By-Laws
BY-LAWS OF
HIGHPOINT FARMS HOME OWNER'S ASSOCIATION, INC.
ARTICLE 1
OFFICES
Section 1. Principal Office. The principal of the Association shall be located in the County of Spartanburg, State of South Carolina.
Section 2. Registered Office. The registered office of the Association must be located in the State of South Carolina, Spartanburg County.
ARTICLE II
OWNERS
Section 1. Annual Meeting. The annual meeting of the owners shall be held on the first Monday after the 1st day of Feb, 2005, in each successive year, at 10:00 A.M., for the election of a Board of Directors and for the transaction of such other business as may properly come before the meeting. If the day fixed for the annual meeting shall be a legal holiday in the State of South Carolina, such meeting shall be held on the next succeeding Monday. The date of the annual meeting of the owners shall in no event be changed within the thirty (30) days prior to the date on which the annual meeting is to be held unless consented to in writing; by those owners not attending; or by resolution adopted at a meeting. If the election of Directors shall not be held on the day designated herein for any annual meeting of the owners, or at any adjournment thereof, the Board of Directors shall cause the election to be held at a special meeting of owners as soon thereafter as possible.
Section 2. Special Meetings of Owners. Special meetings of the owners, for any purpose or purposes may be called by the President or Secretary or by the Board of Directors, and shall be called by the President or Secretary at the demand of not less than fifty percent (50%) of the Owners entitled to vote at the meeting.
Section 3. Place of Meeting. The Board of Directors may designate any place within 30 miles of Highpoint Farms as the place of meeting for any annual meeting or for any special meeting called by the Board of Directors. If no designation is made, or if a special meeting is otherwise called, the place of meeting shall be the principal office of the Association.
Section 4. Notice of Meetings of Owners
A. Annual Meetings. At least ten (10) days, but not more than sixty (60) days, prior to the date fixed by Section 1 of this Article for the holding of the annual meeting of owners, written or printed notice stating the place, day and hour of the meeting shall be delivered, either personally or by the United States Postal Service, to each owner of record entitled to vote at such meeting.
B. Special Meetings. At least ten (10) days, but not more than sixty (60) days, prior to the date fixed for the holding of any special meeting of owners, written notice of the time, place and purpose of such meeting shall be delivered, either personally or by the United States Postal Service, to each owner of record entitled to vote at such meeting. No business not mentioned in the notice shall be transacted at such meeting.
C. Mailing. Every notice shall be deemed duly served when the same has been deposited in the United States mail, with postage fully prepaid, addressed to the owner at his, her or its address as it appears on the Ownership Records of the Association.
D. Waiver. Attendance of a person at a meeting of owners, in person or by proxy, constitutes a waiver of notice of the meeting; except when the owner attends a meeting for the express purpose of objecting to the transaction of any business, at the beginning of the meeting, because the meeting is not lawfully called or convened.
Section 5. Closing of Ownership records or Fixing of Record Date. For the purpose of determining owners entitled to notice of and to vote at a meeting of owners or an adjournment thereof, or to express consent or to dissent from a proposal without a meeting, the Board of Directors may fix in advance a date as the record date for any such determination of owners, such date in any case to be not more than sixty (60) days and, in case of a meeting of owners, not less than ten (10) days prior to the date on which the particular action, requiring such determination of owners, is to be taken. If no record date is fixed for the determination of owners entitled to notice of or to vote at a meeting of owners, the date on which the particular action requiring such determination of owners, is to be taken. When a determination of owners entitled to vote at any meeting of owners has been made as provided in this Section, such determination shall apply to any adjournment thereof. Nothing in this Section shall affect the right of an owner and his transferee or transferor as between themselves.
Section 6. Voting Lists. The officer or agent having charge of the Ownership Records of the Association shall make and certify a complete list of the owners entitled to vote at an owner's meeting, or any adjournment thereof. The list shall be arranged in alphabetical order, with a list of each class, with the address of each owner. Such list shall be produced at the meeting during the whole time thereof, and shall be subject to the inspection of any registered owner or his proxy who may be present. The list shall be the conclusive evidence as to who are owners entitled to examine such a list or the books of the books of the Association, or to vote in person or by proxy at any meeting of owners.
Section 7. Owners. Owners entitled to cast a majority of the votes at a meeting, represented in person or by proxy, shall constitute a quorum at a meeting of owners. If less than a majority of the outstanding owners are represented at a meeting, a majority of the owners so represented may adjourn the meeting to another time without further notice. At such adjourned meetings, at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. The owners present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough owners to leave less than a quorum.
Section 8. Proxies. An owner entitled to vote at a meeting of owners or to express consent or dissent without a meeting may authorize other persons to act for him by proxy executed in writing by the owner. Such proxy shall be filed with the Secretary of the Association before or at the time of the meeting.
