Corporate Bylaws - South Dakota

BYLAWS OF [____________________], a South Dakota corporation

A for-profit corporation organized under the South Dakota Business Corporation Act, SDCL ch. 47-1A (the "Act").

Effective Date: [__/__/____]

TABLE OF CONTENTS

1. Article I — Offices and Registered Agent
2. Article II — Shareholders
3. Article III — Board of Directors
4. Article IV — Committees
5. Article V — Officers
6. Article VI — Shares and Transfers
7. Article VII — Indemnification and Advancement of Expenses
8. Article VIII — Distributions and Dividends
9. Article IX — Records and Reports
10. Article X — Corporate Seal, Fiscal Year, and General Provisions
11. Article XI — Amendment of Bylaws
12. Article XII — Emergency Bylaws
13. Certification / Secretary's Adoption Block
14. Sources and References

ARTICLE I — OFFICES AND REGISTERED AGENT

Section 1.1 Principal Office. The principal office of the corporation shall be located at [____________________], or at such other place as the Board of Directors (the "Board") may from time to time determine. The corporation may also have offices at such other places, within or without the State of South Dakota, as the Board may designate or the business of the corporation may require, consistent with SDCL § 47-1A-302.

Section 1.2 Registered Agent and Registered Office. The corporation shall continuously maintain a registered agent and registered office in South Dakota as required by SDCL § 47-1A-501 and the South Dakota Model Registered Agent Act. The registered agent is [____________________], whose registered office address is [____________________]. The Board may change the registered office or registered agent from time to time by filing the appropriate statement of change with the South Dakota Secretary of State.

ARTICLE II — SHAREHOLDERS

Section 2.1 Annual Meeting. Pursuant to SDCL § 47-1A-701, the corporation shall hold a meeting of shareholders annually at a time stated in or fixed in accordance with these Bylaws, for the election of directors and the transaction of such other business as may properly come before the meeting. The annual meeting shall be held on [____________________], or on such other date and at such time as the Board may fix. The failure to hold an annual meeting at the time stated in or fixed in accordance with these Bylaws does not affect the validity of any corporate action.

Section 2.2 Special Meetings. Pursuant to SDCL § 47-1A-702, special meetings of shareholders may be called by the Board, by the person(s) authorized to do so by the Articles or these Bylaws, or upon the signed, dated, written demand of the holders of at least ten percent (10%) of all the votes entitled to be cast on any issue proposed to be considered at the meeting, describing the purpose for which the meeting is to be held. Only business within the purpose(s) described in the meeting notice may be conducted at a special meeting.

Section 2.3 Place of Meetings; Remote Participation. Meetings of shareholders may be held in or out of the State of South Dakota at the place stated in or fixed in accordance with these Bylaws. If no place is stated or fixed, meetings shall be held at the corporation's principal office. The Board may permit shareholders to participate in any meeting by any means of communication by which all persons participating may simultaneously hear or read the proceedings during the meeting, as permitted by SDCL § 47-1A-708.1; a shareholder so participating is deemed present in person at the meeting.

Section 2.4 Notice of Meetings. Pursuant to SDCL § 47-1A-705, the corporation shall give notice to shareholders entitled to vote of the date, time, and place of each meeting no fewer than ten (10) nor more than sixty (60) days before the meeting date. Notice of a special meeting must include a description of the purpose(s) for which the meeting is called. Notice of an annual meeting need not state its purpose unless otherwise required by the Act or the Articles.

Section 2.5 Waiver of Notice. A shareholder may waive any notice required by the Act, the Articles, or these Bylaws by a signed written waiver delivered to the corporation for inclusion in the minutes or filing with the corporate records, whether before or after the date and time stated in the notice, as provided in SDCL § 47-1A-706. A shareholder's attendance at a meeting waives objection to lack of, or defective, notice unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business, and waives objection to consideration of a particular matter not within the purpose stated in the notice unless the shareholder objects when the matter is presented.

Section 2.6 Record Date. The Board may fix in advance a record date for determining shareholders entitled to notice of and to vote at a meeting, to take action by written consent, to receive a distribution, or for any other purpose, in accordance with SDCL § 47-1A-707. A record date may not be more than seventy (70) days before the meeting or action requiring a determination of shareholders.

