Amended and restated as of February 9, 2013
- ARTICLE I – NAME AND OFFICES
- ARTICLE II – MEMBERSHIP AND MEMBERSHIP MEETINGS
- ARTICLE III – COMMITTEES
- ARTICLE IV – OFFICERS
- ARTICLE V – NOTICES AND COMPUTING TIME PERIODS
- ARTICLE VI – LIMITATION OF TRUSTEES’ LIABILITY AND INDEMNIFICATION OF TRUSTEES, OFFICERS AND OTHER PERSONS
- ARTICLE VII – CONFLICTS OF INTEREST
- ARTICLE VIII – AMENDMENTS
- ARTICLE IX – INTERPRETATION OF BYLAWS
ARTICLE I – NAME AND OFFICES
Section 1.1. Name. The name of the Corporation shall be The ABIM Foundation.
Section 1.2. Registered Office. The registered office of the Corporation shall be located within the Commonwealth of Pennsylvania at such place as the Board of Trustees, from time to time, shall determine.
Section 1.3. Other Offices. The Corporation also may have offices at such other places, within or without the Commonwealth of Pennsylvania, as the Board of Trustees, from time to time, may determine.
ARTICLE II – MEMBERSHIP AND MEMBERSHIP MEETINGS
Section 2.1. Type of Membership. Membership shall be of only one class: “Members” who hereinafter shall be referred to as “Trustees”.
Section 2.2. Trustees.
(a) The Trustees shall fix the Corporation’s authorized number of Trustees by resolution in accordance with this Section 2.2.
(b) The goal of this Section 2.2 is to ensure that a majority of the Trustees of the Corporation are appointed by the Board of Directors, members of the Board of Directors, officers acting in their official capacity, or the membership of The American Board of Internal Medicine, an Iowa nonprofit corporation (“ABIM”), consistent with the Corporation’s status as a Type I supporting organization of ABIM under section 509(a)(3)(B)(i) of the Internal Revenue Code. To accomplish that, the Corporation shall have, in each case subject to adjustment as set forth in Section 2.2(c) below, the following number of authorized Trustees: (i) 12 Trustees; (ii) 14 Trustees; or (iii) 16 Trustees, selected as follows:
(A) the President/CEO of the Corporation, who is also the President/CEO of ABIM, ex officio with vote;
(B) the Chairman of ABIM, ex officio with vote;
(C) the Immediate Past Chairman of ABIM, ex officio with vote;
(D) the immediate past Chairman of the Corporation, ex officio with vote;
(E) if the authorized number of Trustees is fixed at:
(i) 12, then four individuals who are active or recent emeriti directors of ABIM, a recent emeritus director being one who served as a director of ABIM within the six years prior to being elected a Trustee of the Corporation (active and recent emeriti directors collectively, “ABIM Candidates”), nominated by ABIM and elected by the Board of Trustees;
(ii) 14, then five ABIM Candidates nominated by ABIM and elected by the Board of Trustees; or
(iii) 16, then six ABIM Candidates nominated by ABIM and elected by the Board of Trustees; and.
(F) if the authorized number of Trustees is fixed at:
(i) 12, then five individuals elected by the Board of Trustees;
(ii) 14; then six individuals elected by the Board of Trustees; or
(iii) 16; then seven individuals elected by the Board of Trustees.
(c) The Trustees elected in accordance with Section 2.2(b)(E) and Section 2.2(b)(F) are referred to as the “Elected Trustees.” The immediate past Chairman of the Corporation serving as an ex-officio Trustee in accordance with Section 2.2(b)(D) counts toward the number of Elected Trustees under either Section 2.2(b)(E) or Section 2.2(b)(F) depending on the manner of his initial election as a Trustee to the Board of Trustees.
(d) In the event a person who is serving as the Chairman or Vice Chairman is only eligible to serve as a Trustee by virtue of the first proviso to the first sentence of Section 2.3(a), then the number of authorized Trustees shall be increased by one for each such person serving in such capacity for the period of such service and each such person shall be treated as an additional ex-officio Trustee with vote. For each person who is serving as Chairman or Vice Chairman and who is treated as an ex-officio Trustee by virtue of the immediately preceding sentence, and such person was initially elected as a Trustee by the Board of Trustees under Section 2.2(b)(F), then the number of Trustees that may be nominated by ABIM under Section 2.2(b)(E) shall be increased by one and the number of Trustees that may be elected by the Board of Trustees under Section 2.2(b)(F) shall be reduced by one.
