Section 3.1 Directors in Lieu of Members
The Corporation shall not have members as such but, in lieu thereof, shall have only a self-perpetuating Board of Directors.
Section 3.2 Powers
- All corporate powers shall be exercised by or under the authority of, and the affairs of the Corporation shall be managed under the direction of, the Board of Directors. The Board of Directors shall have and is vested with all and unlimited powers and authorities, except as it may be expressly limited by law, the Articles of Incorporation or these Bylaws, to supervise, control, direct and manage the property, affairs and activities of the Corporation, to determine the policies of the Corporation, to do or cause to be done any and all lawful things for and on behalf of the Corporation, to exercise or cause to be exercised any or all of its powers, privileges or franchises, and to seek the effectuation of its objects and purposes; provided, however, that:
- the Board of Directors shall not authorize or permit the Corporation to engage in any activity not permitted to be transacted by the Articles of Incorporation or by a corporation organized under the Act
- none of the powers of the Corporation shall be exercised to carry on activities, otherwise than as an insubstantial part of its activities, which are not in themselves in furtherance of the purposes of the Corporation
- all income and property of the Corporation shall be applied exclusively for its nonprofit purposes
- certain actions by the Board of Directors shall, as provided for in these Bylaws, require Super-Majority Approval. For purposes of these Bylaws, “Super-Majority Approval” means an affirmative vote by two-thirds (2/3) of the Directors constituting the full Board of Directors. The full Board of Directors will include all Directors then in office and will not include any vacant Director positions, but will include any Directors who may be the subject of or have any interest in the applicable action.
- No part of the net earnings or other assets of the Corporation shall inure to the benefit of any Director, officer, contributor, or other private individual, having, directly or indirectly, a personal or private interest in the activities of the Corporation, except that the Corporation shall be authorized and empowered to
- pay reasonable compensation for services rendered
- make payments for reimbursement in reasonable amounts for expenses actually incurred for the benefit of the Corporation, and
- make payments in furtherance of the purposes of the Corporation as set forth in the Articles of Incorporation.
Section 3.3 Number
Unless and until changed by the Board of Directors as herein provided, the number of Directors to constitute the Board of Directors shall be the same number as provided for the first Board of Directors in the Articles of Incorporation. The Board of Directors shall have the power to change the number of Directors by resolution adopted with Super-Majority Approval, provided that in no event shall the number of Directors be fewer than six or more than 15, at least one of which shall be a voting at-large Director representing the public. All Directors must be natural persons. All Directors elected subsequent to October 24, 2012, except any at-large Directors representing the public, must be licensed optometrists in good standing who are Diplomates of the American Board of Optometry. Public at-large Directors must be representatives of consumers of the services provided by the optometric profession and preferably consumers of optometric services. Public at-large Directors may not be optometrists.
Section 3.4 Election and Terms of Office
- Each Director named in the Articles of Incorporation shall hold office until the annual meeting of the Board of Directors held in the year set forth opposite such Director’s name in the Articles of Incorporation and until the term of office of such Director’s successor has commenced, or until such Director’s earlier death, incapacity, disqualification, resignation or removal. At the first annual meeting and at every annual meeting of the Board of Directors thereafter, as the first order of business of the meeting, new Directors shall, subject to the provisions of Section 3.5 of these Bylaws, be elected by the Board of Directors then in office to succeed those Directors whose terms expire with such annual meeting. Each individual elected as a Director shall serve until the third following annual meeting of the Board of Directors and until the term of office of such Director’s successor has commenced, or until such Director’s earlier death, incapacity, disqualification, resignation or removal. Any qualifications for any Director position must be satisfied at the time an individual commences the applicable term for such Director position and throughout such term.
- Any Director may be elected for successive terms. Notwithstanding the foregoing, no Director shall be elected as such Director for more than two consecutive full terms. A full term for a Director shall consist of three years. The election in respect of two consecutive full terms shall not be deemed to include any term of less than three full years; provided, however,
- that in the case of replacements to fill vacancies in the tenure of Directors a period of thirty months or more shall be computed as a full term of three years, and
- that the term of a Director elected at an annual meeting of the Board of Directors for a period expiring with the third following annual meeting of the Board of Directors shall be treated as a full term of three years, notwithstanding any change or changes in the dates of the annual meeting in the years involved.
- After the election of the new members of the Board of Directors, the meeting shall continue as a meeting of the new Board of Directors for the purpose of electing officers and transacting such other business as may be presented to the meeting, and no notice need be given to such newly elected Directors who are present at the meeting or who sign waivers of notice.
Section 3.5 Nominations for Board Positions.
