BYLAWS OF AGFINITY, INC.

Transcription

1 BYLAWS OF AGFINITY, INC. JULY 1, 2012 AMENDED AND RESTATED AUGUST 20, 2013 AMENDED AND RESTATED APRIL 1, 2014 AMENDED AND RESTATED AUGUST 1, 2014 AMENDED AND RESTATED October 25, 2016

2 TABLE OF CONTENTS TO THE BYLAWS ARTICLE 1 MEMBERSHIP... 1 Section 1. (a) Qualifications for Membership... 1 (b) Admission to Membership... 1 (c) Common Stock Certificates... 1 (d) Transfer of Common Stock/Memberships... 1 Section 2. (a) Withdrawal or Termination of a Member... 2 (b) Withdrawal... 2 (c) Suspension/Termination of Membership... 2 (d) Rights and Interest on Withdrawal... 2 (e) Rights and Interest Upon Termination... 3 (f) Payment of Equity Capital/Non-Impairment... 3 Section 3. Representation of Non-Natural Person... 3 Section 4. Record of Members... 3 ARTICLE II PARTICIPATING PATRONS... 4 Section 1. Qualifications to Become a Participating Patron... 4 Section 2. Withdrawal and Termination of Participating Patron... 4 Section 3. (a) Right of Participating Patron... 4 (b) Representation of Non-Natural Person... 4 (c) Record of Participating Patrons... 4 Section 4. Transfer of Class A or B Preferred Stock... 4 ARTICLE III CAPITAL... 5 Section 1. (a) Investments in Equity Capital... 5 (b) Notice and Records... 5 (c) Consent to Tax Treatment... 5 (d) No Dividends on Stock/Equity Capital... 5 ARTICLE IV MEETING OF MEMBERS... 5 Section 1. Regular Annual Membership Meeting... 5 Section 2. Special Membership Meetings... 6 Section 3. Notice of Meetings... 6 Section 4. Membership List... 6 Section 5. (a) Voting at Membership Meetings... 6 (b) Proxy and Cumulative Voting... 6 (c) Voting by Mail/Electronic Voting... 6 Section 6. Quorum... 6 i

3 Section 7. Order of Business... 7 ARTICLE V DIRECTORS... 7 Section 1. Number and Terms of Board of Directors... 7 Section 2. (a) Number and Qualifications of Directors/Conflict of Interest... 7 (b) Director Districts... 8 (c) Nepotism... 8 Section 3. Election of Directors... 8 Section 4. Nominating Committee... 9 Section 5. Term of Directors... 9 Section 6. Election of Officers of Board of Directors... 9 Section 7. Vacancies on Board of Directors... 9 (a) Vacancy on the Board for Failing to Attend Meetings... 9 (b) Board to Fill Vacancies... 9 Section 8. Removal of Officers and Directors (a) Removal of Directors (b) Removal of Officers Section 9. Regular Board of Directors Meetings Section 10. Special Board of Directors Meetings Section 11. Notice of Board Meetings Section 12. Actions without a Meeting Section 13. Telephonic Meeting Section 14. Quorum Section 15. Voting Section 16. Compensation Section 17. Advisory Directors Section 18. Executive Committee Section 19. Other Committees Section 20. Board Powers Section 21. Indemnification ARTICLE VI DUTIES OF DIRECTORS Section 1. Management of Business Section 2. Employment of President/CEO (CEO) and Others Section 3. Reports of Business Section 4. Bonds and Insurance Section 5. Reports of Cash and Inventory Section 6. Audits (a) Performance (b) Scope (c) Form Section 7. Depository ii

4 Section 8. Representation Section 9. Assent to Action Section 10. General Standards of Conduct for Directors and Officers (a) Discharge of Duties (b) Reliance on Information (c) Acting in Good Faith (d) Limitation of Liability ARTICLE VII DUTIES OF OFFICERS Section 1. Duties of Chairman Section 2. Duties of Vice Chairman Section 3. Duties of Secretary Section 4. Duties of Treasurer ARTICLE VIII MANAGEMENT Section 1. Duties of President/Chief Executive Officer (CEO) Section 2. Duty of CEO to Account Section 3. Duties of CEO Concerning Employees ARTICLE IX COOPERATIVE S OPERATIONS Section 1. Operation Section 2. Marketing and Purchasing Contracts; Pools (a) Marketing and Purchasing Contracts (b) Pools/Allocation Units (c) Applicability Section 3. Definitions (1) Net Margin (2) Patron (3) Patronage Business (4) Patronage Refund (5) PURPIM or Grain Check (6) Per-Unit Retain Certificates (7) Equity Capital Section 4. Computation of Net Margins Section 5. Allocation of Net Margins Section 6. Patronage Losses (a) Board Discretion (b) No Assessments Against Members or Participating Patrons Section 7. Capital Reserve Section 8. Allocation and Distribution of Nonpatronage Income and Loss (a) Nonpatronage Loss iii