Section 2.3. Term of Office of Trustees.
(a) Except as otherwise provided in these Bylaws, the Elected Trustees shall each serve a term of three years, shall not serve more than two consecutive three-year terms, but may serve additional terms after not having served as a Trustee for one year; provided, however, this limitation on service as a Trustee shall not apply to a person elected to the office of, and while serving as, Chairman or Vice Chairman of the Corporation, who continues to serve as a Trustee during his term as Chairman or Vice Chairman, and provided, however, this limitation on service as a Trustee shall not apply to an immediate past Chairman of the Corporation serving as an ex-officio Trustee in accordance with Section 2.2(b)(D). If later nominated by ABIM and elected by the Board of Trustees, an ex-officio Trustee may serve a single three-year term immediately following his or her ex-officio term. The term of office of a Trustee shall expire on June 30. Each Elected Trustee shall hold office until: (i) the expiration of the term for which he or she was appointed and until his or her successor has been appointed and qualified; or (ii) his or her earlier death, resignation, or removal. In the event of the death, resignation, or removal of an Elected Trustee, a replacement Trustee shall be elected in accordance with the provisions of Section 2.2.
(b) The immediate past Chairman of the Corporation serving as an ex-officio Trustee in accordance with Section 2.2(b)(D) shall serve a term of one year and shall not serve more than two consecutive one-year terms. But in no event shall an immediate past Chairman of the Corporation serve as an ex-officio Trustee in accordance with Section 2.2(b)(D) beyond the tenure of the Chairman immediately succeeding him.
Section 2.4. Board of Trustees. The Trustees shall act as the Board of Trustees of the Corporation, shall manage the business and affairs of the Corporation, and shall otherwise have the powers and duties conferred or imposed by law or custom upon the board of directors of a Pennsylvania nonprofit corporation.
Section 2.5. Voting Privileges. The entire voting privileges of members shall be vested in the Trustees. Each Trustee shall each be entitled to one vote.
Section 2.6. Annual Meeting. A meeting of the Trustees of the Corporation shall be held in each calendar year on such date and at such time as the Trustees may determine.
Section 2.7. Special Meetings. Special meetings of the Trustees may be called at any time:
(a) by the Chairman; or
(b) by a majority of the Trustees.
Upon the written request of any person or persons entitled to call a special meeting, which request shall set forth the purpose for which the meeting is desired, the Secretary/Treasurer shall fix the date of such meeting, to be held not fewer than five nor more than twenty days after the receipt of such request, as the Secretary/Treasurer may determine, and to give due notice thereof. If the Secretary/Treasurer shall fail to fix the date of such meeting and to give notice thereof within five days after receipt of such request, the person or persons calling the meeting may do so.
Section 2.8. Regular Meetings. The Trustees may establish, from time to time, by standing resolution the date, time and place of regular meetings.
Section 2.9. Place of Meetings. Meetings of the Trustees shall be held at such places as may be fixed from time to time by the Trustees. If no such place is fixed by the Trustees, meetings of the Trustees shall be held at the registered office of the Corporation.
Section 2.10. Notices of Meetings. Written notice stating the date, time and place of regular meetings need not be given provided they are held in accordance with a standing resolution of the Trustees. Written notice of meetings, other than regular meetings held in accordance with a standing resolution of the Trustees, which states the date, place and hour and, if required by law or these Bylaws, the purpose, of any such meeting of the Trustees, shall be given to each Trustee of record entitled to vote at the meeting at least ten days prior to the day named for the meeting, unless otherwise required by law. Such notices may be given at the direction of, and in the name of, the Trustees or any officer. When a meeting is adjourned, it shall not be necessary to give any notice of the adjourned meeting or of the business to be transacted at any adjourned meeting, other than by announcement at the meeting at which such adjournment is taken. Whenever notice is required to be given under this Section, such notice shall be given in accordance with Article V hereof. Any notice of a meeting required to be given may be waived in writing either before or after the date of such meeting.
