of 3D Health, Inc.
A Non-Stock Corporation and Operator of The 3D Health Alliance
Adopted in this form by 3D Health Inc.’s Board of Directors on 1/23/15
Section 1. NAME. This Corporation shall be called 3D Health, Inc. and shall hereinafter be referred to as the “Corporation”.
Section 2. LOCATION. The Corporation shall be located in Portland, Cumberland County, Maine. The Corporation may have such other offices and places of business both within and without the State of Maine as the Board of Directors may from time to time establish, or as the business of the Corporation may from time to time require.
Section 3. REGISTERED OFFICE AND REGISTERED AGENT. The registered office of this Corporation in Maine shall be the office of the Registered Agent, which is set forth in the Articles of Incorporation. The Corporation shall have a Registered Agent, who shall not by reason of such position alone be an officer. The Registered Agent of the Corporation shall be a resident of the State of Maine. The Registered Agent shall serve until his or her death or resignation from office or until a successor is appointed by the Board of Directors. The Registered Agent shall perform such duties and have such powers as are prescribed by the Maine Nonprofit Corporation Act. The Registered Agent shall have custody of the corporate seal, if any, and may affix the same on documents requiring it, and attest to the same.
Article II: Purposes
The Corporation is organized and shall at all times be operated exclusively for charitable purposes as a non-profit tax exempt organization organized under the laws of the State of Maine with all such powers as are authorized to non-profit corporations by the laws of said State.
The purpose of the Corporation shall be to educate and empower consumers to eat, exercise, and live intentionally in order to promote personal, community, and environmental health, and to engage in such other charitable activities as shall be approved by the Board of Directors from time to time.
The Corporation shall not carry on any activities not permitted to be carried on (a) by a corporation exempt from federal income tax under section 501(c)(3) of the Internal Revenue Code of 1986 (“Code”) or the corresponding section of any future tax code, or (b) by a corporation, contributions to which are deductible under Code Section 170(c)(2).
Furthermore, the Corporation shall not engage in any activities that are unlawful under applicable federal, state or local laws.
The Corporation is not organized for pecuniary profit and shall not have any capital stock. All the assets and income of the Corporation shall be used exclusively for its charitable purposes. No part of the net earnings of the corporation shall inure to the benefit of, or be distributable to, its directors, officers, or other private persons, except that the Corporation shall be authorized and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of the purposes herein set forth.
Article III: Board of Directors
Section 1. NUMBER, ELECTION, AND TERM OF OFFICE. A Board of at least three (3) but not more than nine (9) Directors shall be elected by a vote of the then-current Directors as set forth herein, and each Director shall hold office until his or her successor shall have been elected and qualified, or until his or her earlier death, resignation or removal. Directors shall hold office for a term of one (1) year or until such Director’s successor is elected and qualified. Directors may be reelected and are not subject to term limits. The number of Directors may be increased or decreased, within the limits prescribed above, at any meeting of the Directors of the Corporation. No decrease in the number of Directors shall shorten the term of any incumbent Director.
Section 2. RESIGNATIONS. Any Director may resign at any time by giving written notice to the Chair or to the Secretary. Such resignations shall take effect at the time specified therein and the acceptance of such resignation shall not be necessary to make it effective.
Section 3. REMOVAL. Any Director may be removed, either with or without cause, at any time, by a majority vote of all the Directors.
Section 4. VACANCIES. Any vacancy in the Board arising at any time from any cause may be filled for the unexpired term by a vote of the Directors at their next meeting. A Director so elected shall hold office until his or her successor shall have been duly elected and qualified, or until his or her earlier death, resignation or removal.
Article IV: Meetings
Section 1. PLACE OF MEETINGS. Meetings of the Directors shall be held at the principal office of the Corporation or at such place within or without the State of Maine as may be designated in the respective notices thereof.
