ARTICLE I -- PRINCIPAL OFFICE
Section 1. Resident Agent; Registered Office. The resident agent of this corporation shall be GKL Resident Agents/Filings, Inc. The registered office of this corporation in the State of Nevada shall be located at 1000 E. William Street, Suite 204, Carson City, Nevada, 89701. This corporation shall keep at its registered office, in written form, a copy of this corporation’s Articles of Incorporation and all amendments thereto, certified by the Nevada Secretary of State, and a copy of these Bylaws, and all amendments hereto, certified by an officer of this corporation.
Section 2. Principal Office. The principal office of this corporation shall be located in the county of Santa Cruz, California, or such other place as the Board of Directors may determine from time to time.
ARTICLE II -- MEMBERSHIP
This corporation shall have no members within the meaning of Section 82.031 of the Nevada Revised Statutes, but the Board of Directors may, by resolution, establish one or more classes of nonvoting affiliates and provide for eligibility requirements for affiliation and rights and duties of affiliates, including the obligation to pay dues. Any reference to such persons as “members” shall not constitute such persons as members of this corporation under the Nevada Revised Statutes.
ARTICLE III -- BOARD OF DIRECTORS
Section 1. Powers. This corporation shall have powers to the full extent allowed by law, within the limits of the purposes of this corporation as stated in the Articles of Incorporation. All powers and activities of this corporation shall be exercised and managed by the Board of Directors of this corporation directly or, if delegated, under the ultimate direction of the Board.
Section 2. Number of Directors. The number of directors shall be not less than 2 nor more than 9, with the exact authorized number of directors to be fixed from time to time by resolution of the Board of Directors. The initial authorized number of directors shall be the number of directors named in this corporation’s originally filed Articles of Incorporation, until changed by the Board as provided above.
Section 3. Election, Qualification, and Term of Office of Directors.
* A. Election; Term. The directors then in office shall elect their successors. Except as provided in Subsections 3.B, each director shall be elected for a term of three years, with such terms beginning on October 1. Unless a director resigns or is removed as provided in Section 5 below, each director shall hold office until the expiration of his or her term.
* B. Staggered Terms. Approximately one-third of the total authorized number of directors shall be elected each year at the annual meeting or as soon as practical thereafter. Whenever a new director position is authorized as provided in Article III, Section 2, the Board shall select an initial term for that position of up to four years less one day so that approximately one-third of directors’ terms shall expire on September 30 of each year. The terms of the initial directors named in this corporation’s Articles of Incorporation shall terminate on September 30, 2009.
* C. Qualification. All directors must be at least 18 years of age.
Section 4. Vacancies. A vacancy shall be deemed to exist on the Board in the event that the actual number of directors is less than the authorized number for any reason. Vacancies (including future vacancies which will occur upon the effective date of a director’s resignation) may be filled by the remaining directors for the unexpired portion of the term.
Section 5. Resignation and Removal. Resignations shall be effective upon receipt in writing by the President, the Chairman of the Board, or the Secretary of this corporation, unless a later effective date is specified in the resignation. A majority of directors then in office may remove any director at any time, with or without cause.
Section 6. Annual Meetings. A meeting of the Board of Directors shall be held at least once a year. Annual meetings shall be called by the President, the Chairman (if any), or any two directors, and noticed in accordance with Section 8.
Section 7. Other Meetings. Other meetings of the Board of Directors may be called by the President, the Chairman, or any two directors, and noticed in accordance with Section 8.
Section 8. Notice. Notice of the annual meeting and any special meetings of the Board of Directors shall be given to each director at least four days before any such meeting if given by first-class mail or forty-eight hours before any such meeting if given personally or by telephone, email, or facsimile transmission, and shall state the date, place, and time of the meeting.
Section 9. Place of Meetings. Meetings of the Board of Directors may be held at any place specified in an otherwise valid notice of any such meeting. Meetings may also be held via group teleconference.
Section 10. Waiver of Notice. The transactions of any meeting of the Board of Directors, however called and noticed or wherever held, shall be valid as though taken at a meeting duly held after regular call and notice if a quorum is present, and if, either before or after the meeting, all of the directors consent by:
* (a) Being present at the meeting and giving consent, provided that such consent is entered into the minutes of the meeting;
* (b) Signing a waiver of notice or written consent to the meeting, and delivering such consent to the secretary for filing with the minutes of the meeting; or
* (c) Taking part in the deliberations of the meeting without objection.
The waiver of notice or consent need not specify the purpose of the meeting; but if any director’s consent excepts any business, such business may not be transacted. All waivers and consents shall be filed with the corporate records or made a part of the minutes of the meeting.