Section 2.11. Quorum of and Action by Trustees. A majority of the Trustees shall constitute a quorum and, unless otherwise specifically provided by law, the acts of a majority of the Trustees present and voting at a duly convened meeting, shall be the acts of the Trustees.
The Trustees present at a duly organized meeting can continue to do business until adjournment notwithstanding the withdrawal of enough Trustees to leave less than a quorum.
Any vote by the Trustees at a duly organized meeting may be taken by voice, unless a Trustee demands that it be taken by ballot, in which event the vote shall be taken by written ballot and the Secretary/Treasurer of the Corporation or, if the Secretary/Treasurer is not present, any person elected to serve as the Secretary of the meeting, shall tabulate and certify the results of such vote.
Section 2.12. Participation in Meetings by Conference Telephone. Any Trustee who is otherwise entitled to participate in any meeting of the Trustees may attend, be counted for the purposes of determining a quorum and exercise all rights and privileges to which he might be entitled were he personally in attendance, including the right to vote, by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other.
Section 2.13. Action by Unanimous Consent. Any action that may be taken at a meeting of the Trustees may be taken without a meeting if a consent or consents in writing, setting forth the action so taken, shall be signed by all of the Trustees who would be entitled to vote at a meeting for such purpose and shall be filed with the Secretary/Treasurer of the Corporation. Insertion in the minute book of the Corporation shall be deemed filing with the Secretary/Treasurer of the Corporation. Written consents by all of the Trustees executed pursuant to this Section may be executed in any number of counterparts and shall be deemed effective as of the date set forth therein.
ARTICLE III – COMMITTEES
Section 3.1. Power to Nominate Committees. By resolution adopted by a majority of the Trustees, the Trustees may designate one or more committees, each committee to consist of one or more Trustees and other individuals. The committees shall operate for such purposes and shall exercise such authority as shall be determined by the Trustees, provided that a committee exercising delegated powers of the Board must consist solely of Trustees.
Section 3.2. Standing Committees.
(a) There shall be four Standing Committees, a Governance and Nominating Committee, a Finance and Investment Committee, an Audit Committee, and an Executive Compensation Committee, which shall have such powers and duties as the Board of Trustees may determine by resolution.
(b) There shall be an Officers’ Council made up of the Corporation’s officers as described in Section 4.1 of these Bylaws, including the Chairman, Vice Chairman, Secretary/Treasurer, President/CEO, and Immediate Past-Chairman. The Officers’ Council shall advise the President/CEO and the Board of Trustees, and shall have such other powers and duties as the Board of Trustees may determine by resolution.
Section 3.3. Meetings. Meetings of committees may be called at any time by the chairman of the committee or the Chairman of the Corporation. The meetings shall be held at such place, date and time as the person calling the meeting shall determine. Notice of meetings may be oral or in writing and shall be given to each member of the committee at least three days prior to the designated time of the meeting. Any notice of meeting required to be given may be waived in writing either before or after the date of such meeting.
Section 3.4. Records. Each committee shall maintain minutes of its meetings and shall submit its minutes to the Secretary/Treasurer of the Corporation. The Secretary/Treasurer shall deliver a copy of such minutes to each Trustee and shall insert the original minutes in the Corporation’s minute book.
Section 3.5. Quorum. A majority of the members of a committee shall constitute a quorum of that committee and the act of the majority of the members of a committee shall be the acts of such committee.
Section 3.6. Informal Action by the Committees. Any action which may be taken at a meeting of any committee may be taken without a meeting if a consent or consents in writing, setting forth the action so taken, shall be signed by all of the members of such committee, and shall be filed with the Secretary/Treasurer of the Corporation. Insertion in the minute book of the Corporation shall be deemed filing with the Secretary/Treasurer. Written consents by all of the members of any committee may be executed in any number of counterparts and shall be deemed effective as of the date set forth therein.
Section 3.7. Participation in Meetings by Conference Telephone. Any member of a committee may participate in any meeting of the committee, be counted for the purpose of determining a quorum thereof and exercise all rights and privileges to which he might be entitled were he personally in attendance, including the right to vote, by means of conference telephone or other similar communications equipment by means of which all persons on the meeting can hear each other.
