof or duplicate certificate, and the Corporation may require that it be given a bond or other adequate security sufficient to indemnify it against any claim that may be made against it, including expense or liability, on account of the alleged loss, theft, or destruction of such certificate or the issuance of such new certificate. Such requesting Member shall incur any costs associated with the issuance of such new or duplicate certificate.
E. Construction and Definitions
Unless the context otherwise requires, the general provisions, rules of construction, and definitions contained in the general provisions of the Arkansas Non-Profit Corporation Law shall govern the construction of these By-Laws.
These By-Laws may be amended or repealed by approval of the Membership or by a two-thirds (2/3) majority of the Board. No such amendment or repeal shall take place unless notice of such meeting specifying the proposed change has been given in accordance with these By-Laws. The Board shall give notice of such action at the next ensuing meeting of the Members, or in writing by first-class mail to the Membership who are Members on the effective date of the amendment at their addresses as shown upon the books of the Corporation or at the address given by a Member for the purpose of notice, or, if there is none, at the principal office of the Corporation. Notwithstanding the foregoing, the Membership must approve any action that would: (1) materially and adversely affect the rights of the Membership as to voting, dissolution, redemption, or transfer of Memberships; (2) increase or decrease the number of Memberships authorized or for any class; (3) effect an exchange, reclassification, or cancellation of all or any part of the Memberships; (4) authorize a new class of Memberships; or (5) specify or change a fixed number of directors or the maximum or minimum number of directors, or change from a fixed to a variable number of directors or vice versa. The power of Members to approve the repeal or amendment of By-laws is subject to the further approval of the Members of a class if such action would: (1) materially and adversely affect the rights, privileges, preferences, restrictions, or conditions of that class as to voting, dissolution, redemption, or transfer of Memberships in a manner different from which such action affects any other class; (2) materially and adversely affect such class as to voting, dissolution, redemption, or transfer of Memberships by changing the rights, privileges, preferences, restrictions, or conditions of any other class; (3) increase or decrease the number of Memberships authorized for such class; (4) increase the number of Members authorized for another class; (5) effect an exchange, reclassification, or cancellation of all or part of the Memberships of such class; or (6) authorize a new class of Memberships.
ARTICLE VI - INDEMNIFICATION
For the purposes of this Article VI, ´agent´ means any person who is or was a director, officer, employee, or other agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee, or agent of another corporation, whether foreign or domestic or of a partnership, joint venture, trust, or other enterprise.
For purposes of this Article VI, ´proceeding´ means any threatened, pending, or completed action or proceeding, whether civil, criminal, administrative, or investigative.
For purposes of this Article VI, ´expenses´ includes, without limitation, attorney´s fees and any expenses of establishing a right to indemnification under Section D or E(3) of this Article VI.
B. Indemnification in Actions by Third Parties
The Corporation shall have full power to indemnify any person who was or is a party or is threatened to be made a party to any proceeding (other than an action by or in the right of the Corporation to procure a judgment in its favor, or an action brought by the Attorney General or a person granted relater status by the Attorney General for any breach of duty relating to assets held in charitable trust) by reason of the fact that such person is or was an agent of the Corporation, against expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with such proceeding if such person acted in good faith and in a manner such person reasonably believed to be in the best interests of the Corporation and, in the case of a criminal proceeding, if such a person had no reasonable cause to believe the conduct was unlawful. The termination of any proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in the best interests of the Corporation, or that the person had reasonable cause to believe that the person´s conduct was unlawful.
C. Indemnification in Actions by or in the Right of the Corporation
The Corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action by or in the right of the Corporation, or brought by the Attorney General or a person granted relater status by the Attorney General for breach of duty relating to assets held in charitable trust, to procure a judgment in its favor by reason of the fact that such person is or was agent of the Corporation, against expenses actually and reasonably incurred by such person in connection with the defense or settlement of such action if such person acted in good faith in a manner such person believed to be in the best interests of the Corporation, and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances. No indemnification shall be made under this Section C.
1. In respect of any claim, issue, or matter as to which such person has been adjudged to be liable to the Corporation in the performance of such proceeding is or was pending shall determine upon application that, in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for the expenses which such court shall determine;
2. Of amounts paid in settling or otherwise disposing of a threatened or pending action, with or without court approval;
3. Of expenses incurred in defending a threatened or pending action which is settled or otherwise disposed of without court approval, unless such action concerns assets held in charitable trust and is settled with the approval of the Attorney General.
D. Indemnification Against Expenses
To the extent that an agent of the Corporation has been successful on the merits in defense of any proceeding refereed to in Section B or Section C of this Article, or in defense of any claim, issue, or matter therein, the agent shall be indemnified against expenses actually and reasonable incurred by the agent in connection therewith.
E. Advance of Expenses
Expenses incurred in defending any proceeding may be advanced by the Corporation prior to the final disposition of the proceeding upon receipt of an undertaking by or on behalf of the agent to repay such amount unless it shall ultimately be determined that the agent is entitled to be indemnified as authorized in this Article.
