1.1 Purposes. Asmark Institute, Inc. (the “Institute”) is a private non-stock, non-profit organization that provides a forum for the open exchange of information, professional development, continuing education and regulatory compliance assistance to agricultural retailers and related businesses. The specific purposes of the Institute shall be to:
serve as a national resource center for regulatory compliance assistance to agricultural retailers and related agricultural businesses, and trade associations;
promote knowledge of regulatory compliance requirements;
serve as the national coordinating institution for creation, development and administrator of compliance-related aids, materials, products, tools or other solutions pertinent to the needs of agricultural retailers and related businesses;
advance industry-standards and conformity with compliance as a means of benefiting the public health, safety, welfare and environment;
promote industry-standard educational opportunities and materials as a means of facilitating compliance and safer work environments;
cooperate with departments and agencies of federal, state and local governments in achieving optimum compatibility between regulatory compliance requirements and the efforts of industry and commerce;
promote cooperation and support between the state and national trade associations and/or organizations directly related to the interests of agricultural retailers and related businesses;
communicate and cooperate with other industries and organizations on issues of mutual interest; and
establish high standards of business ethics and professionalism.
1.2 Restriction. In seeking to fulfill the Institute’s purposes described in Section 1.1 herein, the Institute itself shall not issue any compliance-related certifications.
CORPORATE OFFICES; REGISTERED AGENT
2.1 Principal Office. The Institute’s principal office shall be located at 4941 Goetz Drive, Owensboro, Daviess County, Kentucky 42301.
2.2 Registered Office; Registered Agent. The registered office of the Institute shall be 4941 Goetz Drive, Owensboro, Kentucky 42301. The Institute’s designated registered agent for service of process at such location shall be such person as holds the office of President. The registered office and/or registered agent of the Institute may be changed upon resolution of the Board of Directors and the filing of appropriate notice of such change with the Office of the Kentucky Secretary of State.
The Institute shall operate without members. The affairs of the Institute shall be managed and conducted by and through its Board of Directors and duly appointed officers.
BOARD OF DIRECTORS
4.1 Management of the Institute. The management of the business and affairs of the Institute shall be vested in its Board of Directors (the “Board”).
4.2 Duties and Powers of Board. The Board of Directors shall be responsible for the control and management of the affairs, property and interests of the Institute, except as otherwise set forth herein or as may be delegated from time to time by the Board. In carrying out their duties as Directors, the Directors shall act in the best interests of the Institute. The Board shall have those powers, responsibilities and authority granted or authorized by the Kentucky Nonprofit Corporation Act (KRS §273.161, et seq.) (the “Act”), together with such further powers, responsibilities and authority as are directed herein or in the Articles, including, but not limited to, the following:
approving the strategic direction of the Institute;
approving the annual budget of the Institute;
establishing committees to serve the Institute and the appointment of the members of any established committees;
approving decisions with regards to the employment, discipline, and termination of the President of the Institute;
electing individuals to serve on the Board of Directors and filling vacancies on the Board;
approving the scope of responsibilities of the Board, the Officers, and any committees;
deciding issues and approving policies that would significantly change or affect the strategic direction of the Institute;
evaluating the performance of the President of the Institute and establishing the compensation and benefits to be paid and provided to the President;
amending the Articles and these Bylaws;
causing the Institute to purchase or sell any real property or to enter into any lease or sub-lease of any real property;
causing the Institute to borrow funds and to pledge any of its assets as collateral for such borrowing; provided, however, that prior Board approval shall not be required for accessing/drawing upon the Institute’s currently established line of credit or any line of credit which the Institute may hereafter establish, such acts being within the authority granted to the President; and
determining to dissolve the Institute and the manner of distribution of the Institute’s assets upon such dissolution.
4.3 Number of Directors. The Board shall be comprised of seven (7) Directors. Notwithstanding the foregoing, and subject to the maximum and minimum limits on the number of Directors set forth in the Articles, the number of Directors comprising the Board may, at any time and from time to time, be increased or decreased by resolution of the Board; provided, however, that no decrease shall have the effect of shortening the term of any incumbent Director. In recognition of the possibility that further individuals within the agribusiness industry may be able to provide knowledge, insight, advice and further counsel to the Board, the Board may, at any time, designate ex-officio Directors who may participate in Board activities, but shall have no official vote on Board affairs. The term of any ex-officio Director shall end at such as the Board may direct.