Section 2. UNANIMOUS ACTION BY DIRECTORS WITHOUT A MEETING. Any action may be taken without a meeting if all of the Directors submit email messages from their own email accounts (or sign written consents) setting forth the action taken or to be taken, at any time before or after the intended effective date of such action. Such email messages or consents shall be printed and filed with the minutes of Directors’ meetings and shall have the same effect as a unanimous vote.
Section 3. REGULAR MEETING OF THE BOARD OF DIRECTORS. The Board shall hold regular meetings for the election of Directors and Officers at such times as may be required to comply with the election procedures set forth in Article III, Section 1 and Article VI, Section 1 hereof or another time and place upon such call and notice as would be required in respect of a special meeting of the Board.
Section 4. SPECIAL MEETINGS OF THE BOARD OF DIRECTORS. A meeting of the Board of Directors may be called by the Board Chair, the CEO, or if he or she is absent or unable to act, by any Vice Chair or by any two (2) Directors.
Section 5. CORPORATE ACTION. Every meeting of the persons who are from time to time the Directors of the Corporation at which there is a quorum shall be deemed to be and shall be a meeting of the Board of Directors, and any action taken at such meeting shall be deemed to be and shall be the action of the Board of Directors insofar as such action by such body is required or authorized by law, the Articles of Incorporation or these By-Laws. Any action taken at such meetings shall be recorded in a set of minutes.
Section 6. NOTICE OF MEETINGS. Notice of each annual or special meeting of the Directors shall be in writing and signed by the Chair, a Vice Chair, a Secretary or an Assistant Secretary, and, if a special meeting, or if otherwise required by law, shall state the purpose or purposes for which the meeting is called and the day and time when and the place where it is to be held. A copy thereof shall be served personally upon, mailed to, or sent by e-mail or other electronic transmission to each Director two (2) or more days before the meeting. If mailed or sent by electronic transmission, it shall be directed to the Director at his or her contact point for the method used for delivery as it appears on the books of the Corporation, unless he or she shall have filed with the Secretary a written request that notices intended for him or her be sent to some other contact point, in which case it shall be sent to such other contact point. If mailed such notice shall be deemed to be delivered when deposited in the United States mail, with postage thereon prepaid. If sent by e-mail, such notice shall be deemed to be delivered when the sender receives a delivery receipt of such notice, and if sent by other electronic transmission such notice shall be deemed delivered when the sender receives confirmation of a successful transmission.
Section 7. QUORUM. At each meeting of the Directors a simple numerical majority of all Directors, but not less than three (3), shall be present to constitute a quorum for the transaction of business. Whether or not there is a quorum at any meeting, a majority of the Directors who are present may adjourn the meeting from time to time until a quorum shall be present.
Section 8. VOTING. At each meeting of the Directors any person shown by the records of the Corporation to be a Director as of the date of the meeting or any adjournment thereof shall be entitled to one (1) vote. Except as otherwise provided by law, the Articles of Incorporation, or these By-Laws, all matters which shall properly come before any meeting shall be decided by a majority vote of those present.
Section 9. SPECIAL ACTION. When all the Directors shall be present at any meeting, however called, or wherever held, or shall in writing (including a telegram) have waived notice of a meeting, or after a meeting shall have approved in writing the records thereof, the acts of such meeting, whether or not it was fully called and whether or not the absent Directors if any, were given notice thereof, and wherever it was held, shall be valid in all respects as if such meeting had been regularly called and held.
Article V: Committees
Section 1. GENERAL POWERS AND MEMBERSHIP. The Board may, by resolution adopted by a majority of the whole Board, appoint an executive Committee consisting of three (3) or more Directors and such other committees as from time to time the Board may deem necessary or advisable. Members of committees other than an Executive Committee need not be Directors if the committee in question is not vested with a power or duty normally considered a primary duty of the Board of Directors. The Executive Committee shall consist of the Chair, Vice Chair, Treasurer, Secretary and at least one (1) other Director. In the event that any individual(s) holds more than one (1) office, the Board shall appoint an additional Director such that the number of individuals on the Executive Committee shall always be odd.
