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HomeMy WebLinkAboutAgenda - 12-16-1997 - 9f 1 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT MEETING DATE: December 16, 1997 Action Agenda Item # a- f SUBJECT:Orange County Small Business Loan Pool DEPARTMENT:EDC PUBLIC HEARING: Yes_No_X_ BUDGET AMENDMENT NEEDED: Yes No ATTACHMENT(S): INFORMATION CONTACT: Articles of incorporation Ted Abernathy 732-8181(ext. 2325) Bylaws Geof Gledhill 732-2196 Resolution TELEPHONE NUMBERS: Hillsborough - 732-8181 Durham - 699-7331 Mebane - (910) 227-2031 Chapel Hill - 967-9251/968-4501 Purpose: To approve the articles of incorporation and bylaws for the Orange County Small Business Loan Program. Background: At the September 2nd Board of County Commissioner meeting the Commissioners voted to proceed with development of the loan pool program. The County Attorney was asked to draft the legal documents necessary to create the nonprofit needed to administer the program. Recommendation: The manager recommends that the commissioners adopt the attached resolution and direct the County Attorney to proceed. 2 ARTICLES OF INCORPORATION ORANGE COUNTY SMALL BUSINESS LOAN PROGRAM COMPANV Pursuant to Section 55A-2-02 of the General Statues of North Carolina, the undersigned hereby submits these Articles of Incorporation for the purpose of forming a nonprofit corporation. ARTICLE I The name of the corporation is Orange County Small Business Loan Program Company. ARTICLE II The corporation is a charitable or religious corporation as defined in N.C.G.S. Section 55A-1-40(4). ARTICLE III The corporation is organized for the following purposes: (a) To assist Orange County, North Carolina (the "County"), a duly existing political subdivision of the State of North Carolina, in carrying out the County's governmental functions through serving as a conduit entity to make and facilitate loans to small businesses in the County, as part of a small business loan program approved and initiated by the County, all in order to promote the economic development and general welfare of the County and its citizens; (b) To enter into agreements with the County, financial institutions and other relevant parties,to fulfill its intended functions in the small business loan program; (c) To lessen the burdens of government, and provide aid and assistance to the County in carrying out its essential governmental functions; and (d) To carry out such related functions as may be necessary or convenient in serving the primary purposes described above. Notwithstanding any other provision of these Articles, the purposes for which the corporation is organized are exclusively charitable, scientific, literary, and educational within the meaning of Section 501(c)(3) of the Internal Revenue Code or 1986, as amended, or the 3 corresponding provision of any future United States internal revenue law. The corporation shall not carry on any activities not permitted to be carried on (1) by an organization exempt from federal income tax under such Section 501(c)(3) or future corresponding provision of law, or (2) by an organization contributions to which are deductible under Section 170(c)(2) of the Internal Revenue Code or 1986, as amended, or the corresponding provision of any future United States internal revenue law. The corporation shall have all corporate power and authority necessary and convenient to carry on any lawful activity calculated, directly or indirectly, to promote the corporation's interests and purposes. No substantial part of the corporation's activities shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the corporation shall not participate in or intervene in (including the publishing and distributions of statements) any political campaign on behalf of or in opposition to any candidate for public office. No part of the corporation's net earnings shall inure to the benefit of, or be distributable to, its members, directors, officers, or other private persons, except that the corporation shall be authorized and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of purposes set forth in these Articles. ARTICLE IV The period of duration of the corporation is perpetual. ARTICLE V In the event of the corporation's dissolution, after all the corporation's liabilities and obligations have been paid or adequately provided for, the corporation's residual assets shall be distributed to the County, or, subject to the County's approval, (a) to one or more other organizations which themselves are exempt as organizations described in Sections 501(c)(3) and 170(c)(2) of the Internal Revenue Code of 1986, as amended, or the corresponding provisions of any future United States internal revenue law, or(b) to federal, state or local government entities to be used exclusively for public purposes. ARTICLE VI The corporation shall have no members. 4 ` ARTICLE VII 1 The number of directors of the corporation, their term and election may be fined by the corporation's Bylaws,but shall not be less than three in number. The number of directors constituting the initial board of directors shall br: :riiae, and the names and addresses of the persons who are to serve as the initial directors are as fellows: Margaret W. Brown John Link,Jr. Commissioner, Orange County Orange County Manager c/o County Manager's Office 200 South Cameron St. 200 South Cameron St. Hillsborough,NC 27278 Hillsborough,NC 27278 Kenneth T. Chavious [Six Independent Directors,to come,j Orange County Finance Officer 208 South Cameron St. Hillsborough,NC 27278 The corporation's officers shall be elected by the corporation's directors, in the manner set out in the Bylaws. ARTICLE VIII The private property of the Directors shall be exempt from execution or other liability for any debts of the Company, and no Director shall be personally liable or responsible for any debts or liabilities of the Company. The provisions of N.C.G.S. Chapter 55A, Article 8, Part 5, or any successor provision, shall fully apply without restriction or limitation as to indemnification of and advancing litigation expenses to directors,officers, employees or agents of the corporation. To the extent provided in N.C.G.S. Section 55A-8-60, except as limited by N.C.G.S. Section 55A-2-02, no director, officer, employee or agent of the corporation shall be personally liable for money damages as a result of any action for breach of such person's duty as a director, officer, employee or agent of the corporation, whether by or in the right of the corporation or otherwise. 