5 (b) Contribution to Capital Reserve Section 9. Distribution of Net Margins (a) Net Margins Payments (b) Form of Net Margins Payments (c) Qualified and Nonqualified Allocation (d) Qualified and Nonqualified Written Notice of Allocation/Reinvestment (e) Patronage Refund (f) Transfer Restriction (g) Equity Capital Retirement/Discretionary Section 10. Lien Section 11. No Offsets Section 12. (a) Retirement (b) Look-Through Concept (c) Additional Repayment (d) Secured Creditor (e) Rights and Interests in Reserved Funds, Equity Capital Accounts Of Equity from Non-Qualified Notices of Allocation Section 13. Borrowed Capital Section 14. Commingling of Capital; No Interest ARTICLE X DISSOLUTION ARTICLE XI UNCLAIMED MONEY ARTICLE XII DISPUTES ARTICLE XIII FISCAL YEAR ARTICLE XIV SEAL ARTICLE XV NOTICES ARTICLE XVI AMENDMENTS iv

6 ARTICLE XVII MERGER, CONSOLIDATION, OR SHARE OR EQUITY CAPITAL EXCHANGE Section 1. Board and Member Approval of Merger, Consolidation, or Share or Equity Capital Exchange Section 2. Merger of Cooperative Subsidiary ARTICLE XVIII DISTRIBUTION OF BYLAWS v

7 ARTICLE I MEMBERSHIP Section 1. (a) Qualifications for Membership. Any individual, business entity, landlord or tenant ( person ) who (i) is a producer of agricultural products; (ii) sells products or buys supplies handled by or through the cooperative and agrees to purchase and purchases ten (10) shares of common stock at the paid in price of $50.00 per share (for a total of $500.00), or such modified sum as may be provided in a policy of the board of directors; (iii) agrees to abide by the rules, regulations, conditions and policies as may be established from time to time by the board of directors, including but not limited to adhering to the minimum purchase requirements of the cooperative, and (iv) who consents to comply with Internal Revenue Code of 1986, Sections 1385 and 1388, may apply for admission as a member of the cooperative. Two or more individuals may apply for single membership in joint ownership if each individual is eligible for membership. A person shall be considered a producer of agricultural products if the person is engaged in the production of agricultural crop(s)s or livestock. A landlord shall be considered a producer of agricultural products if the landlord has an equity financial investment or earnings from such venture. (b) Admission to Membership. The cooperative may admit to membership an applicant who (i) applies for admission for the purpose of participating in the activities of the cooperative; and (ii) meets all the requirements for application and membership under these bylaws, the statutes of the State of Colorado and policies established by the board of directors; EXCEPT that a person shall not be eligible for membership if the board of directors finds, based on reasonable grounds, that the applicant s admission would prejudice the interests, hinder or otherwise obstruct, or conflict with, any purpose or operation of the cooperative. An applicant shall be considered a member upon acceptance and approval of the application by the board of directors and payment for the required stock. A new member shall be eligible to participate in the allocation of the cooperative s net margins for the year in which the applicant become a member on the same basis as other members of the cooperative. (c) Common Stock Certificates. Common stock certificates, if issued, shall include printed restrictions limiting the transfer of the common stock to only persons eligible to be members and only upon approval of the board of directors. The cooperative may elect not to issue stock certificates evidencing ownership of stock in the cooperative, but alternatively may evidence ownership by book entry in its records. (d) Transfer of Common Stock/Memberships. Membership in the cooperative shall not be transferrable to a person that is not otherwise qualified for membership, and any such purported transfer of common stock and membership shall be void and of no effect. No transfer of membership and stock will be effective without the consent of the cooperative s board of directors, and until entered in the cooperative s records. The transferee shall not be entitled to vote at the membership meetings of the cooperative unless and until the transfer is approved as provided herein. If in the judgment of the board of directors, stock or a membership in the cooperative is being held by a person not eligible to hold the same, the board of directors may 1

8 transfer such common stock to an equivalent amount of Class A preferred stock upon proper notification to the holder thereof pursuant to notice to the holder, and an opportunity to provide a written response, convert such membership to a participating patron status. Section 2. (a) Withdrawal or Termination of a Member. A member may not withdraw from membership in the cooperative, nor may the voting or membership rights of a member be terminated, except as provided in this section. An action taken by either the cooperative or a member pursuant to this section shall not impair the obligations of either party under any separate contractual arrangement. (b) Withdrawal. A member may withdraw from the cooperative by providing written notice of intent to withdraw to the secretary of the cooperative, and, if notice is given, withdrawal shall be effective on the date of acceptance by the cooperative. A withdrawing member shall be considered an active member entitled to all benefits of membership in the cooperative until the member s withdrawal becomes effective. A withdrawing member may revoke the notice of intent to withdraw at any time until the member's withdrawal becomes effective by providing written notice of the revocation to the secretary of the cooperative. (c) Suspension/Termination of Membership. If, following notice of the cooperative s intent to terminate a membership, with an opportunity to provide a written response and, if requested, a hearing, the membership may be suspended or terminated if the board of directors finds that a member: (i) has not complied with the cooperative's policy regarding minimum purchase requirements; (ii) has ceased to be a producer of agricultural products; (iii) is otherwise no longer eligible for membership in the cooperative, by failing to meet the requirements of membership; and/or (iv) continued membership of the person in the cooperative may obstruct or conflict with its purposes or objectives, as determined by the board of directors; the board of directors may, in its sole discretion; elect to do one or more of the following: (a) suspend the member s voting rights for a period of time; or (b) terminate the person s membership in the cooperative; or (c) convert the membership to participating patron status. If the board elects to suspend a member s voting rights, the board may restore the voting rights at any time the board determines that the condition which caused such suspension has been removed. However, if at any time during the period of suspension the condition which caused such suspension has not been removed, the board may terminate such membership and convert the membership to participating patron status in the cooperative, with such action taken at the board s sole discretion and without further notice. (d) Rights and Interest on Withdrawal. On the date a member s withdrawal becomes effective, all rights and interests of such member in the cooperative shall cease and, effective that date, the amount of common stock held by the member shall be transferred on the cooperative s records to an equivalent amount of Class B preferred stock, however, in such event, the equity interest of the participating patron shall be the same as the equity interest of the member immediately prior to withdrawal for equity retirement purposes under Article IX, Section 5 of these bylaws. 2