The Corporation shall purchase and maintain insurance on behalf of any agent of the Corporation against any liability asserted against or incurred by the agent in such capacity or arising out of the agent´s status as such, whether or not the Corporation would have the power to indemnify the agent against such liability under the provisions of this Article.
ARTICLE VII - INQUIRIES AND CHALLENGES
A. Administrative Structure and Indemnification
1. The Standards and Ethics Committee (´Committee´)
The President of the Board shall serve and appoint four additional active General Members of the Membership in good standing to serve three-year terms as members of the Standards & Ethics Committee; members of the Committee may serve no more than two consecutive terms. The appointment of the remaining four Committee members is from among respected C.A.R.E. Members. The Committee is responsible for assisting the Board by:
a. Reviewing or recommending changes in the Code of Standards and Ethics as may become necessary or advisable, and making recommendations to the Board of Directors.
b. Reviewing inquiries regarding the Code of Standards and Ethics, and where appropriate, issuing ´Interpreting Guidelines´; and
c. Enforcement of the Code of Standards and Ethics by reviewing challenges regarding the Code of Standards and Ethics and where appropriate issuing ´Determinations of Failure to Comply´.
2. The Chairman of the Committee
The president or his/her designee shall serve as the Chairman of the Code of Standards and Ethics Committee to be responsible for managing C.A.R.E.´s review, interpretation and enforcement of the Code of Standards and Ethics, subject to the responsibilities of the Committee and the Board.
3. Appellate Board
The president of the Board appoints, when needed, at least three (3) board members of C.A.R.E. to serve as an ad hoc Appellate Board. Such Appellate Board shall not include the president or any existing members of the Code of Standards and Ethics Committee.
4. Indemnification and Insurance
All Committee and Appellate Board members and designated C.A.R.E. staff, as well as other individuals engaged in investigations or the written request of the Chairman or the Board, are indemnified and defended by C.A.R.E. against liability arising from Committee-related activities to the extent also provided for C.A.R.E. Directors, Officers, employees, and agents, who are equally subject to the indemnification and defense. C.A.R.E. shall also seek to maintain indemnification insurance against such liability.
B. Inquiries and Challenges
1. Preliminary Review. The Committee preliminarily reviews each submission involving the C.A.R.E. Code of Standards and Ethics to consider whether it may require an interpretation (i.e. a request for issuance by the Committee of guidelines interpreting the Code) or a complaint (i.e. a request for a determination by the Committee that a Member has failed to comply with the Code). Any submission involving the Code, whether or not it is designated or phrased as an Interpretation or Complaint, may be construed as one in the light of the information in the submission. Interpretations and Complaints may be considered without regard to their means or form of submission (although they must be in writing). Interpretations or Complaints may be submitted by any Member that is subject to the Code; or they may be initiated by the Chairman, members of the Committee, or the Board when they have information that forms the basis for an Interpretation or Complaint. Complaints from consumers shall be only be considered by the Committee if they present, in the sole discretion of the Committee, a pattern of business practices to which the Code is applicable. C.A.R.E. does not investigate, mediate, or redress individual consumer complaints.
2. Preliminary Disposition. Upon preliminary review of a submission involving this Code, the Chairman shall conclude, in his sole discretion, that the submission: (a) merits further investigation; or (b) contains insufficient information on which to base an investigation, or is patently frivolous or inconsequential (i.e. it does not present an issue of interpretation of, or failure to comply with, the Code adequate to constitute a valid and actionable Interpretation or Complaint and to justify bringing the submission before the Committee). In the later case, such Preliminary Disposition is reported to the Committee, which may - upon request of at least three members - direct reconsideration of it. If the Committee does not direct reconsideration, the submission is disposed of by notice from the Committee to its submitter.
3. Investigation. For each submission not preliminarily disposed of, the Committee undertakes an Investigation to clarify, expand, or corroborate the information provided by the submitter. The Chairman supervises or conducts each Investigation. Other Committee members or staff may assist him. The Committee may also be assisted by others, such as a Member of C.A.R.E. or a non-member subject to the Code: (a) whose location, professional position, or expertise might facilitate the Investigation; (b) whose assistance is requested in writing by the Chairman; and (c) who agrees in writing to follow the Procedures of this Code - but only when all three of those conditions are fulfilled.
C. Proceedings on Inquiries
1. Recommendation on an Inquiry. Upon completion of an Investigation, the Committee determines whether to issue Interpreting Guidelines interpreting the Code. If the recommendation is in the affirmative, proposed Interpreting Guidelines - prepared by the Chairman - are submitted to the Committee along with a summary of the record of the Committee´s Investigation. If the Committee decides against issuance of the Interpreting Guidelines, the Inquiry is dismissed, with notice to its submitter, and a summary report is made to the Board.
2. Issuance of Interpreting Guidelines. The Committee decides whether to issue Interpreting Guidelines. If issued by the Committee, the Interpreting Guidelines are promulgated by publication. Interpreting Guidelines are compiled by the Chairman; the compilation is published periodically. The Board of Directors may modify such Interpreting Guidelines at any time.
