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BYLAWS OF THE AMERICAN BOILER MANUFACTURERS ASSOCIATION
ARTICLE 1 - DEFINITIONS
1.1 ACTIVE MEMBER - Any person having a facility engaged in the manufacture of boilers or boiler-related equipment may apply for and be elected to Active Membership in the Association.
1.2 AFFILIATE - Any person that controls, is controlled by, or is under common control with another person.
1.3 AFFILIATE MEMBER - Any company, business unit, or brand affiliated with a company, business unit or brand holding an Active or Associate Membership may apply for and be elected to Affiliate Membership in the Association in accordance with rules established by the Board of Directors.
1.4 ASSOCIATE MEMBER - Any person engaged in the production or dissemination of products or services for use by an Active Member or a boiler owner, operator or user, or who is an owner or user of boiler or boiler-related equipment may apply for and be elected to Associate Membership. A person, eligible for Active Membership, may not apply for nor be accepted for Associate Membership.
The Board of Directors may limit the number of Associate Members to a total that is reasonably consistent with the then-existing number of Active Members.
1.5 BILLINGS - Billings based upon total contract prices, from the sale of reportable products manufactured in the United States, wherever the products are to be used or delivered, and from the sale of reportable products to be used in or delivered to the United States, wherever manufactured.
1.6 BOILER - An apparatus or system that converts water to useful steam or useful hot water. The term boiler includes watertube boiler, firetube boiler, condensing boiler, tubeless boiler, electric boiler, wasteheat recovery boiler, heat recovery steam generator, cast iron boiler, fluidized bed boiler, and any other boiler type that the Board of Directors from time to time may include in this definition.
1.7 BOILER-RELATED EQUIPMENT -- An apparatus or system that performs the function of fuel burning (such as a stoker, a burner, or a fluid bed combustor), or heat recovery (such as a superheater, economizer or preheater), and any other apparatuses or systems as specified from time to time by the Board of Directors.
1.8 GROSS BILLINGS - Gross billings for a calendar year from all sales of Reportable Products, whether sold as new or as retrofits.
1.9 MANUFACTURE - Fabricate or design.
1.10 PERSON - A natural person, corporation, partnership or other entity that has the power to contract.
1.11 PROFESSIONAL AFFILIATE MEMBER - Any combustion or mechanical engineering student, teacher, professor, recognized institution of higher learning (including trade schools), individual consultant (not affiliated with an established firm or corporation that could otherwise hold Active or Associate Membership), or industry retiree who wishes to maintain an informational connection to the Association, and subscribes to separate eligibility requirements which may be from time to time established by the Board of Directors, may apply for and be elected to Professional Affiliate Membership in this Association.
1.12 REPORTABLE PRODUCTS – Products reportable for gross billings purposes are boilers and boiler-related equipment.
1.13 RETROFIT - The retubing of a combustion chamber (furnace), or a major repair of a boiler or of boiler-related equipment, or the replacement of a major subsystem of a boiler or of boiler-related equipment.
1.14 TOTAL CONTRACT PRICE - The price for a product, whether delivered or erected, including the price of any related engineering, drafting, startup or other service, and the price of any such equipment that is furnished by others.
ARTICLE 2 - MEMBERSHIP
2.1 CLASSES OF MEMBERSHIP – There shall be four (4) classes of membership: Active, Associate, Affiliate, and Professional Affiliate.
2.2 VOTING AND PROPERTY RIGHTS - Each Active Member shall be entitled to one vote upon all matters presented to the membership of this Association. Each Associate Member shall be entitled to one vote with respect to (i) each election of a Chairman and Vice Chairman of the Associate Members Division, and other business conducted during meetings of the Associate Members Division, (ii) a matter coming before a subordinate body as to which the Bylaws or the Board of Directors specifies that an Associate Member shall be entitled to vote, but shall not otherwise be entitled to vote. No one other than an Active Member shall have any vested interest in the assets of this Association. If membership in this Association shall terminate for any reason, except through dissolution of the Association, all interests of each Member in the assets of the Association shall immediately cease and terminate, and the Member concerned shall have no claim on account of such assets.