Section 2.7 Shareholders' List. After fixing a record date for a meeting, the corporation shall prepare an alphabetical list of shareholders entitled to notice of the meeting, available for inspection as provided in SDCL § 47-1A-720.

Section 2.8 Quorum. Pursuant to SDCL § 47-1A-725, shares entitled to vote as a separate voting group may take action on a matter only if a quorum of those shares exists. Unless the Act or the Articles provide otherwise, a majority of the votes entitled to be cast on the matter by the voting group constitutes a quorum. Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and any adjournment, unless a new record date is set.

Section 2.9 Voting. Except as otherwise provided by the Act or the Articles, each outstanding share is entitled to one (1) vote on each matter voted on at a shareholders' meeting (SDCL § 47-1A-721). If a quorum exists, action on a matter (other than the election of directors) is approved if the votes cast favoring the action exceed the votes cast opposing the action, unless the Act or the Articles require a greater number, as provided in SDCL § 47-1A-725. Directors are elected by a plurality of the votes cast unless otherwise provided in the Articles, as provided in SDCL § 47-1A-728.

Section 2.10 Proxies. A shareholder or the shareholder's agent or attorney-in-fact may appoint a proxy to vote or otherwise act for the shareholder by signing an appointment form or by an authorized electronic transmission, in accordance with SDCL § 47-1A-722. An appointment is effective when received by the Secretary or other officer or agent authorized to tabulate votes and is valid for eleven (11) months unless a longer period is expressly provided. An appointment is revocable unless it is conspicuously stated to be irrevocable and is coupled with an interest.

Section 2.11 Greater Quorum or Voting Requirements. The Articles may provide for a greater quorum or voting requirement for shareholders than is provided by the Act, subject to SDCL § 47-1A-727.

Section 2.12 Action by Written Consent. Pursuant to SDCL § 47-1A-704, any action required or permitted to be taken at a shareholders' meeting may be taken without a meeting if all shareholders entitled to vote on the action consent to the action in writing. The action must be evidenced by one or more written consents describing the action taken, signed by all the shareholders entitled to vote on the action, and delivered to the corporation for inclusion in the minutes or filing with the corporate records. If the Act requires that notice of proposed action be given to nonvoting shareholders and the action is taken by unanimous consent of the voting shareholders, the corporation must give its nonvoting shareholders written notice of the proposed action at least ten (10) days before the action is taken, as provided in SDCL § 47-1A-704.1. A consent signed under this Section has the effect of a meeting vote.

Section 2.13 Adjournment. Any shareholders' meeting may be adjourned. No notice of the adjourned meeting need be given if the new date, time, and place are announced at the meeting before adjournment, except that notice must be given if a new record date is or must be fixed under SDCL § 47-1A-707.

ARTICLE III — BOARD OF DIRECTORS

Section 3.1 General Powers. Pursuant to SDCL § 47-1A-801, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be managed under the direction of, the Board, subject to any limitation set forth in the Articles or in a shareholders' agreement authorized by the Act.

Section 3.2 Number and Qualifications. Pursuant to SDCL § 47-1A-803, the Board shall consist of one (1) or more individuals, with the number specified as [____] director(s), or fixed from time to time within a variable range of not fewer than [____] nor more than [____] directors as permitted by the Articles or these Bylaws. Under SDCL § 47-1A-802, a director need not be a resident of South Dakota or a shareholder of the corporation unless the Articles or these Bylaws so prescribe.

Section 3.3 Election and Term. Pursuant to SDCL § 47-1A-805, directors are elected at the first annual shareholders' meeting and at each annual meeting thereafter, unless their terms are staggered under SDCL § 47-1A-806. Each director holds office until the next annual meeting and until the director's successor is elected and qualifies, subject to earlier resignation, removal, or death.

Section 3.4 Resignation. A director may resign at any time by delivering written notice to the Board, its chair, or the corporation, in accordance with SDCL § 47-1A-807. A resignation is effective when the notice is delivered unless it specifies a later effective date.

Section 3.5 Removal. Pursuant to SDCL § 47-1A-808, the shareholders may remove one or more directors with or without cause unless the Articles provide that directors may be removed only for cause. A director may be removed only at a meeting called for that purpose, and the meeting notice must state that the purpose (or one of the purposes) is removal of the director.