9 (e) Rights and Interest Upon Termination. On the date termination of membership becomes effective, all rights and interests of such member in the cooperative shall cease, except as described in the following subsection; and the membership shall be cancelled with the common stock attaching to membership deemed void on the cooperative s records; however, the price originally paid for the shares of common stock or book value of the common stock, whichever is less, as conclusively determined by the board of directors, shall be paid to the former member within one (1) year after the date the termination of membership becomes effective. (f) Payment of Equity Capital/Non-Impairment. Upon withdrawal or termination of membership in the cooperative, the member s equity capital, which is subject to Article IX, Section 5 of the bylaws, shall remain intact and payable when such equity capital becomes payable to those similarly situated as determined by the board of directors. Any financial instrument issued by the cooperative to a member shall remain in effect according to its terms, and not be impaired by termination of membership. Section 3. Representation of Non-Natural Person. If a member of the cooperative is a non-natural person, the member may be represented by any individual, associate, officer, manager, or agent of the non-natural person duly authorized in writing and delivered to the secretary of the cooperative. The term non-natural person includes a duly organized corporation, partnership, association, limited liability company, limited liability limited partnership and the like, as may be set forth in a separate board policy. Section 4. Record of Members. Each member shall provide the following information to the secretary of the cooperative: the member s name, address, address, and tax identification number. The cooperative shall keep a record of each individual member s and non-natural person s name, address, address, and tax identification number. In addition, each non-natural person shall also provide the following: the president s and treasurer s name, address, address, or the name, address, and address for each manager, managing member, general partner, or other similar officer or principal. The cooperative may require such additional information or documents as necessary to be provided by the member to accomplish its record-keeping purposes. It shall be the member s responsibility to provide correct information to the secretary of the cooperative and to promptly notify the cooperative as to any change in the above information including, but not limited to, any change in name, address, e- mail address, and other contact information. The cooperative shall update and change its records as such information becomes available to it. As to each non-natural person, the member shall provide the state of organization and the state of its principal place of business. 3

10 ARTICLE II PARTICIPATING PATRONS Section 1. Qualifications to Become a Participating Patron. Any person, or other business entity who can utilize the products or services of the cooperative, who makes application and is accepted by the board of directors of the cooperative as a participating patron, who agrees to be a patron of the cooperative, who consents to comply with the Internal Revenue Code of 1986, Sections 1385 and 1388, and who agrees to all policies, rules and regulations as adopted by the board of directors may become a participating patron of the cooperative by agreeing to purchase and purchases ten (10) shares of Class A preferred stock at the paid in price of $25.00 per share (for a total of $250.00), or such modified sum as adopted by policy by the board of directors. Upon meeting the above conditions and acceptance by the board of directors of the cooperative, the participating patron shall thereby participate in the net margins of the cooperative the same as members. A participating patron shall not have voting rights for the affairs of the cooperative. Section 2. Withdrawal and Termination of Participating Patron. A participating patron may withdraw as a participating patron by giving written notice to the cooperative or may be terminated by the board of directors by written notice to the participating patron without cause and at the board s sole discretion. Upon the effective date of termination, the participating patron shall be entitled to a return of any amounts paid by the participating patron or book value of the preferred stock, whichever is lesser, for the Class A preferred stock with payment to be made within one (1) year after termination of participating patron status. Withdrawal or termination shall not impair the participating patron s equity capital under Article IX, Section 5, if and when such equity capital becomes payable to others similarly situated as determined by the board of directors, nor shall it impair the rights and obligations of any separate contractual arrangement between the parties. Section 3. (a) Right of Participating Patrons. A participating patron shall be entitled to participate in the allocation of the cooperative's net margins as provided in Article IX of the bylaws and shall have the rights provided upon dissolution under Article X and with respect to unclaimed money under Article XI. (b) Representation of Non-Natural Person. See Article 1, Section 3 incorporated herein by reference to make it fully applicable to participating patrons. (c) Record of Participating Patrons. See Article I, Section 4 incorporated herein by reference to make it fully applicable to participating patrons. Section 4. Transfer of Class A or B Preferred Stock. No transfer of Class A Preferred Stock or Class B Preferred Stock will be effective without the consent of the cooperative s board of directors, and until entered in the cooperative s records. 4

