AMENDED AND RESTATED BYLAWS
OF THE
SOCIETY OF DIAGNOSTIC MEDICAL SONOGRAPHY FOUNDATION
ARTICLE 1
OFFICES
The principal office of the Corporation (defined in Section 8.3 below) shall be located at its principal place of business or such other place as the Board of Directors (the “Board”) may designate. The Corporation may have other offices, either within or outside the State of Washington, as the Board may designate or as the business of the Corporation may require.
ARTICLE 2
MEMBERSHIP
2.1 Membership. The sole voting member of the Corporation shall be the Society of Diagnostic Medical Sonography (the “Member”), a Washington nonprofit corporation organized pursuant to the Washington Non-Profit Corporation Act (Chapter 24.03 of the Revised Code of Washington, as amended, (the “Act”).
2.2 Voting Rights. The Member (defined in Section 8.12 below) shall have the right to vote solely on the matters described in this Section 2.2 and on such other matters as the Board may determine. The Member shall have the exclusive right to vote on the following:
(a) Establishment of any additional categories of membership or appointment or removal of additional Members;
(b) Appointment and removal of Directors (defined in Section 8.5 below), including Officers (defined in Section 8.14 below);
(c) Amendment or restatement of the Articles of Incorporation;
(d) Amendment, alteration, or repeal of these Bylaws (defined in Section 8.2 below);
(d) Adoption of a plan of merger or consolidation with another corporation;
(e) Authorization of the sale, lease, or exchange of all or substantially all of the property and assets of the Corporation if not in the ordinary course of business;
(f) Authorization of the voluntary dissolution of the Corporation or revocation of such proceedings;
(g) Adoption of a plan for the distribution of the assets of the Corporation;
(h) Approval of the Corporation’s annual budget and operating plan and any material adjustments; and
(i) Hiring or appointing of a Chief Executive Officer.
ARTICLE 3
BOARD OF DIRECTORS AND OFFICERS
3.1 General Powers. Subject to the limitations of the Articles of Incorporation and these Bylaws, as amended, and subject to the duties of the Directors as prescribed by these Bylaws, the business and affairs of the Corporation shall be managed by the Board. The Board may exercise all powers of the Corporation which are not specifically reserved to the Members pursuant to these Bylaws, including but not limited to, the power to amend the Articles of Incorporation and these Bylaws, subject to Sections 2.2 and 7.5.
3.2 Number of Directors. The Board shall consist of not less than seven (7) nor more than eleven (11) Directors, including the Directors who also serve as Officers, but excluding non-voting, ex-officio Directors. The number of Directors is to be set by resolution or policy of the Board and may be changed from time to time, provided that no decrease in the number shall have the effect of shortening the term of any incumbent Director.
3.3 Qualifications. The Board may adopt qualifications for Directors and Officers through written resolutions or policies. At a minimum:
(a) Directors shall be Members of the Corporation and must have been a Member for a minimum of two (2) consecutive years immediately prior to nomination or appointment.
(b) Officers shall also serve as Directors and, except for the Chief Executive Officer (CEO), must have been a Member for a minimum of five (5) consecutive years immediately prior to nomination or appointment. The President-Elect must have served at least one two (2) year term as a Director or Officer prior to nomination or appointment.
3.4 Duties of Directors and Officers. Each Director or Officer shall perform the duties of a Director or Officer, including the duties as a member of any Board Committee upon which the Director or Officer may serve:
(a) In good faith;
(b) In a manner that such Director or Officer believes to be in the best interests of the Corporation; and
(c) With such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.