D. Proceedings on Challenges
1. Notice. In event of a Complaint, a Member, through its C.A.R.E. Member Responsible Party, that is the subject of a valid and actionable Complaint is informed in writing at the beginning of the Investigation as to: (a) the nature of the Complaint; (b) the obligation to cooperate fully in the Investigation of the Complaint; and (c) the opportunity to request a hearing on the Complaint before the Committee. Investigations involving Complaints are conducted in confidence, with all written communications to the appropriate parties sealed and marked ´Personal and Confidential´. They are conducted objectively, without any pre-judgment. An Investigation may be directed toward any aspect of the Complaint which is potentially relevant.
2. Alternative Disposition. Before the Committee makes a recommendation and/or holds a hearing on a Complaint, the Committee may offer the Member, through its C.A.R.E. Member Responsible Party, an Alternative Disposition: the opportunity to submit a written Letter of Assurance that the business activity which is the basis of the Complaint has been terminated and will not recur. The decision to offer such an opportunity, and the decision whether or not to accept this Alternative Disposition, are entirely within the discretion of the Chairman and the Committee, respectively (based upon Investigation of the Complaint, and upon assessment of the nature and severity of the possible failure to comply when viewed from the point of view of what is in the best interest of the public). If the Committee´s offer is extended, the Member through its C.A.R.E. Member Responsible Party must submit the required Letter of Assurance within fifteen (15) days of receipt of the offer. The assurance must be submitted in terms that are acceptable to the Committee. The Member shall not be required to concede or admit failure to comply with the Code. If the Committee accepts the assurance, written notice is given to the C.A.R.E. Member Responsible Party. Notice that the Complaint has been resolved is given to the submitter of the Complaint. The specific facts of the proceeding are not made public; however, the Committee may decide whether or not to publish a summary explanation of the business conduct involved, but without the names of the Member or the individuals. If the Committee declines to accept this Alternative Disposition, then the matter is referred back to the Committee for a Recommendation on a Complaint.
3. Recommendation on a Complaint. Upon completion of an Investigation involving a Complaint, the Chairman recommends whether the Committee should make a ´Determination of Failure to Comply´ with the Code and that a particular sanction should be applied. If so, the recommended determination and sanction are submitted to the Committee along with a summary of the record of the Chairman´s Investigation.
4. Hearing on a Complaint. The Committee may conduct a hearing: (a) if one is requested by the C.A.R.E. Member Responsible Party that is the subject of the Complaint; or (b) at the Committee´s own initiative; otherwise, no hearing need be held. At least thirty (30) days´ written notice of the hearing is given. The hearing may be either conducted in person at the next scheduled C.A.R.E. conference or telephonically at the expense of the party requesting the hearing. The hearing is conducted by the Committee with any three or more Committee members participating, other than: (a) any Committee member who assisted substantially in the Investigation of the Complaint; and (b) any Committee member whose business activities are in direct competition with or one deemed to have a conflict of interest with the Member that is the subject of the Complaint. If eligible, the Chairman shall act as Hearing Officer. Otherwise, those Committee members participating in the hearing elect from their number a Hearing Officer to preside at the hearing and to assure that these Procedures are followed. The Hearing Officer may issue any appropriate procedural or evidentiary ruling in the course of the hearing, and may be assisted by legal counsel. At the hearing, the Chairman presents to the Committee the results of the Investigation. The Member that is the subject of the Complaint, which may choose to be assisted by legal counsel, may refute the results of the Investigation and may offer any exculpatory information. Information may be offered through witnesses, who are subject to cross-examination and to questioning by the Committee. Any information may be considered which is relevant or potentially relevant. A transcript or recording of the hearing is made. The hearing is confidential and is closed except for the Hearing Officer, eligible Committee members, the Chairman, the Member that is the subject of the Complaint, their counsel, and an official reporter if one is used; witnesses are admitted when called. The official record of the hearing becomes a part of the record of the Investigation.
5. Determination of Failure to Comply. The Committee makes the determination whether a Member has failed to comply with the Code, and imposes a sanction. Committee members do not participate in the determination if: (a) they assisted substantially in the Investigation of the Complaint; or (b) their business activities are conducted at a location in the approximate area of, or in direct competition with, the Member that is the subject of the Complaint. If the Committee makes a Determination of Failure to Comply and imposes a sanction, written notice is given to the Member through its C.A.R.E. Member Responsible Party. Notice that the Complaint has been resolved is given to the submitter of the Complaint. If the Committee does not make a Determination of Failure to Comply with the Code, the Complaint is dismissed, with notice to the affected Member through its C.A.R.E. Member Responsible Party and to the submitter of the Complaint.
6. Sanctions. Sanctions are provided as follows:
a. Termination of Membership. Following a determination of failure to comply, Termination of Membership may be imposed by the Committee as a sanction upon a Member (and/or responsible party or parties, such as the principals, owners, officers, etc. as the Committee may determine) that has failed to comply with the Code. Members that are terminated are deprived of all benefits and incidents of C.A.R.E. Membership or services during the period of termination, including, for example, advertising in C.A.R.E. publications and exhibiting at C.A.R.E.