11 ARTICLE III CAPITAL Section 1. (a) Investments in Equity Capital. In addition to the qualifying investments in the cooperative pursuant to Section 1 of Article I and Section 1 of Article II, investments in the equity capital of the cooperative shall be made by the members and other persons qualified to share in the cooperative s net margins by the cooperative retaining portions of the members respective allocated shares of net margins as provided in these bylaws. In addition or as an alternative, the board of directors may require investments in the equity capital of the cooperative on a per unit retain, percentage or other basis as may be established in a written policy of the board of directors. (b) Notice and Records. All allocated shares of net margins and per unit retains shall be deemed a capital investment in the cooperative without any further action by the cooperative other than the giving to the appropriate recipient a written notice of allocation (as defined in 26 U.S.C notwithstanding the provisions of Article XV hereof). The cooperative shall keep appropriate books and records showing the investment in capital by each member or other person in each year and cumulatively. If certificates evidencing investment in non-voting stock are issued, the terms and conditions impacting such, shall be printed on any certificate evidencing the stock; alternatively, stock ownership may be evidenced by book entry in the cooperative s records. (c) Consent to Tax Treatment. Each person who applies for and is accepted as a member or participating patron in this cooperative consents with respect to amounts of any distribution of patronage which are made in qualified written notices of allocation (as defined in 26 U.S.C. 1388) and per unit retain allocations which are received by the person from the cooperative, will be taken into account by the person at their stated dollar amounts in the manner provided in 26 U.S.C. 1385(a) in the taxable year in which the qualified written notices of allocation are received by the person. (d) No Dividends on Stock/Equity Capital. No dividends shall be paid on common stock or Class A or Class B preferred stock or other equity capital issued by this cooperative. ARTICLE IV MEETINGS OF MEMBERS Section 1. Regular Annual Membership Meeting. A regular membership meeting shall be held annually within two hundred seventy (270) days after the close of the fiscal year on a date and at such time and place in the area served by the cooperative as may be determined by the board of directors and specified in the notice of the meeting. 5

12 Section 2. Special Membership Meetings. A special meeting of the members of the cooperative shall be called at any time upon majority vote of the board of directors, or within sixty (60) days of receipt by the cooperative of a written petition signed by at least ten percent (10%) of the members requesting a special meeting. The petition shall state the specific business to be brought before the meeting. The chairman of the board shall determine the date, time and place of the special meeting. Section 3. Notice of Meetings. Written or printed notice of every regular and special meeting of the voting members shall be prepared and mailed to the last known address of each voting member pursuant to the procedures set forth in Article XV not less than fourteen (14) days before the annual membership meeting. Electronic notification including but not limited to notifications is also authorized. The notice shall state the time and place and the business to be addressed at the meeting. No business shall be transacted at a special meeting other than that referred to in the notice. Section 4. Membership List. After establishing the date for a meeting of the membership the cooperative shall prepare an alphabetical list of the current names and addresses of all its members who are entitled to vote and be given notice of the meeting. Section 5. (a) Voting at Membership Meetings. At each membership meeting, each member, including the presiding officer, shall be entitled to one (1) vote only. Except as may otherwise be provided in these bylaws or as may be specifically required by law, all questions shall be decided by a vote of a majority of the members voting thereon. In the event a majority vote of the members is not established on any question, a vote by the majority of the board of directors in attendance at the meeting shall be considered the same as a majority vote of the members voting on the question, and shall be dispositive of the question (b) Proxy and Cumulative Voting. Voting by proxy and cumulative voting are prohibited at any and all meetings of the cooperative. (c) Voting by Mail/Electronic Voting. Voting by mail is prohibited at a meeting of the members of the cooperative, except as the board of directors may approve by resolution. In the event voting by mail and/or electronic voting is permitted by the board of directors, the procedures to be used for such voting by mail and balloting shall be established by resolution of the board of directors. If electronic voting is approved by the board, a procedure shall be established that a member voter has received the exact wording on the matter upon which the vote is to be taken. Section 6. Quorum. Five percent (5%) of the total number of members or thirty (30) members, whichever is less, shall constitute a quorum for the transaction of business at any membership meeting of the cooperative, except for the transaction of business concerning which a different quorum is specifically required by law. In the event a quorum is not present at the commencement of the meeting or is lost during the meeting, the meeting may be recessed by a majority of those present until a quorum is obtained or the meeting may be adjourned and 6