3.5 Officers. The Officers shall include:
(a) President: The President, subject to the direction and control of the Board, shall have general supervision of the business and affairs of the Corporation. The President shall preside at meetings of the Board, unless unavailable. The President may sign deeds, mortgages, bonds, contracts, checks, or other instruments, except as may be limited or delegated by resolution or policy of the Board or by these Bylaws to some other Officer or Agent (defined in Section 8.1 below) of the Corporation, or are required by law to be otherwise signed or executed by some other Officer or Agent of the Corporation. In general, the President shall perform all duties incident to the office of the President and such other duties as may be assigned by the Board;
(b) President-Elect: The President-Elect shall perform such duties as may be assigned by the President or the Board. In the absence of the President, the President-Elect may preside at meetings of the Board. The President-Elect shall assist the President in carrying out the programs of the Corporation. In the event of the President’s death or inability to act, the President-Elect shall perform the duties of the President, except as may be limited by resolution or policy of the Board, with all the powers of and subject to all the restrictions upon the President. The President-Elect shall have, to the extent authorized by the President or the Board, the same powers as the President to sign deeds, mortgages, bonds, contracts, checks, or other instruments. The President-Elect shall perform such other duties as may be assigned by the President or the Board;
(c) Immediate Past President: The Immediate Past President shall perform such duties as may be assigned by the President or the Board. In the absence of the President and the President-Elect, the Immediate Past President may preside at meetings of the Board;
(d) Secretary: The Secretary shall be responsible for ensuring that minutes of meetings of the Board and Board Committees are recorded and maintained; see that all notices are duly given in accordance with the provisions of these Bylaws, Board resolutions or policies, or as required by law; be custodian of the corporate records of the Corporation or appoint such person or entity as is appropriate to act as such custodian; ensure that records are kept of the name and address of each Director and each Officer; and in general perform all duties incident to the office of the Secretary and such other duties as may be assigned by the President or the Board;
(e) Treasurer: The Treasurer shall have charge of and be responsible for all funds and securities of the Corporation; ensure that monies due and payable to the Corporation from any source are properly received and that receipts are given for such monies; ensure that all such monies are deposited in the name of the Corporation in banks, investment accounts, or other depositories selected in accordance with the provisions of these Bylaws or the resolutions or policies of the Board; sign with the President, or other Officer authorized by the President or the Board, deeds, mortgages, bonds, contracts, checks, or other instruments; and in general, perform all of the duties incident to the office of the Treasurer and such other duties as may be assigned by the President or the Board; and
(f) Chief Executive Officer (“CEO”): The Board may delegate operational and management authority of the Corporation to a CEO through a written job description and employment contract. The delegated authority of the CEO shall include, but not be limited to, the authority to sign deeds, mortgages, bonds, contracts, checks, or other instruments and ensure that all such monies are deposited in the name of the Corporation in banks, investment accounts, or other depositories selected in accordance with the provisions of these Bylaws or the Board’s resolutions or policies. The CEO shall serve as an ex-officio, non-voting Director and Officer of the Corporation.
3.6 Qualifications and Appointment of Directors and Officers. The current directors and officers of the Member shall be the Directors and the Officers, in corresponding positions, of the Corporation upon the written consent of the Member and such directors and officers to such appointment. Notwithstanding the foregoing, if a Director or Officer position is vacant, the Member may appoint such Director or Officer position for terms consistent with the terms provided under the Member’s Bylaws, provided such Director or Officer is a member of the Member’s Board of Directors.
3.8 Vote by Proxy. Director or Officer vote by proxy shall not be permitted.
3.9 Vacancies. Except for the position of the Immediate Past President, the Board may fill a vacancy in any Director or Officer position for the remainder of the term in which such position was vacated, by the affirmative vote of a majority of the Board in office.
3.10 Term of Office. Unless a Director or Officer dies, resigns, is removed, is disqualified, or has been appointed to complete another Director’s or Officer’s term, each Director or Officer shall serve a term that is the same as the terms of the Member’s directors and officers.
3.11 Resignation. With the exception of the CEO, any Director or Officer may resign at any time by delivering written Notice (defined in Section 8.13 below) to the President or CEO at the principal office of the Corporation, or by giving such Notice at any Board meeting. The resignation of a Director or Officer shall take effect at the time specified in the Notice, or if the time is not specified, upon delivery of the Notice and, unless otherwise specified, acceptance of the resignation shall not be necessary to make it effective; provided, however, that if the resignation would result in the Corporation having no Director, the resigning Director shall continue to serve as a Director until a successor Director is appointed and qualified as provided in these Bylaws. If applicable, any Director who has resigned, shall be deemed to have automatically have resigned his or her Officer position. Any Director or Officer who resigns from his or her position with the Member shall be deemed to have automatically resigned from his or her position with the Corporation. The CEO may resign in accordance with any written employment contractual obligations and by delivering written Notice to the President or the Secretary.
