BYLAWS OF THE
OFFICIAL UNSECURED CREDITORS’ COMMITTEE
IN THE CHAPTER 11 CASE OF
Case No. ________________
Pending in the
UNITED STATES BANKRUPTCY COURT
___________________ DISTRICT OF ________________________
|Committee Counsel:||Bernstein-Burkley, P.C.
707 Grant Street
Suite 2200 Gulf Tower
Pittsburgh, PA 15219
TABLE OF CONTENTS
Duties of Officers
BY-LAWS OF THE
OFFICIAL UNSECURED CREDITORS’ COMMITTEE
IN THE CHAPTER 11 CASE OF
Case No. ________________
Pending in the UNITED STATES BANKRUPTCY COURT for the ___________________ DISTRICT OF ________________________ (the “Court”)
This Committee shall be known as the Official Committee of Unsecured Creditors and is referred to in these by-laws as “Committee.”
The purpose of the Committee is to represent the interests of creditors holding unsecured claims in the Chapter 11 case of ___________________________ and be performing such duties provided for in 11 U.S.C. § 1103(c) as the Committee deems appropri ate.
(1) Appointment: The members of the Committee shall be those persons appointed by the United States Trustee or by the Court.
(2) Ex-Officio Members: The ex-officio members, if any, of the Committee, shall be those persons appointed by the Court or the United States Trustee as such, or those persons appointed by the Committee itself by a unanimous vote at a meeting attended by a quorum. Ex-officio members shall have all of the rights and privileges of other members, but shall not be entitled to vote on any matter before the Committee. The presence or absence of an ex-officio member shall not be considered in determining the existence of a quorum or a majority for any Committee purpose.
(3) Representatives: Each member shall designate a primary representative and may designate an alternative representative and an attorney or other professional to attend and participate in Committee and subcommittee meetings, and to exe rcise all the member’s powers. A member may change its designated representatives at will by giving written notice of any such change to the chair of the Committee, with copies to the Committee secretary and the Committee Counsel. An Official List of th e representatives, their addresses, telephone numbers and fax numbers will be maintained by the Secretary and/or Counsel and will be distributed to all members after each amendment.
(4) Proxies: A member of the Committee may, by written proxy, authorize any other member of the Committee to vote on its behalf and in its absence, with respect to any specific issue or with respect to all matters which may arise at a C ommittee or subcommittee meeting.
(5) Vacancy: If a member resigns or is removed, the Committee Counsel shall, as soon as practicable, notify the United States Trustee. When appointed, any replacement member shall have all the rights and duties of an original member, b ut shall not act on any subcommittee until appointed thereto by the chair.
(6) Resignation: A member of the Committee may resign by sending a written resignation letter to the Committee chair, with copies to the Committee secretary (if one has been chosen) and the Committee Counsel. The resignation shall be e ffective as of the date of the resignation letter and no formal acceptance of the resignation is required.
The only required officer of the Committee shall be a chair. The Committee may elect a vice-chair and a secretary if members are willing to serve and the size of the case justifies additional officers. Each officer is to be elected by a majority vote of the Committee and each to serve until replaced by a majority vote of the Committee. The chair and vice-chair shall be the primary representatives of the members of the Committee. The secretary may, but need not, be a primary representative of a member of the Committee.
Duties of Officers
- Convene or direct Committee Counsel to convene meetings of the Committee, or authorize the Committee to convene meetings as necessary.
- Preside at the meetings of the Committee.
- Direct Committee Counsel to have agendas prepared for the meetings of the Committee.
- Appoint appropriate subcommittees.
- Serve as ex-officio member of all subcommittees to which the chair is not appointed as a member.
- Perform such other duties as may be delegated to the chair by the Committee which are not inconsistent with these by-laws.
(2) Vice-Chair: The vice-chair shall:
- Perform all duties of the chair in the absence of the chair.
- Perform such other duties as may be delegated to the vice-chair by the Committee and are not inconsistent with these by-laws.
(3) Secretary: The secretary (or Committee Counsel in the event that a secretary is not elected) shall:
- Prepare and distribute in advance of each meeting an agenda for each meeting of the Committee and subcommittees.
- Notify members of meetings of the Committee and subcommittees.
- If requested by the chair, make the physical arrangements appropriate for meetings of the Committee and subcommittees.
- Cause attendance rosters for meetings of the Committee and subcommittees to be completed, and retain all attendance rosters.