13 rescheduled at a date and time established by the board of directors. Any business may be transacted at the resumption of the recessed meeting that might have been transacted at the originally called meeting. If voting by mail is authorized by the board of directors, an executed mail-in ballot received by the cooperative casting a vote at an election to be held at the membership meeting will be counted for purposes of constituting a quorum at the meeting. If electronic voting is authorized by the board of directors, an electronic vote, duly memorialized, may, under appropriate procedures approved by resolution of the board of directors, be counted for purposes of constituting a quorum. Section 7. Order of Business. All membership meetings of the cooperative shall be governed by commonly accepted parliamentary rules. The following order of business shall be used as a guide insofar as is applicable and desirable: 1. Determination of quorum; 2. Proof of due notice of meeting; 3. Reading and disposition of minutes; 4. Financial report; 5. Report of board of directors by chairman or vice chairman; 6. Report of secretary-treasurer; 7. Report of Chief Executive Officer (CEO); 8. Reports of committees; 9. Elections 10. Unfinished business; 12. New Business; 13. Adjournment ARTICLE V DIRECTORS Section 1. Number and Terms of Board of Directors. There shall be a nine (9) person board of directors for the cooperative. Three (3) directors shall represent District 1, 2, and 3 respectively, and six (6) directors shall be directors-at-large. The name of each director of the cooperative and respective terms of office of each are set forth in a separate schedule and available for review in the principal offices of the cooperative. Section 2. (a) Number and Qualifications of Directors/Conflict of Interest. The board of directors shall consist of persons that are members or a designated representative of a member of the cooperative. A duly authorized representative of a non-natural person member is eligible to serve as a director. Only members that have the right to vote and who patronize the cooperative shall be eligible to serve as director of the cooperative. In the event of a merger, the board of directors may be expanded from nine (9) to twelve (12) persons. 7

14 No person shall be eligible to serve as director if the person is in competition with or is engaged in any enterprise that is in material competition with the cooperative. A person shall be considered to be in material competition with the cooperative if: (i) the person substantially engages in or provides or offers the same, or substantially the same, activities, services or merchandise as are provided by the cooperative; or (ii) such person is a director, officer, employee, or agent of an organization which substantially engages in or provides or offers to substantially engage in or provides the same, or substantially the same, activities, services or merchandise as are provided by the cooperative. While serving as a director, a director shall not be a party to a contract or arrangement with the cooperative that is differing in any way from the business relationship accorded to nondirectors members or is less favorable to the cooperative than could be obtained by the cooperative in an arm s length negotiation and arrangement with a third party. A candidate for the position of a director assigned to a specific district shall either be a resident of the specific district or a material part of the candidate s agricultural activities shall be located and conducted within that specific district. (b) Director Districts. A portion of the trade territory of this cooperative shall be divided into three districts for the purpose of filling the three directors positions with one director assigned to each district. The districts shall be as follows: District 1 (South) - south of CO Hwy 52 and south of I-76. District 2 (Center) - between CO Hwy 52/US Hwy 34 and west of I-76. District 3 (North) - north of US Hwy 34 and north of I-76. In the event of a merger, the board of directors may modify the number of districts, or modify the boundaries of the existing districts, or create new districts, accordingly. (c) Nepotism. No individual shall be eligible to serve as a director if a member of the individual s immediate family is an employee of the cooperative. For these purposes, the term immediate family is defined as father, mother, son, daughter, brother, sister, spouse. Section 3. Election of Directors. Each directorship position shall be filled through a separate election at a membership meeting. Each qualifying nominee for a directorship position shall be listed on a separately prepared ballot with the election to be held by written ballot. The nominee that receives a majority of votes cast for which position the nominee seeks to fill shall be considered elected to that directorship position. However, if no nominee shall receive a majority of votes cast, the nominee receiving the fewest votes cast for the position, shall be excluded from the process, another vote shall be taken which procedure shall be repeated as necessary until a nominee receives a majority of the votes cast. Notwithstanding the above, in the event two (2) or more directors-at-large positions are subject to being filled at an election at a membership meeting, and more than three (3) persons seek to fill those positions, then the two 8