3.12 Removal. The Member may remove any Director or Officer. Furthermore, if a Director or Officer is not a director or officer of the Member, such Director or Officer shall automatically be removed.
3.13 Compensation. Directors, including the Directors who also serve as Officers, shall not receive compensation for their Board services, although the reasonable expenses of Directors for attendance at Board meetings or otherwise directly incident to their duties as Directors may be paid or reimbursed by the Corporation. Directors shall not be disqualified from receiving reasonable compensation for services rendered to or for the benefit of the Corporation in any other capacity upon completion of the procedures provided in the Corporation’s Conflict of Interest Policy. The CEO shall be compensated according to a written employment contract approved by the Board.
ARTICLE 4
MEETINGS
4.1 Regular Meetings. The Board shall meet at least once annually. The Board shall determine the date, time, and place for annual meetings.
4.2 Special Meetings. Special meetings of the Board may be called by the President or any three (3) Directors or twenty-five percent (25%) of the Directors in office.
4.3 Place of Meetings. All meetings of the Board shall be held at the principal office of the Corporation or other place within or outside the State of Washington designated by the Board or any persons entitled to call a meeting.
4.4 Notice of Meetings. Unless waived by all Directors, Notice of any meeting required by these Bylaws, the Articles of Incorporation, or by applicable Washington law, shall be delivered at least seven (7) days prior to the meeting. Notice may be transmitted by: postal mail, private carrier, personal delivery, telephone, facsimile, or an electronic means.
4.5 Waiver of Notice. Whenever a Notice is required to be given to any Director under the provisions of these Bylaws, the Articles of Incorporation, or applicable Washington law, a waiver in Writing (defined in Section 8.20 below), signed by the persons or persons entitled to such Notice, whether before or after the time stated in such Notice, shall be deemed equivalent to the giving of Notice. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board need be specified in the waiver of Notice. The attendance of a Director at a meeting shall constitute a waiver of Notice of such meeting, except where a Director attends a meeting for the express purpose of objecting to the transaction of business because the meeting is not lawfully called or convened.
4.6 Participation in Meetings by Telephone, Computer, or Other Electronic Means. Directors may participate in a meeting by means of a conference telephone, computer, or other electronic means by which all persons participating in the meeting can hear each other at the same time. Participation by such means shall constitute presence in person at a meeting.
4.7 Quorum. Unless a greater portion is required by these Bylaws, the Articles of Incorporation, or applicable Washington law, fifty-one percent (51%) of the Directors in office shall constitute a quorum for the transaction of business or any particular item of business at any Board meeting. If a quorum is not present at a meeting, a majority of Directors present may adjourn the meeting without further Notice.
4.8 Manner of Acting. Each Director shall be entitled to one (1) vote with respect to any action. Ex-officio Directors shall not be entitled to vote.
4.9 Actions by Unanimous Consent in Lieu of Meeting. Any corporate action required or permitted by these Bylaws, the Articles of Incorporation, or applicable Washington law, to be taken at a meeting of the Board, may be taken without a meeting if written consent is provided by all of the Directors entitled to vote with respect to the subject matter. The Board shall adopt resolutions or policies regarding use of electronic voting in lieu of a meeting, which shall include procedures that allow a Director to object to the use of voting by electronic means on a specific issue. In such case, a regular or special meeting of the Board shall be held to consider the specific issue for which the Director objected.
