CALIFORNIA EMERGING TECHNOLOGY FUND
a California Nonprofit Public Benefit Corporation
November 1, 2017
ARTICLE I
NAME
The name of this corporation shall be: California Emerging Technology Fund (the “Corporation”).
ARTICLE II
PURPOSE
The charitable and public purpose of the Corporation shall be to fund deployment and usage of broadband facilities, fund technology, equipment, content, and training necessary to make broadband service useful to unserved and underserved communities, and to disseminate information in order to advance these goals. This purpose of this Corporation shall include representation of unserved and underserved communities and consumers without broadband service at home before public and private agencies at all levels of government.
ARTICLE III
PRINCIPAL OFFICE
Section 1. Principal Office. The principal office for the transaction of the business of the Corporation (“principal executive office”) shall be fixed and located at such place as the Board of Directors (“Board”) shall determine. The Directors may change the principal executive office from one location to another. Any change of this location shall be noted by the Secretary on these bylaws opposite this section, or this section may be amended to state the new location.
Section 2. Other Offices. The Board may at any time establish branch or subordinate offices at any place or places where the Corporation is qualified to do business.
ARTICLE IV
MEMBERSHIP
Section 1. Members. The Corporation shall have no members. Any action which would otherwise require approval by a majority of all the members or approval by the members shall require only approval of the Board. All rights which would otherwise vest in the members shall vest in the Board.
Section 2. Associates. Nothing in this Article IV shall be construed as limiting the right to the Corporation to refer to persons associated with it as “members” even though such persons are not members, and no such reference shall constitute anyone a member, within the meaning of Section 5056 of the California Nonprofit Corporation Law. The Corporation may confer by amendment of its articles or of these bylaws some or all of the rights of a member, as set forth in the California Nonprofit Corporation Law, upon any person or persons who do not have the right to vote for the election of directors or on a disposition of substantially all of the assets of the Corporation or on a merger or on a dissolution or on changes to the Corporation’s articles or bylaws, but no such person shall be a member within the meaning of said Section 5056.
ARTICLE V
DIRECTORS
Section 1. Powers. Subject to limitations of the articles and these bylaws, the activities and affairs of the Corporation shall be conducted and all corporate powers shall be exercised by or under the direction of the Board. The Board may delegate the management of the activities of the Corporation to any person or persons, a management company, or committees, however composed, provided that the activities and affairs of the Corporation shall be managed and all corporate powers shall be exercised under the ultimate direction of the Board. Without prejudice to such general powers, but subject to the same limitations, it is hereby expressly declared that the Board shall have the following powers in addition to the other powers enumerated in these bylaws or statute:
(a) To select and remove all the other Officers, agents, and employees of the Corporation, prescribe powers and duties for them as may not be inconsistent with law, the articles, or these bylaws, fix their compensation, and require from them security for faithful service.
(b) To conduct, manage, and control the affairs and activities of the Corporation and to make such rules and regulations therefor not inconsistent with law, the articles, or these bylaws, as they deem best.
(c) To adopt, make, and use a corporate seal and to alter the form of such seal from time to time as they deem best.
(d) To borrow money and incur indebtedness for the purpose of the Corporation, and to cause to be executed and delivered therefor, in the corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations, or other evidences of debt and securities.
(e) To adopt, amend and repeal the bylaws of the Corporation.
(f) To carry on a business at a profit and apply any profit that results
from the business activity to any activity in which it may lawfully engage as a tax exempt corporation. No part of such profits shall inure to the benefit of any of its Directors, Officers, trustees, members, or to individuals.
(g) To raise funds.
(h) To undertake all other activities appropriate to implement the purpose of the Corporation, stated above in Article II.