Unless otherwise expressly provided by law or by the Articles of Incorporation or by resolution of the Board, the Executive Committee shall have and may exercise all the powers of the Board (except the power to (i) appoint or remove a member of the Executive Committee, or other committee, (ii) remove an officer appointed by the Board, (iii) amend or repeal these By-Laws, (iv) amend the Articles of Incorporation, (v) adopt a plan of merger or consolidation, (vi) recommend to the Directors the sale or other disposition of all or substantially all of the property and assets of the Corporation other than in the usual course of its business, or (vii) recommend to the Directors voluntary dissolution of the Corporation or revocation of such dissolution) when the latter is not in session, and each other committee shall have and may exercise, when the Board is not in session, such powers as the Board shall confer. All action by any committee shall be reported to the Board at its meeting next succeeding such action.
Section 2. ORGANIZATION. The Board of Directors may appoint such committees as it deems appropriate from time to time. Unless otherwise provided by resolution of the Board, a chairperson chosen by each committee shall preside at all meetings of such committee so far as applicable, and unless otherwise provided herein, the provisions of these By-Laws relating to the conduct of meetings of the Board shall govern meetings of the Executive Committee or other committees.
Section 3. MEETINGS. Each committee shall adopt its own rules governing the time and place of holding and the method of calling its meetings and the conduct of its proceedings.
Section 4. COMMITEES’ QUORUM AND MANNER OF ACTING. At each meeting of a committee, a majority of the persons on such committee shall be present in person to constitute a quorum for the transaction of business thereat, and the affirmative vote of a majority of the members of such committee present in person at a meeting at which a quorum is present shall be the act of such committee.
Section 5. REMOVAL. Any member of any committee may be removed from such committee, either with or without cause, at any time, by the Board of Directors.
Section 6. VACANCIES. Any vacancy in any committee shall be filled by the Board in the manner prescribed herein for the original appointment of the members of such committee.
Article VI: Officers
Section 1. APPOINTMENT, TERM OF OFFICE, AND QUALIFICATIONS. The Board of Directors at its annual meeting shall elect a Chair, one or more Vice Chairs, a Secretary, a Treasurer and such other officers and agents of the Corporation as the Board may deem necessary or advisable. All officers shall hold office until his or her successor shall have been elected and qualified, or until his or her earlier death, resignation or removal. One person may hold and perform the duties of any two offices. No instrument required to be signed by more than one officer shall be signed by the same individual in more than one capacity.
Section 2. REMOVAL. Any officer may be removed either with or without cause, at any time, by the Board of Directors.
Section 3. RESIGNATIONS. Any officer may resign at any time by giving written notice to the Chair or to the Secretary. Any such resignation shall take effect at the time specified therein, and the acceptance of such resignation shall not be necessary to make it effective.
Section 4. VACANCIES. A vacancy in any office arising from any cause shall be filled for the unexpired portion of the term in the manner prescribed herein for regular election to such office.
Section 5. CHIEF EXECUTIVE OFFICER. The CEO of the Corporation shall have general supervision of its business, subject to the control of the Board, including duties assigned to him or her by the Board or by any committee authorized to do so.
Section 6. CHAIR. The Chair shall supervise board activities.
Section 7. VICE CHAIR. At the request of the Chair or in the absence or disability of the Chair, the Vice Chair shall perform all the duties of the Chair, and when so acting shall have all the powers of the Chair.
Section 8. SECRETARY. The Secretary shall perform such duties and have such responsibilities as shall be designated by the Board of Directors from time to time.
Section 9. TREASURER. The Treasurer shall perform such duties and have such responsibilities as shall be designated by the Board of Directors from time to time.
Article VII: Waiver of Notice
No notice of the time, place or purpose of any meeting of the Board, or of any committee, need be given to any person who in writing, executed either before or after the holding thereof, waives such notice, and such waiver shall be deemed equivalent to notice.
Article VIII: Amendments
The By-Laws of the Corporation may be adopted, amended or repealed at any meeting of the Directors.