4.4 Criteria for Directors. Individuals selected for service on the Board of Directors should be knowledgeable of and actively involved in agribusiness, environmental, health and/or safety activities, including, without limitation, individuals involved in private agribusiness operations and representatives of trade associations, educational institutions, and government agencies involved or interested in the agribusiness industry, representatives of producers of fertilizers or agrichemicals, and representatives of manufacturers and suppliers of equipment to the fertilizer and agrichemical industry. In filling Director positions, the Board may consider such other criteria and qualifications as the Board deems appropriate and beneficial to the purposes of the Institute.
4.5 Term of Directors. Each Director shall serve for a term of three (3) years and until his or her successor is duly appointed. Directors may be re-elected for consecutive terms, and there shall be no restriction on the number of consecutive terms a Director may serve.
4.6 Resignation. Any person serving as a Director may resign from such position by providing written notice thereof to the President of the Institute. Unless a delayed effective date is set forth in the notice of resignation, such resignation shall be effective immediately upon receipt by the President.
4.7 Vacancies. A vacancy on the Board shall be filled by the nomination and affirmative vote of a majority of the Directors. A vacancy arising due to any reason other than expiration of the term of a Director shall be filled for the unexpired portion of the then remaining term.
4.8 Regular Meetings. The Board of Directors shall hold a regular meeting of the Board at least once per year for the purpose of electing directors and transacting such other business as may come before the Board. The Board may, by resolution, designate the time and place for the holding of additional regular meetings without notice other than such resolution. Notice of any regular meeting of the Board shall be provided by the Secretary (or the President in the absence of the Secretary) not less than fourteen (14), nor more than thirty (30), days prior to the date scheduled for the regular meeting. Notice of a regular meeting shall set forth the date, time, and location of the meeting, but shall not be required to specify the purposes of the meeting.
4.9 Special Meetings. Special meetings of the Board of Directors may be called by the President or by request of two (2) or more of the members of the Board of Directors. Notice of a special meeting of the Board shall be provided by the President or the Secretary in advance of the special meeting. Notice of a special meeting shall set forth the date, time, location and purposes of the meeting.
4.10 Notice of Meetings. Any notice of a meeting required to be provided under Section 4.8 or 4.9 above shall be in writing and delivered by mail, facsimile, electronic transmission, or in person to each Director. Notice shall be deemed effective and delivered in accordance with KRS §273.162.
4.11 Quorum. The presence of two-fifths (2/5th) of the members of the Board of Directors at a meeting of the Board shall constitute a quorum for the transaction of business at such meeting. Directors may participate in a regular or special meeting of the Board by any means of communication by which all Directors participating may simultaneously communicate with each other during the meeting, and participation in such manner shall constitute presence in person at the meeting.
4.12 Chair. The Board of Directors shall appoint one (1) among them to serve as Chair to preside at meetings of the Board. In the absence of such appointment, the President shall serve as Chair and preside over the meeting. The term of the Chair shall be two (2) years on a calendar year basis and may be extended by approval of the Board for an additional term at the Board’s discretion.
4.13 Conduct of Meeting. Any question of parliamentary procedure not addressed by these Bylaws or adopted policies of the Board shall be resolved in accordance with Robert’s Rules of Order, as the same may be amended or updated from time to time.
4.14 Vote Required for Action. Unless a greater vote is required by the Articles or other provisions of these Bylaws, the vote of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board. In accordance with KRS §273.217(d), no Director shall be permitted to vote by proxy.
4.15 Minutes. Minutes of all meetings of the Board shall be prepared and maintained by the Secretary of the Institute (or, in the absence of the Secretary, by such person as the Chair may designate). Minutes shall not be disclosed to any person other than the Directors, unless disclosure is approved in advance by the Directors; provided, however, the Institute’s accountant(s) and attorney(s) may inspect minutes as part of their respective responsibilities to the Institute.
4.16 Action Without a Meeting. Any action required or permitted to be taken at a meeting of the Board of Directors may be taken without a meeting if one (1) or more written consent(s) setting forth the action so taken is signed by each Director entitled to vote on the matter. Action taken in this manner shall be effective at such time as the last Director signs a consent. A consent signed in this manner shall have the effect of a meeting and may be described as such in any document.