Section 2. Number of Directors. The Board may consist of up to fifteen (15) Directors. The initial Board shall consist of twelve (12) Directors appointed in the following manner: (i) three (3) Directors shall be appointed by AT&T California (“AT&T”), of whom no more than one (1) may be an AT&T employee; (ii) one (1) Director shall be appointed by Verizon Communications (“Verizon”); (iii) four (4) Directors shall be appointed by the California Public Utilities Commission (the “Commission”); and (iii) four (4) additional Directors shall be appointed jointly by those Directors appointed by AT&T, Verizon and the Commission. The Directors shall be elected and removed as provided in Sections 3, 4, and 5 of this Article V.
Section 3. Selection and Term of Office. Unless earlier removed as provided hereunder, each Director shall hold office for three (3) years and until a successor has been appointed, provided that: (a) no Director shall serve for more than six (6) terms not to exceed fifteen (18) total years, and
(b) the terms of the initial Directors shall be staggered, such that the terms of four (4) directors shall expire each year in the following manner: four (4) Directors shall hold office for one (1) year, four (4) Directors shall hold office for two (2) years, and four (4) Directors shall hold office for three (3) years, with the Board of Directors determining the process for staggering the terms of initial Directors and indicating in board meeting minutes the terms for each Director. Upon the expiration of the term of any Director, the Board shall appoint his or her successor by a vote of not less than a majority of the remaining Directors. When increasing the allowed number of Directors, the Board shall designate the initial term of office to maintain approximately the same number of Directors whose terms expire in any given year.
Section 4. Vacancies. Subject to the provisions of Section 5226 of the California Nonprofit Public Benefit Corporation Law, any Director may resign effective upon giving written notice to either the Secretary or the Board, unless the notice specified a later time for the effectiveness of such resignation. If the resignation is effective at a future time, a successor may be selected before such time, to take office when the resignation becomes effective.
Vacancies in the Board shall be filled by majority vote of the remaining Directors. Each Director so selected shall hold office, unless otherwise removed pursuant to Section 5 of this Article V, until the expiration of the term of the replaced Director and until a successor has been selected and qualified.
A vacancy or vacancies in the Board shall be deemed to exist in case of the death, resignation, or removal of any Director or if the authorized number of Directors is increased.
The Board may declare vacant the office of a Director who has been declared of unsound mind by a final order of court, or convicted of a felony, or found by a final order of judgment of any court to have breached any duty arising under Article 3 of the California Nonprofit Public Benefit Corporation Law. No reduction of the authorized number of Directors shall have the effect of removing any Director before that Director’s term of office expires.
Section 5. Removal. Any Director may be removed, with or without cause, by the vote of not less than seven (7) Directors. In such a case, the Board shall appoint a successor.
Section 6. Place of Meetings. Meetings of the Board may be held at any place within or outside the State of California that has been designated from time to time by resolution of the Board. In the absence of such designation, regular meetings shall be held at the principle executive office of the Corporation.
Section 7. Annual Meetings. The Board shall hold an annual meeting for the purpose of organization, selection of Directors and Officers and the transaction of other business.
Section 8. Other Regular Meetings. Other regular meetings of the Board shall be held on such dates and at such times as may be fixed by the Board.
Section 9. Special Meetings. Special meetings of the Board for any purpose or purposes may be called at any time by the President or the Chairman of the Board or any three (3) Directors acting together. Special meetings of the Board shall be held upon four (4) days’ notice by first-class mail or 48 hours’ notice given personally or by telephone, including a voice messaging system or other system of technology designed to record and communicate messages, telegraph, facsimile, electronic mail, or other electronic means. Any such notice shall be addressed or delivered to each Director at such Director’s address as it is shown upon the records of the Corporation by the Director for purposes of notice or, if such address is not shown on such records or is not readily ascertainable, at the place in which the meetings of the Directors are regularly held.
Notice by mail shall be deemed to have been given at the time a written notice is deposited in the United States mails, postage prepaid. Any other written notice shall be deemed to have been given at the time it is personally delivered to the recipient or it is delivered to a common carrier for transmission, or actually transmitted by the person giving the notice by electronic means, to the recipient. Oral notice shall be deemed to have been given at the time it is communicated, in person or by telephone or wireless, to the recipient or to a person at the office of the recipient who the person giving the notice has reason to believe will promptly communicate it to the receiver.