2.3 PROXY - At any meeting of the members of the Association, the Principal Representative of a Member may be represented by a written proxy granted to some other person who is eligible to be in attendance at the meeting as a Principal Representative of any Member.
2.4 RESIGNATION - Any member in good standing may resign at any time provided such resignation, in writing, is filed with the Secretary-Treasurer and all dues, including those of the current Fiscal Year, have been paid.
2.5 OBLIGATIONS OF MEMBERSHIP - Each Member is obligated to pay when due all financial obligations to the Association, to comply with the Bylaws, to report statistical data as prescribed by the Board of Directors, and to refrain from any conduct that might subject the Association to civil or criminal liability or impair the Association's ability to function on behalf of all Members.
2.6 GROUNDS FOR SUSPENSION OR EXPULSION - A Member may be suspended or expelled for failure to comply with an obligation of membership.
2.7 SUSPENSION AND EXPULSION PROCEDURE - Any member may be suspended or expelled by a majority vote of the Board of Directors. No member shall be suspended or expelled for any cause other than (1) the nonpayment of dues or assessments or (2) a change in business so that eligibility requirements are no longer met, unless a charge is preferred against such member, in writing. Not less than fifteen days preceding any hearing upon such charge, the accused Member shall be served with a written detailed specification of the charge laid, together with notice of the time and place when and where the accused will be heard in answer to such charge. At such hearing, no charge shall be heard or considered unless it is clearly and definitely specified and itemized, in detail, in the aforesaid notice of hearing. The Board of Directors may, in its discretion by majority vote, reject a charge made without a hearing of the accused and may direct all reference thereto to be expunged from the record.
ARTICLE 3 - MEETINGS OF MEMBERS
3.1 ANNUAL - The Annual Meeting of the Association shall be held at a date and a place to be determined by the Board of Directors.
3.2 SPECIAL - A special meeting of the Association may be called at any time and place by action of the Board of Directors. The Secretary shall call a Special Meeting whenever twenty-five percent or more Active Members shall file with him a request, in writing, that a Special Meeting be held. Such request shall specify the business to be considered at the proposed Special Meeting and business not so specified shall not be considered at any Special Meeting.
3.3 QUORUM - A quorum at any meeting of the Association shall consist of at least one-third of the persons entitled to vote, present in person or by proxy.
3.4 MAJORITY VOTE - Unless otherwise provided by law or these Bylaws, the vote at a meeting of a majority of the persons present, in person or by proxy, entitled to vote shall be necessary to decide any question.
ARTICLE 4 - BOARD OF DIRECTORS AND EXECUTIVE COMMITTEE
4.1 BOARD OF DIRECTORS - The Board of Directors shall have full power and authority to act for the Association and to direct the conduct of its business
4.2 COMPOSITION - The Board of Directors shall be composed of fourteen persons, no less than ten of whom shall be Principal Representatives of Active Members, and two of whom shall be, respectively, the Chairman and Vice Chairman of the Associate Members Group. Each of the remaining two Directors shall be a Principal Representative for either an Active Member or an Associate Member, as determined by the Board of Directors Nominating Committee. Each Director shall be a full-time employee of the Member for which the Director is the Principal Representative, unless otherwise authorized by unanimous agreement of the Board to complete an unexpired term of such Director.
4.3 NOMINATION AND ELECTION - The Board of Directors Nominating Committee, consisting of four Members of the Board whose term is not expiring, one of who, if available, shall be an Associate Member Principal Representative, shall be appointed by the Chairman. The Nominating Committee shall nominate annually Principal Representatives for expiring and/or vacant seats consistent with Section 4.2 for election at the Annual Meeting. The Committee shall select nominees such that the products in the scope of the industry, as stated in Section 5.1, will, to the extent feasible, be represented on the Board.
The Associate Members Nominating Committee shall nominate bi-annually a candidate for the position of Chairman and a candidate for the position of Vice Chairman of the Associate Members Group, for election at the Associate Members Group meeting held at the Annual Meeting. The term of the Chairman shall be two years and until his successor is elected, and the term of the Vice Chairman shall be two years and until his successor is elected.