5 No amendment or repeal of this article, nor the adoption of any other amendment to these Articles inconsistent with this article, shall eliminate or reduce the protection granted herein with respect to any matter that occurred prior to such amendment, repeal or adoption. ARTICLE IX No provision of these Articles shall be changed in any way, and no new provisions shall be added to these Articles, except with the County's prior consent, as evidenced by a certified resolution of the County's governing board approving such change or addition. ARTICLE X The street address (which is also the mailing address) of the corporation's initial registered office is 129 East Tryon St., Hillsborough, NC 27278, in Orange County, North Carolina. The name of the initial registered agent is Geoffrey E. Gledhill. The street address (which is also the mailing address) of the corporation's principal office is c/o Orange County Finance Office,208 South Cameron St.,Hillsborough,NC 27278. ARTICLE XI The name and address of the incorporator are Geoffrey E. Gledhill, 129 East Tryon St., Hillsborough,NC 27278. ARTICLE XH These Articles will be effective upon filing. This the day of November, 1997. Geoffrey E. Gledhill, Incorporator 6 BYLAWS OF ORANGE COUNTY SMALL BUSINESS LOAN PROGRAM COMPANY ARTICLE I PURPOSE Orange County Small Business Loan Program Company is organized for the following purposes: (a) To assist Orange County, North Carolina (the "County"), in carrying out the County's governmental functions through serving as a conduit entity to make and facilitate loans to small businesses in the County, as part of a small business loan program approved and initiated by the County, all in order to promote the economic development and general welfare of the County and its citizens; (b) To enter into agreements with the County, financial institutions and other relevant parties,to fulfill its intended functions in the small business loan program; (c) To lessen the burdens of government, and provide aid and assistance to the County in carrying out its essential governmental functions; and (d) To carry out such related functions as may be necessary or convenient to serving the primary purposes described above. Notwithstanding any other provision of the Articles or these Bylaws, the purposes for which the Company is organized are exclusively charitable, scientific, literary, and educational within the meaning of Section 501(c)(3) of the Internal Revenue Code or 1986, as amended, or the corresponding provision of any future United States internal revenue law. The Company shall not carry on any activities not permitted to be carried on (1) by an organization exempt from federal income tax under such Section 501(c)(3) or future corresponding provision of law, or (2) by an organization contributions to which are deductible under Section 170(c)(2) of the Internal Revenue Code or 1986,as amended, or the corresponding provision of any future United States internal revenue law. The.Company shall have all corporate power and authority necessary and convenient to carry on any lawful activity calculated, directly or indirectly, to promote the Company's interests and purposes. 7 i No substantial part of the Company's activities shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the Company shall not participate in or intervene in (including the publishing and distributions of statements) any political campaign on behalf of or in opposition to any candidate for public office. No part of the Company's net earnings shall inure to the benefit of, or be distributable to, its members, Directors, officers, or other private persons, except that the Company shall be authorized and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of the Company's purposes. ARTICLE II MEMBERS The Company shall have no members. ARTICLE III DIRECTORS 3.01. Board of Directors: Size of Board_ The Company's business and affairs shall be managed by a Board of Directors (the "Board") consisting of nine persons, which shall exercise all powers of the Company. 3.02. Initial Directors. The Board's initial members shall be as designated in the Company's Articles of Incorporation. 3.03. County Directors. The County shall at all times have the right to xppcint three Directors(the"County Directors"). Unless at any time the County shall otherwise notify the Company, the County Directors shall be (a) the County Manager, (b) the County's Finance Officer, and (c) one member of the County's Governing Board as designated from time to time by such Governing Board. The initial County Directors are Margaret W.Brown, John Link, Jr., and Kenneth T. Chavious. All persons serving as County Directors shall be deemed to be serving as Company Directors as a part of that individual's duties of office, and shall not be considered to be serving in a separate office. All persons serving as County Directors shall serve until their successors have been designated by the County's Governing Board, except that a person serving as a County Director shall cease to be a Company Director upon such individual's cessation of service as an elected official,officer or employee of the County, whether or not such member's successor shall be been appointed and qualified for office. Each County Director (including elected officials) serves at the County's pleasure, and may be removed from office as a Director at any time, with 8 or without cause, by resolution of the County's Governing Board, as certified to the Company's Secretary-Treasurer. 