Section 10. Quorum. A majority of the elected number of Directors shall constitute a quorum for the transaction of business, except to adjourn as provided in Section 13 of this Article V. Every act or decision done or made by a majority of the Directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board, unless a greater number is required by law or by the articles, except as provided in the next sentence. A meeting at which a quorum is initially present may continue to transact business, notwithstanding the withdrawal of Directors, if any action taken place is approved by at least a majority of the required quorum for that meeting.
Section 11. Participation in Meetings by Conference Telephone. Members of the Board may participate in a meeting through use of conference telephone or similar communications equipment, so long as all members participating in such meeting can hear one another.
Section 12. Waiver of Notice. Notice of a meeting need not be given to any Director who signs a waiver of notice or a written consent to holding the meeting or an approval of the minutes thereof, whether before or after the meeting, or who attends the meeting, without protesting, prior thereto or at its commencement, the lack of notice to such Director. All such waivers, consents, and approvals shall be filed with the corporate records or made a part of the minutes of the meeting.
Section 13. Adjournment. A majority of the Directors present, whether or not constituting a quorum, may adjourn any meeting to another time and place. If the meeting is adjourned for less than 24 hours, notice of the time and place of holding an adjourned meeting need not be given to absent Directors if the time and place is fixed at the meeting adjourned. If the meeting is adjourned for more than 24 hours, notice of any adjournment to another time or place shall be given prior to the time of the adjourned meeting to the Directors who were not present at the time of the adjournment.
Section 14. Action Without Meeting. Any action required or permitted to be taken by the Board may be taken without a meeting, if all members of the Board, individually or collectively, consent in writing to that action; provided, however, that the consent of any Director who has a material financial interest in a transaction to which the Corporation is a party and who is an “interested Director” as defined in Section 5233 of the California Corporations Code shall not be required for approval of that transaction. Such action by written consent shall have the same force and effect as a unanimous vote of the Board. Such written consent or consents shall be filed with the minutes of the proceedings of the Board.
Section 15. Rights of Inspection. Every Director shall have the absolute right at any reasonable time to inspect and copy all books, records, and documents of every kind and to inspect the physical properties of the Corporation of which such person is a Director.
Section 16. Fees and Compensation. Directors may be reimbursed for reasonable expenses actually incurred in performance of the director’s duties as per policies and stipulations adopted by the Board. Directors also may receive compensation for their services as members of the Board pursuant to policies and stipulations adopted by the Board. It is intended that reimbursement for reasonable expenses and other compensation will enable a diversity of individuals with varying income levels to serve on the Board. No Director who is a public employee with responsibilities related to broadband deployment and/or adoption may receive compensation.
Section 17. Interested Party Transactions. Directors shall not participate in any discussion, consideration or vote on any funding request from any organization or entity requesting funding or seeking to transact business with the Corporation if the Director (an “Interested Party Director”) is a member, director, officer, shareholder, partner, affiliate, employee, consultant, agent or volunteer in such organization or entity (an “Affiliated Entity”). Further, no Interested Party Director shall execute any contract or instrument between the Corporation and any such Affiliated Entity.
ARTICLE VI
ADVISORY COMMITTEES
Section 1. Committees of the Board. The Board may appoint one or more committees, each consisting of two (2) or more Directors and no persons who are not Directors, and delegate to such committees any of the authority of the Board except with respect to:
(a) the taking of any final action on matters which, under the Nonprofit Corporation Law of California, also requires members’ approval or approval of a majority of all the members;
(b) the filling of vacancies on the Board or in any committee;
(c) the amendment or repeal of bylaws or adoption of new bylaws;
(d) the amendment or repeal of any resolution of the Board which by its express terms is not so amendable or repealable;
(e) the appointment of any other committees of the Board or the members of these committees;
(f) the expenditure of corporate funds to support a nominee for Director after there are more people nominated for Director than can be elected; or
(g) the approval of any self-dealing transaction, as such transactions are defined in Section 5233(a) of the California Nonprofit Public Benefit Corporation Law.