Section 3.6 Vacancies. Pursuant to SDCL § 47-1A-810, unless the Articles provide otherwise, a vacancy on the Board (including one resulting from an increase in the number of directors) may be filled by the shareholders, by the Board, or, if the directors remaining in office constitute fewer than a quorum, by the affirmative vote of a majority of all directors remaining in office.

Section 3.7 Regular Meetings. The Board may hold regular meetings, in or out of the State of South Dakota, at such times and places as it may determine. Regular meetings may be held without notice of the date, time, place, or purpose if these Bylaws so provide, as permitted by SDCL § 47-1A-820.

Section 3.8 Special Meetings. Pursuant to SDCL § 47-1A-822, special meetings of the Board may be called by [the Chair of the Board / the President / any two (2) directors]. Special meetings may be held in or out of the State of South Dakota.

Section 3.9 Notice of Special Meetings. Unless the Articles or these Bylaws provide otherwise, special meetings of the Board must be preceded by at least two (2) days' notice of the date, time, and place of the meeting, but the notice need not describe the purpose, in accordance with SDCL § 47-1A-822. Notice may be waived as provided in SDCL § 47-1A-823; a director's attendance at or participation in a meeting waives any required notice unless the director, at the beginning of the meeting or promptly upon arrival, objects to holding the meeting or transacting business and does not thereafter vote for or assent to action taken.

Section 3.10 Quorum and Voting. Pursuant to SDCL § 47-1A-824, unless a greater number is required by the Articles or these Bylaws, a quorum of the Board consists of a majority of the fixed number of directors (or, for a variable-range board, a majority of the number prescribed or in office immediately before the meeting begins). The Articles or these Bylaws may authorize a quorum of no fewer than one-third (1/3) of the fixed or prescribed number of directors. If a quorum is present when a vote is taken, the affirmative vote of a majority of directors present is the act of the Board unless a greater number is required.

Section 3.11 Telephonic and Electronic Meetings. Pursuant to SDCL § 47-1A-820, unless the Articles or these Bylaws provide otherwise, the Board may permit any director to participate in a meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may simultaneously hear each other during the meeting. A director participating by such means is deemed present in person at the meeting.

Section 3.12 Action Without Meeting. Pursuant to SDCL § 47-1A-821, unless the Articles or these Bylaws provide otherwise, any action required or permitted to be taken at a Board meeting may be taken without a meeting if all members of the Board consent to the action in writing. The action is taken when the last director signs a writing describing the action, unless the consent specifies a different effective date or a director has earlier revoked the director's consent by a writing delivered to the corporation. Such action has the same effect as action taken at a meeting.

Section 3.13 Compensation. Pursuant to SDCL § 47-1A-811, the Board may fix the compensation of directors and may provide for reimbursement of reasonable expenses incurred in the performance of their duties.

Section 3.14 Standards of Conduct. Each director shall discharge the director's duties as a director in good faith, with the care an ordinarily prudent person in a like position would exercise under similar circumstances, and in a manner the director reasonably believes to be in the best interests of the corporation, in accordance with SDCL § 47-1A-830.

ARTICLE IV — COMMITTEES

Section 4.1 Creation of Committees. Pursuant to SDCL § 47-1A-825, unless the Articles or these Bylaws provide otherwise, the Board may create one or more committees and appoint one or more members of the Board to serve on them. The creation of a committee and appointment of members must be approved by the greater of (a) a majority of all directors in office when the action is taken or (b) the number of directors required by the Articles or these Bylaws to take action under SDCL § 47-1A-824.

Section 4.2 Authority of Committees. To the extent specified by the Board, the Articles, or these Bylaws, each committee may exercise the authority of the Board. A committee may not, however: (a) authorize or approve distributions, except according to a formula or method prescribed by the Board; (b) approve or propose to shareholders action that the Act requires be approved by shareholders; (c) fill vacancies on the Board or any committee; or (d) adopt, amend, or repeal these Bylaws, all as provided in SDCL § 47-1A-825.