- Nominations for positions on the Board of Directors will be made by certain organizations (each a “Core Group Organization” and, collectively, the “Core 5 Group”). Initially, the Core Group will consist of the following Core Group Organizations:
- Each Core Group Organization will, with respect to the election of Directors at an annual meeting of the Board of Directors or at a special meeting of the Board of Directors called for that purpose (each an “Applicable Meeting”) be entitled to submit to the Board of Directors, by a date (the “Nomination Deadline”) that is not less than sixty (60) days prior to the Applicable Meeting (provided, however, the Nomination Deadline may be extended upon Super-Majority Approval), a slate of not less than three nominees for each Director position that is both (i) allocated to such Core Group Organization, and (ii) to be filled at such Applicable Meeting. Each Core Group Organization will be allocated one Director position, except that AOA will be allocated two Director positions. The Director position allocated to AOSA must be filled by a doctor of optometry initially licensed for less than five years on the date of the first appointment The respective Director positions allocated to Core Group Organizations (each a “Core Group Director Position”) and other at-large positions (each an “At-Large Director Position”) on the Board of Directors will be as follows, with the initial Director filling each such position being set forth opposite such position as follows:
- Core Group Director Positions:
- AAO Director Position Thomas L. Lewis, OD, PhD
- AOA Director Position 1 Paul C. Ajamian, OD
- AOA Director Position 2 David A. Cockrell, OD
- AOSA Director Position Mary E. Miller, OD
- ASCO Director Position David A. Heath, OD, EdM
- At-Large Director Position(s):
- At-Large Director Position 1 Mary Jo Stiegemeier, OD
- The Board of Directors may, upon Super-Majority Approval, designate and fill additional At-Large Director Positions.
- Core Group Director Positions:
- Any submission of nominees by a Core Group Organization for a Core Group Director Position must be in writing, delivered in the same manner as notices are required to be given under these Bylaws, and include reasonably detailed biographical information and curriculum vitae for each nominee. The Board of Directors may develop and require from time to time a form to be completed for each nominee and submitted with the applicable nomination, provided that any such form is given to each Core Group Organization not less than thirty days prior to the Nomination Deadline. A submission of nominees to the Secretary of the Corporation, or to each Director, shall constitute submission of nominees to the Board of Directors.
- At an Applicable Meeting, the Board of Directors shall elect a Director for each open Core Group Director Position from the slate of nominees submitted by the applicable Core Group Organization with respect to such Core Group Director Position. In the event that, with respect to any Core Group Director Position, the applicable Core Group Organization has not submitted a slate of nominees by the Nomination Deadline in accordance with Sections 3.5(b) and 3.5(c) of these Bylaws, then the Board of Directors may consider and elect any individual for such position (and any Director, or any Core Group Organization, may submit nominees for any such position). With respect to an open At-Large Director Position, the Board of Directors may consider and elect any individual for such position (and any Director, or any Core Group Organization, may submit nominees for any such position).
- The Corporation does not have members and, accordingly, a Core Group Organization shall not be deemed a member of the Corporation for purposes of the Act and will not otherwise have any rights or privileges of membership in the Corporation as contemplated in the Act, but rather shall only have those rights and privileges expressly granted to Core Group Organizations in these Bylaws. A Core Group Organization does not have the right to inspect, review, or copy any of the books or records of the Corporation, but shall be entitled to obtain, from any Director elected from a slate of nominees submitted by such Core Group Organization, any books or records, or copies thereof, lawfully obtain by such Director, subject to any confidentiality agreements entered into by such Core Group Organization. In addition, each Core Group Organization will be entitled to a current copy of the Corporation’s Bylaws.
- No Core Group Organization may assign its rights or obligations under these Bylaws without the prior written consent of all other Core Group Organizations.
- A Core Group Organization may resign and cease to be a Core Group Organization upon thirty (30) days prior written notice to all other Core Group Organizations and to the Board of Directors.
Section 3.6 Commencement of Term of Office
The term of office of a person elected a Director shall not commence until the time the person accepts the office of Director either by a written acceptance or by participating in the affairs of the Corporation at a meeting of the Board of Directors or otherwise.
Section 3.7 Vacancies.
The Board of Directors may declare a vacancy to exist when it determines that illness or other incapacity has rendered any Director to be unable to perform and carry out the Director’s duties, of if a Director misses three consecutive meetings without an excuse acceptable to a majority of the other Directors. Vacancies on the Board of Directors resulting from the foregoing, or from the death, resignation, removal, or disqualification of a Director, or by reason of an increase in the number of Directors or the failure of an elected Director to accept the office of Director, may be filled by a majority vote of the remaining members of the Board of Directors (even though the Directors remaining in office constitute fewer than a quorum) at any annual meeting or at a special meeting called for that purpose, provided that if the applicable vacancy is for a Core Group Director Position, then such vacancy shall not be filled unless and until the applicable Core Group Organization has been given, following notice of such vacancy delivered by or on behalf of the Board of Directors to such Core Group Organization, not less than sixty days to submit a slate of three nominees for such position prior to such vacancy being filled (such submission of nominees and filling of such vacancy to be in accordance with Section 3.5 of these Bylaws). A Director elected to fill a vacancy shall meet any qualifications set forth in these Bylaws, and shall serve for the unexpired term of such Director’s predecessor and until the term of office of such Director’s successor has commenced.
Section 3.8 Removal from Director Position or Core Group.