- Take, transcribe, and distribute (together with a copy of the attendance roster), the minutes of each meeting of the Committee and subcommittees to the members of the Committee, to the professionals employed generally by the Committee and to such othe r persons as the Committee may direct.
- Distribute such notices and materials as directed by the chair.
- Perform such other duties as may be directed by the Committee and which are not inconsistent with these by-laws.
(1) Generally: If the Committee determines that its work would be facilitated thereby, the Committee may, by majority vote, from time to time, establish one or more subcommittees.
(2) Appointment: Each subcommittee shall consist of two or more members appointed by the chair and shall be presided over by a subcommittee chair selected by the Committee chair.
(3) Powers and Duties: Subject only to (1) the basic responsibilities of members of the Committee which may not be abdicated and (2) the provisions of ARTICLE VII of these by-laws, each subcommittee so established shall have those dutie s and may exercise those powers delegated by the Committee to such subcommittee.
Meetings: Notices of, and procedures for, meetings, and requirements for quorums, shall be as provided by these by-laws or, in the absence of provision herein, as prescribed by the chair of each subcommittee. Meetings of any subcommi ttee may be called by the chair or any two members of the subcommittee.
(1) Establishment of Special Subcommittees: In addition to any other subcommittees which may be established by the Committee, there shall be established the following subcommittees:
- Affiliate “A.”
- Affiliate “B.”
- Affiliate “C.”
- Holders of Subordinate Claims.
(2)Membership: Membership on the above special subcommittees relating to affiliates shall, insofar as practicable, consist of persons holding unsecured claims against the above affiliates of _____________________________ who are members of the Committee; provided, however, that at least one member of the Committee who does not have a claim against any of the above affiliates shall be a member of each special subcommittee relating to an affiliate. Each special subcommittee shall be compo sed of not more than five (5) members. Each special subcommittee shall have full access to information and advice from the professionals employed by the Committee.
(3)Resolutions: Notwithstanding any other provisions in these by-laws, any resolution adopted by any of the aforementioned special subcommittees shall be submitted to the Committee for consideration. Any such resolution may be adopted b y a simple majority vote of the Committee. Any such resolution may be vetoed by the vote of seventy-five percent (75%) of the members of the Committee present and voting at duly called and conducted meeting of the Committee.
(4)Employment of Special Counsel: If the Committee does not adopt or veto a resolution of one of the above special subcommittees, the Committee shall, at the request of the appropriate special subcommittee, apply to the court for authori ty to employ special counsel to represent the position of the appropriate special subcommittee in connection with the subject matter of such resolution.
(1) Place of Meeting: Regular or special meetings of the Committee shall be held at any place which is designated from time to time by the Committee.
(2) Regular Meetings: Regular meetings of the Committee may be held without call or notice, at such dates, times, and places as may be fixed by the Committee.
(3) Special Meetings: Special meetings of the Committee for any purpose or purposes may be called at any time by the chair or any two members of the Committee.
(4) Notice: Special meetings of the Committee shall be held upon at least (5) business days notice by first class, certified mail, or forty-eight (48) hours notice, given personally or by telephone, telecopier, telex, or other similar means of communication. Any such notice shall be addressed or delivered to the primary representative (or in his/her absence, to the alternative representative) of each member at the address shown on the Committee roster. Notice by mail shall be deemed to have been given at the time a written notice is deposited in the United States mail, certified, postage prepaid. Any other written notice shall be deemed to have been given at the time it is personally delivered to the recipient or actually transmitted by the person giving the notice by electronic means, to the recipient. Oral notice shall be deemed given at the time it is communicated in person or by telephone to the recipient.
(5)Waiver of Notice: Notice of a meeting need not be given to any member whose representative signs a waiver of notice or a written consent to the holding of the special meeting, whether before or after the meeting, or whose representat ive signs an approval of the minutes thereof, or attends the meeting without protesting prior thereto or at its commencement the lack of notice to such member. All such waivers, consents, and approvals shall be made a part of the minutes of the special m eeting.
(6)Participation in Meetings by Conference Telephone: Representatives of members of the Committee may participate in a meeting of the Committee, or any subcommittee thereof, through the use of a conference telephone, so long as all part icipants in such meeting can hear and communicate with one another.