The Associate Members Nominating Committee shall consist of the Associate Members Group Chairman, its Immediate Past Chairman, one at-large Associate Member, and the Association President or his designee. If the Immediate Past Chairman is not available to serve, then the Chairman preceding him shall fill the position. If that person is not available, the current Associate Members Group Chairman shall choose a second at-large Associate Member to fill the position of the Immediate Past Chairman.
4.4 TERMS - The term of each Principal Representative on the Board shall be three years and until his successor is elected, subject to reelection for one additional term only. A Principal Representative who has served two successive terms as a Director may again be elected to the Board of Directors only after expiration of a time period of at least three years from the end of his or her prior service on the Board. Terms of the Chairman and Vice Chairman of the Associate Members Division shall be concurrent with their terms in such positions.
4.4.1 Any Member of the Board of Directors who was elected, or elevated, to fulfill any portion of an unexpired term of a predecessor, due to predecessor’s elevation or vacancy of seat, shall be entitled to fulfill that unexpired term, for which elected or elevated, without consequence of Term Limitation.
4.5 MEETINGS - The Board of Directors shall meet as often and at such places as it may, from time to time, determine and may establish rules governing its own proceedings in any manner.
4.5.1 To ensure compliance with the Association’s Anti-Trust Policy, the Board of Directors and Executive Committee shall not convene without ABMA Staff representation present. Staff representation shall comprise the President & CEO. In is his absence, either the Vice-President and/or General Counsel shall represent the Association.
4.5.2 In the event an Executive Session is called for by the Chairman of the Board, Staff representation shall be limited to the General Counsel. Additionally, a specific Executive Session Agenda shall direct and limit discussions to the topic(s) presented. There shall be no deviation from the agenda.
4.5.3 It shall be Staff’s responsibility and obligation to curtail any meeting and/or discussion which may be deemed or construed as a violation.
4.6 QUORUM – The quorum for any Board meeting shall be one-third of the members of the Board. The vote at a meeting of a majority of directors present shall be necessary to decide any question.
4.7 EXECUTIVE COMMITTEE - The Board of Directors shall appoint an Executive Committee consisting of the Chairman of the Board, the Vice Chairman of the Board, the Secretary-Treasurer, the Immediate Past Chairman, and the Chairman of the Associate Members Group to serve two years and until its successors are appointed.
The Executive Committee shall have those duties provided in these Bylaws and such interim authority as may be delegated by the Board of Directors to handle specific matters. The Executive Committee shall cooperate with the Staff as needed in the normal operating procedures of the Association. Actions taken by the Executive Committee shall be reported promptly to the Board of Directors for approval at its next meeting or by letter ballot.
4.8 REMOVAL; VACANCIES - Any Director who fails to attend two (2) consecutive meetings, unless excused by the Chairman, shall be automatically removed from the Board of Directors. Any vacancy on the Board of Directors caused by resignation or other reason may be filled, for the entire unexpired term, by the Board of Directors upon recommendation by the Board of Directors Nominating Committee.
ARTICLE 5 - OFFICERS
5.1 OFFICERS - The Officers shall be the Chairman of the Board, the Vice Chairman of the Board, the President, and the Secretary-Treasurer. The Board of Directors may designate and appoint such other officers as the business of the Association may, in the opinion of such Board, require and may prescribe the duties and responsibilities of each such officer. Such assignment of duties shall empower each such officer as fully as if the same were here inscribed in full. Only Directors who are Principal Representatives of Active Members shall be eligible to serve as Chairman and Vice Chairman.
5.2 ELECTION – The Chairman, Vice Chairman, and Secretary-Treasurer shall be elected by the Board of Directors from its membership. The Chairman, upon expiration of his or her term in that position, automatically succeeds to the position of Immediate Past Chairman. The President shall be appointed by the Board of Directors as necessary.
5.3 TERMS – The terms of office for the Chairman, Vice Chairman, and Immediate Past Chairman shall be two years. The term of the Secretary-Treasurer shall be concurrent with the term(s) of the Director serving in that position. The Chairman, Vice Chairman and Immediate Past Chairman shall serve one term. The President shall serve at the pleasure of the Board.
