HNH Foundation Bylaws
AMENDED AND RESTATED BYLAWS OF THE HEALTHY NEW HAMPSHIRE FOUNDATION, INC
Section 3. Compensation for Services.
Except as provided in Article VIII, Directors shall be precluded from rendering services for compensation to the Foundation in any capacity. However, Directors may be reimbursed for reasonable expenses associated with carrying out their duties as members of the Board in accordance with such policies as may be established by the Board from time to time.
Section 4. Powers
The business and affairs of the Foundation shall be managed by the Directors who shall have and may exercise all the powers to which the Foundation may be entitled pursuant to applicable law, the Articles of Agreement or the Bylaws of the Foundation.
Section 5. Removal
A Director may be removed with or without cause by a vote of a majority of the Directors present and voting at any annual or special meeting (whether present in person or duly represented), provided that the notice for such a meeting of the Directors expressly states that one of the purposes of the meeting is removal of a Director.
Section 6. Resignation
A Director may resign at any time by delivering written notice of resignation to the Chair of the Board, to a meeting of the Board of Directors, or to the Foundation upon delivery of such written notice to the Secretary. Such resignation shall be effective upon receipt of such written notice (unless specified to be effective at some other time) and acceptance thereof shall not be necessary to make it effective unless such notice so states.
Section 7. Regular, Annual and Special Meetings
(a) Unless the Board of Directors shall determine otherwise, the annual meeting of the Board of Directors shall be held on the third Tuesday of April in each year, or if that date is a legal holiday at the place where the meeting is to be held, then on the next succeeding day not a legal holiday, at such place and time as may be determined by the Chair of the Board of Directors or by the Board of Directors. If an annual meeting is not held as herein provided, a special meeting may be held in place thereof with the same force and effect as the annual meeting, and in such case all references in these Bylaws to the annual meeting shall be deemed to refer to such special meeting.
(b) Regular meetings of the Board of Directors may be held at such times as the Board of Directors may determine.
(c) Special meetings of the Board of Directors may be held at any time when called by the Chair of the Board of Directors or by at least one third (1/3) of the Board of Directors.
Section 8. Notice of Meeting
(a) All meetings of the Board of Directors shall be held at the principal office of the Foundation or at such other place in the State of New Hampshire as shall be specified in the notice of the meeting. Reasonable notice of the time and place of all meetings shall be given by the Chair of the Board of Directors or the Secretary. Notice of a regular meeting need not specify the purpose of the meeting, unless otherwise required by law, the Articles of Agreement of the Foundation, or these Bylaws. However, the purposes for which a special meeting is being called shall be set forth in the notice of that special meeting.
(b) Except as otherwise expressly provided herein or required by law, it shall be reasonable and sufficient notice to a Director to send written notice by (a) first class U.S. mail at least five (5) days prior to the meeting, (b) overnight private courier at least forty-eight (48) hours prior to the meeting, (c) facsimile transmission at least forty-eight (48) hours before the meeting, (d) or electronic mail at least forty-eight (48) hours before the meeting, addressed to such Director at his or her usual or last known business, residence address, or electronic mail address.
(c) Whenever notice of a meeting is required, such notice need not be given to any Director if a written waiver of notice, executed by him or her (or his or her attorney thereunto authorized) before or after the meeting, is filed with the records of the meeting, or to any Director who attends the meeting without protesting prior thereto or at its commencement the lack of notice to him or her. A waiver of notice need not specify the purpose of the meeting unless such purpose is required to be specified in the notice of such meeting.
Section 9. Quorum
At any meeting of the Board of Directors, a majority of the Directors, present in person or via electronic means, then in office shall constitute a quorum. Any meeting may be adjourned to a later date or dates by a majority of the votes cast upon the question, whether or not a quorum is present, and the meeting may be held as adjourned without further notice.
Section 10. Action by Vote
Each Director shall have one (1) vote. When a quorum is present at any meeting, a majority of the votes properly cast by Directors shall decide any questions, unless otherwise provided by law, the Articles of Agreement or the Bylaws of the Foundation.
Section 11. Action by Writing
Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if the entire Board of Directors consent to the action in writing and each of the written consents are filed with the records of the meetings of the Board of Directors. Such consents shall be treated for all purposes as a vote at a meeting.