(7)Quorum: Fifty percent (50%) in number of the members of the Committee, or of any subcommittee, as the case may be, present by a duly authorized representative as provided in paragraph (3) of ARTICLE III of these by-laws, constitutes a quorum of the Committee or of a subcommittee for the transaction of business at a meeting, except to adjourn as provided in paragraph (9) of this ARTICLE VIII. Except as otherwise required by these by-laws, every act or decision done or made by a major ity of the members at a meeting duly held at which a quorum is present shall constitute the act of the Committee or subcommittee. A meeting at which a quorum was initially present may continue to transact business notwithstanding the withdrawal of members, if any action taken i s approved by at least a majority of the required quorum for such meeting.
(8)Attendance at Meetings: Meetings of the Committee or of any subcommittee may be attended by the duly authorized representative and attorneys of members, the secretary (if not a member), and professionals employed by the Committee, pr ovided that, by majority vote of the Committee or subcommittee, any person may be invited to attend any meeting or portion thereof as the guest of the Committee or subcommittee.[Alternative (8) Attendance at Meeting: Meetings of the Committee, or of any subcommittee, shall be open to any creditor of the class whose interests are represented by the Committee, any other party in interest in the Chapter 11 case (and counsel), subject to the right of the Committee to admit other persons, and subject to the r ight of the Committee to exclude any non-members from any meeting or portion thereof as to which the Committee determines that attendance by any such non-members and the resulting dissemination of the information to be considered or the action to be taken would be contrary to the best interests of the class of creditors represented by the Committee, or would breach any agreement, express or implied, of confidentiality with respect to the matters to be considered at such meeting.]
(9)Adjournment: A majority of the members present by a duly authorized representative as provided in paragraph (3) of ARTICLE III of these by-laws, whether or not a quorum is present, may adjourn any meeting of the Committee or a subcom mittee to another time and place. If a meeting is adjourned for less than twenty-four (24) hours, notice of the time and place of holding the adjourned meeting need not be given to absent members. If a meeting is adjourned for more than twenty-four (24) hours, reasonable notice of the time and place of holding the adjourned meeting shall be given to the members who were not present at the time of the adjournment.
(10)Action Without a Meeting: Any action required or permitted to be taken by the Committee or any subcommittee may be taken without a meeting if a majority of the members consent to such action in a telephone poll. A good faith effor t must be made to reach all members before tallying the “vote.” Such consent shall have the same effect as a vote of the Committee or subcommittee and a record thereof shall be kept by the secretary or counsel in the same manner as minutes or the meeting s of the Committee or any subcommittee. Any action required or permitted to be taken by the Committee or any subcommittee may be taken without a meeting and without a poll if the chair or, in the absence of the chair, the vice-chair, and Committee Counse l determine that an emergency exists justifying such action without a meeting. The statement of the circumstances constituting the emergency shall be signed by the chair or vice-chair and/or Committee Counsel, and a record of the action taken shall be ke pt by the secretary or Committee Counsel in the same manner as minutes of the meeting of the Committee or any subcommittee.
All of the above notwithstanding, Committee Counsel shall be authorized to act in accordance with a proposed course of action discussed in a memo to the members of the Committee, provided that no member of the Committee raises an oral or written objection to Committee Counsel with respect to the proposed course of action within the time period provided for making such an objection as discussed in the relevant memo. At least seven days to object will be provided from the date appearing on the face of the memo in the event that this means of conducting Committee business is utilized.
(11)Dissemination of Minutes and Other Material: Minutes of meetings of the Committee and copies of reports and other significant written information generated or obtained by the Committee, or prepared for the Committee by its counsel or accountants, shall be provided by the secretary or by Committee Counsel in the absence of a secretary to all creditors of the class represented by the Committee who make written request to the secretary therefor; provided, however, that no such minutes or other material shall be provided if, in the judgment of the Committee, the dissemination of such minutes or other material would be contrary to the best interests of the class of creditors represented by the Committee or would breach any agreement of confidentiality with or relating to the source or subject of any material.
Amendments of By-Laws
These by-laws may be amended only be the vote of a majority of the members of the Committee.
The undersigned certifies that he is the duly elected and acting chair of the _______________________________________ Unsecured Creditors’ Committee and that the foregoing is a true and correct copy of the by-laws duly adopted by the Committee at a meeting of the Committee held on the ________________________________, 199__. Dated:____________________ ____________________________________
1. This sample By-Laws was primarily derived from a sample found at § 9.51, pages 9-20, et. seq., in Sulmeyer, Handbook for Creditors’ committees,(Matthew Bender & Co., Inc., 1990).