Section 11. Quorum; Required Vote. A majority of the total number of directors then in office shall constitute a quorum. The act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, except as otherwise provided in Article III, Section 4 (filling Board vacancies) Article III, Section 12 (taking action without a meeting); Article VII, Section 2 (approving certain conflict of interest transactions); Article VIII, Section 4 (approving indemnification); and Article XI, Section 3 (amending bylaws) of these Bylaws or as otherwise provided in the Nevada Revised Statutes.
Section 12. Action without a Meeting. Any action required or permitted to be taken by the Board may be taken without a meeting if, before or after the action, a majority of the directors then in office (or such other portion as may be required given the nature of the action) sign written consents or transmit their consent via email to the action. Such written consents shall be filed by the Secretary with the minutes of the proceedings of the Board and shall have the same force and effect as a majority vote of such directors, provided that notice of any action taken by written consent must be given to all non-consenting directors within five working days after the required consents have been obtained.
Section 13. Telephone Meetings. Directors may participate in a meeting through use of conference telephones or similar communications equipment so long as all director participating in such meeting can hear one another. Participation in a meeting pursuant to this Section constitutes presence in person at such meeting.
Section 14. Inspection. Every director shall have the right, upon at least 5 days’ written demand and during normal business hours, in person or by agent or attorney, to inspect the books of account and all financial records of this corporation and, at such director’s own cost, to make copies of such records; provided, however, that this right may be denied to any director who refuses, upon the request of an officer of the corporation, to furnish the corporation with an affidavit that such inspection is not desired for any purpose not related to the director’s interest in the corporation.
Section 15. Compensation. The Board of Directors may fix, by resolution, the compensation of directors for services in any capacity. In addition, the Board of Directors may authorize the reimbursement to directors of reasonable and necessary out-of-pocket expenses incurred in the performance of their duties as directors.
ARTICLE IV -- STANDARD OF CARE FOR DIRECTORS AND OFFICERS
Directors and officers shall exercise their powers in good faith and with a view to the interests of this corporation.
In performing their respective duties, directors and officers shall be entitled to rely on information, opinions, reports, books of account, or statements, including financial statements and other financial data, that are prepared or presented by:
* (a) one or more directors, officers, or employees of this corporation reasonably believed to be reliable and competent as to the matters prepared or presented;
* (b) counsel, public accountants, or other persons as to matters reasonably believed to be within such person’s professional or expert competence; or
* (c) a committee upon which the person relying thereon does not serve, established in accordance with Article VI, Section 1, of these Bylaws, as to matters within the committee’s designated authority and on which the committee is reasonably believed to merit confidence;
but a director or officer is not entitled to rely on such information, opinions, reports, books of account, or statements if he or she has knowledge concerning the matter in question that would cause reliance thereon to be unwarranted.
ARTICLE V -- COMMITTEES
Section 1. Board Committees. The Board of Directors may, by resolution, create any number of Board Committees or dissolve such Board Committees. Members of Board Committees shall be appointed by resolution of the Board of Directors and shall serve at the pleasure of the Board. Each Board Committee shall have at least one director, but may include individuals who are not directors. To the extent provided in resolutions of the Board, Board Committees may exercise all the authority of the Board, except for the powers to:
* (a) amend, alter, or repeal these Bylaws;
* (b) elect, appoint, or remove any member of any such committee or any director or officers of this corporation;
* (c) amend or repeal the Articles of Incorporation of this corporation, or adopt a plan of merger or a plan of consolidation with another corporation;
* (d) authorize the sale, lease or exchange of all of the property and assets of the corporation;
* (e) authorize the voluntary dissolution of the corporation or revoke proceedings therefor;
* (f) adopt a plan for the distribution of the assets of this corporation; or
* (g) amend, alter or repeal any resolution of the Board of Directors unless it provides by its terms that it may be amended, altered or repealed by a committee.
Section 2. Advisory Committees. The Board of Directors may establish one or more Advisory Committees to the Board with the membership of such committees to be appointed by the President of the Digital Universe Foundation, the chair of the committee, or whomever the Board shall designate. Such advisory committees shall include boards or other groups. The members of any Advisory Committee may consist of directors or non-directors and may be appointed as the Board determines. Advisory committees may not exercise the authority of the Board to make decisions on behalf of this corporation, but shall be restricted to making recommendations to the Board or Board Committees, and implementing Board or Board Committee decisions and policies under the supervision and control of the Board or Board Committee.
Section 3. Meetings.