Section 4.3 Committee Procedures. The provisions of the Act governing Board meetings, action without meeting, notice and waiver of notice, and quorum and voting requirements apply to committees and their members.

ARTICLE V — OFFICERS

Section 5.1 Officers. Pursuant to SDCL § 47-1A-840, the corporation shall have the officers described in these Bylaws or appointed by the Board in accordance with these Bylaws. The officers shall include a President, a Secretary, and a Treasurer, and may include a Chair of the Board, one or more Vice Presidents, and such other officers and assistant officers as the Board deems necessary. The Board must delegate to one of the officers responsibility for preparing minutes of directors' and shareholders' meetings and for authenticating records of the corporation. The same individual may simultaneously hold more than one office.

Section 5.2 Appointment and Term. Officers are appointed by the Board (or by a duly appointed officer to the extent authorized by the Board or these Bylaws). Each officer holds office until a successor is appointed or until the officer's earlier resignation or removal.

Section 5.3 Resignation and Removal. Pursuant to SDCL § 47-1A-843, an officer may resign at any time by delivering notice to the corporation; the resignation is effective when the notice is delivered unless it specifies a later effective date. The Board may remove any officer at any time with or without cause. The appointment of an officer does not itself create contract rights.

Section 5.4 President. The President is the principal executive officer of the corporation (unless the Board designates another officer as principal executive officer) and, subject to the Board's control, supervises and controls the business and affairs of the corporation. The President shall preside at meetings of shareholders and of the Board in the absence of a Chair of the Board, and shall perform such other duties as the Board may assign.

Section 5.5 Secretary. The Secretary shall: (a) prepare and maintain minutes of the meetings of shareholders and the Board and a record of actions taken without a meeting; (b) authenticate records of the corporation; (c) give all notices required by the Act, the Articles, or these Bylaws; (d) maintain the share transfer records and the list of shareholders; and (e) perform such other duties as the Board or the President may assign.

Section 5.6 Treasurer. The Treasurer is the principal financial and accounting officer of the corporation and shall: (a) have charge and custody of, and be responsible for, the funds and securities of the corporation; (b) keep accurate books and records of account; (c) deposit corporate funds in depositories selected by the Board; and (d) perform such other duties as the Board or the President may assign.

Section 5.7 Duties and Standards of Conduct. Each officer has the authority and shall perform the duties set forth in these Bylaws or prescribed by the Board or by another officer authorized by the Board, consistent with SDCL § 47-1A-841. Each officer with discretionary authority shall discharge the officer's duties under the standards of conduct in SDCL § 47-1A-842.

ARTICLE VI — SHARES AND TRANSFERS

Section 6.1 Issuance of Shares. The Board may authorize the issuance of shares for consideration consisting of any tangible or intangible property or benefit to the corporation, as permitted by SDCL § 47-1A-621. Shares may be certificated or uncertificated as determined by the Board.

Section 6.2 Share Certificates. If shares are certificated, each certificate shall state on its face the name of the corporation and that it is organized under the laws of South Dakota, the name of the person to whom issued, and the number and class (and series, if any) of shares the certificate represents, in accordance with SDCL § 47-1A-625. Each certificate shall be signed (manually or in facsimile) by two officers designated in these Bylaws or by the Board and may bear the corporate seal.

Section 6.3 Uncertificated Shares. The Board may authorize the issuance of some or all shares without certificates. Within a reasonable time after issuance or transfer of uncertificated shares, the corporation shall send the shareholder a written statement of the information that would otherwise be required on a certificate, in accordance with SDCL § 47-1A-626.

Section 6.4 Transfer of Shares. Transfers of shares shall be made on the books of the corporation only by the record holder or by a duly authorized attorney-in-fact, upon surrender of any certificate (if certificated) properly endorsed for transfer, and subject to any transfer restrictions noted on the certificate or in the corporate records.

Section 6.5 Transfer Restrictions. The corporation may impose restrictions on the transfer or registration of transfer of shares as authorized by SDCL § 47-1A-627. A restriction is valid and enforceable against the holder or a transferee if it is authorized by that section and its existence is noted conspicuously on the certificate or contained in the information statement for uncertificated shares.