5.4 CHAIRMAN OF THE BOARD - The Chairman of the Board shall preside at all meetings of the Association, of the Board of Directors, of the Executive Committee and, subject to the direction of the Board of Directors, shall be the head of the Association. A vacancy in the office of Chairman of the Board shall be filled by the person who is then serving as Vice Chairman of the Board, and a new Vice Chairman of the Board shall be elected by the Board of Directors
5.5 VICE CHAIRMAN OF THE BOARD - During any period of absence or temporary incapacity of the Chairman of the Board, the Vice Chairman of the Board shall perform the duties and have the powers of the Chairman of the Board and such other duties as may be assigned to him by the Board.
5.6 PRESIDENT - The President shall be the chief executive officer, and an employee, of the Association. He shall perform such duties as set forth in the Bylaws and such other duties as shall be prescribed by the Board of Directors.
5.7 SECRETARY-TREASURER - The Secretary-Treasurer shall have general charge of offices and records of the Association, and shall keep the minutes of the Association, of the Board of Directors, and of the Executive Committee. The Secretary-Treasurer shall have custody of the funds and assets of the Association, and keep proper books of account. He shall keep all funds in a bank, or banks, approved by the Board and in the name of the Association, subject to withdrawal by checks signed in such manner as may, from time to time, be directed by the Board, and may invest the surplus funds of the Association in such manner as may be approved by the Board of Directors.
5.7.1 Notwithstanding any Article of these Bylaws, in order to ensure continuity of the Office, the Secretary-Treasurer shall not be subject to Term Limits as provided in Paragraph 4.4, and as such, until otherwise announced, or by action of the Board of Directors, shall remain in Office.
5.8 BOND - Each officer and employee having custody of negotiable funds of the Association shall be bonded in an amount and a form fixed by the Board and at the expense of the Association.
5.9 FINANCIAL REPORTS - At the close of each fiscal year, the books of the Association shall be audited by a Certified Public Accountant selected by the Board of Directors and reports of such audits shall be made to the Board of Directors, as a basis for its report at the Annual meeting.
ARTICLE 6 - FINANCE, DUES AND ASSESSMENTS
6.1 BUDGET AND BILLINGS - It shall be the duty of the Executive Committee to establish, subject to approval of the Board of Directors, an annual Budget covering operating expense during the ensuing Fiscal Year.
The President or Secretary-Treasurer shall collect a confidential report from each Active Member on its Gross Billings.
Based on the Budget and Total Gross Billings so established, the Executive Committee, subject to the approval of the Board of Directors, shall establish dues rates for Active Members for the next Fiscal Year.
6.2 DUES - Each Active Member shall pay annual dues based on its pro rata share of its gross billings at the rate established under Section 9.1 of this Article; provided, that the minimum dues for Active Members per year shall be as established by the Board of Directors.
A Member shall include in its report of gross billings for purposes of Article 9 of the Bylaws the gross billings of reportable products of all its affiliates.
When two or more members are affiliated with one another, they shall designate one of them to report on the gross billings of reportable products of all of them.
6.3 The Board of Directors shall establish annual dues amounts for Associate Members, Affiliate Members, and Professional Affiliate Members.
6.4 SPECIAL ASSESSMENTS – The Board of Directors may, in the interests of the Association, impose a Special Assessment on the membership, in such amount and on such terms as determined by the Board. Likewise, when any Product/Market Group of the Association pursues any activity that is not of benefit to Active Members of the Association in general, the Members of such Product/Market Group before proceeding shall agree on a special assessment to be paid by the members of the Product/Market Group in an amount sufficient to cover the costs of the activity. Such funds shall be earmarked by the Association for disbursement in the specific activity on instruction by the Product/Market Group.
6.5 WHEN PAYABLE - Dues shall be paid in advance for the Fiscal Year during the month of May. Dues of a new Member may be prorated from the date of election in the discretion of the Board or President.
ARTICLE 7 - STAFF
7.1 PRESIDENT - The Board of Directors shall appoint a President and shall determine his compensation. The President shall perform such duties as set forth in the Bylaws and such other duties as shall be prescribed by the Board of Directors. The President, or other executive on the Staff, may be elected by the Board to serve also as the Secretary-Treasurer for operational and corporate purposes and such election shall carry with it all duties and responsibilities assigned to the Secretary-Treasurer in these Bylaws.