Section 12. Presence through Electronic Means
Directors may participate in a meeting of the Board of Directors by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear one another at the same time and participation by such means shall constitute presence in person at a meeting.
Section 13. Proxies
Directors may vote either in person or by written proxy, which proxies shall be filed, before being voted, with the Secretary or other person responsible for recording the proceedings of the meeting. Unless otherwise specifically limited by their terms, such proxies shall entitle the holders thereof to vote at any adjournment of the meeting but the proxy shall terminate after the final adjournment of such meeting.
Section 14. Standard of Care
(a) A Director shall perform the duties of a Director, including as a member of any Board committee on which the Director may serve, in good faith, in a manner such Director believes to be in the best interest of the Foundation and with such care, including reasonable inquiry, as an ordinary prudent person in a like situation would use under similar circumstances.
(b) The Board shall avoid speculation in connection with the investment, reinvestment, purchase, acquisition, exchange, sale and management of the Foundation's investments, looking instead to the permanent disposition of the funds, considering the probable income as well as the probable safety of the Foundation's capital. No investment violates this section where it conforms to provisions authorizing such investment contained in an instrument or agreement pursuant to which the assets were contributed to the Foundation. The Board may adopt a spending policy consistent with the provisions of RSA 292-B, as amended. For purposes of this Section 3.16, the fair market value of the assets of the Foundation's endowment fund shall be determined in accordance with the provisions of RSA 292-B:6.
Section 15. Inspection
Every Director shall have the absolute right at any reasonable time to inspect and
copy all books, records, and documents, and to inspect the physical properties of the Foundation.
Section 16. Community Outreach and Accountability
Throughout the year the Board shall strive to undertake community outreach activities. The Board shall establish a varied program of community outreach activities designed to assess community needs, encourage participation by communities and individuals that are intended to benefit from the Foundation's activities, and listen to, and obtain feedback from, members of the community about the Foundation's grant making goals and activities. The Board shall prepare and issue an annual report of its activities for public review, as contemplated by Article IX, Section 6 hereof.
(b) The Board as a whole should be seen by the community it serves, the government, and the broader community as capable, experienced and well able to lead the Foundation.
(c) The membership of the Board should be selected so as to encompass both generic qualities in all Directors and the range of skills, expertise and perspectives needed by the Board to meet its responsibilities.
(d) The generic qualities in all members of the Board should include: understanding of the distinction between the strategic and policy role of the Board and the day-to-day operational responsibilities of management; capability to provide leadership in connection with the development of the Foundation; commitment to the vision, mission and core values of the Foundation; ability to work as a member of a team; respect for the views of others; recognition of the time commitment needed and willingness to devote the time and energy necessary to perform the role of Director.
(e) The membership of the Board should be comprised of individuals with a demonstrated interest in, and understanding of, the community and/or individuals intended to benefit from the Foundation's activities. The range of skills, expertise and perspectives which should ideally be reflected among members of the Board include: prior experience in governance as a board member; strategic planning experience; understanding of the needs, issues, and trends confronting New Hampshire's citizens, particularly issues pertaining to their health, health insurance, access to health care, and health care needs; understanding of fiscal, financial and legal matters; communications and information technology; marketing experience; government and public relations; community involvement and/or experience; and/or such other additional qualifications as the Board deems necessary or desirable.
Section 1. Committees of the Board
The Board may, by resolution adopted by a majority of the Directors then in office, create any committee (standing, special, or ad hoc), appoint persons to serve as members thereof, and change the composition of the committees. Unless otherwise provided by these Bylaws or restricted by law, each committee shall have members who are Directors; and a majority of any committee shall constitute a quorum. Unless the Board otherwise designates, committees shall conduct their affairs in the same manner as is provided in these Bylaws for the Board.
Section 2. Executive Committee
The Board may appoint an Executive Committee. In its discretion, and only by prior written authorization, the Board may grant to the Executive Committee the powers and authority of the Board itself during periods between Board meetings; provided, however, that the Executive Committee may exercise only the powers and authority specifically granted in such written authorization, subject to any and all conditions, limitations or restrictions provided therein; and provided further that in no event shall the Executive Committee be granted powers or authority in contravention of any of the provisions these Bylaws, including without limitation, Section 5.3 hereof or any of the provisions of the Foundation's Articles of Agreement or applicable law.