4.10 Notice via Electronic Transmission. If Notice is provided in an Electronic Transmission (defined in Section 8.6 below), it must satisfy the following requirements:
(a) Notice to the Member and Directors in an Electronic Transmission that otherwise complies with these Bylaws is effective only with respect to the Member and Directors who have consented, in the form of a record, to receive Notices by Electronic Transmission:
(i) Notice to the Member and Directors includes material that these Bylaws require or permit to accompany the Notice;
(ii) The Member or Director who provides consent, in the form of a record, to receipt of Notices by Electronic Transmission shall designate in the consent the message format accessible to the recipient, and the address, location, or system to which these Notices may be sent by Electronic Transmission;
(iii) The Member or Director who has consented to receipt of Notices by Electronic Transmission may revoke the consent by delivering a revocation to the Corporation in the form of a record; and
(iv) The consent of the Member or any Director is revoked if the Corporation is unable to deliver (defined in Section 8.4 below) two (2) consecutive Notices by Electronic Transmission in accordance with the consent, and this inability becomes known to the Secretary of the Corporation or other person responsible for giving the Notice. The inadvertent failure by the Corporation to treat this inability as a revocation does not invalidate any meeting or other action.
(b) Notice to the Member or Directors who have consented to receipt of Notices by Electronic Transmission may be provided by posting the Notice on an electronic network and delivering to the Member or any Director a separate record of the posting, together with instructions regarding how to obtain access to this posting on the electronic network.
(c) Notice provided in an Electronic Transmission is effective when it:
(i) Is given by Electronic Transmission to an address, location, or system designated by the recipient for that purpose, and is made pursuant to the consent provided by the recipient; or
(ii) Has been posted on an electronic network and a separate record of the posting has been delivered to the recipient together with instructions regarding how to obtain access to the posting on the electronic network.
4.11 Presumption of Assent. A Director present at a Board meeting at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless the Director’s dissent or abstention from such action is:
(a) Entered in the minutes of the meeting;
(b) Delivered to the person acting as the Secretary of the meeting before the adjournment; or
(c) Delivered to the Secretary of the Corporation immediately after the adjournment of the meeting.
Such right to dissent or abstain shall not apply to a Director who voted in favor of an action.
ARTICLE 5
BOARD COMMITTEES, ADVISORY COMMITTEES, AND TASK FORCES
5.1 Board Committees. The Board may designate one or more Board Committees, each of which shall:
(a) Consist of two (2) or more Directors, one of which shall serve as the Chairperson, and may include a SDMS member (defined in Section 8.18 below) who are appointed by the Board to serve on the Board Committee;
(b) Except as directed by the Board, be governed by the same rules regarding meetings, action without meetings, Notice, waiver of Notice, and quorum and voting requirements as apply to the Board; and
(c) Exercise the authority delegated by the Board; provided, however, that the Board shall not delegate its authority to:
(i) Amend or restate the Articles of Incorporation;
(ii) Amend, alter, or repeal these Bylaws;
(iii) Amend, alter, or repeal any resolution or policy of the Board;
(iv) Elect, appoint, or remove any member of a Board Committee or any Director or Officer of the Corporation;
(v) Adopt a plan of merger or consolidation with another corporation;
(vi) Authorize the sale, lease, or exchange of all or substantially all of the property and assets of the Corporation, not in the ordinary course of business;
(vii) Authorize or revoke proceedings related to the voluntary dissolution of the Corporation; or
(viii) Adopt a plan for the distribution of the assets of the Corporation.
5.2. Designation, Appointment or Election, and Delegation to a Board Committee. The designation, appointment, and delegation of authority to a Board Committee shall not operate to relieve the Board, or any individual Director, of any responsibility imposed by law. The Board shall have the power at any time to remove an elected or appointed member of a Board Committee with or without cause, to fill vacancies, and to discharge any Board Committee. Such action requires a two-thirds vote of the Directors holding office.
5.3 Resignation of a Board Committee Member. A member of a Board Committee may resign at any time by delivering written Notice to the President or CEO. Any such resignation shall take effect at the time specified in the written Notice, or if the time is not specified, upon delivery of the written Notice and, unless otherwise specified, the acceptance of such resignation shall not be necessary to make it effective.
