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AMENDED AND RESTATED
CERTIFICATE OF FORMATION OF
SCULPTORS DOMINION INTERNATIONAL, INC.
The undersigned hereby files this Amended and Restated Certificate of Formation in accordance with the provisions of the Texas Business Organization Code (the "Act"):
FORM AND NAME
The form of the entity is a Texas non-profit corporation (the "Corporation"). The file number for the Corporation is 800603011. The original Certificate of Formation for the Corporation was filed with the Texas Secretary of State on January 24, 2006. The name of the Corporation is "Sculptors Dominion International, Inc."
The Corporation is a nonprofit corporation. Upon dissolution, all of the Corporation's assets shall be distributed and permanently dedicated to the State of Texas or an organization exempt from taxes under Internal Revenue Code Section 501(c)(3) [or any future corresponding section in the federal tax code] and organized for one or more purposes that are exempt under the Texas franchise tax. Assets not so disposed shall be disposed by a Court in the County of the Corporation’s principal office for such purposes and organizations that operate for such purposes.
The Corporation shall continue in perpetuity.
The Corporation is organized pursuant to the Act. The purposes for which the Corporation is organized are charitable and educational and within the meaning of Internal Revenue Code Section 501(c)(3), the Texas Tax Code Section 11.18(c)(1) and any corresponding section of any future federal tax code. For such said purposes this includes the making of distributions to other organizations that qualify as exempt organizations under section 501(c)(3) of the Internal Revenue Code or the corresponding section of any future federal tax code.
Specifically, the Corporation shall be organized to operate charitable services and educational activities via newly created and publicly accessible exhibits of high art sculpture ranging from large to monumental. Such rare public works will be educationally beneficial to the communities and neighborhoods inspiring cultural appreciation in a social outdoor setting.
The Corporation envisions itself as a supportive environment for local, national and international art communities consisting chiefly of sculptors and sculpture patrons that celebrate, support and seek out excellence in sculpture.
The Corporation will be dedicated to the mission of enriching the professional arts communities by supporting excellence in sculpture, by advancing sculpture appreciation and sculpture knowledge, and by strengthening the dynamic contribution of sculpture to society.
To achieve its vision and mission the Corporation shall list its goals.
The Corporation shall encourage, promote and support private and public sculpture: creativity and preservation, sculpture appreciation and conversation and sculpture excellence and growth.
The Corporation will advance the learning of sculpture. Exhibits, beneficial public lectures and useful workshops will be offered to enrich the general communities' cultural arts heritage and sculptural arts capabilities. The Corporation shall strengthen the practice and growth of sculpture as a pleasure and as a profession. Shows, conventions, classes and dialogues will be offered to engage, improve and develop the professional sculptor.
The Corporation will provide public and professional memberships, keep records, and develop sculpture education plans.
The Corporation will make sculpture facts and information more widely available to the general public through shows, tours, field trips, conventions and "salon" style competitions and panels.
The Corporation will develop partnerships and tailored programs with business, art, and education entities to advance the Corporations' vision, missions and goals. The Corporation will position itself as an information trade hub for other sculpture organizations to likewise meet their goals.
All funds, whether income or principal, and whether acquired by gift or contribution or otherwise, shall be devoted to said purposes.
Subject to the limitations in this Certificate, the Corporation shall have the authority to take any action it deems to be necessary, appropriate, or convenient relating to the management of the Corporation, including, but not limited to, the powers to:
1. Have succession to its corporate name.
2. Make and alter Bylaws.
3. Conduct affairs, carry on operations, and have officers anywhere in the world.
4. Have and alter a corporate seal, and use the seal by causing it or a facsimile to be impressed on, affixed to, or reproduced in any manner on instruments required to be executed by the Corporation's officers.
5. Purchase, receive, lease, or otherwise acquire, own, hold, improve, use, or otherwise deal in any interest in real or personal property wherever situated.
6. Invest and reinvest in property that the Board of Directors deems advisable, including an option to acquire an asset.
8. Sell, convey, exchange, convert, grant an option, assign, build, manage, operate, control, or otherwise dispose of Corporation property.
9. Partition, divide, subdivide, assign, develop, and improve Corporation property.
10. Lease Corporation property for any legal purpose, and enter into any covenants and agreements relating to the leased property or any improvements that may be erected on the property.