15 (2) or more highest vote counts used to fill the vacant positions shall be considered elected to each directorship position. For example, if five nominees seek to fill three vacancies, the total vote count for each of the five (5) nominees shall be considered with the three (3) highest vote counts used to determine the three (3) nominees to be elected to fill the three (3) directorship positions. A newly elected director shall become member of the board of directors at the first meeting of the board of directors following the election to the board. A nominee shall only be eligible to stand for election for one (1) directorship position in any one (1) year. Section 4. Nominating Committee. Within six (6) months, following the annual membership meeting, the board of directors shall appoint a nominating committee as provided for by policy of the board of directors. The board may establish rules and procedures for the conduct and means of operation of the nominating committee. Each nominee for a board position will be those selected by the nominating committee for submission to a vote of the members at the annual membership meeting. No nomination for a board position can be made on the floor by the members during the annual membership meeting. Section 5. Term of Directors. Each director shall be elected to a term of three (3) years. The term of each director shall expire at the end of three (3) years. At the expiration of each term, the members of the cooperative shall elect a director, that is duly qualified, to fill each vacant position, at a membership meeting. A director may be re-elected for a directorship position without any limit on the number of terms he or she seeks. A director whose term will expire shall be eligible to seek re-election at an annual membership meeting, unless otherwise disqualified. The terms of the directors as a whole shall be staggered among the total number of directorships to provide that no more than one-third of the directorship positions shall become vacant in any one (1) year due to expiration of a term. Section 6. Election of Officers of Board of Directors. The board of directors shall hold a meeting within thirty (30) days after the adjournment of the annual membership meeting for the purpose of organizing the board of directors. Nominations for the election of officers to the board of directors shall be made by the directors during the meeting. The election shall take place by written ballot if there is more than one (1) nominee for each position to be filled: for chairman, vice chairman, a secretary, and a treasurer until the election and qualification of the successor to that office unless a vacancy is created by death, resignation, significant incapacity, or removal. Each officer shall be a member of the board. An individual shall only be eligible to fill only one elected (1) office during any one (1) year. Section 7. Vacancies on Board of Directors. (a) Vacancy on the Board for Failing to Attend Meetings. A vacancy on the board of directors shall be declared at the discretion of the board of directors if a director fails to attend three (3) consecutive regular board meetings without excused absences. (b) Board to Fill Vacancies. Whenever a vacancy occurs on the directorship position with board of directors, other than from the expiration of a term, the remaining directors, 9

16 by majority vote, shall appoint a member to fill the vacancy until expiration of the term and then to be filled at the next regular meeting of the membership. Section 8. Removal of Officers and Directors. (a) Removal of Directors. (1) The board may remove a director who does not meet the qualifications for board membership set forth in these Bylaws or for cause. Removal of a director by the board of directors shall be by majority vote of the voting members of the board not subject to removal. (2) Removal of a director by the vote of members shall be initiated by written petition signed by at least ten percent (10%) of the members stating the alleged causes or reasons for removing the director. Each petition may only seek the removal of one (1) director. (3) At a membership meeting called expressly for that purpose, as well as any other proper purpose, a director may be removed for cause in the manner provided in this section upon an affirmative vote of a majority of the voting members present and voting in person. (4) A director may only be removed for cause. The term cause, shall include but not be limited to: serious illness, significant incapacity, being so engaged in material competition with the cooperative, or actions that are clearly detrimental to the best interests of the cooperative and as may further be defined by board policy. (5) Within ninety (90) days after receipt of a petition submitted by the members, the board shall (1) first determine if cause exists for removal, with the determination made by a majority of directors not subject to petition for removal, and, if so determined; (2) schedule the removal vote at a regular or special meeting of the membership. If more than a majority of the members of the board are subject to one or more removal petitions, then the matter shall be promptly referred to an attorney who is duly licensed to practice law in Colorado for at least five (5) years and who has not previously represented the cooperative. The determination of the attorney of whether cause has been stated shall be final determination for the purpose of whether to schedule a meeting of the members to vote on removal. (6) Any director subject to a removal petition under any provision of this section shall be promptly informed in writing of the reasons for removal by the board and shall have the opportunity, in person and by counsel, to be heard and present evidence at the meeting called for the vote. The persons seeking a director s removal shall have the same privilege. (b) Removal of Officers. If notice is given for purpose of considering removal of an officer, an officer may be removed at any time, with or without cause, by an 10

17 affirmative vote of a majority of the board. Removal of an officer shall not affect the ability of the individual to serve as a director. Only the board of directors has authority to remove an officer of the board. Section 9. Regular Board of Directors Meetings. Regular meetings of the board of directors shall be held at least monthly at such place and time as the board may determine. Section 10. Special Board of Directors Meetings. Special meetings of the board of directors shall be held when called by the chairman of the board or by a majority of directors. Any and all business may be transacted at any special meeting. Section 11. Notice of Board Meetings. Notice of each regular meeting of the board of directors shall be given to each director at least three (3) days prior to the date of the regular meeting. Section 12. Actions without a Meeting. Actions of the board of directors may be taken without a meeting if the action is agreed to by all members of the board and is evidenced by one (1) or more written consents together signed by all the directors and filed with the corporate records reflecting the action taken. Section 13. Telephonic Meeting. One or more members of the board of directors or any committee designated by the board may participate in a meeting of the board or committee by means of telephonic conference call or similar electronic means of communication in which all persons participating in the meeting can hear each other at the same time. Participation by each person shall constitute presence for the purpose of the meeting. Section 14. Quorum. A majority of the board of directors shall constitute a quorum at any meeting of the board, but in the event a quorum is lost during a meeting the meeting may proceed. Section 15. Voting. Each member of the board shall be entitled to one (1) vote on a question coming before the board. A director shall abstain from voting on any matter in which the director is personally involved in any capacity which may conflict with the purposes and objectives of the cooperative. Section 16. Compensation. Compensation of the members of the board of directors and the executive committee shall be established by the board of directors in its discretion; provided, however, such compensation shall be reasonably customary to the compensation paid to executive committee and board members of similarly sized and situated businesses. Officers of the board of directors may be paid additional compensation commensurate with the additional responsibilities and duties of such offices as determined by the board of directors. Directors shall also be reimbursed for actual and reasonable out-of-pocket expenses incurred in service to the cooperative and shall be paid for mileage charges at the maximum IRS allowable mileage 11