5.4 Advisory Committees and Task Forces. The President may designate and appoint one or more Advisory Committees or Task Forces. The President may prescribe the appointment, qualifications, and term of an Advisory Committee or Task Force member. The Board may, in carrying out its duties and exercising the powers vested in it by these Bylaws, the Articles of Incorporation, or Washington law, consult any Advisory Committee or Task Force at any time; provided that, an Advisory Committee or Task Force shall not:
(a) Possess the rights, powers, or duties conferred on Directors of the Corporation under the provisions of these Bylaws, the Articles of Incorporation, or Washington law; nor
(b) Be vested with authority to direct the actions of the Board or any Board Committee regarding the business and affairs of the Corporation.
ARTICLE 6
INDEMNIFICATION
6.1 Indemnification Rights of Directors, Officers, Employees, and Agents.
(a) The indemnification rights and the right to advancement of Expenses (defined in Section 8.9 below) of the Corporation’s Directors, Officers, Employees (defined in Section 8.8 below), and Agents shall be as set forth in these Bylaws, the Articles of Incorporation, written resolutions or policies of the Board, or by contract.
(b) The procedures of Section 6.2 shall apply to such indemnification rights and advancement of Expenses unless the Board approves further indemnification and expense advancement arrangements as may be permitted by law.
(c) Except as provided in Section 6.7, the Corporation shall:
(i) Indemnify its Directors, Officers, Employees, and Agents in the manner and to the full extent permitted by law, subject to RCW 24.03.043 and the applicable sections of the Washington Business Corporations Act, including, RCW 23B.17.030, RCW 23B.08.510 through RCW 23B.08.550, against Liability (defined in Section 8.11 below) arising out of a Proceeding (defined in Section 8.16 below) to which such individual was made a Party (defined in Section 8.15 below) because the individual is or was a Director, Officer, Employee, or Agent of the Corporation.
(ii) Advance Expenses incurred by such Director, Officer, Employee, or Agent who is a Party to a Proceeding in advance of final disposition of the Proceeding, as provided in this Article 6.
6.2 Procedure for Seeking Indemnification or Advancement of Expenses.
6.2.1 Notification and Defense of Claim. Indemnitee shall promptly notify the Corporation in Writing, of any Proceeding for which indemnification could be sought under this Article 6 or the Articles of Incorporation. In addition, Indemnitee shall give the Corporation such information and cooperation as it may reasonably require and within Indemnitee’s power. With respect to any such Proceeding:
(a) The Corporation shall be entitled to participate in the Proceeding at its own expense; or
(b) Except as otherwise provided below, to the extent that it may wish, the Corporation, jointly with any other indemnifying Party similarly notified, will be entitled to assume the defense thereof, with counsel satisfactory to Indemnitee. Indemnitee’s consent to such counsel shall not be unreasonably withheld.
After Notice from the Corporation to Indemnitee of its election to assume the defense, the Corporation will not be liable to Indemnitee under this Article 6 for any Expenses subsequently incurred by Indemnitee in connection with such defense. Indemnitee shall, however, continue to have the right to employ counsel in such Proceeding, at Indemnitee’s expense; and if:
(a) The employment of counsel by Indemnitee has been authorized by the Corporation;
(b) The Indemnitee reasonably concluded that there may be a conflict of interest between the Corporation and Indemnitee in the conduct of such defense; or
(c) The Corporation has not, in fact, employed counsel to assume the defense of such Proceeding;
then the fees and Expenses of Indemnitee’s counsel shall be at the expense of the Corporation.
The Corporation shall not be entitled to assume the defense of any Proceeding brought by, or on behalf of, the Corporation or which Indemnitee reasonably made the conclusion that a conflict of interest may exist between the Corporation and the Indemnitee in the conduct of the defense.
6.2.2 Information to be Submitted and Method of Determination and Authorization of Indemnification. For the purpose of pursuing rights to indemnification under this Article 6 or the Articles of Incorporation, Indemnitee shall submit to the Board a sworn statement requesting indemnification and reasonable evidence of all amounts for which indemnification is requested (together, the sworn statement and the evidence constitute an “Indemnification Statement”).