ARTICLE IV – OFFICERS
Section 4.1. Offices and Election. The Corporation shall have a Chairman, Vice Chairman, and Secretary/Treasurer, elected from among the Trustees, after nomination by the Governance and Nominating Committee. The President/CEO of the Corporation shall be the President/CEO of ABIM elected by the ABIM Board of Directors in consultation with the Trustees of the Corporation throughout the entirety of the process. The Immediate Past-Chairman of the Corporation shall additionally serve as an officer of the Corporation. In addition, the Trustees may appoint one or more other officers or assistant officers. Any number of offices may be held by the same person.
Section 4.2. Term. The Chairman, Vice Chairman, and Secretary/Treasurer shall each serve a one-year term and may not serve more than two consecutive terms in that office. Other officers shall serve at the pleasure of the Board of Trustees and may be removed from office with or without cause by a majority vote of the Trustees. Such removal shall be without prejudice to the contract rights if any, of any person removed.
Section 4.3. Powers and Duties of the Chairman and Vice Chairman. Unless otherwise determined by the Trustees, the Chairman shall preside at meetings of the Trustees and shall have such other duties and responsibilities as may be delegated by the Board. The Vice Chairman shall preside at meetings of the Trustees in the absence of the Chairman and shall have such duties and responsibilities as may be delegated by the Board.
Section 4.4. Powers and Duties of the President/CEO. The President shall be the chief executive officer of the Corporation and shall have supervisory authority over the business and operations of the Corporation subject, however, to the control of the Board of Trustees.
Section 4.5. Powers and Duties of the Secretary/Treasurer. The Secretary/Treasurer shall be responsible for the custody of all corporate records of the Corporation; shall be responsible for the custody of all funds and securities of the Corporation; shall render such accounts, statements and reports as may from time to time be required by the Board of Trustees and shall preside at meetings of the Board of Trustees in the absence of the Chairman and the Vice Chairman. He or she may delegate to the President/CEO the performance of any of the aforementioned duties, but shall at all times be responsible for their proper performance.
Section 4.6. Powers and Duties of the Immediate Past-Chairman. The Immediate Past-Chairman of the Corporation shall perform such duties as may be prescribed by the Board of Trustees from time to time, which duties may include appointment as Chair of one or more of the Standing Committees or other committees of the Board of Trustees.
Section 4.7. Powers and Duties of Other Officers. Other officers of the Corporation shall have such duties as the Bylaws may set forth or the Trustees may prescribe by resolution from time to time.
Section 4.8. Vacancy. In the event of the death, resignation, or removal of any officer, a replacement to serve the remainder of the term of the vacant position shall be elected, subject to Section 2.2 of the Bylaws, by a majority of the Trustees.
ARTICLE V – NOTICES AND COMPUTING TIME PERIODS
Section 5.1. Contents of Notice. Whenever any notice of a meeting is required to be given pursuant to these Bylaws or the Articles of Incorporation or otherwise, the notice shall specify the place, day and hour of the meeting and, in the case of a special meeting of Trustees or when otherwise required by law, the general nature of the business to be transacted in such meeting.
Section 5.2. Method of Notice. All notices shall be given to each person entitled thereto, either personally or by sending a copy thereof by first class or express mail, postage prepaid, or by telegram (with messenger service specified), telex or TWX (with answer back received) or courier service, charges prepaid, or by facsimile transmission, to his address (or to his telex, TWX or facsimile number) appearing on the books of the Corporation or, in the case of directors or members of another body, supplied by him to the Corporation for the purpose of notice. If the notice is sent by mail, telegraph or courier service, it shall be deemed to have been given to the person entitled thereto when deposited in the United States mail or with a telegraph office or courier service for delivery to that person or, in the case of telex or TWX, when dispatched.
Section 5.3. Computing Time Periods. In computing the number of days for purposes of these Bylaws, all days shall be counted, including Saturdays, Sundays or holidays; provided, however, that if the final day of any time period falls on a Saturday, Sunday or holiday, then the final day shall be deemed to be the next day which is not a Saturday, Sunday or holiday. In computing the number of days for the purpose of giving notice of any meeting, the date upon which the notice is given shall be counted but the day set for the meeting shall not be counted. Notice given twenty-four (24) hours before the time set for a meeting shall be deemed one (1) day’s notice.