Section 6.6 Lost, Destroyed, or Stolen Certificates. The Board may direct the issuance of a new certificate (or uncertificated shares) in place of any certificate alleged to have been lost, destroyed, or wrongfully taken, upon receipt of an affidavit of that fact and, if the Board requires, a bond sufficient to indemnify the corporation against any claim that may be made on account of the alleged loss.

ARTICLE VII — INDEMNIFICATION AND ADVANCEMENT OF EXPENSES

Section 7.1 Permissible Indemnification. Except as otherwise provided in SDCL § 47-1A-851.1, the corporation may indemnify a director who is a party to a proceeding by reason of being a director against liability incurred in the proceeding if the director: (a) acted in good faith; and (b) reasonably believed (i) in the case of conduct in an official capacity, that the conduct was in the best interests of the corporation, and (ii) in all other cases, that the conduct was at least not opposed to the best interests of the corporation; and (c) in the case of any criminal proceeding, had no reasonable cause to believe the conduct was unlawful, all as provided in SDCL § 47-1A-851. A director's conduct with respect to an employee benefit plan for a purpose the director reasonably believed to be in the interests of the participants in and beneficiaries of the plan satisfies the requirement of clause (b)(ii). The termination of a proceeding by judgment, order, settlement, conviction, or plea of nolo contendere or its equivalent is not, of itself, determinative that the director did not meet the relevant standard of conduct.

Section 7.2 Mandatory Indemnification. Pursuant to SDCL § 47-1A-852, the corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party by reason of being a director, against reasonable expenses incurred in connection with the proceeding.

Section 7.3 Advance for Expenses. Pursuant to SDCL § 47-1A-853, the corporation may, before final disposition of a proceeding, advance funds to pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding by reason of being a director if the director delivers to the corporation: (a) a written affirmation of the director's good-faith belief that the director has met the relevant standard of conduct described in SDCL § 47-1A-851 (or that the proceeding involves conduct for which liability has been eliminated under a provision of the Articles authorized by SDCL § 47-1A-202.1(4)); and (b) the director's written undertaking to repay any funds advanced if the director is not entitled to mandatory indemnification under SDCL § 47-1A-852 and it is ultimately determined under SDCL § 47-1A-854 or § 47-1A-855 that the director has not met the relevant standard of conduct. The undertaking must be an unlimited general obligation of the director but need not be secured and may be accepted without reference to the director's financial ability to make repayment.

Section 7.4 Determination and Authorization. A determination that indemnification of a director is permissible, and any authorization of indemnification or advance of expenses, shall be made in the manner specified in SDCL §§ 47-1A-854 and 47-1A-855, including by majority vote of the qualified directors (those not parties to the proceeding and not having a material interest in its outcome), by a committee of qualified directors, by special legal counsel, or by the shareholders (excluding shares owned by or voted under the control of directors who are not qualified directors).

Section 7.5 Indemnification of Officers. Pursuant to SDCL § 47-1A-857, an officer of the corporation is entitled to mandatory indemnification under SDCL § 47-1A-852 and to apply for court-ordered indemnification under SDCL § 47-1A-856 to the same extent as a director, and the corporation may indemnify and advance expenses to an officer to the same extent as to a director, and, for an officer who is not a director, to a greater extent if not inconsistent with public policy and provided for by the Articles, these Bylaws, a resolution of the Board, or contract.

Section 7.6 Insurance. Pursuant to SDCL § 47-1A-858, the corporation may purchase and maintain insurance on behalf of an individual who is or was a director or officer of the corporation, or who, while a director or officer, serves at the corporation's request in another capacity, against liability asserted against or incurred by the individual in that capacity, whether or not the corporation would have power to indemnify or advance expenses to the individual against the same liability under the Act.

Section 7.7 Non-Exclusivity; Continuation. Pursuant to SDCL § 47-1A-859, the indemnification and advancement of expenses provided by this Article are in addition to and not exclusive of any other rights to which a person may be entitled, except as that section otherwise limits. Such rights continue as to a person who has ceased to serve in the capacity that gave rise to the right and inure to the benefit of the person's heirs, executors, and administrators, consistent with the Act.

ARTICLE VIII — DISTRIBUTIONS AND DIVIDENDS

Section 8.1 Authorization. The Board may authorize, and the corporation may make, distributions to its shareholders (including dividends) at such times and in such amounts as the Board determines, subject to any restriction in the Articles and to the limitations of SDCL § 47-1A-640.