Section 9. Voting of Shares. Each owner shall be entitled to vote in accordance with the Membership and Voting Rights in The Association as set forth in Paragraph 45 of the Declaration of Protective Covenants, Conditions, Restrictions and Easements & Homeowner's Association Charter of Highpoint Farms dated December 29, 1998 and recorded in the Register of Deeds Office for Spartanburg County, South Carolina.
Section 10. Voting of Shares by Certain Holders.
A. Other Corporations. Ownership interests standing in the name of another corporation, whether a South Carolina Corporation or not, may be voted by its President or by proxy appointed by him, or in the absence of the President and his proxy, by its Treasurer or by proxy appointed by him, or in the absence of the aforementioned persons, by its Secretary or by proxy appointed by him. The Board of Directors of such other corporations by resolution may appoint some other person to vote such shares.
B. Legal Representatives and Fiduciaries. Ownership interests held by a person in a representative or fiduciary capacity may be voted by him, either in person or by proxy, without a transfer of such ownership interest into his name.
C. Joint Tenants. Ownership interests registered in the names of two or more persons as joint tenants or as tenants in common may be voted in person or by proxy signed by any one or more of such individuals if no other such individual or his legal representative is present and claims the right to participate in the voting of such Ownership interest; or prior to the vote there is filed with the Secretary of the Association a contrary written voting authorization or direction or written denial of authority of the individual present or denial of signing the proxy proposed to be voted.
Section 11. Cumulative Voting. Every owner entitled to vote at an election for directors shall have the right to vote in person or by proxy, the number of lots owned by him for as many persons as there are Directors to be elected and for whose election he has a right to vote, or to cumulate his votes by giving one candidate as many votes as the number of such Directors multiplied by the number of his lots, or by distributing his votes on the same principle among any number of candidates.
Section 12. Waiver of Notice by Owners. Whenever any notice is required to be given to any owner of the Association under the provisions of these By-Laws or under the provisions of the Articles of Incorporation or under any provision of law, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the holding of the meeting, shall be deemed equivalent to the giving of such notice.
Section 13. Consent Without Meeting. Any action required or permitted by the Articles of Incorporation or By-Laws or any provision of law to be taken at a meeting of the owners, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by a majority of the owners entitled to vote and would constitute the minimum votes necessary to authorize such action at a meeting where all eligible shares had voted. Such consent shall have the same effect as a vote of such owners and may be stated as such in any Articles or documents filed with the State of South Carolina.
ARTICLE III
BOARD OF DIRECTORS
Section 1. General Powers. The business, property and affairs of the Association shall be managed by or under the direction of its Board of Directors.
Section 2. Number. The number of Directors of the Association shall be not more than four (4) members. (The number of Directors may be increased or decreased from time to time by an amendment to these By-laws. Any increase in the number of Directors shall be considered a vacancy to be filled by the remaining Directors until the next regular annual meeting of owners or a special meeting duly called for the purpose of filling the vacancy and held prior to the annual meeting. The number of Directors of this Association shall not be reduced in case the votes of a sufficient number of owners recorded against such proposed reduction, if cumulatively voted, would elect one or more Directors, where the same number of owners if voted cumulatively would not be sufficient to elect the same number of Directors so reduced.)
Section 3. Tenure. Each Director shall hold office until the next annual meeting of owners following his election and until his successor shall have been duly elected and qualified, or until his prior death, resignation or removal.
Section 4. Removal. At a special meeting of the owners of this Association called for the purpose of removing any Director, such Director may be removed from office by a vote of a majority of all the owners entitled to vote, (provided, however, that the owners shall have the right to vote cumulatively on such removal and no Director shall be removed if the number of votes recorded against his removal would be sufficient, if cumulatively voted at an election of the entire Board of Directors to elect one or more Directors. All such owners' votes cumulatively against the removal of a Director shall not be voted against the removal of any other Director during the term of which the Board of Directors shall have been elected.) If the owners fail to elect a person to fill the unexpired term of the Director removed, such unexpired term shall be considered a vacancy on the Board of Directors to be filled by the remaining Directors.
Section 5. Resignation. Any Director of the Association may resign at any time by written notice to the Association.
Section 6. Qualifications. Directors must be owners of property in the Highpoint Farms
Subdivision.
Section 7. Regular Meetings. A regular meeting of the Board of Directors shall be held one hour before the time and date set forth earlier in these By-Laws for the Annual Meeting of owners without other notice. The Board of Directors may provide, by resolution, the time and place, within or without the State of South Carolina, for the holding of additional regular meetings with notice by certified mail to the Board members.
Section 8. Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the President or any Director. The place of meeting shall be the principal business office of the Association in the state of South Carolina.