Section 3. Powers and Authority of Committees of the Board
Board committees may be given all the authority of the Board, except for the powers to:
(a) Elect directors or remove Directors without cause;
(b) Fill vacancies on the Board or on any Board committee;
(c) Amend or appeal these Bylaws or adopt new Bylaws;
(d) Adopt amendments to the Articles of Agreement of the Foundation;
(e) Create any other Board committees or appoint the members of any Board committee; or
(f) Approve any merger, reorganization, voluntary dissolution, or disposition of substantially all of the assets of the Foundation.
Section 1. Officers
The Officers of the Foundation shall be a Chair of the Board, a President, one or more Vice-Chairs of the Board, a Treasurer, a Secretary and such other Officers, if any, as the Board of Directors may determine, including an Assistant Secretary and Assistant Treasurer. The Foundation may also have such agents, if any, as the Board of Directors may appoint, including a Vice President, or more than one Vice President if so needed. The President may not be a Director. A person may hold more than one office at the same time
Section 2. Election
The Officers of the Foundation shall be elected annually by the Board of Directors at its annual meeting. Each such Officer shall hold office until the next annual meeting of the Board or Directors and until his or her successor is elected and qualified, or until he or she sooner dies, resigns, or is removed. If the election of Officer shall not be held at such meeting, such elections shall be held as soon as thereafter as may be convenient. If the office of any Officer becomes vacant, the Board of Directors may elect a successor to serve the unexpired term. New officers may be created and filled at any meeting of the Board of Directors. Each Officer shall retain his or her authority at the pleasure of the Board of Directors.
Section 3. Chair of the Board of Directors
The Chair of the Board of Directors shall preside at all meetings of the Board of Directors, except as the Board shall otherwise determine and shall have such other powers and duties as may be determined by the Board of Directors.
Section 4. Vice Chair of the Board of Directors
The Board may elect a Vice Chair who, in the absence of the Chair or in the event of his or her inability or refusal to act, the Vice-Chair shall perform the duties of the Chair.
Section 5. President
The President shall serve as the chief executive officer of the Foundation and have general supervision of the business and affairs of the Foundation and shall see that all orders and resolutions of the Board of Directors are carried into effect. The President shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him or her by these Bylaws or by the Board of Directors.
Section 6. Vice-Presidents
At the request of the President or in his or her absence or in the event of his or her. inability or refusal to act, the Vice-President or Vice-Presidents if there be any, or more than one, (in the order designated by the Board of Directors) shall perform the duties of the President, and when so acting, shall have all of the powers of and be subject to all the restrictions upon the President. Each Vice-President shall perform such other duties and have such other powers as the Chair of the Board or the Board of Directors from time to time may prescribe. In the event of the absence or disability of the Chair of the Board and all of the Vice-Presidents, or if there are no Vice-Presidents, the Board of Directors shall designate the Officer of the Foundation who, in the absence of the President or in the event of the inability or refusal of the President to act, shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President.
Section 7. Treasurer
The Treasurer shall be the chief financial officer of the Foundation. The Treasurer shall be in charge of the Foundation's financial affairs, funds, securities and valuable papers and shall keep full and accurate records thereof. The Treasurer shall make at least quarterly reports to the Board of Directors, one of which shall be an annual report which shall include an accounting of the funds of the Foundation. Annually the Board of Directors shall appoint a firm of independent certified public accountants to examine and audit the Foundation's accounts. Reports of annual audit shall be submitted by the Foundation to the Attorney General's Office, Charitable Trust Unit, and to other governmental entities as are required by law. The Treasurer shall have such other duties and powers as designated by the Board of Directors.
Section 8. Secretary
The Secretary shall record and maintain records of all proceedings of the Board of Directors in a book or series of books kept for that purpose, which book or books shall be kept within the State of New Hampshire at the principal office of the Foundation and shall be open at all reasonable times to the inspection of any Director. Such book or books shall also contain the original, or certified copies, of the Articles of Agreement and Bylaws and names and addresses of all Directors. If the Secretary is absent from any meeting of the Board of Directors, a temporary Secretary chosen at the meeting shall exercise the duties of the Secretary at the meeting.