3.04. jndgpendent Directors. The Board shall at all times (except in the case of temporary vacancies) include six Directors who are not elected officials, officers or employees of the County(the "Independent Directors"). The initial Independent Directors are as follows, and such persons shall serve terms expiring on the dates indicated below: June 30,2000 June 30,2000 June 30,2000 June 30,2001 June 30,2001 June 30,2001 The term of each Independent Director shall continue until such Director's successor has been duly appointed and qualified for office. Independent Directors may serve an unlimited number of terms. Each year, not earlier than May 1 and not later than June 15, beginning in the year 2000,. the three Independent Directors whose terms extend beyond the following July 1 and the County Directors shall meet to elect three Independent Directors to take office on the following July 1. Such meeting and election may take place upon the conclusion of the Board's regular annual meeting provided for in Section 5.01. Each Independent Director so elected shall be elected for a term of two years. In the case of any vacancy among the Independent Directors occurring other than by the expiration of a term, the remaining Directors shall select a person to -serve as an Independent Director for the remaining portion of the term. 3.05. Compensation,Expenses. No officer or Director of the Company shall receive any compensation for service to the Company in any capacity, except that County Directors and other County officers and employees may perform services to the Company as part of their respective positions with the County. Directors and officers may, however, receive appropriate reimbursement for expenditures made on behalf of the Company and approved by the Board, and in addition Directors and officers may receive meals and services in connection with Board or committee meetings. 9 ti ARTICLE IV COMMITTEES 4.01. Loan Committee. The Board shall, from time to time as may be convenient for the Company's purposes, meet as a Loan Committee of the whole for the purposes of considering applications for loans through the Small Business Loan Program for which the Company has been formed, and for related purposes. 4.02. Other Committees. The Board, upon authorization by the affirmative vote of at least five Directors (including at least two County Directors), may from time to time establish additional committees and appoint committee members, for such purposes not inconsistent with law (including N.C.G.S. 55A-8-25) as the Board may determine from time to time to be in furtherance of the Company's purposes. Committees may include persons other than Directors, but each committee must include at least two Directors. 4.03. Committee Meetings and Other Procedures. The procedures for the calling of meetings and conduct of other business by committees shall be in accordance with the provisions set out in these Bylaws as applicable to the Board as a whole. ARTICLE V MEETINGS OF DIRECTORS 5.01. Regular Annual Meeting The Board shall meet at least annually for the purpose of electing officers,passing upon reports of the previous year and transacting such other business as may come before the meeting. The County Directors, by notice provided to all Directors as provided for in Section 5.06, shall establish the date, time and place of such annual meeting. If the County Directors make no alternate provisions, the Board shall meet at 9:00 a.m. on the first Monday of May in each year, at the Company's principal office. The Secretary- Treasurer shall give notice of the regular annual meeting as provided for in Section 5.06. 5.02. Special MeetiM. Special meetings of the Board may be called by the President or by any two Directors, and it shall thereupon be the duty of the Secretary-Treasurer to cause notice of such meeting to be given as provided in Section 5.06. The President or the Directors calling the meeting shall fix the time and place for the holding of the meeting. 5.03. Informal Action. Action taken by the Directors without a meeting is nevertheless Board action if written approval of the action in question is signed by all of the Directors and filed with the Company's official minutes. 5.04. Qom. Five Directors, including at least two County Directors, shall constitute a quorum; provided, however, that if less than such number of Directors is present at any duly called meeting, a majority of the Directors present may adjourn the meeting from time 10 to time; and provided further that the Secretary-Treasurer shall notify any absent Directors of the time and place of such adjourned meeting. Any one or more Directors may participate in a meeting of the Board by means of a conference telephone or similar Communications device which allows all persons participating in the meeting to hear each other and such participation in a meeting shall be deemed present in person at such meeting. 5.05. Manner of Acting. 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, except to the extent these Bylaws or any applicable provision of law establishes a different requirement for corporate action. 