By-Laws

ARTICLE I – PURPOSES

Subject to the provisions of its Articles of Incorporation, the purposes for which The Dutchmen Education Foundation (the “Foundation”) is formed are:

(1) to promote, support and carry-out programs of and for the exclusive benefit of the Annville-Cleona School District (“School District”),

(2) to promote and enrich the educational experience of students within the School District by all other means consistent with the Articles of Incorporation of the Foundation; and

(3) subject to the foregoing to perform all acts, to engage in all transactions, and to have and exercise all powers and privileges which are permitted under the Pennsylvania Nonprofit Corporation Law of 1988.

ARTICLE II – DIRECTORS

Section 1. Management.  The business and affairs of the Foundation shall be managed by its Board of Directors (referred to in these By-Laws as the “Board of Directors” or the “Board”) and in connection therewith the Board may exercise all of the powers granted the Foundation under the Articles of Incorporation or these By-Laws.  The Foundation shall have no members and all rights, power and authority which would otherwise be vested in members shall be vested in the Board.

Section 2. Number.  The number of Directors of the Foundations shall be not less than seven (7) nor more than twenty-five (25), as determined by resolution of the Board of Directors in accordance with Section 3 of this Article II.

Section 3. Composition.  The Board of Directors shall at all times include the following:

(a) A member of the Annville-Cleona School Board;

(b) Seven (7) to twenty-four (24) members-at-large.
The Board of Directors may increase the number of its at-large members or change the composition of the Board (other than the Superintendent of the School District or his/her designate) at any time without amendment of these By-Laws.  

Section 4. Election, Term of Office, Removal.  The initial Board of Directors shall be appointed and their terms set by the Incorporator.  Thereafter, the Directors shall be elected by the affirmative vote of a majority of the Board of Directors then in office.  The term of office of each Director shall be three (3) years and until such Director’s successor shall be chosen and shall qualify.  The term of the initial Board shall be determined by the Board at its initial meeting.  Thereafter, in each year, one-third (1/3) of the Board, or as near there as possible, shall be elected.  Any Director may be removed from office, with or without cause, by the affirmative vote of the lesser of (a) at least two-thirds of the Directors then in office or (b) all Directors other than the Director to be removed.

Section 5. Vacancies.  Vacancies shall be filled by a majority vote of the Directors present at any meeting at which a quorum is present and for which written notice was given describing the vacancy to be filled.

Section 6. Regular Meetings.  Regular meetings of the Board of Directors shall be held no less than five (5) times per year, with the first meeting being January 2009, if not a legal holiday under the laws of Pennsylvania and if a legal holiday, then on the next succeeding business day at such place or places as a majority of the Directors may from time to time appoint or as may be designated in the notice calling the meeting.

Section 7. Special Meetings.  Special meetings may be called for any purpose by the President or by any three members of the Board of Directors.

Section 8. Notice.  Written notice of the time and place of any regular meeting of the Board of Directors shall be given to each Director at least five (5) days prior to the day named for the meeting.  Except in the case of an emergency as determined by the President, written notice of the time, place and purpose of any special meeting of the Board of Directors shall be given to each Director not less than two (2) days prior to the day named for the meeting.  For purposes of these By-Laws, “written notice” may include, in addition to the proper notices, notice delivered by fax, email or any other electronic means.  

Section 9. Unanimous Consent.  Except as otherwise provided in the Articles of Incorporation or these By-Laws, any action which may be taken at a meeting of the Directors may be taken without a meeting if a consent or consents in writing setting forth the action so taken shall be signed by 2/3 of the Directors.  Such consent shall be filed with the Secretary of the Foundation.

Section 10. Compensation.  Directors shall not receive any stated salary for their services as Directors.  This provision shall not be construed to preclude any Director from serving the Foundation in any other capacity and receiving reasonable compensation for such service.  

Section 11. Conference Calls.  One or more persons may participate in a meeting of the Board of Directors by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other.  Participation in a meeting pursuant to this section shall constitute presence in person at such meeting.  

Section 12. Quorum, Action by the Board of Directors.  A number of five (5) members shall constitute a quorum for the transaction of business at any meeting of the Board and, except as otherwise required by law, the Articles of Incorporation or these By-Laws, the act of a majority of the Directors present at a meeting at which a quorum is present shall constitute the act of the Board.

Section 13. Committees.  The Board shall appoint an Executive Committee and may appoint such other committee or committees to have such powers and duties as the Board shall designate from time to time.  The Committees, their numbers, powers, duties and terms shall be as follows:

  1. Executive Committee.

The Executive Committee shall consist of the officers of the Board of Directors.  The Executive Committee shall have the power to transact business of the Board of Directors as may be necessary between Board meetings. The term of each member of the Executive Committee shall commence on the date he or she is elected (or such other time as the Board shall determine) and, unless earlier terminated by removal, disqualification or resignation, shall continue while such Board Member is an officer of the Board of Directors.