ARTICLE VI – LIMITATION OF TRUSTEES’ LIABILITY AND INDEMNIFICATION OF TRUSTEES, OFFICERS AND OTHER PERSONS
Section 6.1. Limitation of Trustees’ Liability. A Trustee shall not be personally liable, as such, for monetary damages for any action taken or any failure to take any action as a Trustee unless:
(1) The Trustee has breached or failed to perform the duties of his or her office under Subchapter B of Chapter 57 of the Pennsylvania Nonprofit Corporation Act of 1988; and
(2) The breach or failure to perform constitutes self-dealing, willful misconduct, or recklessness.
This Section shall not apply to (A) the responsibility or liability of a Trustee pursuant to any criminal statute, or (B) the liability of a Trustee for the payment of taxes pursuant to federal, state, or local law. Any repeal or amendment of this Section shall be prospective only and shall not increase, but may decrease, a Trustee’s liability with respect to actions or failures to act occurring prior to such change.
Section 6.2. Indemnification and Insurance.
(a) Indemnification of Trustees and Officers.
(1) Each Indemnitee (as defined below) shall be indemnified and held harmless by the Corporation for all actions taken by him or her and for all failures to take action (regardless of the date of any such action or failure to take action) to the fullest extent permitted by Pennsylvania law against all expense, liability and loss (including without limitation attorneys’ fees, judgments, fines, taxes, penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by the Indemnitee in connection with any Proceeding (as defined below).
(2) The right to indemnification provided in this Section shall include the right to have the expenses incurred by the Indemnitee in defending any Proceeding paid by the Corporation in advance of the final disposition of the Proceeding to the fullest extent permitted by Pennsylvania law; provided that, if Pennsylvania law continues so to require, the payment of such expenses incurred by the Indemnitee in advance of the final disposition of a Proceeding shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of the Indemnitee, to repay all amounts so advanced without interest if it shall ultimately be determined that the Indemnitee is not entitled to be indemnified under this Section or otherwise.
(3) Indemnification pursuant to this Section shall continue as to an Indemnitee who has ceased to be a Trustee or officer and shall inure to the benefit of his or her heirs, executors and administrators.
(4) For purposes of this Article, (A) “Indemnitee” shall mean each Trustee, or officer or employee of the Corporation who was or is a party to, or is threatened to be made a party to, or is otherwise involved in, any Proceeding, by reason of the fact that he or she is or was a Trustee or officer of the Corporation or is or was serving in any capacity at the request or for the benefit of the Corporation as a trustee, director, officer, employee, agent, partner, or fiduciary of, or in any other capacity for, another corporation or any partnership, joint venture, trust, employee benefit plan, or other enterprise; and (B) “Proceeding” shall mean any threatened, pending or completed action, suit or proceeding (including without limitation an action, suit or proceeding by or in the right of the Corporation), whether civil, criminal, administrative or investigative.
(b) Indemnification of Other Persons. The Corporation may, by action of its Trustees and to the extent provided in such actions, indemnify other persons as though they were Indemnitees.
(c) Non-Exclusivity of Rights. The rights to indemnification and to the advancement of expenses provided in this article shall not be exclusive of any other rights that any person may have or hereafter acquire under any statute, provision of the Corporation’s Articles of Incorporation or Bylaws, agreement, vote of disinterested Trustees or otherwise. Article VII (relating to conflicts of interest) shall be applicable to any bylaw, contract, or transaction authorized by the Trustees under this Section. However, no indemnification may be made by the Corporation under this Article or otherwise to or on behalf of any person to the extent that:
(A) The act or failure to act giving rise to the claim for indemnification is determined by a court to have constituted self-dealing, willful misconduct, or recklessness; or
(B) The Board determines that under the circumstances indemnification would constitute an excess benefit transaction under section 4958 of the Internal Revenue Code of 1986, as amended.