Any such committee must be created, and the members thereof appointed, by resolution adopted by a majority of the authorized number of Directors then in office, provided a quorum is present, and any such committee may be designated by such name as the Board shall specify. The Board may appoint, in the same manner, alternate members of any committee who may replace any absent member at any meeting of the committee. The Board shall have the power to prescribe the manner in which proceedings of any such committee shall be conducted. In the absence of any such prescription, such committee shall have the power to prescribe the manner in which its proceedings be conducted. Unless the Board or such committee shall otherwise provide, the regular and special meetings and other actions of any such committee shall be governed by the provisions of Article V applicable to meetings and actions of the Board. Minutes shall be kept of each meeting of each committee.
There shall be three (3) standing Committees of the Board: (1) Executive Committee consisting of the Officers of the Corporation and other Directors appointed by the Board; (2) Audit Committee consisting of non-Officers elected by the Board; and (3) Nominating Committee consisting of non-Officers elected by the Board.
Section 2. Advisory Committees. Other committees may be appointed from time to time by the Board. These committees’ membership may consist of both Directors and non-Directors or non-Directors only. Advisory committees have no legal authority to act for the Corporation but shall report their findings and recommendations to the Board.
Section 3. Fees and Compensation. Directors may be reimbursed for reasonable expenses actually incurred in performance of the Director’s duties as members of Committees as per policies and stipulations adopted by the Board. Directors also may receive compensation for their services as members of the Board pursuant to policies and stipulations adopted by the Board.
ARTICLE VII
OFFICERS
Section 1. Officers. The Officers of the Corporation shall be a Secretary, Treasurer, and President and Chief Executive Officer. The Corporation may also have other Officers as may be elected by the Board in accordance with the provisions of Section 3 of this Article VII.
Section 2. Election. The Secretary, Treasurer and other Officers of the Corporation shall be elected by the Board from among the Directors and shall serve for two (2) year terms at the pleasure of the Board, subject to the rights, if any, of an officer under any contract of employment. The President and Chief Executive Officer shall be employed by the Board of Directors subject to the conditions of employment.
Section 3. Subordinate Officers. The Board may appoint any other Officers that the business of the Corporation may require, each of whom shall have the title, hold office for the period, have the authority, and perform the duties specified in the bylaws or determined from time to time by the Board.
Section 4. Removal and Resignation. Any Officer may be removed, with or without cause, by the Board at any time. Any such removal shall be without prejudice to the rights, if any, of the officer under any contract of employment of the Officer. Any Officer may resign at any time by giving written notice to the Corporation. Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in 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 the Corporation under any contract to which the Officer is a party.
Section 5. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or any other cause shall be filled only in the manner prescribed in these bylaws for regular election or appointment to that office, provided that such vacancies shall be filled as they occur and not on an annual basis.
Section 6. Chairman of the Board. A Chairman may be elected by the Board and shall preside at meetings of the Board and exercise and perform such other powers and duties as may be from time to time assigned to him or her by the Board or prescribed by the bylaws. The Board may designate an Officer or other Director to preside at meetings.
Section 7. Vice Chairman of the Board. If a Vice Chairman is elected, in the absence in the Chairman of the Board, the Vice Chairman shall preside at all Board meetings, and exercise and perform such other powers and duties as may be from time to time assigned to him or her by the Board or prescribed by the bylaws.
Section 8. President and Chief Executive Officer. Subject to the supervisory power as the Board may give to the Chairman of Board, if any, and subject to control of the Board, the President and Chief Executive Officer shall be the general manager of the Corporation and shall supervise, direct and control the Corporation’s activities, affairs, and employees. The President and CEO shall have such other powers and duties as the Board or the bylaws may prescribe.