(a) Submission of an Indemnification Statement to the Board shall create a presumption that the Indemnitee is entitled to indemnification, and the Corporation shall, within sixty (60) calendar days of receipt of the Indemnification Statement, make the payments requested in the Indemnification Statement to, or for the benefit of, the Indemnitee, unless:
(i) The Corporation determines that the Indemnitee is not entitled to indemnification under this Article 6 or the Articles of Incorporation;
(ii) Such determination shall be based upon clear and convincing evidence (sufficient to rebut the foregoing presumption); and
(iii) The Indemnitee shall receive Notice of such determination, which shall disclose with particularity the evidence upon which the determination is based.
(b) The determination shall be made:
(i) By the Board by majority vote of a quorum consisting of Directors not at the time parties to the Proceeding;
(ii) If a quorum cannot be obtained under (i) in this paragraph, by majority vote of a Committee duly designated by the Board, consisting solely of two (2) or more Directors not at the time Parties to the Proceeding; or
(iii) By special legal counsel as provided by RCW 23B.08.550.
(c) Any determination that the Indemnitee is not entitled to indemnification, and any failure to make the payments requested in the Indemnification Statement, shall be subject to judicial review by any court of competent jurisdiction.
6.2.3 Special Procedure Regarding Advance for Expenses. An Indemnitee seeking payment of Expenses in advance of a final disposition of the Proceeding must furnish the Corporation, as part of the Indemnification Statement:
(a) A written affirmation of the Indemnitee’s good faith belief that the Indemnitee has met the standard of conduct required to be eligible for indemnification pursuant to RCW 23B.08.530; and
(b) A written agreement constituting an unlimited general obligation of the Indemnitee, to repay the advance if it is ultimately determined by the final disposition of a court of competent jurisdiction that the Indemnitee did not meet the required standard of conduct.
6.2.4 Reimbursement or Advancement of Expenses Determination. If the Corporation determines that indemnification is authorized, the Indemnitee’s request for advance of Expenses shall be granted. The following shall not be a defense to the Proceeding or create a presumption that the Indemnitee is not entitled to indemnification:
(a) The failure of the Corporation (including the Board or independent special legal counsel) to have made a determination prior to the commencement of such Proceeding that indemnification or reimbursement or advancement of Expenses to the Indemnitee is proper in the circumstances; or
(b) An actual determination by the Corporation (including the Board or its independent special legal counsel) that the Indemnitee is not entitled to indemnification or to the reimbursement or advancement of Expenses.
6.3 Settlement. The Corporation shall not be liable to indemnify Indemnitee for any amounts paid in settlement of any Proceeding without the Corporation’s consent. The Corporation shall not settle any Proceeding in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s consent. Neither the Corporation nor Indemnitee may unreasonably withhold its consent to a proposed settlement.
6.4 Contract and Related Rights. The right of an Indemnitee to indemnification and advancement of Expenses is a contract right upon which the Indemnitee shall be presumed to have relied in determining to serve, or to continue to serve, in a capacity with the Corporation. Such right shall continue as long as the Indemnitee shall be subject to any possible Proceeding. Any amendment to, or repeal of, this Article 6 shall not adversely affect any right or protection of an Indemnitee with respect to any acts or omissions of such Indemnitee occurring prior to such amendment or repeal.
6.5 Insurance, Contracts, and Funding. The Corporation may:
(a) Maintain insurance, at its expense, to protect itself and any Indemnitee against any Liability;
(b) Enter into contracts with any Indemnitee in furtherance of this Article 6 and consistent with the Act; and
(c) Create a trust fund, grant a security interest, or use other means (including, but not limited to, a letter of credit) to ensure the payment of such amounts as may be necessary to effect indemnification as provided in this Article 6.
6.6 Right of Indemnitee to Bring Suit. An Indemnitee may bring suit, if:
(a) A claim under this Article 6 or the Articles of Incorporation for indemnification is not paid in full by the Corporation within sixty (60) days after Notice of a claim has been received by the Corporation; or
(b) A claim under this Article 6 for advancement of Expenses is not paid in full by the Corporation within twenty (20) days after Notice of a claim, then the Indemnitee may, but need not, bring suit against the Corporation to recover the unpaid amount of the claim, subject to RCW 4.16.005.