11. Borrow money on behalf of the Corporation from any person, firm, or corporation for any Corporation purpose.
12. Make contracts, incur liabilities, issue notes, bonds and other obligations, and secure obligations by mortgage or pledge of Corporation property, franchises, and income.
13. Lend money for the purposes of the Corporation, invest and reinvest funds, and take and hold real and personal property as security for the payment of funds loaned or invested.
14. Vote and give proxies to vote any Corporation securities.
15. Pay any assessments or other charges levied on any Corporation stock or other security.
16. Continue and operate, sell, or liquidate any business or partnership interests received by the Corporation.
17. Carry, at the expense of the Corporation, insurance or make other arrangements for payment of liabilities to protect the Corporation or the directors, officers, members, agents, and employees of the Corporation, or persons serving at the request of the Corporation as representatives of another enterprise, provided that the terms of the insurance or other arrangements are consistent with the provisions of the Act.
18. Make donations for the public welfare, or charitable, scientific, or educational purposes, and in time of war, make donations in aid of war activities.
19. Abandon any Corporation asset.
20. Elect or appoint officers and agents for any period of time, define their duties, and fix their compensation.
21. Establish pension plans and trusts and pay pensions to all or certain classes of its officers and employees.
22. Employ an attorney, investment adviser, accountant, broker, tax specialist, or any other agent, and pay reasonable compensation for all services performed by any of them as a Corporation expense.
23. Compromise, participate in mediation, submit to arbitration, release with or without consideration, extend time for payment, and otherwise adjust any claims in favor of or against the Corporation.
24. Commence or defend any litigation in the corporate name with respect to the Corporation or any Corporation property, at the expense of the Corporation.
25. Cease the Corporation's activities and terminate its existence by voluntary dissolution and distribute assets on dissolution as provided in this Certificate.
26. Do all acts, take part in any proceedings, and exercise all rights and privileges, as could an absolute owner of Corporation property, subject to the limitations expressly stated in this Certificate. The enumeration of powers in this Certificate shall not limit the general or implied powers of the Corporation or any additional powers provided by law.
RESTRICTIONS AND REQUIREMENTS
The Corporation shall not have the power to engage in any activities, except to an insubstantial degree, that are not in furtherance of the purposes set forth above. No part of the net earnings of the Corporation shall inure to the benefit of, or be distributable to, any director of the Corporation, officer of the Corporation, member, trustee or any private individual, except that the Corporation shall be empowered and authorized to make reasonable compensation for services rendered to or for the Corporation and to make payments and distributions affecting one or more of its purposes. No director or officer of the Corporation, or any private individual, shall be entitled to share in the distribution of any of the corporate assets on dissolution of the Corporation.
The Corporation shall not pay dividends or other corporate income to its members, directors or officers or otherwise accrue distributable profits or permit the realization of private gain. The Corporation shall have no power to take any action prohibited by the Act. The Corporation is not organized nor shall it be operated for the primary purpose of generating pecuniary gain or profit.
Notwithstanding any other provision of this Certificate, the Corporation shall have no power to take any action that would be inconsistent with the requirements for a tax exemption under Internal Revenue Code Section 501(c) (3) and its current or future related regulations, rulings, and procedures. The Corporation shall have no power to take any action that would be inconsistent with the requirements for receiving tax-deductible charitable contributions under Internal Revenue Code Section 170(c)(2) and related regulations, rulings, and procedures.
Regardless of any other provision in this Certificate or state law, the Corporation shall have no power to:
1. Engage in activities or use its assets in manners that are not in furtherance of one or more exempt purposes, as set forth above and defined by the Internal Revenue Code and related regulations, rulings, and procedures, except to an insubstantial degree.
2. Serve a private interest other than one that is clearly incidental to an overriding public interest.
3. Devote more than an insubstantial part of its activities to attempting to influence legislation by propaganda, statements that are published or distributed or otherwise, except as provided by the Internal Revenue Code and related regulations, rulings, and procedures.
4. Participate in or intervene in any political campaign on behalf of or in opposition to any candidate for public office. The prohibited activities include the publishing or distributing of statements and any other direct or indirect campaign activities.
5. Have objectives that characterize it as an "action organization" as defined by the Internal Revenue Code and related regulations, rulings, and procedures.