5.06 Notice of Board Meetings. Written notice of the time and place of any regular or special Board meeting, unless waived, shall be delivered to each Director not less than five days prior to the meeting date. Notice shall be deemed given when delivered in person, when sent by facsimile transmission the receipt of which is confirmed by telephone or otherwise, or, if mailed, three days after the date such notice, with postage prepaid, is deposited in the United States mail addressed to the Director at such address as appears on the Company's records. 5.07. Waiver of Notice:Presumption of Assent. Any Director may waive in writing any notice of a meeting required to be given by these Bylaws, and may make such waiver either before or after such meeting. The waiver must be in writing, signed by the Director entitled to the notice, and delivered to the Company's Secretary-Treasurer for inclusion in the minutes or filing with the corporate records. A Director's attendance at any meeting shall constitute such Director's waiver of notice of such meeting, unless the Director at the beginning of the meeting, or promptly upon arrival, objects to holding the meeting or to transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting. ARTICLE VI OFFICERS 6.01. Desigoation. The officers of the Company shall be a President, Vice President, Secretary-Treasurer, Assistant Secretary-Treasurer and such other officers as the Board may determine from time to time to perform such duties as may be designated by the Board. 6.02. Election and Term of Office. The Board shall elect the officers annually at its regular annual meeting provided for in Section 5.01. Each officer shall hold office until the next regular annual meeting of the Board and until such officer's successor shall have been elected. Except as otherwise provided in these Bylaws, the Board shall fill any vacancy in any office for the unexpired portion of the term. The President and the Vice President shall be members of the Board,but none of the other officers need be members of the Board. No one person may serve in more than one of the offices enumerated in these Bylaws. l 1 6.03. Removal of Officers and Agents= Any officer or agent elected or appointed by the Board may be removed by the Board, with or without cause, whenever in the Board's judgment the Company's best interests will be served thereby. 6.04. The President. The President shall (a) be the Company's principal executive officer, shall in general supervise and control all of the Company's business and affairs, and unless otherwise determined by the Directors, shall preside at all Board meetings; (b) sign any deeds, mortgages, deeds of trust, notes, bonds, leases, contracts or other instruments or agreements authorized by the Board to be executed, except in cases in which the signing and execution thereof shall be expressly delegated by the Board to some other officers or agent of the Company,or shall be required by law to be otherwise signed or executed; and (c) in general perform all duties incident to the office of the President and such other duties as the Board may assign from time to time. 6.05. Vice President. In the absence of the President or upon the President's inability or refusal to act, the Vice President shall perform the duties of the President, and when so acting shall have all the powers of and be subject to all the restrictions applicable to the President. The Vice President shall also perform such other duties as the Board may assign from. time to time. 6.06. Secre -Treasurer. The Secretary-Treasurer shall (a) keep the minutes of the meetings of the Board and any committees in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with these Bylaws or as required by law; (c) be custodian of the Company's corporate records and of the Company's seal, and affix the Company's seal to documents, the execution of which on behalf of the Company under its seal is duly authorized in accordance with the provisions of these Bylaws; (d) keep a register of the names and post office addresses of all Directors; (e) have general charge of the Company's books and records; (f) keep on file at all times a complete copy of the Company's Articles of Incorporation and Bylaws containing all amendments thereto (which copy shall always be open to the inspection of any Director), and at the Company's expense, forward a copy of the Bylaws and of all amendments thereto to each Director, 12.. (g) unless otherwise provided by the Board, have charge and custody of and be responsible for all funds and securities of the Company; (h) unless otherwise provided by the Board, be responsible for the receipt of and issuance of receipts for all moneys due and payable to the Company and for the deposit of all such moneys In the name of the Company in such bank or banks, trust companies or other depositories, as shall be selected in accordance with the provisions of these Bylaws; and (i) in general, perform all the duties incident to the offices of Secretary and Treasurer, and such other duties as the Board may assign from time to time. 6.07. Assistant Secretary-Treasurer. In the absence of the Secretary-Treasurer or upon such officer's inability or refusal to act, the Assistant Secretary-Treasurer shall perform the duties of the Secretary-Treasurer and when so acting, shall have all the powers of and be subject to all the restrictions applicable to the Secretary-Treasurer. 6.08. Bonds of Officers. The Board in its discretion may require any officer, agent or employee of the Company to give bond in such amount and with such surety as the Board shall determine. ARTICLE VII FINANCIAL TRANSACTIONS 7.01. Authorization.Except as otherwise provided in these Bylaws, the Board may authorize any officer or officers, agent or agents, in addition to the officers so authorized by these Bylaws, to enter into any contract or execute and deliver any instrument in the name and on behalf of the Company,and such authority may be general or confirmed to specific instances. 