To the extent successful in whole or in part, the Indemnitee shall be entitled to also be paid the expense (to be proportionately prorated if the Indemnitee is only partially successful) of prosecuting such claim.
6.7 Exceptions. Notwithstanding any other provision in these Bylaws, the Articles of Incorporation, or the Act to the contrary, the Corporation shall not be obligated pursuant to the terms of this Article 6 or the Articles of Incorporation to indemnify or advance Expenses to Indemnitee in certain situations:
(a) Indemnity and advancement of Expenses shall not be applicable to:
(i) Acts or omissions of the Director, Officer, Employee, or Agent finally adjudged to be intentional misconduct or a knowing violation of law;
(ii) Conduct of the Director, Officer, Employee, or Agent finally adjudged to be in violation of RCW 23B.08.310; or
(iii) Any transaction with respect to which it was finally adjudged that such Director, Officer, Employee, or Agent personally received a benefit in money, property, or services to which the Director was not legally entitled.
(b) If payment of any such amount would result in an excess benefit transaction such that the Director, Officer, Employee, or Agent would be subject to the imposition of tax and any applicable correction procedures, including repayment of such amounts, under Section 4958 of the Internal Revenue Code of 1986, as amended, or the corresponding provision of any future federal tax law (the “Code”);
(c) With respect to any Proceeding:
(i) Initiated or brought voluntarily by Indemnitee and not by way of defense, except with respect to Proceedings brought to establish or enforce a right to indemnification under the Bylaws, or any other statute or law or as otherwise required under the statute; but such indemnification or advancement of Expenses may be provided by the Corporation in specific cases if the Board finds it to be appropriate;
(ii) Instituted by Indemnitee to enforce or interpret rights under the Bylaws, if a court of competent jurisdiction determines that each of the material assertions made by Indemnitee in such Proceeding was not made in good faith or was frivolous;
(iii) For which any of the Expenses or Liabilities for indemnification being sought have been paid directly to Indemnitee by an insurance carrier under an insurance policy maintained by the Corporation; and
(iv) If the Corporation is prohibited by the Articles of Incorporation, the Act, or other applicable law as then in effect from paying such indemnification or advancement of Expenses.
6.8 Severability. If any provision or application of this Article 6 shall be invalid or unenforceable, the remainder of this Article 6 and its remaining applications shall not be affected, and shall continue in full force and effect.
ARTICLE 7
ADMINISTRATIVE PROVISIONS
7.1 Books and Records. The Corporation shall keep the following records at its principal office within or outside the State of Washington:
(a) Current copies of the Articles of Incorporation and these Bylaws, as amended;
(b) A list of the Member’s name and address;
(c) Correct and adequate records of accounts and finances;
(d) A record of Directors’ and Officers’ names and addresses;
(e) Minutes of the proceedings of the Members, the Board, and any minutes that may be maintained by Board Committees or having any of the authority of the Board;
(e) Resolutions and policies of the Board;
(f) Copies of such documents as may be required to be made publicly available under the Code, including copies of its application for recognition of tax-exempt status on Form 1023 and copies of its Form 990 and Form 990-T; and
(g) Such other records as may be necessary or advisable.
Such records shall be made available in any manner and by any means permitted under the Act and the Code, as applicable. All books and records of the Corporation shall be open at any reasonable time to inspection by any Director and the Member.
7.2 Fiscal Year. The accounting year of the Corporation shall be the twelve (12) months ending December 31.
7.3 Loans Prohibited. No loans or advances shall be made by the Corporation to any of its Directors, Officers, Employees, or Agents.
7.4 Rules of Order. The Board shall adopt resolutions or policies based on the rules contained in the most recent edition of Robert’s Rules of Order, to govern all meetings of Directors where those rules are not inconsistent with these Bylaws, the Articles of Incorporation, or other rules of order of this Corporation. The Board may suspend the rules of order during a meeting by affirmative vote of a majority of the Directors in office.