Section 8.2 Limitations. No distribution may be made if, after giving it effect: (a) the corporation would not be able to pay its debts as they become due in the usual course of business; or (b) the corporation's total assets would be less than the sum of its total liabilities plus (unless the Articles permit otherwise) the amount that would be needed, if the corporation were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of shareholders whose preferential rights are superior to those receiving the distribution, all as provided in SDCL § 47-1A-640.

Section 8.3 Record Date for Distributions. The Board may fix a record date for determining shareholders entitled to a distribution in accordance with SDCL § 47-1A-707. If no record date is fixed, the record date is the date the Board authorizes the distribution.

ARTICLE IX — RECORDS AND REPORTS

Section 9.1 Corporate Records. Pursuant to SDCL § 47-1A-1601, the corporation shall keep as permanent records minutes of all meetings of its shareholders and Board, a record of all actions taken by the shareholders or Board without a meeting, and a record of all actions taken by a committee of the Board exercising the authority of the Board. The corporation shall maintain appropriate accounting records and a record of its shareholders in a form that permits preparation of a list of the names and addresses of all shareholders in alphabetical order by class of shares.

Section 9.2 Records to Be Kept Available. The corporation shall keep a copy of the records described in SDCL § 47-1A-1601.1 (including the Articles, these Bylaws, certain resolutions, minutes of shareholder meetings and records of action for the past three years, written communications to shareholders, a list of current directors and officers, and the most recent annual report) at its principal office.

Section 9.3 Shareholder Inspection Rights. A shareholder is entitled to inspect and copy corporate records in accordance with, and subject to the conditions and procedures of, SDCL §§ 47-1A-1602 and 47-1A-1603, including, for certain records, the requirement of a written demand made in good faith and for a proper purpose, describing with reasonable particularity the purpose and the records desired, where the records are directly connected with the stated purpose.

Section 9.4 Financial Statements. Upon written request, the corporation shall furnish a requesting shareholder its most recent annual financial statements as required by SDCL § 47-1A-1620.

Section 9.5 Annual Report. The corporation shall deliver to the South Dakota Secretary of State the annual report required by SDCL § 47-1A-1630, and shall maintain a copy with its corporate records.

ARTICLE X — CORPORATE SEAL, FISCAL YEAR, AND GENERAL PROVISIONS

Section 10.1 Corporate Seal. Pursuant to SDCL § 47-1A-302, the corporation may, but need not, have a corporate seal in such form as the Board may determine. The use or nonuse of a corporate seal does not affect the validity of any instrument.

Section 10.2 Fiscal Year. The fiscal year of the corporation shall end on [____________________] of each year, or on such other date as the Board may determine by resolution.

Section 10.3 Form of Records. The corporation may maintain its records in any form (including electronic form) capable of conversion into written form within a reasonable time, consistent with SDCL § 47-1A-1601.

Section 10.4 Conflict with Articles or Act. In the event of any conflict between these Bylaws and the Articles or the Act, the Articles or the Act, as applicable, shall control.

Section 10.5 Severability. If any provision of these Bylaws is held invalid or unenforceable, the remaining provisions shall continue in full force and effect.

ARTICLE XI — AMENDMENT OF BYLAWS

Section 11.1 Amendment by Board. Pursuant to SDCL § 47-1A-1020, the Board may amend or repeal these Bylaws unless (a) the Articles or the Act reserve that power exclusively to the shareholders in whole or in part, or (b) the shareholders, in amending, repealing, or adopting a particular bylaw, expressly provide that the Board may not amend, repeal, or readopt that bylaw.

Section 11.2 Amendment by Shareholders. Pursuant to SDCL § 47-1A-1020, the shareholders may amend or repeal these Bylaws even though the Bylaws may also be amended or repealed by the Board.

Section 11.3 Bylaw Increasing Quorum or Voting Requirement. A bylaw that increases a quorum or voting requirement for shareholders or for the Board may be adopted, amended, or repealed only in the manner provided in SDCL §§ 47-1A-1021 and 47-1A-1024, as applicable.