Section 9. Notice; Waiver. Notice of any special meeting shall be given at least seven (7) days prior to the meeting by written notice, stating the time and place of the meeting delivered personally or mailed to each Director at his business address. If mailed, such notice shall be deemed to be delivered when deposited by certified mail in the United States mail so addressed, with postage thereon prepaid. Any Director may waive notice of any meeting by written statement sent by him, signed before or after the holding of the meeting. The attendance of a Director at a meeting, shall constitute a waiver of notice of such meeting, except where a Director attends a meeting for the express purpose of objecting to the transaction of any business. because the meeting is not lawfully called or convened.
Section 10. Quorum. A majority of the members of the Board then in office shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, but if less than such a majority is present at a meeting, a majority of the Directors present may adjourn the meeting to another time without further notice. The vote of the majority of the Directors present at a meeting at which a quorum is present constitutes the action of the Board of Directors.
Section 11. Vacancies. A vacancy occurring in the Board of Directors may be filled by the affirmative vote of a majority of the remaining Directors though less than a quorum of the Board. A Director elected to fill a vacancy shall be a Director until his successor is elected by the owners who may make such election at the next annual meeting of the owners, or at any special meeting duly called for that purpose and held prior to the annual meeting.
Section 12. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more Directors of the Association, the committee(s) shall have and may exercise, when the Board of Directors is not in session, all the powers and authority of the Board of Directors in the management of the business and affairs of the Association or the filling of vacancies in the Board of Directors or committees, or amending the Articles of Incorporation or By-Laws. Each such committee shall fix its own rules governing the conduct of its activities and shall make such reports to the Board of Directors of its activities as the Board of Directors may request.
Section 13. Consent to Action of Board without Meeting. Any action required or permitted by the Articles of Incorporation or By-Laws or any provision of law to be taken by the Board of Directors or Committee thereof at a meeting or by resolution may be taken without a
meeting if; before or after the action, all members of the Board or of the committee consent thereto in writing.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the Association shall consist of a President, a Secretary and a Treasurer, each of whom shall be appointed by the Board of Directors. The Board of Directors may appoint a Chairman of the Board, Vice Presidents, Assistant Secretaries, and Assistant Treasurers, and may also appoint such other officers and agents as they may deem necessary.
Section 2. Election and Term of Office. The officers of the Association shall be elected annually by the Board of Directors. Each officer shall hold office until his successor shall have been duly elected and shall have qualified or until his death or until he shall resign or shall have been removed in a manner hereinafter provided.
Section 3. Removal. Any officer elected or appointed by the Board of Directors may be removed by the Board of Directors with or without cause.
Section 4. Vacancies. A vacancy in any office may be filled by the Board of Directors for the unexpired portion of the term.
Section 5. Chairman of the Board. The Chairman of the Board of Directors shall be a Director of the Association. The Chairman of the Board shall preside at all meetings of the owners and Directors at which he is present. He shall have powers and duties as may from time to time be prescribed by the By-Laws or by resolutions of the Board of Directors.
Section 6. President. The President shall be the principal executive officer of the Association and, subject to the control of the Board of Directors shall in general supervise and control all of the business and affairs of the Association. He shall have authority to sign, execute and acknowledge, on behalf of the Association, all deeds, mortgages, bonds, stock certificates, contracts, guarantees, leases, reports and all other documents or instruments necessary or proper to be executed in the course of the Association's regular business, or which shall be authorized by resolution of the Board of Directors. In general, he shall perform all duties incident to the office of President and such other duties as may be prescribed by the Board of Directors from time to time.
Section 7. Vice President. In the absence of the President or in the event of his death, inability or refusal to act, the Vice President shall perform the duties of President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President.
Section 8. Secretary shall: (a) keep the minutes of the Owners' and of the Board of Directors' meetings; (b) see that all notices are duly given in accordance with the provisions of these By-Laws or as required by law: (c) be the custodian of the corporate records and of the seal
of the Association; (d) keep a register of the post office address of each owner; (e) have general charge of the Ownership Records of the Association; and (f) in general perform all duties incident to the office of Secretary.
Section 9. Treasurer. The Treasurer shall: (a) have charge and custody of and be responsible for all funds and securities of the association; receive and give receipts for moneys due and payable to the Association from any source whatsoever, and deposit all such moneys in the name of the Association in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of Article V of these By-Laws; and (b) in general perform all of the duties incident to the office of Treasurer.
ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS;
SPECIAL CORPORATE ACTS
Section 1. Contracts. The Board of Directors may authorize any officer or officers, to enter into any contract, to execute and deliver any instrument, or to acknowledge any instrument required by law to be acknowledged in the name of and on behalf of the Association. Such authority may be general or confined to specific instances. When the Board of Directors authorizes the execution of a contract or of any other instrument in the name of and on behalf of the Association, without specifying the executing officers, the President or Vice President, and the Secretary may execute the same and may affix the corporate seal thereto.
