Section 1.1. Name. The name of the Corporation is the Biomedical Marketing Association, dba Diagnostics Marketing Association, Inc. (hereinafter, the "Association").
Section 1.2. Fiscal Year. The fiscal year of the Association shall begin on the first day of January and end on the last day of the following December.
Section 2.1. Membership. The Association shall have one class of members. All members shall have the same rights, obligations, privileges, liabilities, limitations, and restrictions. Individuals actively engaged in the research, manufacture, and/or sale of diagnostic and/or biomedical medical products sold to the medical, technical, and allied professions shall be eligible to be members. Individuals who serve the diagnostics and/or biomedical industry or who participate in the general healthcare marketplace shall also be eligible to be members.
Section 2.2. Annual Meeting. The annual meeting of the members shall be held at such place and time as may be specified by the Board of Directors of the Association. At least ninety (90) days' written notice of the annual meeting shall be sent to each member.
Section 2.3. Special Meetings. Special meetings of the members of the Association may be called at any time by the President of the Association, by a majority of the Board of Directors, or by a written petition signed by the members entitled to cast ten percent (10%) of the total number of votes entitled to be cast at such meeting of the members of the Association.
Section 2.4. Notice of Meetings. The Secretary, or the person calling the meeting, shall cause a written notice, stating the place, day, and hour of any meeting of the members and, in the case of a special meeting, the purpose or purposes for which such meeting is called, to be delivered or mailed to each member of record of the Association entitled to vote at such meeting at least thirty (30) days before the date of the meeting. Notice of any meeting may be waived in writing, filed with the Secretary, or by attendance in person.
Section 2.5. Quorum. At all meetings of members, the presence of members entitled to cast one hundred (100) votes or ten percent (10%) of the votes entitled to be cast, whichever is lesser, shall constitute a quorum. Proxies received in writing or by facsimile shall be included in the determination of a quorum.
Section 2.6. Written Consents. Any action required or permitted to be taken at any meeting of the members may be taken without a meeting if the action is taken by all members. The action must be evidenced by one or more written consents describing the action taken, signed by each member, and included in the minutes or filed with the corporate records reflecting the action taken. Action taken under this Section 2.6 is effective when the last member signs the consent, unless the consent specifies a prior or subsequent effective date, in which case the action is effective on or as of the specified date. A consent signed under this Section 2.6 has the effect of a meeting vote and may be described as such in any document.
Section 3.1. Number and Term; Authority. Authority to direct and carry out all powers and business of the Association shall be vested in the Board of Directors. The Board of Directors shall consist of the five (5) Officers of the Association (reference Section 4.1) and at least three (3) additional Board Members. All members of the Board of Directors shall be members of the Association in good standing. The exact number of Board Members of the Association shall be fixed by the Board of Directors and may be changed from time to time by the Board of Directors.
Each Board Member shall be elected for a term of office of two (2) years from January 1 following the date of his or her election. The Board Members shall serve on the Board until their successors are elected and qualified, and until the earlier of their death, resignation, disqualification, or removal by the members of the Association or the Board. The Board Members and each of them shall have no authority to bind the Association except when acting as a Board or a committee of the Board and granted authority to bind the Association. Board Members shall not be entitled to compensation for serving on the Board.
Section 3.2. Removal. Any or all members of the Board of Directors may be removed, with or without cause, only by the affirmative vote of a majority of the members. Any or all members of the Board of Directors, including Officers, may be removed by the affirmative vote of the majority of the Board Members for (a) failure to perform his or her duties; or (b) missing fifty percent (50%) of the meetings of the Board of Directors in a one-(1) year period. The Secretary, or other Board designate, shall in good faith determine absenteeism for purposes of this Section 3.2. Board Members shall be elected by a majority vote of the Board of Directors.