7.2 STAFF - Subject to such policies and procedures as the Board shall determine, the President shall appoint and employ such other executive, administrative, and technical staff as authorized by the Board of Directors.
ARTICLE 8 - FISCAL YEAR
8.1 The Fiscal Year of the Association shall be from May 1st to April 30th, inclusive.
ARTICLE 9 - PRODUCT/MARKET GROUPS AND OTHER SUBORDINATE BOARD OF DIRECTORS GROUPS
9.1 The Board of Directors may establish Product/Market Groups of the Association and provide rules for their governance.
9.1.2 The Board of Directors shall designate the product or products to be placed within the purview of a Product/Market Group.
9.1.3 Each Active Member of the Association shall be a Member of a Product/Market Group during the Association's fiscal year if that Member certifies that it is capable of manufacturing and is actively seeking orders for a product within the purview of the Group.
9.1.4 Each member of a Product/Market Group shall be entitled to vote on any matter that comes before that Group, except as provided in Article 9.1.5 hereof.
9.1.5 With respect to a question relating to the reporting of statistics which pertains only to a particular product or products within the purview of a Product/Market Group, a vote of two-thirds of all the directly affected Members of the relevant Product/Market Group (as determined through the certification process of Article 9.1.3) shall be required to decide the question. The vote shall be taken by mail ballot.
9.1.6 Unless the Board of Directors otherwise provides, any Active or Associate Member of the Association is entitled to attend and speak at a meeting of a Product/Market Group, and to be placed on the roster of those who receive the mailings that are sent by the Association to Members of a Product/Market Group.
9.2 OTHER BOARD OF DIRECTORS' DUTIES. The Board of Directors shall establish and provide rules of governance for such committees, subcommittees, and other divisions and subgroups as the Board considers useful to the conduct of the Association's business.
ARTICLE 10 - AMENDMENTS
10.1 The Board of Directors shall have power to adopt Bylaws for the Association and to alter, amend, revise, and suspend the same subject to the right of Association, when convened, by resolution duly adopted to approve or disapprove any Bylaws or amendment thereof so adopted as aforesaid.
10.2 No motion to approve or disapprove any Bylaws shall be entertained by the Association, when convened, except upon recommendation of the Board of Directors unless the mover and seconder of such motion shall have, in writing, given the Board ten days' previous notice, exclusive of the day of service of intention to call up any such Bylaw for approval or disapproval, which notice shall specify the particular Bylaw intended to be brought up for consideration and action.
ARTICLE 11 - PRONOUNS
11.1 The use of the masculine gender of a pronoun for a natural person is for convenience of reference only and does not imply the gender of the person to whom the pronoun refers.
ARTICLE 12 - INDEMNIFICATION
12.1 Any person made a party to any action, suit, or proceeding by reason of being or having been an Officer or Director of the Association, or by reason of otherwise serving or having served the Association as a volunteer member of an Association committee, product or market group, task force, or similar Board of Directors, or as an Association employee shall, to the extent of insurance coverage held by the Association, be indemnified by the Association against any and all liabilities and all reasonable expenses, including attorney's fees, actually and necessarily incurred in connection with the defense of such action, suit or proceeding, or in connection with any appeal there from, if the party seeking indemnification acted in good faith and in a manner which the party reasonably believed to be in, or not opposed to, the best interests of the Association, and, with respect to any criminal proceeding, the party had no reasonable cause to believe his or her conduct was unlawful.
ARTICLE 13 – DISSOLUTION
13.1 Upon dissolution of the Association and after payment of all indebtedness, the assets shall be divided among the Active Members in the proportion to the amount of dues paid by them respectively for the full period of continuous Membership during the ten preceding fiscal years, provided, however, that if at the time of dissolution it appears to the Board of Directors that the above-described plan of dissolution would conflict with applicable law, the Board shall adopt an alternate plan that does not conflict with applicable law and that conforms to the extent lawful, to the above-described original plan of dissolution. Membership may not be transferred until and unless the Board of Directors shall first approve the application for permission to transfer the particular Membership.
APPROVED BY THE ABMA BOARD OF DIRECTORS, October 7, 1993
REVISED June 22, 1997; REVISED January 14, 2001; REVISED, June 26, 2001; REVISED March 14,