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I need a legal opinion on this corporate bylaw: Article

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I need a legal opinion on this corporate bylaw:
Article VI Section 8. Vacancies. A vacancy occurring in the Board of Directors may be filled by a majority vote of the remaining directors, though less than a quorum, as defined in Article VII, Section 6, below, or by the sole remaining director; a vacancy created by an increase in the authorized number of directors shall be filled by the Board of Directors or at a special meeting of members called for that purpose. A director elected to fill a vacancy serves the unexpired term of his/her predecessor, or, if the director has no predecessor, until the next meeting at which directors are regularly elected.
I would like a definitive opinion, notwithstanding any other provisions, but just examining this bylaw on its own. There has been no vote to expand the board but a vacancy has been created on the board because a directors term has expired. Does this bylaw empower the board to re-elect that same director to fill the vacancy created by his term expiration - where he is his own predecessor?
Submitted: 3 years ago.Category: Real Estate Law
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6/1/2015
Real Estate Lawyer: ScottyMacESQ, Lawyer replied 3 years ago
ScottyMacESQ
ScottyMacESQ, Lawyer
Category: Real Estate Law
Satisfied Customers: 18,167
Experience: Licensed General Practice Attorney, Texas
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Thank you for using JustAnswer.
Yes, it does. There's no prohibition here or in the law that says that someone cannot be his/her own successor, and as it would be a vacancy, it could be filled by a majority vote by the remaining directors.
The "predecessor" language means when someone vacates prior to the expiration of his/her term, because the term to be served would be the unexpired term. That doesn't apply in a situation where someone serves the full term. In such a matter, only the first part would apply.
Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, ***** ***** luck to you!
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Customer reply replied 3 years ago
HI Scotty, I would like you to reconsider this opinion. I really can't see any provision for this law to be interpreted this way. This is my reading of it:
A vacancy can occur for two reasons:1) An increase in board size, in which case there is no predecessor and new director serves until the next members meeting. This did not happen.2) A current director leaves, in which case the new director serves the unexpired term of his/her predecessor. In the case of replacing themselves, the unexpired term would be zero.Perhaps it was too restrictive to expect you to opine without seeing the rest of the bylaws. I have attached them here.
Real Estate Lawyer: ScottyMacESQ, Lawyer replied 3 years ago
Legally a board of directors can elect a director on for another term. That's the default rule. Now that can be restricted by the bylaws. But a restriction of such a sort would have to be clear and unambiguous. That is, it would have to say "directors cannot serve consecutive terms" or something like that. The bylaws have to LIMIT it, not authorize it.
But I don't just see this as a "silent" provision. I see a third way that a "vacancy" could arise (at the end of a term).
This bylaw indicates that there's an "authorized" number of directors. When one person reaches the end of his/her term, that would create a vacancy if he/she did not return. This clause does not indicate that there's ONLY two ways that a vacancy could occur.
Look at it this way: if the director LEFT at the end of his term, that would be a vacancy. The remaining time would still be zero. But this is still clearly a vacancy (not one of the two that you mentioned), and can be filled in accordance with the first part of section 8.
Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, ***** ***** luck to you!
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Real Estate Lawyer: ScottyMacESQ, Lawyer replied 3 years ago
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