ARTICLE XII — EMERGENCY BYLAWS

Section 12.1 Emergency Powers and Bylaws. Pursuant to SDCL § 47-1A-207 (emergency bylaws) and SDCL § 47-1A-303 (emergency powers), unless the Articles provide otherwise, the Board may adopt bylaws to be effective only during an emergency. An emergency exists if a quorum of the Board cannot readily be assembled because of some catastrophic event. The emergency bylaws, which are subject to amendment or repeal by the shareholders, may make all provisions necessary for managing the corporation during the emergency, including procedures for calling a Board meeting, quorum requirements, and the designation of additional or substitute directors.

Section 12.2 Notice and Quorum During Emergency. During an emergency, notice of a Board meeting need be given only to those directors whom it is practicable to reach and may be given by any practicable means. One or more officers of the corporation present at a Board meeting may be deemed directors for the meeting, in order of rank and within the same rank in order of seniority, as necessary to achieve a quorum, consistent with SDCL § 47-1A-303.

Section 12.3 Effect; Liability. All provisions of these regular Bylaws consistent with the emergency bylaws remain effective during the emergency, and the emergency bylaws are not effective after the emergency ends. Corporate action taken in good faith in accordance with the emergency bylaws or emergency powers binds the corporation and may not be used to impose liability on a corporate director, officer, employee, or agent.

CERTIFICATION / SECRETARY'S ADOPTION BLOCK

The undersigned, being the duly elected and acting Secretary of [____________________], a South Dakota corporation, hereby certifies that the foregoing Bylaws were duly adopted as the Bylaws of the corporation by [the incorporator(s) / the Board of Directors] pursuant to SDCL §§ 47-1A-205 and 47-1A-206 on [__/__/____], and that such Bylaws have not been amended or repealed and remain in full force and effect as of the date set forth below.

Dated: [__/__/____]

____________________________________
[____________________], Secretary

SOURCES AND REFERENCES

• South Dakota Business Corporation Act, SDCL ch. 47-1A (§ 47-1A-101 et seq.); enacted SL 2005, ch. 239 (substantially based on the Model Business Corporation Act)
• SDCL §§ 47-1A-205 to 47-1A-207 (organization; bylaws; emergency bylaws)
• SDCL §§ 47-1A-301 to 47-1A-303 (purposes; general powers; emergency powers); § 47-1A-501 (registered agent)
• SDCL §§ 47-1A-621 to 47-1A-627 (issuance of shares; certificates; uncertificated shares; transfer restrictions); § 47-1A-640 (distributions)
• SDCL §§ 47-1A-701 to 47-1A-709 (annual and special meetings; notice; waiver; record date; action without meeting; remote participation under § 47-1A-708.1)
• SDCL §§ 47-1A-720 to 47-1A-728 (shareholders' list; voting entitlement; proxies; quorum and voting; greater requirements; voting for directors)
• SDCL §§ 47-1A-801 to 47-1A-811 (board: powers; qualifications; number; staggered terms; resignation; removal; vacancies; compensation)
• SDCL §§ 47-1A-820 to 47-1A-825 (board meetings; action without meeting; notice; waiver; quorum and voting; committees)
• SDCL §§ 47-1A-830 to 47-1A-833 (general standards of conduct for directors; liability for unlawful distributions)
• SDCL §§ 47-1A-840 to 47-1A-843 (officers; duties; standards of conduct; resignation and removal)
• SDCL §§ 47-1A-851 to 47-1A-859 (indemnification): § 47-1A-851 (permissible indemnification; standard of conduct); § 47-1A-851.1 (mandatory limitations); § 47-1A-852 (mandatory indemnification); § 47-1A-853 (advance for expenses; written affirmation and undertaking); §§ 47-1A-854 to 47-1A-855 (determination and authorization); § 47-1A-856 (court-ordered); § 47-1A-857 (officers); § 47-1A-858 (insurance); § 47-1A-859 (non-exclusivity)
• SDCL §§ 47-1A-1020 to 47-1A-1024 (amendment of bylaws by board and shareholders; bylaws increasing quorum/voting requirements)
• SDCL §§ 47-1A-1601 to 47-1A-1630 (corporate records; inspection rights; financial statements; annual report)