Section 9. Removal
An Officer may be removed with or without cause by a vote of a majority of Directors present and voting at any meeting.
Section 10. Resignation
An Officer may resign by delivering a written resignation to the Chair of the Board, Treasurer, or Secretary of the Foundation, or to a meeting of the Board of Directors. Such resignation shall be effective upon receipt (unless specified to be effective at some other time), and acceptance thereof shall not be necessary to make it effective unless it so states.
Section 1. Principal Office
The principal office of the Foundation shall initially be at 14 Dixon Avenue, Concord, New Hampshire 03301.
Section 2. Fiscal Year
The fiscal year of the Foundation shall end on December 31st of each year.
Section 3. Execution of Papers
Except as the Board of Directors may generally or in particular cases authorize the execution thereof in some other manner, all deeds, leases, transfers, contracts, bonds, notes, checks, drafts and other obligations made, accepted, or endorsed by the Foundation shall be signed by the Chair of the Board, the President and/or Treasurer, provided that the Board may authorize the President to sign for specific amounts and to require multiple signatures in some instances.
Section 4. Indemnification of Officers and Directors
(a) The Foundation shall indemnify any person who was or is a party to any 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 Foundation, against expense (including attorney fees), judgments, fines, and amounts paid in settlement, actually and reasonably incurred by him or her in connection with such action, suit or proceeding, but only if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Foundation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. Subject to the foregoing and to the provisions of Section 4(c) hereof, the Foundation may indemnify any such person in such circumstances to the fullest extent permitted by law. The termination of any action, suit, or proceeding by judgment, order, settlement, or conviction or upon a plea of nolo contendere or its equivalent shall not of itself create a presumption that the person (a) did not act in good faith and in a manner which he or she reasonably believed to be in the best interests of the Foundation and/or, (b) with respect to any criminal action or proceeding, had reasonable cause to believe his or her conduct was lawful.
(b) Notwithstanding anything in this Section to the contrary, the Foundation shall not indemnify any Director or Officer in connection with a proceeding by or in the right of the Foundation; or in connection with any other proceeding charging improper personal benefit to him or her, whether or not involving action in his or her official capacity, in which he or she was adjudged liable on the basis that personal benefit was improperly received by him or her.
(c) To the extent that a Director or Officer of the Foundation has been wholly successful on the merits in defense of any action, suit, or proceeding referred to in this Section, he or she shall be indemnified against expenses (including attorney fees) actually and reasonably incurred by him or her in connection therewith to the fullest extent permitted by law.
(d) Expenses (including attorney fees) incurred in defending a civil or criminal action, suit, or proceeding may be paid by the Foundation in advance of the final disposition of such action, suit, or proceeding as authorized in this Section if:
(i) the Director or Officer furnishes to the Foundation a written affirmation of his or her good faith belief that he or she has met the standard of conduct required herein;
(ii) the Director or Officer furnishes to the Foundation a written undertaking, executed personally or on his or her behalf, repay the advance if it is ultimately determined that he or she did not meet the standard of conduct required herein; and
(iii) a determination in accordance with the terms of RSA 293-A:8.50-58 is made that the facts then known to those making the determination would not preclude indemnification.
The undertakings required by this Section must be an unlimited general obligation of the director of officer, but need not be secured, and may be accepted without reference to financial ability to pay.
(e) The indemnification provided by this Section 7.6 shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any bylaw, agreement, or vote of disinterested Directors, or otherwise, and any procedure provided for by any of the foregoing, both as to action in his or her official capacity and as to action in another capacity (held at the express request of the Foundation) while holding such office, and shall continue as to a person who has ceased to be a Director or Officer and shall inure to the benefit of heirs, executors, and administrators of such a person.
(f) The Foundation shall purchase and maintain insurance on behalf of any person who is or was a Director or Officer of the Foundation against 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 Foundation would have the power to indemnify him or her against such liability under provisions of this Section.