  1. Quorum, Action by Committee. Any member of any Committee may be removed at any time by the Board with or without cause upon the affirmative vote of two-thirds of the Directors attending a meeting of the Board at which a quorum is present.  Unless otherwise directed by the Board, a majority of the members of any Committee shall constitute a quorum and the act of a majority of Committee members at any meeting at which a quorum of such members are present shall constitute the act of such Committee.

ARTICLE III – OFFICERS

Section 1. Enumeration.  The officers of the Foundation shall consist of a President, a Vice-President, a Secretary and a Treasurer.  The Board of Directors may appoint such additional or assistant officers as it may from time to time determine and may define their powers and duties.

Section 2. Election.  The officers of the Foundation shall be elected at the regular meeting of the Board of Directors in June of each year and each shall hold office until the next annual meeting and until his or her successor shall have been elected and qualified.  The initial officers of the Foundation shall be appointed at the initial meeting of the Directors and shall serve until the first regular meeting of the Directors in June 2010.  A vacancy in any office may be filled by the Board for the balance of the vacant term.

Section 3. President.  The President shall be the chief executive officer of the Foundation.  The President may sign, in the name of the Foundation, contracts or other instruments authorized either generally or specifically by the Board of Directors and shall have general supervision of the affairs of the Foundation.  The President shall preside at all meetings of the Board and shall perform all duties incident to such office and such other duties as may be provided by these By-Laws or as may be prescribed from time to time by the Board of Directors.

Section 4. Vice-President.  The Vice-President shall perform all duties and exercise all powers of the President when the President is absent or is otherwise unable to act.  The Vice-President shall perform such other duties as may be prescribed from time to time by the Board of Directors.

Section 5. Secretary.  The Secretary shall give or cause to be given notices of all meetings as prescribed in these By-Laws, shall keep the minutes of all meetings of the Board and shall have charge of the Foundation records.  The Secretary may attest the execution of contracts and other instruments signed in the name of the Foundation.  The Secretary shall perform such other duties and possess such other powers as are incident to the office or as are assigned by the President or the Board of Directors.

Section 6. Treasurer.  The Treasurer shall have custody of the funds and securities of the Foundation and shall keep or cause to be kept regular books of account for the Foundation.  The Treasurer shall annually prepare and present to the Board a proposed budget for the ensuing fiscal year at such times and in such form as the Board shall determine.  The Treasurer shall account to the President or the Board of Directors, whenever they may require, concerning all transactions as Treasurer and concerning the financial condition of the Foundation.  The Treasurer shall perform such other duties and possess such other powers as are incident to the office or as shall be assigned by the President or the Board of Directors.

Section 7. Removal.  Any officer elected or appointed to office may be removed at any time, with or without cause, by a two-thirds vote of those attending a meeting of the Board at which a quorum is present.  

ARTICLE IV – ANNUAL STATEMENT

The President shall, with the aid of the Treasurer, prepare and present at each annual meeting of the Board a full and complete statement of the business and financial affairs of the Foundation for the preceding year.  Unless otherwise required by law, such statement shall be prepared and presented in whatever manner the Board of Directors shall deem advisable and need not be verified by a certified public accountant.

ARTICLE V – DIRECTOR LIABILITY

Section 1. Liability.  No Director shall be personally liable for monetary damages for any action taken, or for any failure to take any action, in his/her capacity as a Director; provided, however, that this provision shall not eliminate or limit the liability of a Director to the extent that such elimination or limitation of liability is expressly prohibited by Pennsylvania law as in effect at the time of the alleged action or failure to take action by such Director.  This Article is intended to and shall constitute adoption by the Board of Directors of the fullest protection from liability for the Directors under Pennsylvania law.

Section 2. Preservation of Rights.  Any repeal or modification of this Article by the Directors of the Foundation shall not adversely affect any right or protection existing at the time of such repeal or modification to which any Director or former Director may be entitled under this Article.  The rights conferred by this Article shall continue as to any person who has ceased to be a Director of the Foundation and shall inure to the benefit of the heirs, executors and administrators of such person.

ARTICLE VI – INDEMNIFICATION

Section 1. Mandatory Indemnification.  The Foundation shall indemnify, to the fullest extent now or hereafter permitted by law, each authorized representative (including, without limitation, each former authorized representative) of the Foundation who was or is made a party to or a witness in (or who is threatened to be made a party to or a witness in) any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was an authorized representative of the Foundation, against all expenses (including attorneys’ fees and disbursements), judgments, fines (including excise taxes and penalties) and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding.

Section 2. Mandatory Advancement of Expenses. The Foundation shall pay expenses (including, without limitation, reasonable attorneys’ fees and disbursements) incurred by an authorized representative of the Foundation in defending or appearing as a witness in any civil or criminal action,  suit or proceeding described in Section 1 of this Article XI in advance of the final disposition of such action, suit or proceeding.  The expenses incurred by such authorized representative shall be paid by the Foundation in advance of the final disposition of such action, suit or proceeding only upon receipt of an undertaking by or on behalf of such authorized representative to repay all amounts advanced if it shall ultimately be determined that such person is not entitled to be indemnified by the Foundation.