Article IX: Public Benefit Corporation Provisions
Section 1. RESTRICTIONS ON DIRECTORS. No more than 49% of the individuals on the Board may be financially interested persons. For the purposes of this Section, “financially interested person” means:
(a) An individual who has received or is entitled to receive compensation from the Corporation for personal services rendered to the Corporation by that individual within the previous twelve (12) months, whether as a full-time or part-time employee, independent contractor, consultant or otherwise, excluding any reasonable payments made to Directors for serving as Directors. An individual is considered to receive compensation for services rendered to the Corporation by that individual if the individual is entitled to receive, other than as a shareholder of a publicly held corporation, a portion of the net income of a corporate or other business entity that provides, for compensation, personal services to the Corporation; or (b) A spouse, brother, sister, parent or child of the individual described in subsection a above.
Section 2. CONFLICT-OF-INTEREST TRANSACTIONS. The Corporation shall at all times remain in compliance with the provisions of 13-B M.R.S.A. § 718, as well as any internal conflict of interest policy that the Corporation may develop and implement from time to time, as set forth in a resolution of the Directors of the Corporation.
Section 3. LOANS TO DIRECTORS AND OFFICERS PROHIBITED. No loans shall be made by the Corporation to its Directors or Officers. Any Director or Officer who assents to or participates in the making of any such loan shall be liable to the Corporation for the amount of such loan until the repayment thereof.
Section 4. MISAPPLICATION OF FUNDS OR ASSETS.
(a) Prohibited Transaction. The funds or assets of the Corporation may not be transferred or applied and a Director or Officer of the Corporation may not authorize the transfer or application of funds or assets of the Corporation if:
(1) The transfer constitutes a conflict-of-interest transaction that is neither fair nor properly approved as determined under Section 1 of this Article IX;
(2) The transfer misapplies the funds or assets in violation of statute, including conversion transactions in violation of 5 M.R.S.A, §§ 194-C to 194-H;
(3) The transfer is to a Director or Officer of the Corporation or to another person in a position to exercise substantial influence over the affairs of the Corporation and constitutes private inurement or excess benefits that exceed the fair market value of the property or services received in return; or
(4) The transfer of funds or assets is to a subsidiary or joint venture organized as a for-profit entity, unless the Board determines in good faith under the facts and circumstances at the time of transfer or commitment to transfer that:
(A) The organization and operations of the for-profit entity will serve, further or support a charitable purpose of the Corporation;
(B) The transfer or the commitment to transfer is fair to the Corporation;
(C) Distributions of net income by the for-profit entity to owners and investors will be proportionate to their investment interests; and
(D) The articles of incorporation, bylaws or similar organizational documents require that compensation transactions between the for-profit entity and investors in the entity or directors or officers of the entity or others in a position to exercise substantial influence over the affairs of the entity be established in amounts that do not exceed the fair market value of services or property to be provided to the entity.
(b) Conversion Transactions. If a transfer under this Section constitutes a conversion transaction as defined in 5 M.R.S.A. § 194-B(2), the provisions of 5 M.R.S.A. §§ 194-B to 194-K may apply and nothing in this Section is intended to supersede those provisions applicable to such transactions.
Article X: Indemnification and Insurance
Section 1. POWER TO INDEMNIFY. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a Director or Officer of the Corporation, or is or was serving at the request of the Corporation as a Director or Officer of another corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding; provided that no indemnification shall be provided for any person with respect to any matter as to which he or she shall have been finally adjudicated in any action, suit or proceeding not to have acted in good faith in the reasonable belief that his or her action was in the best interests of the Corporation or, with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order or conviction adverse to such person, or by settlement or plea of nolo contendere or its equivalent, shall not of itself create a presumption that such person did not act in good faith in the reasonable belief that his or her action was in the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful.
Section 2. DISCRETIONARY INDEMNIFICATION. The Corporation shall have the authority, but not the obligation, to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was an employee or agent of the Corporation, even if such individual is or was at the time also a Director or Officer of the Corporation, or is or was serving at the request of the Corporation as a Director or Officer of another corporation, partnership, joint venture, trust or other enterprise.