* A. Of Board Committees. Meetings and actions of Board Committees shall be governed by and held and taken in accordance with the provisions of Article III of these Bylaws concerning meetings and actions of the Board of Directors, with such changes in the content of those Bylaws as are necessary to substitute the Board Committee and its members for the Board of Directors and its members. Minutes shall be kept of each meeting of any Board Committee and shall be filed with the corporate records.
* B. Of Advisory Committees. Subject to the authority of the Board of Directors, Advisory Committees shall determine their own meeting rules and whether minutes shall be kept.
The Board of Directors may adopt rules for the governance of any Board or Advisory Committee not inconsistent with the provisions of these Bylaws.
ARTICLE VI -- OFFICERS
Section 1. Officers. The officers of this corporation shall be Chairman of the Board, a President, a Secretary, and a Treasurer. The corporation may also have, at the discretion of the directors, such other officers as may be appointed by the Board of Directors. Any number of offices may be held by the same person. The Chairman of the Board shall be elected from among the directors of the corporation.
Section 2. Election. The officers of this corporation shall be elected by of the Board, and each shall serve at the pleasure of the Board, subject to the rights, if any, of an officer under any contract of employment.
Section 3. Removal. Subject to the rights, if any, of an officer under any contract of employment, any officer may be removed, with or without cause, by the Board of Directors or by an officer on whom such power of removal may be conferred by the Board of Directors.
Section 4. Resignation. Any officer may resign at any time by giving written notice to this corporation. Any resignation shall take effect on receipt of that notice by an officer of this corporation, unless a later time specified by that notice and, unless otherwise specified in that notice, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of this corporation under any contract to which the officer is a party.
Section 5. Vacancies. A vacancy in any office for any reason shall be filled in the same manner as these Bylaws provide for election to that office.
Section 6. Chairman of the Board. The Chairman of the Board shall preside at all meetings of the Board of Directors and shall have such other powers and duties as may be prescribed by the Board or these Bylaws.
Section 7. President. The President shall be the Chief Executive Officer of this corporation and shall, subject to control of the Board, generally supervise, direct and control the business and other officers of this corporation. The President shall have the general powers and duties of management usually vested in the office of president of the corporation, and shall have such other powers and duties as may be prescribed by the Board or these Bylaws.
Section 8. Secretary. The Secretary shall supervise the keeping of a full and complete record of the proceedings of the Board of Directors and its committees, shall supervise the giving of such notices as may be proper or necessary, shall supervise the keeping of the minute books of this corporation and such other corporate records as may be required by law, and shall have such other powers and duties as may be prescribed by the Board or these Bylaws. The Secretary shall supervise the keeping of a copy of the Articles of Incorporation and a copy of these Bylaws at this corporation’s registered office as provided in Article I, Section 1, of these Bylaws.
Section 9. Treasurer. The Treasurer shall supervise the charge and custody of all funds of this corporation, the deposit of such funds in the manner prescribed by the Board of Directors, and the keeping and maintaining of adequate and correct accounts of this corporation’s properties and business transactions, shall render reports and accountings as required, and shall have such other powers and duties as may be prescribed by the Board or these Bylaws.
Section 10. The Treasurer or other appropriate DUF staff member shall have authority to disburse funds up to $10,000 under general guidelines provided by the Board. Disbursement of fund in excess of $10,000 shall require approval by the Board and the written approval of the Treasurer and the Secretary of the Board.
ARTICLE VII -- CONFLICT OF INTEREST TRANSACTIONS
Section 1. Transactions Involving Interested Directors or Officers. Except as provided in Section 2 below, the Board of Directors shall not approve, or permit this corporation to engage in, any transaction between this corporation and one or more of its directors or officers, or between this corporation and any corporation, firm, or association in which one or more of its directors or officers are directors or officers or are financially interested.
Section 2. Approval by Disinterested Directors. This corporation may engage in a transaction described in Section 1 if such transaction is authorized or approved by the Board or a Board Committee and the following requirements are met:
* (a) The fact of the common directorship, office, or financial interest is disclosed or known to the Board or Board Committee and is noted in the minutes of the Board or Board Committee meeting; and
* (b) The Board or Board Committee authorizes, approves, or ratifies the contract or transaction in good faith by a vote sufficient for the purpose without counting the vote or votes of the common or interested director or directors.
Section 3. Quorum for Approval. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board or Board Committee which authorizes, approves, or ratifies a contract or transaction described in Section 1. If the votes of the common or interested directors are not counted at the meeting, then a majority of the disinterested directors may authorize, approve or ratify a contract or transaction described in Section 1.