Section 3.3. Election of Board Members. The President of the Association shall annually appoint the Nominating Committee, which shall prepare a slate of nominees for each vacant position on the Board of Directors, which slate shall be presented to the Board of Directors for election. Election of Board Members shall be made with a simple majority vote of the existing Board of Directors. All nominees for Board Members shall be members in good standing. In any year, no two Board Members shall be nominated for election from the same company. For purposes of this Section 3.3, “company” includes any business entity or organization and all affiliates of such business entity or organization.
Section 3.4. Vacancies. Any vacancy on the Board of Directors position from whatever cause arising, including any increase in the size of the Board of Directors, may be filled by appointment of a new Board Member by the President and the subsequent approval of such appointment by a majority vote of the remaining members of the Board of Directors. The term of a Board Member appointed to fill a vacancy shall expire at the end of the term for which such Board Members’ predecessor was elected.
Section 3.5. Quorum. A majority of the Board of Directors shall be necessary to constitute a quorum for the transaction of any business. If a quorum is present when a vote is taken, the affirmative vote of a majority of the Board of Directors present shall be the act of the Board of Directors unless otherwise provided for by New York Not-for- Profit Corporation Law (“N-PCL”), the Bylaws or the Articles of Incorporation.
Section 3.6. Annual and Regular Meetings. The Board of Directors shall meet annually to conduct the business of the Association, at a time and place specified by the Board. In addition to the annual meeting, other regular meetings of the Board of Directors shall be held on such dates, at such times, and at such places as shall be scheduled by the President and adopted by the Board of Directors. The President, or the President-Elect in the President’s absence, shall preside over meetings of the Board of Directors. In the absence of both the President and the President-Elect, the Board Members may elect one Board Member from among them to preside over the meeting. The presiding officer shall have no regular vote, but shall be able to cast a vote on any question in which the vote is tied. The Board of Directors shall be given at least ninety
(90) days’ advance notice of all regular meetings of the Board of Directors. Notwithstanding the Board’s adoption of a schedule of regularly scheduled meetings, the Board of Directors may at any time alter the date for the next regular meeting of the Board. The Board of Directors shall hold at least one regular meeting annually.
Section 3.7. Special Meetings. The President may call a special meeting of the Board of Directors and must call a special meeting of the Board of Directors upon receipt of a written request signed by a majority of the Board of Directors, in either case, upon not less than thirty (30) days’ notice given to each Board Member of the date, time, and place of the meeting, which notice must specify the purpose or purposes of the meeting. Such notice shall be communicated in writing, by facsimile or other similar form of communication, or by first class mail, at the usual business or residence address of the Board Member and shall be effective at the earlier of the time of its receipt or five days after its being mailed. Notice of any meeting of the Board may be waived by any Board Member in writing at any time if the waiver is signed by the Board Member entitled to the notice and filed with the minutes or corporate records. A Board Member’s attendance at or participation in any meeting waives any required notice to the Board Member of the meeting unless the Board Member, at the beginning of the meeting, or promptly upon the Board Member’s arrival, objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting.
Section 3.8. Participation by Conference Telephone. The Board of Directors may permit any or all Board Members to participate in a regular or special meeting by, or through the use of, any means of communication, such as conference telephone, by which all Board Members participating may simultaneously hear each other during the meeting. A Board Member participating in a meeting by such means shall be deemed to be present in person at the meeting.
Section 3.9. Written Consents. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if the action is taken by all members of the Board. The action must be evidenced by one or more written consents describing the action taken, signed by each Board Member and included in the minutes or filed with the corporate records reflecting the action taken. Action taken under this Section 3.9 is effective when the last Board Member signs the consent, unless the consent specifies a different prior or subsequent effective date, in which case the action is effective on or as of the specified date. A consent signed under this Section 3.9 has the effect of a meeting vote and may be described as such in any document.
Section 3.10. Committees of the Board of Directors -- General.