Section 3. INDEMNITY AGAINST EXPENSES. Any provision of subsections 1 or 4 to the contrary notwithstanding, to the extent that a Director, Officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection 1, or in the case of indemnification undertaken by the Corporation pursuant to subsection 2, or in defense of any claim, issue or matter therein, he or she shall be indemnified against expenses, including attorneys’ fees, actually and reasonably incurred by him or her in connection therewith. The right to indemnification granted by this subsection may be enforced by a separate action against the Corporation, if an order for indemnification is not entered by a court in the action, suit or proceeding wherein he or she was successful on the merits or otherwise.
Section 4. INDEMNITY MADE BY CORPORATION. Any indemnification under subsection 1 or 2, unless ordered by a court, shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the Director, Officer, employee or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in subsection 1 or 2. Such determination shall be made by the Board by a majority vote of a quorum consisting of Directors who were not parties to such action, suit or proceeding, or if such a quorum is not obtainable, or even if obtainable, if a quorum of disinterested Directors so directs, by independent legal counsel in a written opinion. Such a determination, once made by the Board may not be revoked by the Board, and upon the making of such determination by the Board, the Director, Officer, employee or agent may enforce the indemnification against the Corporation by a separate action notwithstanding any attempted or actual subsequent action by the Board.
Section 5. EXPENSES INCURRED IN CIVIL OR CRIMINAL ACTION. Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board in the manner provided in subsection 4 upon receipt of an undertaking by or on behalf of the Director, Officer, employee or agent to repay such amount, unless it shall ultimately be determined that he or she is entitled to be indemnified by the Corporation as authorized in this Section.
Section 6. PROVISIONS OF INDEMNIFICATION. The indemnification provided by this Article shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any agreement, vote of disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a Director, Officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. A right to indemnification required by these By-Laws may be enforced by a separate action against the Corporation, if an order for indemnification has not been entered by a court in any action, suit or proceeding in respect to which indemnification is sought.
Section 7. POWER TO PURCHASE AND MAINTAIN INSURANCE. The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a Director, Officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a Director, Officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or her against such liability under this Section.
Article XI: Miscellaneous
Section 1. FISCAL YEAR. The fiscal year of the Corporation shall be the year commencing on July 1 and concluding on June 30.
Section 2. BOOKS AND RECORDS. The Corporation shall keep correct and complete books and records of accounts and shall keep minutes of the proceedings of its Board and committees having any of the authority of the Board and shall keep at its registered office or principal office in this State a record of the names and addresses of its Directors. All books and records may be inspected by any Officer or Director or the Officer’s or Director’s agent or attorney, for any proper purpose at any reasonable time, as long as the Officer or Director or the Officer’s or Director’s agent or attorney gives the Corporation written notice at least five (5) business days before the date on which the Officer or Director or the Officer’s or Director’s agent or attorney wishes to inspect and copy any books or records. The Board may require the Officer or Director or the Officer’s or Director’s agent or attorney to pay the reasonable cost of the copies made and may impose reasonable restrictions on the use or distribution of the records by such a person.
Section 3. PERIODIC REVIEW. To ensure the Corporation operates in a manner consistent with charitable purposes and does not engage in activities that could jeopardize its tax-exempt status, periodic reviews shall be conducted. The periodic reviews shall, at a minimum, include the following subjects:
a. Whether compensation arrangements and benefits are reasonable, based on competent survey information, and the result of arm’s length bargaining.
b. Whether partnerships, joint ventures, and arrangements with management organizations conform to the Corporation’s written policies, are properly recorded, reflect reasonable investments or payments for goods and services, further charitable purposes and do not result in inurement, impermissible private benefit or in an excess benefit transaction.
Section 4. USE OF OUTSIDE EXPERTS. When conducting the periodic reviews as provided for in Section 3 above, the Corporation may, but need not, use outside advisors. If outside experts are used, their use shall not relieve the governing board of its responsibility for ensuring periodic reviews are conducted.