Section 9. Secretary. The Secretary shall attend to the following:
(a) Book of minutes. The Secretary shall keep or cause to be kept, at the principal executive office or such other place as the Board may direct, a book of minutes of all meetings and actions of directors, and committees of directors, with the time and place of holding, whether regular or special, and, if special, how authorized, the notice given, the names of those present at such meetings and the proceedings of such meetings.
(b) Notices, seal and other duties. The Secretary shall give, or cause to be given, notice of all meetings of the Board required by the bylaws to be given. The Secretary shall keep the seal of the Corporation in safe custody. The Secretary shall have such others powers and perform such other duties as may be prescribed by the Board or the bylaws.
Section 10. Treasurer. The Treasurer shall attend to the following:
(a) Books of account. The Treasurer shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of the properties and business transactions of the Corporation, including accounts in its assets, liabilities, receipts, disbursements, gain, losses, capital, retained earnings, and other matters customarily included in financial statements. The books of account shall be open to inspection by any director at all reasonable times.
(b) Deposit and disbursement of money and valuables. The Treasurer shall oversee the deposit of all money and other valuables in the name and to the credit of the Corporation with such depositories as may be designated by the Board; shall oversee disbursement of the funds of the Corporation as may be ordered by the Board; shall render to the Directors, whenever they request it, an account of all transactions as Treasurer and of the financial condition of the Corporation; and shall have such other powers and perform such other duties as may be prescribed by the Board or the bylaws.
Section 11. Compensation. Officers may receive reimbursement for expenses, as may be fixed or determined by the Board. The Treasurer may be compensated for financial oversight and management responsibilities and duties as assigned by the Board pursuant to policies and stipulations adopted by the Board.
ARTICLE VIII
RECORDS AND REPORTS
Section 1. Corporate Records. The Corporation shall keep:
(a) Adequate and correct books and records of accounts;
(b) Written minutes of the proceedings of its Board and committees of the Board; and
(c) The original or a copy of the articles of incorporation and bylaws, as amended, to date.
Section 2. Annual Reports.
(a) Financial statements shall be prepared as soon as reasonably practicable after the close of the fiscal year. The financial statements shall contain in appropriate detail the following:
(1) The assets and liabilities, including trust funds, of this Corporation as of the end of the fiscal year;
(2) The principal changes in assets and liabilities, including trust funds, during the fiscal year;
(3) The revenue of receipts of this Corporation, both unrestricted and restricted to particular purposes, for the fiscal year;
(4) The expenses or disbursements of this Corporation, for both general and restricted purposes during the fiscal year;
(5) Any transaction during the previous fiscal year to which this Corporation or a subsidiary was a party and in which any Directors or Officers of the Corporation or subsidiary had or has a direct or indirect material financial interest. The report must disclose the names of the interested persons involved in such transaction, stating such person’s relationship to the Corporation, the nature of such person’s interest in the transaction and, where practicable, the amount of such interest; and
(6) The amount and circumstances of any indemnification or advances paid during the fiscal year to any Officer or Director of the Corporation.
(b) Such financial statements shall be accompanied by any report thereon of independent accountants, or, if there is no such report, the certificate of an authorized Officer of the Corporation that such statements were prepared without audit from the books and records of the Corporation.
(c) To the extent required by law, a report including the financial statements prescribed above shall be furnished annually to all Directors of the Corporation.
ARTICLE IX
OTHER PROVISIONS
Section 1. Endorsement of Documents: Contracts. Subject to the provisions of applicable law, any note, mortgage, evidence of indebtedness, contract, conveyance, or other instrument in writing and any assignment of endorsement thereof executed or entered into between the Corporation and any other person, when signed by the President and Chief Executive Officer, or such other Officer as is delegated such authority by the Board, shall be valid and binding on the Corporation in the absence of actual knowledge on the part of the other person that the signing officers had no authority to execute the same. Any such instruments may be signed by any other person or persons and in such manner as from time to time shall be determined by the Board, and, unless so authorized by the Board, no Officer, agent, or employee shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or amount. The Corporation is under no obligation to enter into contracts for goods and services with any individual or for-profit entity that may have created or sponsored it.