(a) In addition to the Executive Committee, the Finance Committee and the Nominating Committee, the President may designate one (1) or more committees or “Task Forces,” consisting of three (3) or more members to assist the Board of Directors in carrying out its duties. All chairpersons of such committees or Task Forces must be members of the Association in good standing. Notwithstanding the above, to exercise the authority of the Board of Directors as permitted by the N-PCL, a committee must consist of at least three
(3) Board Members, and the Board of Directors must approve its creation and the appointment of its members. If at least three (3) directors are not on a committee or a committee has not been properly authorized by the Board of Directors, such a committee does not have the authority to take any actions exclusively reserved to the Board under the N-PCL.
(b) Among other duties specified by the Board, all committee chairpersons will be responsible to the Board of Directors to:
(1) Provide a committee budget and plan for Board approval;
(2) Report in person the status of the committee’s activities at the regular meetings of the Board of Directors;
(3) Cooperate within the time frames and guidelines set forth in the Procedures Manual for the respective committee, or if not available, within the approved plan;
(4) Create, update, or modify a Procedures Manual for a successor; and
(5) Identify and train a successor.
(c) Except to the extent inconsistent with the resolutions creating a committee, Sections 3.5 through 3.9 of this Article III, which govern meetings, actions without meetings, notices and waivers of notices, quorum and voting requirements, and telephone participation in meetings of the Board of Directors, shall apply to all committees and their members.
Section 3.11. Executive Committee. There shall be an Executive Committee of the Board of Directors consisting of the Officers of the Association. The Executive Committee shall have the power to act for the Board of Directors in the interim between meetings of the Board in the management of the Association’s affairs. The Board of Directors may restrict the powers of the Executive Committee as it deems appropriate and may provide for the manner in which the Executive Committee exercises such powers. The Executive Committee shall promptly report to the Board of Directors all actions taken.
Section 3.12. Finance Committee. There shall be a Finance Committee consisting of the Treasurer and at least two (2) additional Board Members appointed by the President. The Finance Committee shall prepare an annual balanced budget for submission to the Board of Directors prior to December of each year.
Section 3.13. Nominating Committee. There shall be a Nominating Committee which shall consist of the Immediate Past-President and at least two (2) members in good standing to be appointed by the President. The Immediate Past-President shall serve as Chairperson. The Nominating Committee shall, prior to each election of the Board of Directors, submit to the members nominees for the Board Members to be elected by the members. The Nominating Committee shall, prior to the election of any officer or the filling of any vacancy on the Board of Directors, submit to the Board of Directors nominees for each position to be elected by the Board of Directors.
Officers, Executive Director and Advisors
Section 4.1. Designation and Terms. The Officers of the Association shall consist of the President, President-Elect, Treasurer, Secretary and Immediate Past- President. All Officers shall serve for two (2) years and shall be coterminous. The President may appoint as many Vice Presidents as deemed necessary and as approved by the Board of Directors. The President shall have served as a Chair of at least one program committee. By virtue of his/her office, the President shall serve as a member on all committees and task forces. The President shall annually appoint a nominating committee to prepare a slate of at least one nominee for each vacant officer, which slate shall be presented to the Board for its approval.
A candidate for President-Elect must have previously served on the Board of Directors for at least two (2) years.
A candidate for Secretary or Treasurer must have previously served on the Board of Directors for at least one (1) year.
Section 4.2. Election of Officers. Officers shall be nominated by the Nominating Committee and presented to the Board of Directors for election. Election of officers will take place every two years. Election will be made by ballot and those nominees with the majority of the vote for each position shall be elected. The Board of Directors may elect additional officers as it may from time to time determine by resolution creating the office and defining the duties thereof. The election or appointment of an Officer does not itself create contract rights.
Section 4.3. Removal and Vacancies. The Board of Directors may remove any Officer from office at any time with or without cause. Vacancies in such offices, however occurring, may be filled by appointment by the President or, if the vacancy is in the office of President, by the President-Elect, with the subsequent approval of such appointment by the Board of Directors at any meeting of the Board.