ARTICLE VIII -- INDEMNIFICATION AND INSURANCE
Section 1. Indemnification: Third-Party Action, Suit, or Proceeding. This corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, except an action by or in the right of this corporation, by reason of the fact that such person is or was a director, officer, employee, or agent of this corporation, or is or was serving at the request of this corporation as a director, officer, employee, or enterprise, against expenses, including attorneys’ fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by such person in connection with the action, suit, or proceeding if he or she acted in good faith and in a manner which he or she reasonably believed to be in, or not opposed to, the best interests of this 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 action, suit, or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, does 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 this corporation, or that, with respect to any criminal action or proceeding, the person had reasonable cause to believe that his or her conduct was unlawful.
Section 2. Indemnification: Action or Suit by or in the Right of This Corporation. This corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of this corporation to procure a judgment in its favor by reason of the fact that such person is or was a director, officer, employee, or agent to this corporation, or is or was serving at the request of this corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise against expenses, including amounts paid in settlement and attorneys’ fees actually and reasonably incurred by such person in connection with the defense or settlement of the action or suit if he or she acted in good faith and in a manner which he or she reasonably believed to be in, or not opposed to, the best interests of this corporation. Indemnification may not be made for any claim, issue, or matter as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to this corporation or for amounts paid in settlement to this corporation, unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.
Section 3. When Indemnification Is Mandatory. To the extent that a director, officer, employee, or agent of this corporation has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in Sections 1 and 2, or in defense of any claim, issue, or matter therein, he must be indemnified by the corporation against expenses, including attorneys’ fees, actually and reasonably incurred by him in connection with the defense.
Section 4. Indemnification Procedure. Any indemnification under Sections 1 and 2, unless ordered by a court or advanced pursuant to Section 5, must be made by this corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances. The determination must be made:
* (a) By the board of directors by majority vote of a quorum consisting of directors who were not parties to the act, suit, or proceeding; or
* (b) If a majority vote of a quorum consisting of directors who were not parties to the act, suit, or proceeding so orders, by independent legal counsel in a written opinion; or
* (c) If a quorum consisting of directors who were not parties to the act, suit, or proceeding cannot be obtained, by independent legal counsel in a written opinion.
Section 5. Advances. The Articles of Incorporation, the Bylaws, or an agreement made by this corporation may provide that the expenses of officers and directors incurred in defending a civil or criminal action, suit, or proceeding must be paid by this corporation as they are incurred and in advance of the final disposition of the action, suit, or proceeding, upon receipt of an undertaking by or on behalf of the affected director or officer to repay the amount if it is ultimately determined by a court of competent jurisdiction that he or she is not entitled to be indemnified by this corporation. Decisions on advances shall be made according to the procedures set forth in Section 4 of this Article VIII. The provisions of this Section do not affect any rights to advancement of expenses to which corporate personnel other than directors or officers may be entitled under any contract or otherwise by law.
Section 6. Extent of Indemnification and Advances. The indemnification and advancement of expenses authorized in or ordered by a court pursuant to this section:
* (a) Does not exclude any other rights to which a person seeking indemnification or advancement of expenses may be entitled under the Articles of Incorporation or any bylaw, agreement, vote of disinterested directors, or otherwise, for either an action in such person’s official capacity or an action in another capacity while holding such person’s office, except that indemnification, unless ordered by a court pursuant to Section 2 or for the advancement of expenses made pursuant to Section 5, may not be made to or on behalf of any director or officer if a final adjudication establishes that his or her acts or omissions involved intentional misconduct, fraud, or a knowing violation of the law and were material to the cause of action.
* (b) Continues for a person who has ceased to be a director, officer, employee, or agent and inures to the benefit of the heirs, executors, and administrators of such a person.
Section 7. Insurance. This corporation may purchase and maintain insurance or make other financial arrangements on behalf of any person who is or was a director, officer, employee, or agent of this corporation, or is or was serving at the request of this corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise for any liability asserted against such person and liability and expenses incurred by such person in his or her capacity as a director, officer, employee, or agent, or arising out of his or her status as such, whether or not this corporation has the authority to indemnify such person against such liability and expenses. The other financial arrangements made by the corporation pursuant to Section 7 may include the following:
* (a) The creation of a trust fund.
* (b) The establishment of a program of self-insurance.
* (c) The securing of its obligation of indemnification by granting a security interest or other lien on any assets of this corporation.
* (d) The establishment of a letter of credit, guaranty, or surety.
No financial arrangement made pursuant to this Section may provide protection for a person adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable for intentional misconduct, fraud, or a knowing violation of law, except with respect to the advancement of expenses or indemnification ordered by a court.