7.5 Amendment or Repeal of Bylaws. These Bylaws may be amended or repealed by an affirmative vote of two-thirds (2/3) of the Directors in office. Prior to amendment or repeal, the Board shall submit the proposed amendment or repeal to the Member for approval.
ARTICLE 8
DEFINITIONS
Except as otherwise provided, as used in these Bylaws:
8.1 “Agent” means an individual who is, or was, an agent of the Corporation or an individual who, while an agent of the Corporation, is, or was, serving at the Corporation’s request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. “Agent” includes, unless the context requires otherwise, the estate or personal representative of an Agent.
8.2 “Bylaws” means these Amended and Restated Bylaws of the Corporation.
8.3 “Corporation” means the Society of Diagnostic Medical Sonography Foundation or where applicable, any domestic or foreign successor entity.
8.4. “Deliver” means:
(a) Mail or delivery service;
(b) Transmit by facsimile equipment, for purposes of delivering a demand, consent, Notice, or waiver to the Corporation, one of its Officers or Directors, or the Member; or
(c) Make an Electronic Transmission, in accordance with the Director’s or Officer’s consent and Sections 4.9 and 4.10 of these Bylaws, for purposes of delivering a demand, consent, notice, or waiver to the Corporation or one of its Officers or Directors.
8.5 “Director” means an individual who is, or was, an SDMS (defined in Section 8.17 below) member appointed to serve as a Director of the Corporation pursuant to these Bylaws. “Director” includes, unless the context requires otherwise, the estate or personal representative of the Director.
8.6 “Electronic Transmission” means an electronic communication:
(a) Not directly involving the physical transfer of a record in a Tangible Medium (defined in Section 8.19 below); and
(b) That may be retained, retrieved, and reviewed by the sender and the recipient, and that may be directly reproduced in a Tangible Medium by a sender and recipient.
8.7 “Execute” means:
(a) Sign, with respect to a written record;
(b) Electronically transmit along with sufficient information to determine the sender’s identity; or
(c) File in compliance with the standards for filing with the office of the Secretary of State as prescribed by the Secretary of State, with respect to a record to be filed with the Secretary of State.
8.8 “Employee” means an individual who is, or was, an employee of the Corporation or an individual who, while an employee of the Corporation, is, or was, serving at the Corporation’s request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. “Employee” includes, unless the context requires otherwise, the estate or personal representative of the Employee.
8.9 “Expenses” means all fees and expenses incurred in any Proceeding, including but not limited to, the fees and expenses of counsel.
8.10 “Good Standing” means having paid all required membership dues, complied with the Member’s Bylaws, complied with such other requirements the Member’s Board may adopt through written resolutions or policies, and is not subject to a disciplinary investigation or action by the Member.
8.11 “Liability” means the obligation to pay a judgment, settlement, penalty, or fine, including an excise tax, or reasonable expenses incurred with respect to a Proceeding.
8.12 “Member” means member the Society of Diagnostic Medical Sonography.
8.13 “Notice” means information inscribed on a Tangible Medium or contained in an Electronic Transmission. If mailed, the notice shall be deemed delivered when deposited in the United States mail. Other forms of delivery are effective when received.
8.14 “Officer” means an individual who is a Director and is, or was, elected or appointed as an Officer of the Corporation. “Officer” includes, unless the context requires otherwise, the estate or personal representative of an Officer.
8.15 “Party” includes an individual who was, is, or is threatened to be, named a defendant or a respondent in a Proceeding.
8.16 “Proceeding” means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, and whether formal or informal.
8.17 “SDMS” means the Society of Diagnostic Medical Sonography, which is affiliated with the Corporation and whose Directors also each serve in the same capacity on the Board of the Corporation.
8.18 “SDMS member” means a member in Good Standing (defined in Section 8.10 above) of the Society of Diagnostic Medical Sonography.
8.19 “Tangible Medium” means a writing, copy of a writing, facsimile, or a physical reproduction, each on paper or other tangible material.
8.20 “Writing” or “written” includes a Tangible Medium or an Electronic Transmission.
APPROVED: September 28, 2016
EFFECTIVE DATE: January 1, 2017