Section 4.4. President. The President shall serve as the principal spokesperson of the Association and shall coordinate all corporate activities, have general supervision, direction and control of the business and affairs of the Association subject to the direction of the Board of Directors, preside at all meetings, and have such other duties and powers as may be prescribed from time to time by the Board of Directors. The President of the Association shall sign and execute all routine papers or other instruments of the Association and such other documents as directed by the Board of Directors. Upon expiration of the President’s term, the President shall automatically succeed to office of Immediate Past-President. The President may be bonded by an indemnity bonding company for such an amount as the Board of Directors may direct. The President may designate any person to act and carry out any of the duties or exercise any of the powers ascribed to the President in these Bylaws to the extent permitted by the N-PCL, which person shall serve at the pleasure of the Board of Directors.
Section 4.5. President-Elect. The President-Elect shall, in the absence of the President, serve as President of the Association. Upon the expiration of the President’s term, the President-Elect shall automatically succeed to office of President. For his or her years as President, the President-Elect shall be responsible for establishing objectives for the Association and shall coordinate and recruit Board Members, chairpersons and committee members.
Section 4.6. Immediate Past-President. The Immediate Past-President shall serve as a member of the Board of Directors, shall serve as the chairperson of the Nominating Committee, and shall have such other duties and powers as may be prescribed from time to time by the Board of Directors.
Section 4.7. Treasurer. The Treasurer and/or his or her designee shall be responsible for overseeing all financial matters of the Association including collection of dues, payment of bills covering the Association’s activities, and accounting for of all receipts and disbursements. As required by the Board of Directors, the Treasurer and/or his or her designee shall make a report of all property, receipts and disbursements of the Association, and such report shall be filed with the Association records in the minutes of the Board Meetings.
Section 4.8. Secretary. The Secretary and/or his or her designee shall be responsible for keeping minutes of all meetings of the Board of Directors, keeping a record of all announcements to members, maintaining membership rosters and Bylaws and reporting to members on the subjects discussed at each meeting. The Secretary and/or his or her designee shall be responsible for the minute book, corporate documents, and other books and papers of the Association.
Section 4.9. Executive Director. The Board of Directors shall select an Executive Director of the Association, who shall have general charge of, and supervision and authority over, the day-to-day business and management operations of the Association. The Executive Director shall be responsible for ensuring that the Association’s corporate records are maintained, including minutes of the Board of Directors and any committees, audits and tax return and shall assist the Finance Committee with the annual plan and budget. The Executive Director shall serve at the pleasure of the Board of Directors for such compensation and on such terms as the Board of Directors and Executive Director shall determine and set forth in a written contract executed between the Association and the Executive Director. The Executive Director shall have no voting privileges.
Section 4.10. Advisors. The President-Elect may select members in good standing to serve as Advisors. Preferentially, such members shall have a history of special service to the Association. The President-Elect shall ask any retiring Past- President to serve as an Advisor of the Association. Advisors shall not be members of the Board of Directors and shall have no voting privileges.
Indemnification of Directors and Other Eligible Persons
Section 5.1. General. To the extent not inconsistent with applicable law, every Eligible Person shall be indemnified by the Association against all Liability and reasonable Expense that may be incurred by him or her in connection with or resulting from any Claim:
(a) if such Eligible Person is Wholly Successful with respect to the Claim, or
(b) if not Wholly Successful, then if such Eligible Person is determined, as provided in either Section 5.3(a) or 5.3(b) of this Article V, to have:
(1) conducted himself or herself in good faith; and
(2) reasonably believed:
(i) in the case of conduct in his or her official capacity with the Association that his or her conduct was in its best interest; and
(ii) in all other cases, that his or her conduct was at least not opposed to the best interest of the Association; and
(3) in the case of any criminal proceeding, either:
(i) had reasonable cause to believe his or her conduct was lawful; or
(ii) had no reasonable cause to believe his or her conduct was unlawful.