4.17 Director Fees and Expenses. No stated salary shall be paid to Directors solely as a result of serving on the Board of Directors. This provision shall not preclude any director who is also an officer or other employee of the Institute from receiving compensation from the Institute for services provided as an officer and/or employee. The Board may, by resolution, authorize reimbursement of expenses incurred by Directors for attendance at a meeting of the Board.
4.18 No Beneficial Interest. No Director shall have any right, title or interest in or to any property, assets, or income of the Institute.
4.19 Transactions Between Institute and any Director. No pecuniary profit shall be received by any Director from the operations of the Institute by reason of his or her status as a Director. Any contract or transaction of business between the Institute and one (1) or more of its Directors, or with any entity or association in which any Director is an owner, director or officer, shall not be invalidated or affected solely by the fact that such Director has or may have interests therein which are or may be adverse to the interests of the Institute; provided, however, that in such circumstance, any Director having an interest adverse to that of the Institute shall disclose such interest to the Board and he or she shall not be entitled to vote on the matter involving such interest (although the disclosing Director may be counted for purposes of determining the existence of a quorum).
5.1 Officers. The Officers of the Institute shall consist of a President, Vice-President and Treasurer/Secretary. Any two (2) or more offices may be held by the same person. Each elected Officer shall hold office until a successor is elected and qualified or until his or her death, resignation or removal. In the absence of the appointment of a Vice-President, the Institute shall operate with a President and Treasurer/Secretary.
5.2 Removal. Subject to the terms of any written employment agreement in effect between an officer and the Institute, an officer may be removed by the Board of Directors whenever, in its judgment, the best interests of the Institute would be served thereby.
5.3 Vacancies. A vacancy in any office due to death, resignation, removal or otherwise may be filled by the Board of Directors for the unexpired portion of the term.
5.4 Duties. The duties of the officers and agents of the Institute shall be such as are usually performed by corporate officers and agents of a Kentucky corporation or as may be fixed from time to time by the Board of Directors, including, but not limited to, the following:
President. The President shall be the chief executive officer of the Institute, shall exercise the powers and perform the duties which ordinarily pertain to that office. Subject to the control and direction of the Board, the President shall manage, supervise and control the business and affairs of the Institute in conformity with the policies established by the Board, including, but not limited to, employing, disciplining, and terminating employees of the Institute. The President shall be authorized to sign and deliver, on behalf of the Institute, documents required or appropriate in the ordinary course of the Institute’s business, as well as such deeds, mortgages, leases, contracts, tax returns and other instruments as the Board has authorized to be executed.
Vice-President. In the absence of the President, 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 upon the President. The Vice-President shall perform such other duties as may be assigned thereto by the President or the Board.
Secretary/Treasurer. The Secretary/Treasurer shall maintain an ongoing review of the financial affairs of the Institute, provide financial reports at meetings of the Board, and make appropriate recommendations to the Board regarding the Institute’s financial operations; keep the minutes of meetings of the Board of Directors; be custodian of the Institute’s records; see that all notices are given in accordance with the provisions of these Bylaws; keep a register of the address of each Director; cause all receipts and funds of the Institute to be deposited in such accounts as are designated by the Board; supervise the custody of the funds and securities of the Institute; cause full and accurate accounting of receipts and disbursements to be kept; effect disbursement of funds as directed by the Board; and, in general, to perform all other duties as may from time to time be assigned to him or her by the President or the Board.
5.5 Compensation of Officers. The Board shall establish the compensation and benefits to be provided to the President of the Institute. No other officer shall receive compensation or benefits solely related to providing the services required of his or her office.
COMMITTEES; ADVISORY COUNCIL
6.1 Committees. The Board of Directors may, at any time, appoint standing committees and designate the number of members to serve on each such committee.
6.2 Advisory Council. The Board may, at any time, establish an Advisory Council to be comprised of entities and individuals from state and national trade associations or from within the agribusiness industry, including, but not limited to, specialists, representatives of Land Grant Colleges or other organizations as deemed applicable by the Board. Members of the Advisory Council shall occupy an ex-officio position and shall not possess or acquire any voting rights.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
7.1 Indemnification and Defense. The Institute shall defend and indemnify each of its Directors and officers (and former Directors and officers), to the fullest extent permitted by the laws of Kentucky, against any liabilities, fines, penalties, judgments, and expenses (including reasonable attorneys’ fees and related costs) actually incurred by such person in connection with the defense of any action, suit or proceeding (whether civil or criminal) in which he or she is made a party by reason of having been a Director or officer of the Institute; provided, however, that no such person shall be indemnified if such person is adjudged liable on the basis that he or she received an improper personal benefit, acted (or failed to act) with willful misfeasance, or engaged in active and deliberate dishonesty. Any settlement of an action, suit or proceeding involving a Director or Officer for which the foregoing indemnification obligations applies shall be subject to the prior approval of the Board; any settlement entered into without the prior approval of the Board shall not require the Institute to indemnify the settling Director or Officer. No Director or officer shall be liable for the acts or failure to act of any other Director or officer, and the Institute agrees to defend and indemnify Directors and officers against same.