(d) Insurance. The Corporation may purchase and maintain insurance, at its expense, for the benefit of any person on behalf of whom insurance is permitted to be purchased by Pennsylvania law against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person under Pennsylvania or other law. The Corporation may also purchase and maintain insurance to insure its indemnification obligations whether arising hereunder or otherwise. The Corporation’s payment of premiums with respect to such insurance coverage shall be provided primarily for the benefit of the Corporation. To the extent that such insurance coverage provides a benefit to the insured person, the Corporation’s payment of premiums with respect to such insurance shall be provided in exchange for the services rendered by the insured person and in a manner so as not to constitute an excess benefit transaction under section 4958 of the Internal Revenue Code of 1986, as amended.
(e) Fund For Payment of Expenses. The Corporation may create a fund of any nature, which may, but need not be, under the control of a Trustee, or otherwise may secure in any manner its indemnification obligations, whether arising hereunder, under the Articles of Incorporation, by agreement, vote of disinterested Trustees, or otherwise.
Section 6.3. Amendment. The provisions of this Article relating to the limitation of Trustees’ liability, to indemnification and to the advancement of expenses shall constitute a contract between the Corporation and each of its Trustees and officers which may be modified as to any Trustee or officer only with that person’s consent or as specifically provided in this Section. Notwithstanding any other provision of these Bylaws relating to their amendment generally, any repeal or amendment of this Article which is adverse to any Trustee or officer shall apply to such Trustee or officer only on a prospective basis, and shall not reduce any limitation on the personal liability of a Trustee of the Corporation, or limit the rights of an Indemnitee to indemnification or to the advancement of expenses with respect to any action or failure to act occurring prior to the time of such repeal or amendment. Notwithstanding any other provisions of these Bylaws, no repeal or amendment of these Bylaws shall affect any or all of this Article so as either to reduce the limitation of Trustees’ liability or limit indemnification or the advancement of expenses in any manner unless adopted by the affirmative vote of a majority of the Trustees; provided that no such amendment shall have retroactive effect inconsistent with the preceding sentence.
Section 6.4. Changes in Pennsylvania Law. References in this Article to Pennsylvania law or to any provision thereof shall be to such law as it existed on the date this Article was adopted or as such law thereafter may be changed; provided that (a) in the case of any change which expands the liability of the Trustees or limits the indemnification rights or the rights to advancement of expenses which the Corporation may provide, the rights to limited liability, to indemnification and to the advancement of expenses provided in this Article shall continue as theretofore to the extent permitted by law; and (b) if such change permits the Corporation without the requirement of any further action by the Trustees to limit further the liability of Trustees (or limit the liability of officers) or to provide broader indemnification rights or rights to the advancement of expenses than the Corporation was permitted to provide prior to such change, then liability thereupon shall be so limited and the rights to indemnification and the advancement of expenses shall be so broadened to the extent permitted by law.
ARTICLE VII – CONFLICTS OF INTEREST
No contract or transaction between the Corporation and one or more of its Trustees or officers or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its Trustees or officers are directors or officers, or have a financial interest, shall be void or voidable solely for such reason, or solely because the Trustee or officer is present at or participates in the meeting of the Board which authorizes the contract or transaction, or solely because his, her, or their votes are counted for that purpose, if:
(1) The material facts as to the relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Trustees and the Board in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested Trustees even though the disinterested Trustees are less than a quorum; or
(2) The contract or transaction is fair as to the Corporation as of the time it is authorized, approved, or ratified by the Board or the Trustees.
Common or interested Trustees may be counted in determining the presence of a quorum at a meeting of the Board which authorizes the contract or transaction.
ARTICLE VIII – AMENDMENTS
The Trustees, by a two-thirds vote shall have the power to alter, amend, and repeal these Bylaws, at any regular or special meeting duly convened after notice to the Trustees of such purpose.
ARTICLE IX – INTERPRETATION OF BYLAWS
All words, terms and provisions of these Bylaws shall be interpreted and defined by and in accordance with the Pennsylvania Nonprofit Corporation Law of 1988, as amended from time to time. Whenever the masculine pronoun is used in these Bylaws, it shall mean the feminine where applicable.
Amended: October 4, 2004
Amended and Restated: February 4, 2012
Amended and Restated: February 9, 2013