7.02. Checks,Drafts,Etc. All checks, drafts or other orders for payment of money, and all notes, bonds or other evidences of indebtedness issued in the name of the Company shall be signed by such officer or officers, agent or agents, employee or employees of the Company and in such manner as shall from time to time be determined by resolution of the Board. In the absence of such determination by the Board, such instruments shall be signed by the Secretary- Treasurer and countersigned by the Company's President or Vice President. 7.03. j2oosits, All Company funds shall be deposited from time to time to the Company's credit in such bank or banks or other depositories as the Board may select. 7.04. fdfL The Board may accept on behalf of the Company any contribution, gift, bequest or devise for the general purposes or any special purpose of the Company. 13 ARTICLE VIII INDEMNITY OF DIRECTORS AND OFFICERS The private property of the Directors and officers shall be exempt from execution or other liability for any debts of the Company, and no Director or officer shall be personally liable or responsible for any debts or liabilities of the Company. The provisions of N.C.G.S. Chapter 55A, Article 8, Part 5, or any successor provision, shall fully apply without restriction or limitation as to indemnification of and advancing litigation expenses to Directors, officers, employees or agents of the Company. All officers and Directors shall be deemed to have relied on this provision. To the extent provided in N.C.G.S. Section 55A-8-60, except as limited by N.C.G.S. Section 55A-2-02, no Director, officer, employee or agent of the corporation shall be personally liable for money damages as a result of any action for breach of such person's duty as a Director, officer, employee or agent of the corporation, whether by or in the right of the corporation or otherwise. No amendment or repeal of this article,nor the adoption of any other amendment to these Articles or these Bylaws inconsistent with this provision, shall eliminate or reduce the protection granted herein with respect to any matter that occurred prior to such amendment, repeal or. adoption. ARTICLE IX AMENDMENTS TO BYLAWS 9.01. In General. These Bylaws may be altered, amended or repealed and new Bylaws may be adopted by the affirmative vote of two-thirds of the Directors present at any regular or special meeting, provided a quorum, as provided in these Bylaws, be present and provided the notice of such meeting shall have contained a copy of the proposed alteration, amendment or repeal,or such requirement shall have been duly waived by all Directors. 9.02. County Consent Required" Notwithstanding the provisions of Section 9.01, no provision of these Bylaws shall be changed in any way, and no new provisions shall be added to these Bylaws, except with the unanimous approval of all County Directors. 1.4 ARTICLE X OFFICES 10.01. Principal Office. The Company's principal office shall be located at such place as the Board may fix from time to time. The street address of the corporation's initial principal office shall be Orange County Finance Office, 208 South Cameron St., Hillsborough, NC 27278. 10.02. Registered Office. The registered office of the Company required by law to be maintained in the State of North Carolina may be, but need not be, identical with the principal office. The street address of the corporation's initial registered office shall be 129 East Tryon St., Hillsborough,NC 27278. 10.03. Other Offices. The Company may have offices at such other places within the State of North Carolina as the Board may designate from time to time. ARTICLE XI MISCELLANEOUS 11.01. Rules and Remilationg. The Board shall have power to make and adopt such rules and regulations not inconsistent with law, the Articles of Incorporation, or these Bylaws, as it may deem advisable for the management of the Company's business and affairs. 11.02. . The Board shall provide a corporate seal, which shall be in the form of a circle and shall have inscribed thereon the name of the Company and the word "SEAL" or "CORPORATE SEAL" 11.03. Fiscal Year. The Company's fiscal year shall be each period ending June 30. 11.04. Books and Records. The Company shall keep correct and complete books and records of account and minutes of the proceedings of its Board and committees, and shall keep at its registered or principal office a record giving the names and addresses of the Directors. tJ RESOLUTION APPROVING FORMS OF ARTICLES OF INCORPORATION AND BYLAWS FOR ORANGE COUNlYSMALL BUSINESS LOAN PROGRAM COMEANY WHEREAS: Orange County has determined to establish a program to enhance the availability of loans for small businesses in Orange County. There have been presented to this meeting proposed forms of Articles of Incorporation and Bylaws for Orange County Small Business Loan Program Company, which is a nonprofit corporation proposed to be formed as part of creating and activating the County's small business loan program. Such instruments appear to be in forms appropriate for their purposes and for the County's approval. BE IT THEREFORE RESOLVED by the Board of Commissioners of Orange County,North Carotins,as follows: 1. The forms of the Articles of Incorporation and Bylaws for Orange County Small Business Loan Program presented to this meeting are hereby approved. 2. All actions of County officers and employees in furtherance of the purposes of this resolution and in the formation of Orange County Small Business Loan Program Company are hereby ratified, approved and confirmed. All other resolutions or parts thereof in conflict with this resolution are hereby repealed, to the extent of the conflict. This resolution shall take effect immediately.