7.2 Insurance. The Institute may purchase and maintain insurance to protect its Directors and officers against any liability asserted against or incurred by a Director or officer in such capacity or arising out of his or her service as such.
8.1 No Capital Stock. The Institute shall not have or issue any capital stock or declare any dividends.
8.2 No Private Inurement. No part of the net earnings or assets of the Institute shall inure to the benefit of, or be distributable to, any Director or officer of the Institute or any other private individual; provided, the Institute shall be authorized to pay reasonable compensation for services rendered to or for the Institute. No Director, officer, or private individual shall be entitled to share in the distribution of the Institute’s assets upon dissolution of the Institute.
8.3 Restriction on Political Activities. No substantial part of the activities of the Institute shall constitute the carrying on of propaganda, or otherwise attempting to influence legislation. The Institute shall not participate or intervene in any political campaign on behalf of, or in opposition to, any candidate for public office.
8.4 Prohibited Loans. The Institute shall be prohibited from making loans to any individual serving as a Director or Officer of the Institute.
8.5 General Restriction. In addition to the restrictions set forth herein and in the Articles, in the event the Institute hereafter attain tax exempt status under Internal Revenue Code §501(c)(3) (or other tax exempt provision of the Code), then, notwithstanding any other provisions of these Bylaws, the Institute shall thereafter refrain from carrying on any activities otherwise prohibited to a tax exempt organization by the Internal Revenue Code (or any regulations promulgated thereunder) or which would otherwise cause, or potentially cause, the loss of tax exempt status.
The Institute may be dissolved upon the affirmative vote of not less than three-fourths (3/4th) of all Directors at a meeting of the Board called for that purpose. Upon dissolution of the Institute, the Board of Directors, after paying and discharging any liabilities of the Institute (or making adequate provision for the payment thereof), shall distribute the remaining assets of the Institute to one (1) or more organizations exempt from tax under any provision of Internal Revenue Code §501(c) as may be selected by the Board of Directors. In no event may any assets to be disposed of following dissolution be distributed to, or otherwise inure to the benefit of, any Director or officer of the Institute.
These Bylaws may be amended upon the affirmative vote of three-fourths (3/4th) of the Directors present at a meeting of the Board called for such purpose.
11.1 Waiver of Notice. Whenever any notice is required to be given to any shareholder or director under the provisions of these Bylaws or the Articles or by statute, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice.
11.2 Fiscal Year. The fiscal year of the Institute shall be commensurate with the calendar year.
11.3 Contracts. In addition to the authority prescribed to the Institute’s officers under Article 5 hereof, the Board may authorize any officer(s) to enter into any contract and execute and deliver any documents or instruments in the name and on behalf of the Institute. The authority may be general or restricted to specific instances. Unless otherwise authorized by these Bylaws or by the Board, no Director, officer, agent or employee of the Institute shall have any power or authority to bind the Institute by contract or to pledge its credit or incur any other obligation or liability on behalf of the Institute.
11.4 Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Institute shall be signed or otherwise authorized by the President, or such officers or agents as shall be designated by resolution of the Board of Directors.
11.5 Deposits. All funds of the Institute not otherwise in use shall be deposited in accounts titled in the name of the Institute with such banks and other depositories as the Board of Directors may select.
11.6 Gifts and Grants. Subject to prior approval of the Board, the Institute may accept gifts, grants or other funds deemed appropriate and consistent with the not-for-profit purposes and operations of the Institute and which do not violate any federal, state or local law or regulation applicable to the Institute and which, if the Institute acquires tax exempt status, would cause the loss of such tax exempt status. The Board, or any committee established by the Board for such purpose, may establish one or more policies outlining the standards for acceptance of gifts.
Revised September 16, 2019