Section 3. Permissive Indemnification and Advancement of Expenses.    The Foundation may, as determined by the Board of Directors from time to time and in addition to any indemnity provided under these By-Laws or otherwise, indemnify to the fullest extent now or hereafter permitted by law, any person who was or is a party to or a witness in (or is threatened to be made a party to or a witness in), or is otherwise involved in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative, by reason of the fact that such person is or was an authorized representative of the Foundation, against all expenses (including attorney’s fees and disbursements), judgments, fines (including excise taxes and penalties), and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding.  The Foundation may, as determined by the Board of Directors from time to time, pay expenses incurred by any such person by reason of such person’s participation in an action, suit or proceeding referred to in this Section 3 in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such person to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Foundation.

Section 4. Scope of Indemnification.  Indemnification under this Article is provided in accordance with Pennsylvania law, whether the Foundation would have the power to so indemnify under any other provisions of other law and whether the indemnified liability arises or arose from any threatened pending or completed action by or in the right of the Foundation.  It is intended that the Foundation shall indemnify each authorized representative to the maximum extent permitted by law.  Consistent with such intent, this Article shall be interpreted as creating an irrevocable contractual obligation of the Foundation, which shall be for the benefit of each authorized representative, to indemnify each authorized representative to the maximum extent permitted by law.  Indemnification under this Article shall not be made by the Foundation in any case where indemnification for the alleged act or failure to act giving rise to the claim for indemnification is expressly prohibited by Pennsylvania law as in effect at the time of such alleged action or failure to take action.

Section 5. Insurance; Funding to Meet Indemnification Obligations.  The Foundation shall have the power to purchase and maintain insurance on behalf of any authorized representative of the Foundation against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Foundation would have the power to indemnify such person against such liability.  The Board of Directors shall have the power to borrow money on behalf of the Foundation, including the power to pledge the assets of the Foundation, from time to time to discharge the Foundation’s obligations with respect to indemnification, the advancement and reimbursement of expenses, and the purchase and maintenance of insurance on behalf of each authorized representative.

Section 6. Miscellaneous. Each authorized representative of the Foundation shall be deemed to act in such capacity in reliance upon such rights of indemnification and advancement of expenses as are provided in this Article.  The rights of indemnification and advancement of expenses provided by this Article shall not be deemed exclusive of any other rights to which any person seeking indemnification or advancement of expenses may be entitled under any agreement, vote of disinterested Directors, statute or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office or position, and shall continue as to a person who has ceased to be an authorized representative of the Foundation and shall inure to the benefit of the heirs, executors and administrators of such person.  Any repeal or modification of this Article by the Board of Directors of the Foundation shall not adversely affect any right or protection existing at the time of such repeal or modification to which any person may be entitled under this Article.

Section 7. Definition of Foundation.   For purposes of this Article, references to the “Foundation” shall include, in addition to the Foundation, the resulting organization or corporation, any constituent organization or corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its authorized representatives so that any person who is or was an authorized representative of such constituent organization or corporation shall stand in the same position under this Article with respect to the resulting or surviving origination as he would have with respect to such constituent organization or corporation if its separate existence had continued.

Section 8. Definition of Authorized Representative.  For the purposes of this Article, the term “authorized representative” shall mean a Director, officer, employee, representative or agent of the Foundation, or a trustee, custodian, administrator, committeeman or fiduciary of any employee benefit plan established and maintained by the Foundation or by any subsidiary of the Foundation, or a person serving another Foundation, partnership, joint venture, trust or other enterprise in any of the foregoing capacities at the request of the Foundation.

ARTICLE VII – MISCELLANEOUS

Section 1. Fiscal Year.  The fiscal year of the Foundation will begin on the first day of July and end on the last day of June of the following calendar year.  

Section 2. Checks.  Except as otherwise provided by resolution of the Board of Directors, checks, drafts, promissory notes, orders for the payment of money and other evidences of indebtedness of the Foundation shall be signed by the Treasurer and countersigned by the President.  Except as otherwise provided by resolution of the Board, contracts, leases or other instruments executed in the name of and on behalf of the Foundation shall be signed by the President and attested by the Secretary.

Section 3. Corporate Records.  The Foundation shall keep correct and complete books and records of account and minutes of the proceedings of the Board of Directors.

Section 4. No Stock.  The Foundation shall not have or issue shares of stock.  No dividend will be paid, and no part of the income will be distributed to its Directors or officers provided, that the Foundation may pay compensation in a reasonable amount to staff employed for services rendered.

Section 5. No Loans or Assistance To Directors.  The Foundation shall not make any loan to, or award any scholarship to or make any similar payment to (a) any person who is then a Director or officer of the Foundation or to (b) any child, spouse, parent or grandparent (or any lineal descendent of any of the foregoing) of any person who is then a Director or officer of the Foundation.

ARTICLE VIII – AMENDMENTS

These By-Laws may be amended or repealed by a two-thirds vote of those Directors attending a meeting of the Board at which a quorum is present and the notice of which included the text of the proposed amendment.