The termination of any Claim, by judgment, order, settlement (whether with or without court approval), or conviction or upon a plea of guilty or of nolo contendere, or its equivalent, shall not create a presumption that an Eligible Person did not meet the standards of conduct set forth in clause (b) of this Section 5.1. The actions of an Eligible Person with respect to an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 shall be deemed to have been taken in what the Eligible Person reasonably believed to be the best interest of the Association or at least not opposed to its best interest if the Eligible Person reasonably believed he or she was acting in conformity with the requirements of such act or he or she reasonably believed his or her actions to be in the interest of the participants in or beneficiaries of the plan.
Section 5.2. Definitions.
(a) The term "Claim" as used in this Article V shall include every pending, threatened, or completed claim, action, suit, or proceeding and all appeals thereof (whether brought by or in the right of this Association or any other corporation or otherwise), whether civil, criminal, administrative, or investigative, formal or informal, in which an Eligible Person may become involved, as a party or otherwise: (i) by reason of his or her being or having been an Eligible Person, or (ii) by reason of any action taken or not taken by him or her in his or her capacity as an Eligible Person, whether or not he or she continued in such capacity at the time a Liability or Expense shall have been incurred in connection with a Claim.
(b) The term "Eligible Person" as used in this Article V shall mean every person (and the estate, heirs, and personal representatives of such person) who is or was a Board Member or officer, of the Association or is or was serving at the request of the Association as a Board Member, officer, employee, agent, or fiduciary of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other organization or entity, whether for profit or not. An Eligible Person shall also be considered to have been serving an employee benefit plan at the request of the Association if his or her duties to the Association also imposed duties on, or otherwise involved services by, him or her to the plan or to participants in or beneficiaries of the plan.
(c) The terms "Liability" and "Expense" as used in this Article V shall include, but shall not be limited to, attorney's fees and disbursements and amounts of judgments, fines, or penalties against (including excise taxes assessed with respect to an employee benefit plan), and amounts paid in settlement by or on behalf of, an Eligible Person.
(d) The term "Wholly Successful" as used in this Article V shall mean
(i) ) termination of any Claim against the Eligible Person in question without any finding of liability or guilt against him or her, (ii) approval by a court, with knowledge of the indemnity herein provided, of a settlement of any Claim, or (iii) the expiration of a reasonable period of time after making or threatened making of any Claim without the institution of the same, without any payment or promise made to induce a settlement.
Section 5.3. Procedure.
(a) Every Eligible Person claiming indemnification hereunder (other than one who has been Wholly Successful with respect to any Claim) shall be entitled to indemnification if it is determined, as provided in this Section 5.3(a), that such Eligible Person has met the standards of conduct set forth in clause (b) of Section 5.1 of this Article V. The determination whether an Eligible Person has met the required standards of conduct shall be made (i) by the Board of Directors by majority vote of a quorum consisting of Board Members not at the time parties to the Claim, and if such a quorum cannot be obtained, then (ii) by majority vote of a committee duly designated by the Board of Directors (in which designation, Board Members who are parties to the Claim may participate) consisting solely of two (2) or more Board Members not at the time parties to the Claim, and if such a committee cannot be constituted, then (iii) by special legal counsel selected by a majority vote of the full Board of Directors (in which selection, a Board Member who is a party to the Claim may participate). If an Eligible Person is found to be entitled to indemnification pursuant to the preceding sentence, the reasonableness of the Eligible Person's Expenses shall be determined by the procedure set forth in the preceding sentence, except that if such determination is by special legal counsel, the reasonableness of Expenses shall be determined by a majority vote of the full Board of Directors (in which determination, a Board Member who is a party to the Claim may participate).
(b) If an Eligible Person claiming indemnification pursuant to Section 5.3(a) of this Article V is found not to be entitled thereto, the Eligible Person may apply for indemnification with respect to a Claim to a court of competent jurisdiction, including a court in which the Claim is pending against the Eligible Person. On receipt of an application, the court, after giving notice to the Association and giving the Association ample opportunity to present to the court any information or evidence relating to the claim for indemnification that the Association deems appropriate, may order indemnification if it determines that the Eligible Person is entitled to indemnification with respect to the Claim because such Eligible Person met the standards of conduct set forth in clause (b) of Section 5.1 of this Article V. If the court determines that the Eligible Person is entitled to indemnification, the court shall also determine the reasonableness of the Eligible Person's Expenses.