18 deduction rate. No member of the board of directors shall occupy any position in the cooperative on a regular salary. Section 17. Advisory Directors. Advisory directors may be appointed by the board as appropriate with each term of office to be for one (1) year. Advisory directors shall receive notice of every regular or special board meeting and shall have all of the rights and powers of regular directors except for the right to vote. Notwithstanding the provisions of Article V, Section 5, advisory directors may be removed at any time with or without cause by an affirmative majority vote of the board. Section 18. Executive Committee. The board of directors may in its discretion appoint from its own membership an executive committee of four (4) members, and determine the tenure of office of the committee s members and their powers and duties. In the event of a merger, the executive committee may be expanded to up to five (5) members. The board of directors may allot to the executive committee all or any stated portion of the functions and powers of the board of directors, subject to the general direction, approval, and control of the board. The executive committee shall report to the board all action taken by it no later than the next board meeting following the time when the actions were taken or as otherwise directed by the board of directors. Section 19. Other Committees. The board of directors may, in its discretion, appoint such other committees from its own number or from the membership, as may be necessary. Section 20. Board Powers. The cooperative, acting through its board of directors, shall have the power to carry out all agreements of the cooperative with its members and participating patrons in every way advantageous to the cooperative representing its members and participating patrons collectively. Section 21. Indemnification. Each director, officer, employee and agent of the cooperative, and each person who shall serve at its request as a director, officer, employee or agent of another cooperative, corporation, partnership, joint venture, trust or other enterprise shall have all of the benefits and be subject to all of the requirements pertaining to indemnification by the cooperative as are now provided for corporations under the Colorado Business Corporation Act, or any successor or replacement of that Act and as the same may be amended subsequent to the adoption of these bylaws, or if the statutory provisions shall be repealed in their entirety, the benefits and requirements of the provisions as they existed immediately prior to their repeal shall be applicable under this section and shall be incorporated herein by this reference thereto. The cooperative may maintain liability insurance covering its directors, officers, employees and agents in connection with fulfilling its obligations under this section or otherwise. 12

19 ARTICLE VI DUTIES OF DIRECTORS Section 1. Management of Business. The board of directors shall have general supervision and control of the business and the affairs of the cooperative and shall have the ability to make all rules and regulations and policies not inconsistent with law, the articles of incorporation or with these bylaws for the management of the business and the guidance of the members, officers, employees, and agents of the cooperative. The board shall have installed an accounting system which shall be adequate to the requirements of the business, and it shall be the duty of the directors to require proper records to be kept of all business transactions. Section 2. Employment of President/CEO (CEO) and Others. The board of directors shall have power to employ a CEO, define the CEO duties and fix the compensations. No director may serve in the capacity of CEO. The CEO may be terminated at any time subject to any written employment agreement between the cooperative and the CEO. The board shall authorize the employment of such auditors, agents, and counsel as it from time to time deems necessary or advisable in the interest of the cooperative, and prescribe their duties. Section 3. Reports of Business. The board of directors shall present at each regular meeting of the members, and if appropriate, at a special meeting of the members, a detailed statement or report of the business of the preceding year and such financial information as is appropriate for the meeting. The report shall also include any other facts and figures pertinent to an understanding of the cooperative s financial position for the relevant period. Section 4. Bonds and Insurance. The board of directors shall require the CEO and all other officers, agents, and employees charged by the cooperative with responsibility for the custody of any of its funds or negotiable instruments to be adequately bonded. Such bonds, unless cash security is given, shall be furnished by a responsible bonding company and approved by the board of directors, and the cost thereof shall be paid by the cooperative. The board of directors shall provide for the adequate insurance of the property of the cooperative, or property which may be in possession of the cooperative or stored by it and not otherwise adequately insured, and in addition, provide adequate insurance covering liability for accidents to all employees and the public. Section 5. Reports of Cash and Inventory. At the close of each annual fiscal period, or more often if so required, the board of directors shall cause a complete inventory report to be prepared. The report shall include a statement of cash on hand and an itemized list of all commodities, products, and supplies on hand, showing the quantity and the cost or current value, whichever is the lesser, of each type of commodity, product and supply. The report shall be certified as true and correct by those responsible for its preparation and shall be made available to the auditor and filed in the permanent records of the cooperative. The directors may determine the person(s) or entity that shall take the inventory. 13