Section 2. Loans. No loans shall be contracted on behalf of the Association and no evidence of indebtedness (including, but not limited to mortgages) shall be issued in its name unless authorized by a resolution of the Board of Directors. Such authority by resolution may be general or confined to specific instances.
Section 3. Deposits. All funds of the Association not otherwise employed shall be deposited from time to time to the credit of the Association in such depositories as the Board of Directors or President may select.
Section 4. Voting of Securities Owned by this Association. Subject always to the specific directions of the Board of Directors, any shares or other securities issued by any other corporation and owned or controlled by this corporation may be voted at any meeting of security holders of such other corporations by the President of this Association or by proxy appointed by him. Any person or persons designated in the manner above stated as the proxy or proxies of this Association shall have full right, power and authority to vote the shares or other securities issued by such other Association and owned by this Association the same as such shares or other securities might be voted by this Association.
ARTICLE VI
MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION
Section 1. Members. Every person or entity, holding a recorded fee or undivided fee
interest in any lot in Highpoint Farms, Spartanburg County, South Carolina, which lot is by virtue of these covenants subject to assessment by the Association, shall be a member of the Association, provided for the performance of an obligation, shall not be a member.
Section 2. Voting Rights. Highpoint Farms Homeowner's Association shall have two (2) classes of voting membership as follows:
(i) Class A. Class A members shall be all those Owners defined in Article VI, Section 1 with the exception of the Developer. Class A members shall be entitled to one (1) vote for each Lot in which they hold the interests required for membership by paragraph 8.1 when more than one person holds such interest or interests in any Lot, all such persons shall be members, and the vote for such Lot shall be exercised as they among themselves determine, but in no event shall more than one (1) vote be cast with respect to any such Lot.
(ii) Class B. West Mountain Development Corporation, Inc. (Developer) shall be the sole Class B member and shall cease and be converted to Class A membership on the happening of either one of the following events, whichever occurs earlier:
(1) When the total votes available in Class A membership exceeds the total votes outstanding in Class B membership; or
(2) January 1, 2006.
ARTICLE VII INDEMNIFICATION
The Association shall indemnify any Director, officer, former Director or former officer of the Association or any person who may have served at its request as a Director against reasonable expenses, including attorneys' fees, actually and necessarily incurred by him in connection with the defense of any civil, criminal or administrative action, suit or proceeding in which he is made a party or with which he is threatened by reason of being or having been or because of any act as such Director or officer, within the course of his duties, except in relation to matters as to which he shall be adjudged in such action, suit or proceeding to be liable for negligence; criminal malfeasance; or misconduct in the performance of his duty. The right of indemnification herein provided shall extend to the estate, executor, administrator, guardian and conservator of any deceased or former Director or officer or person whom himself would have been entitled to indemnification. Such rights of indemnification and reimbursement shall not be deemed exclusive of any other rights to which such Director or officer may be entitled under any statute, agreement, vote of owners, or otherwise.
ARTICLE IX
AMENDMENTS
In the event there is a conflict between these bylaws and the Declaration f Protective Covenants, Conditions, Restrictions and Easements & Homeowner's Association Charter of Highpoint Farms as recorded in the Register of Deeds Office for Spartanburg County, the Declaration of Protective Covenants, Conditions, Restrictions and Easements & Homeowner's Association Charter of Highpoint Farms Subdivision shall prevail and be the controlling
instrument over these bylaws. Such Declaration of Protective Covenants, Conditions, Restrictions and Easements & Homeowner's Association Charter of Highpoint Farms Subdivision, as recorded, or amended, as the case may be, are hereby incorporated by reference and made a part of these Bylaws.
ARTICLE IX
AMENDMENTS
These By-Laws may be altered, amended or modified by the affirmative vote of the owners representing a majority of all the owners entitled to vote, at any annual or special owners' meeting or by the affirmative vote of the majority of the Board of Directors at any regular or special meeting, if a notice setting forth the terms of the proposal has been given in accordance with the notice requirements for the type of meeting to be held. The Board of Directors may make and alter all By-Laws, except those By-Laws fixing their number, qualifications, classifications, or term of office; provided, that any By-Law amended, altered or repealed by the Directors may thereafter be amended, altered, modified, or repealed by the owners.
Year.
ARTICLE X
FISCAL YEAR
The fiscal year of the Association shall begin on the 1st day of January of each successive
These By-Laws were adopted as the By-Laws of this Association, at the First Meeting of Incorporators and owners and were ratified at the First Meeting of the Board of Directors held on the date set forth below.
Secretary ______________________________________________________ Dated: _________________________