Section 5.4. Nonexclusive Rights. The right of indemnification provided in this Article V shall be in addition to any rights to which any Eligible Person may otherwise be entitled. Irrespective of the provisions of this Article V, the Board of Directors may, at any time and from time to time, (a) approve indemnification of any Eligible Person to the full extent permitted by the provisions of applicable law at the time in effect, whether on account of past or future transactions, and (b) authorize the Association to purchase and maintain insurance on behalf of any Eligible Person 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 Association would have the power to indemnify him or her against such Liability.
Section 5.5. Expenses. Expenses incurred by an Eligible Person with respect to any Claim shall be advanced by the Association (by action of the Board of Directors, whether or not a disinterested quorum exists) prior to the final disposition thereof if:
(a) the Eligible Person furnishes the Association a written affirmation of his or her good faith belief that he or she has met the standards of conduct specified in Section 5.1(b) of this Article V;
(b) the Eligible Person furnishes the Association a written undertaking, executed personally or on the Eligible Person's behalf, to repay the advance if it is ultimately determined that the Eligible Person did not meet the standards of conduct specified in Section 5.1(b) of this Article V; and
(c) the Board of Directors makes a determination that the facts then known would not preclude indemnification of the Eligible Person.
Section 5.6. Contract. The provisions of this Article V shall be deemed to be a contract between the Association and each Eligible Person, and an Eligible Person's rights hereunder with respect to a Claim shall not be diminished or otherwise adversely affected by any repeal, amendment, or modification of this Article V that occurs subsequent to the date of any action taken or not taken by reason of which such Eligible Person becomes involved in a Claim.
Section 5.7. Effective Date. The provisions of this Article V shall be applicable to Claims made or commenced after the adoption hereof, whether arising from acts or omissions to act occurring before or after the adoption hereof.
Section 6.1. Checks. All checks, drafts, or other orders for payment of money shall be signed in the name of the Association by such Officers or persons as the Board of Directors shall designate from time to time by resolution adopted thereby and included in the minute book of the Association.
Section 6.2. Loans. Such of the Officers of the Association as shall be designated from time to time by any resolution adopted by the Board of Directors and included in the minute book of the Association shall have the power, with such limitations as may be fixed by the Board of Directors, to borrow money on the Association's behalf, to establish credit, to pledge collateral, and to execute evidences of indebtedness and other instruments in connection therewith, as the Board may authorize from time to time. The Association may not lend money to or guarantee the obligations of any Board Member or officer of the Association.
Section 6.3. Budget. The Board of Directors shall approve a balanced budget in December of each year for the following year. Budgets shall be available for inspection by any member of the Association on request.
Section 6.4. Delinquent Payment of Dues or Fees. If any member is ninety (90) days in default of payment of any dues or fees, the Treasurer or his or her designee shall be responsible for causing the member to be sent two (2) reminders. If such member fails to pay within thirty (30) days after the last reminder is mailed, the member shall be dropped from membership.
Section 6.5. Reserve. The Finance Committee, with the approval of the Board of Directors, shall develop a plan to accrue and maintain a financial reserve, separately identified in the annual budget of the Association, in an amount not less than fifteen percent (15%) of the annual budgeted income. The expenditure of funds designated as reserve funds shall require an affirmative vote of a majority of the Board of Directors at a meeting at which a quorum is present.
Execution of Documents
The President or any Officer designated by the President may, in the Association's name, sign all deeds, leases, contracts or other similar documents that may be authorized by the Board of Directors unless execution is otherwise provided for, required, or directed by the Board of Directors, the Association's Articles of Incorporation, N-PCL, or other law.
The Bylaws may be rescinded, changed, or amended, and provisions hereof may be waived by a majority vote of the entire Board of Directors.
Amended and approved September 11, 2013.