6. Distribute its assets on dissolution other than for one or more exempt purposes; on dissolution, the Corporation's assets shall be distributed to the state government for a public purpose, or to an organization exempt from taxes under Internal Revenue Code Section 501(c)(3) to be used to accomplish the general purposes for which the Corporation was organized.
7. Permit any part of the net earnings of the Corporation to inure to the benefit of any private shareholder or member of the Corporation or any private individual.
8. Carry on an unrelated trade or business except as a secondary purpose related to the Corporation's primary, exempt, purposes.
The Corporation shall not have any voting members. The Corporation shall be managed by its Board of Directors.
The Corporation shall have one or more classes of non-voting members as provided in the Bylaws of the Corporation. Memberships will be honorary and by donation. Initial memberships will be as follows: (i) professional sculptors, who will have privileges to exhibit; (ii) museum, gallery, and art organizations, who will be invitees to previews, galas and artist engagements; (iii) business entities, that will be invitees to private exhibits, galas, and artist engagements; and (iv) patron/individuals, who will be invited to shows, lectures and workshops.
INITIAL REGISTERED OFFICE AND AGENT
The street address of the initial registered office of the Corporation is 11354 Vance Jackson, San Antonio, Texas 78230. The name of the initial registered agent at this office is Gilbert E. Barrera.
BOARD OF DIRECTORS
The management of the Corporation is vested in its Board of Directors and such committees of the board that the board may, from time-to-time, establish. The qualifications, manner of selection, duties, terms, and other matters relating to the Board of Directors (referred to as the "Board of Directors") shall be provided in the Bylaws. The Board of Directors shall consist of three persons. The number of directors may be increased or decreased by amendment of Bylaws. The number of directors may not be decreased to less than three. The current Board of Directors consists of the following persons at the following addresses:
Bernard Buecker San Antonio, Texas 78212
Rudi Rodriguez San Antonio, Texas 78227
Brian Bauml San Antonio, Texas 78216
LIMITATION ON LIABILITY OF DIRECTORS
A director is not liable to the Corporation or members for monetary damages for an act or omission in the director's capacity as director except to the extent otherwise provided by the Act.
The Corporation may indemnify a person who was, is, or is threatened to be made a named defendant or respondent in litigation or other proceedings because the person is or was a director or other person related to the Corporation regardless of the provisions in the Act governing indemnification. As provided in the Bylaws, the Board of Directors shall have the power to define the requirements and limitations for the Corporation to indemnify directors, officers or others related to the Corporation.
All references in this Certificate to statutes, regulations, or other sources of legal authority shall refer to the authorities cited, or their successors, as they may be amended from time to time.
The name and street address of the incorporator is: Gilbert E. Barrera, 11354 Vance Jackson, San Antonio, Texas 78230.
ACTION BY WRITTEN CONSENT
Action may be taken by use of signed written consents by the number of directors or committee members whose vote would be necessary to take action at a meeting at which all such persons entitled to vote were present and voted. Each of the written consents must bear the date of signature of each person signing it. A consent signed by less than all of the directors, or committee members is not effective to take the intended action unless consents, signed by the required number of persons, are delivered to the Corporation within 60 days after the date of the earliest dated consent delivered to the Corporation. Delivery must be made by hand, or by certified or registered mail, return receipt requested. The delivery may be made to the Corporation's registered office, registered agent, principal place of business, transfer agent, registrar, exchange agent, or an officer or agent having custody of books in which the relevant proceedings are recorded. If the delivery is made to the Corporation's principal place of business, the consent must be addressed to the president or principal executive officer.
The Corporation will give prompt notice of the action taken to persons who do not sign consents. If the action taken requires documents to be filed with the Texas Secretary of State, the filed documents will indicate that the written consent procedures have been properly followed.
A telegram, telex, cablegram, or similar transmission by a director or committee member, or photographic, facsimile, e-mail scan, or similar reproduction of a signed writing is to be regarded as an original signed by the director or committee member.
Provision for the regulations of the internal affairs of the Corporation shall be set forth in the By-laws.
IN WITNESS WHEREOF, the undersigned has executed this Amended and Restated Certificate of Formation as of the 1st day of April, 2007.
Gilbert E. Barrera, Incorporator