A Director may be removed without cause upon Super-Majority Approval, provided, however, that, to the extent permitted by applicable law, a Director in a Core Group Director Position, or a Core Group Organization itself, may be removed as a Director, or removed from the Core Group and cease to be a Core Group Organization, as applicable, only at such time as the Board of Directors determines in good faith, with Super-Majority Approval, that such Director or Core Group Organization has engaged in any act or omission that is not in the best interests of the Corporation (an “Applicable Act/Omission”), in accordance with and subject to the following:
- The following actions, together with such other actions as the Board of Directors may determine in good faith with Super-Majority Approval, may be deemed to be an Applicable Act/Omission:
- conviction in any court of competent jurisdiction, or guilty plea or plea of nolo contendere, of or to any felony, or of or to any misdemeanor involving moral turpitude
- theft, dishonest acts or breach of fiduciary duty that materially damages the Corporation;
- breach or violation of any policy adopted by the Board of Directors, including, without limitation, any conflicts of interest policy
- any conduct that is materially detrimental to the operations, financial conditions, reputation, business or business relationships of the Corporation.
- The following actions, together with such other actions as the Board of Directors may determine in good faith with Super-Majority Approval, will not be deemed to be an Applicable Act/Omission:
- developing, engaging in, implementing or operating any other established or not yet established certifications, such as any AAO maintenance of Fellowship processes or any AAO maintenance of Diplomate status, or any certifications issued or required by any state boards as part of the issuance of any regulatory license or credential required by a public body or regulatory board
- any certifications issued or required as part of the accreditation process for schools or colleges of optometry or other organizations providing any educational programs, or any course work or other post-graduate educational programs established by any of the Core Group Organizations or any certifications of satisfactory completion with respect to such course work or educational programs.
- A Director or Core Group Organization will not be deemed to have engaged in any Applicable Act/Omission unless such Director or Core Group Organization has been given written notice, with Super-Majority Approval, stating in reasonable detail the Applicable Act/Omission, and, in the case of an Applicable Act/Omission that is susceptible to cure (and which Applicable Act/Omission is not the same as or substantially similar to any Applicable Act/Omission that has previously been the subject of such a notice to such Director or Core Group Organization), an opportunity to cure the Applicable Act/Omission within thirty days following such notice, and, in any event, the opportunity within thirty days following such notice to make an oral and/or written presentation to the Board of Directors responding to any such notice, with legal counsel or other representative participating or present if desired.
- At such time as a Core Group Organization ceases to be a Core Group Organization (whether as a result of a resignation by or removal of such Core Group Organization as provided in these Bylaws), the Core Group Director Position for which such Core Group Organization had been entitled to submit a slate of nominees will be eliminated immediately, without further action of the Board of Directors or any amendment to these Bylaws, and such Core Group Director Position will be replaced by an additional At-Large Director Position to be filled as provided in Section 3.5(d).
Section 3.9 Resignation
Any Director may resign from the Board of Directors by delivering a written notice thereof to the Board of Directors, its presiding officer, or to the Secretary of the Corporation. Such resignation shall be effective when such notice is delivered, unless a later date is specified in the notice.
Section 3.10 Compensation
No Director shall receive compensation from the Corporation for any service such person may render to it as a Director, except that the Board of Directors may, with Super-Majority Approval, offer to pay to Directors a reasonable per diem for attendance at meetings of the Board of Directors (a Director may in such Director’s discretion elect not to receive any such per diem). A Director may be reimbursed for such Director’s actual expenses reasonably incurred in attending meetings and in rendering service to the Corporation in the administration of its affairs, to the extent not already covered or intended to be covered by any per diem payments, as specified by the Board of Directors with Super-Majority Approval.
Section 3.11 Committees
- The Board of Directors, by resolution adopted by a majority of the Directors in office, at a meeting at which a quorum is present, may designate one or more committees, each of which shall consist of two or more Directors. Each such committee shall have such duties and authority as are from time to time delegated to it by the Board of Directors.
- Committees of the Board of Directors and members of such committees are governed by Article IV of these Bylaws with respect to meetings, action without meetings, notice and waiver of notice, and quorum and voting requirements; provided, however, that no committee shall be required to hold an annual meeting and provided, further, that a majority of the number of persons serving on a committee immediately before a meeting begins shall constitute a quorum for the transaction of business at such meeting of such committee.
- All committees so appointed shall, unless otherwise provided by the Board of Directors in the case of committees not having the authority of the Board of Directors, keep regular minutes of the transactions of their meetings and shall cause such minutes to be recorded in books kept for that purpose in the office of the Corporation and shall report the same to the Board of Directors at or prior to its next meeting. The Secretary or an Assistant Secretary of the Corporation may act as Secretary of any such committee if the committee so requests.
- A committee of the Board of Directors may not:
- authorize distributions to Directors, officers, agents or employees except in exchange for value received
- approve dissolution, merger or the sale, pledge or transfer of all or substantially all of the Corporation’s assets
- unless otherwise stated in these Bylaws or the Articles of Incorporation, elect, appoint or remove Directors or fill vacancies on the Board of Directors or on any of its committees
- adopt, amend or repeal the Articles of Incorporation or these Bylaws