20 Section 6. Audits. The board of directors shall have a comprehensive audit of the cooperative made at least at the end of each fiscal year and at other times as it deems necessary. This comprehensive audit shall meet these requirements: (a) Performance. The audit report is to be performed by a competent licensed independent certified public accountant or auditing firm hired by the directors of the cooperative. (b) Scope. The examination is to be made in accordance with generally accepted auditing standards, and the auditor is to express an independent opinion as to the fairness of the basic financial statements taken as a whole or clearly state why an unqualified opinion cannot be rendered. The audit shall contain no significant limitations on the scope of the examination. (c) Form. The audit report shall be in written form and shall be presented to the board of directors and reviewed with them at a regular or special meeting as determined by the directors and the auditor, following the completion of the audit. Copies of the completed audit report shall be presented to each of the directors and to the CEO with as many copies as are needed by the cooperative and its creditors. The CEO and employees shall provide the auditor with any and all records and information requested. The records of the cooperative shall be available at the cooperative for the auditor to review at any time during the year. A summary financial statement shall be distributed at the annual meeting based upon the annual audit report which statement shall indicate that a copy of the annual audit report is available at the office of the cooperative for review by any member. Section 7. Depository. The board of directors shall have the power to select one (1) or more financial institutions to act as depositories of the funds of the cooperative and to determine the manner of receiving, depositing, and disbursing the funds of the cooperative, including providing procedures for electronic transactions, and the form of checks and the person or persons by whom checks shall be signed, with the power to change financial institutions and the person or persons signing checks and the form thereof at will. Section 8. Representation. The board of directors may designate any member of the cooperative or any other person the board of directors deems appropriate to represent the cooperative with respect to its dealings with a business entity or trade association in which the cooperative has an interest. The compensation of such representative shall be determined by the board of directors. Section 9. the board unless: Assent to Action. A director is considered to have assented to an action of (1) The director votes against it or abstains and causes the abstention to be recorded in the minutes of the meeting; 14

21 (2) The director objects at the beginning of the meeting and does not vote for it later; (3) The director has his or her dissent recorded in the minutes; or (4) The director does not attend the meeting at which the vote is taken; (5) The director gives written notice of objection to the secretary within twenty-four (24) hours after the meeting, and requests the objection be shown in the minutes. Section 10. General Standards of Conduct for Directors and Officers. (a) Discharge of Duties. Each director shall discharge his or her duties as a director, including his or her duties as a member of a committee, and each officer with discretionary authority shall discharge his or her duties under that authority: (1) In good faith; and (2) With the care an ordinary prudent person in a like position would exercise under similar circumstances; and (3) In a manner the director reasonably believes to be in the best interests of the cooperative. (b) Reliance on Information. In discharging the director s or officer s duties, a director or officer is entitled to rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by: (1) One (1) or more officers or employees of the cooperative whom the director or officer reasonably believes to be reliable and competent in the matters presented; (2) Legal counsel, a public accountant, or another person as to matters the director or officer reasonably believes are within such person s professional or expert competence; or (3) In the case of a director, a committee of the board of directors of which the director is not a member if the director reasonably believes the committee merits confidence. 15

22 (c) Acting in Good Faith. A director or officer is not acting in good faith if the director or officer has actual knowledge concerning the matter in question that makes reliance otherwise permitted by subsection (b) of this section unwarranted. (d) Limitation of Liability. A director or officer is not liable as such to the cooperative or its shareholders for any action the director or officer takes or omits to take as a director or officer, as the case may be, if in connection with such action or omission, he or she performed the duties of the position in compliance with this section. ARTICLE VII DUTIES OF OFFICERS Section 1. Duties of the Chairman. The chairman shall (i) preside over all meetings of the cooperative and of the board of directors, (ii) call special meetings of the board of directors, (iii) appoint such committees as the board of directors may deem advisable for the proper conduct of the cooperative; (iv) perform all acts and duties usually performed by a presiding officer, and (v) sign all stock certificates and such other papers of the cooperative as may be authorized or directed to sign by the board of directors; provided, however, that the board of directors may authorize any qualified employee to sign any or all checks, contracts and other instruments in writing in behalf of the cooperative. The chairman may appoint such temporary vice chairman(s) as circumstances dictate and as deemed appropriate to conduct the affairs of the cooperative. The chairman shall perform such other duties as may be prescribed by the board of directors or as may be reasonable and appropriate in the ordinary course of business of the cooperative. Section 2. Duties of the Vice Chairman. In the absence or disability of the chairman, the vice chairman shall perform the duties of the chairman. The vice chairman shall also perform such other duties as may be required of him or her by the board of directors Section 3. Duties of the Secretary. The secretary shall attend all meetings of the members and of the board of directors, shall record all votes and the minutes of all proceedings in a book or books to be kept for that purpose, and shall perform like duties for all standing committees when so required. The secretary shall have general charge and supervision of all corporate records except those under the supervision of the treasurer. The secretary shall sign and affix the corporate seal to all documents and such other papers pertaining to the cooperative as the secretary may be authorized or directed to sign by the board of directors. The secretary shall provide for complete and proper membership and participating patron records and shall conduct such correspondence as may be delegated to the secretary by the board. The secretary shall issue all notices required by law and by these bylaws and shall make a full report of all meetings and business pertaining to the secretary s office and treasurer s office at a membership meetings. The corporate seal, the book of membership and participating patron certificates, if any, duplicate copies of the minutes and complete membership records shall be maintained at the principal office of the cooperative. The secretary shall make and retain such corporate records 16