Section 2. Representation of Shares of Other Corporations. The President and Chief Executive Officer or any other Officer or Officers authorized by the Board are each authorized to vote, represent, and exercise on behalf of the Corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of the Corporation. The authority herein granted may be exercised either by any such Officer in person or by any other person authorized to do so by proxy or power of attorney duly executed by said Officer.
Section 3. Construction and Definitions. Unless the context otherwise requires, the general provisions, rules of construction, and definitions contained in the General Provisions of the California Nonprofit Corporation Law and in the California Nonprofit Public Benefit Corporation Law shall govern the construction of these bylaws.
Section 4. Amendments. These bylaws may be amended or repealed by the vote of two-thirds (2/3) of the Board.
Section 5. Fiscal Year. The fiscal year of this Corporation shall be determined by resolution of the Board.
Section 6. Corporate Seal. This Corporation may have a seal which shall be specified by resolution of the Board.
ARTICLE X
INDEMNIFICATION
Section 1. Right of Indemnity. To the fullest extent permitted by law, the Corporation shall indemnify its Directors, Officers, employees, and other persons described in Section 5238(a) of the California Corporations Code, including persons formerly occupying any such position, against all expenses, judgments, fines, settlements and other amounts actually and reasonably incurred by them in connection with any “proceeding” as that term is used in that Section, and including any action by or in the right of the Corporation, by reason of the fact that the person is or was a person described in that Section. “Expenses,” as used in this bylaw, shall have the same meaning as in Section 5238(a) of the California Corporations Code.
Section 2. Approval of Indemnity. On written request to the Board by any person seeking indemnification under Section 5238(b) or Section 5238(c) of the California Corporations Code, the Board shall promptly determine under Section 5238(c) of the California Corporations Code whether the applicable standard of conduct set forth in Section 5238(b) or Section 5238(c) has been met and, if so, the Board shall authorize indemnification. If the Board cannot authorize indemnification because the number of Directors who are parties to the proceeding with respect to which indemnification is sought prevents the formation of a quorum of Directors who are not parties to that proceeding, the court in which such proceeding is or was pending upon application made by the Corporation or the agent or the attorney or other person rendering services in connection with the defense, whether or not such application by the agent, attorney, or other person is opposed by the Corporation, shall determine under Section 5238(c) of the California Corporations Code whether the applicable standard of conduct set forth in Section 5238(b) or Section 5238(c) has been met and, if so, the court shall authorize indemnification.
Section 3. Advancement of Expenses. To the fullest extent permitted by law and except as otherwise determined by the Board in a specific instance, expense incurred by a person seeking indemnification under Sections 1 and 2 of this Article X in defending any proceeding covered by those sections shall be advanced by the Corporation before final disposition of the proceeding.
Section 4. Insurance. The Corporation shall have the right to purchase and maintain insurance to the full extent permitted by law on behalf of its Officers, Directors, employees, and other agents, against any liability asserted or incurred by any Officer, Director, employee, or agent in such capacity or arising out of the Officer’s, Director’s, employee’s, or agent’s status as such.
ARTICLE XI
DEDICATION OF ASSETS
The property of this Corporation is irrevocably dedicated to charitable and public purposes and no part of the net earnings or assets of this Corporation shall inure to the benefit of (or be distributable to) any Director or Officer of this Corporation or other private person, except that this Corporation shall be authorized and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of its charitable and public purposes.
Amended by the Board of Directors on May 15, 2007
Amended by the Board of Directors on March 13, 2009 and ratified on June 24, 2009.
Amended by the Board of Directors on June 1, 2011 and ratified on December 2, 2011.
Amended by the Board of Directors on December 6, 2013.
Amended by the Board of Directors effective June 30, 2015.
Amended by the Board of Directors on November 1, 2017.
Barbara O’Connor
Name
Co-Chair and Secretary
Title
February 13, 2018
Date