(g) All references herein to (i) the Code shall be deemed to refer to the Internal Revenue Code of 1986, as now in force or hereafter amended, (ii) the RSA shall be deemed to refer to said statutes as now in force or hereafter amended, and (iii) particular sections of the Code or the RSA shall be deemed to refer to similar or successor provisions hereafter adopted.
Section 5. Nondiscrimination Policy
The policy of the Foundation prohibits discrimination on the basis of age, sex, religion, race, color, creed, sexual orientation, physical or mental disability, national or ethnic origin, or marital or parental status in the recruitment and employment of employees, in the awarding and acceptance of grants and funds, and in the operation of all programs and services.
Section 1. Loans
The Foundation shall not make any loan of money or property to, or guarantee the obligation of, any Director, Officer or agent.
Section 2. Sale of Real Estate
The Foundation shall not sell, lease, purchase, or convey any real estate or interest in real estate to or from a Director, or Officer of the Foundation without the prior approval of the probate court; provided, however, that this section shall not prohibit the Foundation from accepting a bona fide gift of an interest in real estate by a Director, Council Member or Officer.
Section 3. Pecuniary Benefit Transactions
Except as provided in Section 4 hereof, the Board shall not approve, or permit the Foundation to engage in, any pecuniary benefit transaction. A pecuniary benefit transaction is a transaction to which the Foundation is a party and in which one or more of its Directors has a direct or indirect financial interest in excess of $500 on an annual aggregate basis. A Director shall be deemed to have an indirect interest in any pecuniary benefit transaction involving a person or entity of which a Director, or a member of the immediate family of a Director, is a proprietor, partner, employee, or officer. The following shall not be considered pecuniary benefit transactions:
(a) Reasonable compensation for services of a President, and expenses incurred in connection with official duties of a Director or Officer;
(b) A benefit provided to a Director, Officer or member of the immediate family thereof if: (1) the benefits are provided or paid as part of programs, benefits, or payments to members of the general public; (2) the Foundation has adopted written eligibility criteria for such benefit in accordance with its bylaws and applicable laws; and (3) the Director, Council Member, Officer or family member meets all of the eligibility criteria for receiving such benefits, and;
(c) A continuing transaction entered into by the Foundation, merely because a person with a financial interest therein subsequently becomes a Director or Officer of the Foundation.
Section 4. Approval
The Foundation may engage in a pecuniary benefit transaction if all of the following conditions are met:
(a) The transaction is for goods or services purchased or benefits provided in the ordinary course of the business of the Foundation, for the actual or reasonable value of the goods or services or for a discounted value, and the transaction is fair to the Foundation.
(b) The transaction receives affirmative votes from at least a two-thirds majority of all the disinterested members of the Board, which majority shall also equal or exceed any quorum requirement specified in these Bylaws after full and fair disclosure of the material facts of the transaction to the Board and after notice and full discussion of the transaction by the Board.
(c) Without participation, voting, or presence of any Director or Officer with a financial interest in the transaction or who has had a pecuniary benefit transaction with the charitable trust in the same fiscal year, except as the Board may require to answer questions regarding the transaction; and a record of the action on the matter is made and recorded in the minutes of the Board.
(d) The Foundation maintains a list of disclosing each and every pecuniary benefit transaction, including the names of those to whom the accrued and the amount of the benefit, and keeps such list available for inspection by members of the Board and the Council. The list shall also be reported to the Director of Charitable Trusts each year as part of the Foundation's annual report required under RSA 7:28.
(e) If the transaction, or the aggregate of transactions with the same Director or Officer within one fiscal year, is in the amount of $5,000 or more, the Foundation publishes notice thereof in a newspaper of general circulation and gives written notice to the Director of Charitable Trusts, before consummating the transaction. At a minimum, such notice shall state that it is given in compliance with this section and shall include the name of the Foundation, the name of any Director or Officer receiving pecuniary benefit from the transaction, the nature of the transaction, and the specific dollar amount of the transaction.