In the absence of fraud, the decision of the Board of Directors as to the propriety of the terms and conditions of any insurance or other financial arrangements made pursuant to this Section and the choice of the person to provide the insurance or other financial arrangement is conclusive.
ARTICLE IX -- PRIVATE FOUNDATION RULES
Any provision of these Bylaws the contrary notwithstanding, if and for so long as this corporation is deemed to be a “private foundation” as defined in Section 509 of the Internal Revenue Code of 1986, as amended (the “Code”), this corporation:
* (a) shall distribute its income for each taxable year (and principal, if necessary) at such time and in such manner as not to subject this corporation to tax under Section 4942 of the Code;
* (b) shall not approve of, or engage in, any act of self-dealing as defined in subsection (d) of Section 4941 of the Code;
* (c) shall not retain any excess business holdings as defined in subsection (c) of Section 4943 of the Code;
* (d) shall not make any investments in such a manner as to subject this corporation to tax under Section 4944 of the Code; and
* (e) shall not make any taxable expenditure as defined in subsection (d) of Section 4945 of the Code.
ARTICLE X -- GRANTS ADMINISTRATION
Section 1. Purpose of Grants. This corporation shall have the power to make grants and contributions and to render other financial assistance for the purposes expressed in this corporation’s Articles of Incorporation.
Section 2. Board of Directors Oversight. The Board of Directors shall have ultimate control over grants, contributions, and other financial assistance provided by this corporation. The Board shall approve a process for reviewing and approving or declining all requests for funds made to this corporation. This review and approval process shall require such requests to specify the use to which the funds will be put, and shall include a mechanism for regular Board review of all grants made. The Board shall similarly approve a process for authorizing payment of duly approved grants to the approved grantee.
Section 3. Refusal; Withdrawal. The Board of Directors, in its absolute discretion, shall have the right to refuse to make any grants or contributions, or to render other financial assistance, for any or all of the purposes for which the funds are requested. In addition, the Board, in its absolute discretion, shall have the right to withdraw its approval of any grant at any time and use the funds for other purposes within the scope of the purposes expressed in this corporation’s Articles of Incorporation, subject to any legally binding restrictions on the use of funds imposed by the funding source.
Section 4. Accounting by Grantees. The Board of Directors may require that grantees furnish a periodic accounting to show that the funds granted by this corporation were expended for the purposes that were approved by the Board.
Section 5. Restrictions on Contributions. Unless otherwise determined by resolution of the Board of Directors in particular cases, this corporation shall retain complete control and discretion over the use of all contributions it receives, and all contributions received by the corporation from solicitations for specific grants shall be regarded as for the use of this corporation and not for any particular organization or individual mentioned in the solicitation. This corporation may accept contributions earmarked by the donor exclusively for allocation to one or more foreign organizations or individuals only if the Board of Directors of this corporation: (1) has determined that the specific charitable activity for which the donation was made furthers this corporation’s exempt purposes; (2) has approved in advance disbursements of funds to support such charitable activity; (3) retains discretion and control as to the use of the contributions received by this corporation, and (4) exercises appropriate supervision to ensure funds are actually spent for the intended purposes.
ARTICLE XI -- MISCELLANEOUS
Section 1. Fiscal Year. The fiscal year of this corporation shall end each year on December 31.
Section 2. Contracts, Notes, and Checks. All contracts entered into on behalf of this corporation must be authorized by the Board of Directors or persons on whom such power may be conferred by the Board from time to time, and, except as otherwise provided by law, every check, draft, promissory note, money order, or other evidence of indebtedness of this corporation shall be signed by the person or persons on whom such power may be conferred by the Board from time to time.
Section 3. Amendments. Proposed amendments to these Bylaws shall be submitted in writing to the directors at least one week in advance of the Board meeting at which they will be considered for adoption. The vote of a majority of directors then in office shall be required to adopt a bylaw amendment.
Section 4. Governing Law. In all matters not specified in these Bylaws, or in the event these Bylaws shall not comply with applicable law, Chapter 82 of the Nevada Revised Statutes as then in effect shall apply.
CERTIFICATE OF SECRETARY
I, the undersigned, certify that I am presently the duly elected and acting Secretary of Digital Universe Foundation, a Nevada nonprofit corporation for public benefit, and the above Bylaws consisting of eleven Articles are the Bylaws of this corporation as adopted by written consent of a majority of the Board of Directors on 6 January 2005, and revised by majority vote of the Board of Directors on February 15, 2006 and on July 2, 2008.