Section 5. Compliance with Private Foundation Rules
Any provision of these Bylaws or the Articles of Agreement of the Foundation to the contrary notwithstanding, so long as the Foundation is deemed to be a "private foundation" as defined in Section 509 of the Internal Revenue Code of 1986, as amended (the "Code"), the Foundation:
(a) Shall distribute its income for each taxable year (and principal, if necessary) at such time and in such manner as not to subject the Foundation to tax under Section 4942 of the Code;
(b) Shall not approve of, or engage in, any act of self-dealing as defined in subsection (d) of Section 4941 of the Code;
(c) Shall not retain any excess business holdings as defined in subsection (c) of Section 4943 of the Code;
(d) Shall not make any investments in such a manner as to subject this Foundation to tax under Section 4944 of the Code; and
(e) Shall not make any taxable expenditure as defined in subsection (d) of Section 4945 of the Code.
Section 6. Conflict of Interest Provisions
A conflict of interest or an appearance of a conflict of interest may arise when a Director has a direct or indirect interest in another entity that enters into a transaction with the Foundation, including, but not limited to, applications for grant or loan support. Direct or indirect interest includes any legal, equitable or fiduciary interest or position in an entity by a Director or a member of a Director's family. Any such interest shall be disclosed and made a matter of record at the time of election to the Board and maintained through an annual procedure and when the interest becomes a matter of Board action. No Director having a conflict of interest in any matter shall be counted in determining the quorum for the meeting, nor present when the matter is discussed or voted on. Meeting minutes shall reflect that the disclosure was made, that the Director abstained and was not present during the discussion or vote, and that a quorum existed not counting such Director. The conflict-of-interest provisions of this Section shall be in addition to and not in lieu of the applicable provisions of New Hampshire law regarding conflicts of interest.
Section 1. Purpose of Grants
The Foundation shall have the power to make grants and contributions and to render other financial assistance for the purposes expressed in the Foundation's Articles of Agreement.
Section 2. Grant Power Vested in the Board
The Board shall have control over grants, contributions, and other financial assistance given by the Foundation. The Board shall establish a procedure and set of criteria for soliciting, review, and making decisions on applications for the use of grant funds. The Board may establish and authorize a process for determination of grants up to a specified amount by staff or a Board committee.
Section 3. Refusal; Withdrawal
The Board, in its absolute discretion, shall have the right to refuse to make any grants or contributions, or to render other financial assistance, for any or all of the purposes for which the funds are requested. In addition, the Board, in its absolute discretion, shall have the right to withdraw its approval of any grant at any time and use the funds for other purposes within the scope of the purposes expressed in the Foundation's Articles of Agreement.
Section 4. Accounting Required
The Board may require that grantees furnish a periodic accounting to show that the funds granted by the Foundation were expended for the purposes that were approved by the Board.
Section 5. Contribution
The Foundation shall retain complete control and discretion over the use of all contributions it receives.
Section 6. Community Grant Reports
No less often than annually, the Board shall provide a report to the Attorney General which sets forth a list of grants made by the Foundation, describes the activities of the Foundation during the period, includes a summary of activities and assessment of impact in terms of the purposes of the Foundation, and describes the efforts that the Foundation has made in the area of community outreach. The Foundation shall use reasonable efforts to publicize the availability of the community grant report, which shall be made available to any member of the public requesting a copy from the Foundation.
Unless otherwise provided, these Bylaws may be amended or repealed, and new Bylaws may be adopted in whole or in part, by the affirmative vote of a majority of the Directors of the Foundation then in office; provided, however, that the Bylaws of the Foundation may not be amended in a manner inconsistent with the Foundation's Articles of Agreement, applicable New Hampshire law or the requirements for maintaining the Foundation's qualification as a tax-exempt organization for federal income tax purposes. Notwithstanding anything to the contrary herein, (a) any amendment to a provision of these Bylaws which contemplates or requires the approval of a specified percentage of the entire Board which is greater than a majority shall require approval of seventy percent (70%) of the entire Board; and (b) any amendment to a provision of these Bylaws which contemplates or requires the approval of the Director of Charitable Trusts and/or the Probate Court shall require the approval of the Director of Charitable Trusts and/or the Probate Court as the case may be.
†Original Bylaws effective circa October 28, 1997. Articles 3.1 and 4.1 of Original Bylaws amended November 29, 1999. These Amended and Restated Bylaws adopted on November 25, 2003