- Code of Ethics
We declare it to be the strong belief of the National Grain and Feed Association that the best interests of the country, the public, and all levels of American agriculture and the free enterprise system are served by a strong competitive market. Therefore, the Membership of this Association dedicates itself to encouraging and vigorously defending political and economic circumstances which foster and encourage the viability, health and expansion of free markets. The Association further commits itself to the promulgation and implementation of necessary rules and standards which will foster and sustain public trust and confidence. Accordingly, upon becoming a member of the Association each member shall exert every reasonable effort to:
- Comply with the laws and regulations relating to the merchandising, inspection, grading, weighing , storing, and handling and shipment of grain.
- Maintain and promote the highest ethical and honest procedures in the transaction of business by members of this Association.
- Hold of primary importance the concepts of free enterprise and service to the public, and to continually strive to gain and maintain respect for the industry locally, nationally and internationally.
- Engage in sales and purchasing methods, promotional practices and other transactions, giving consideration to the best interests of the agricultural industry as well as the public.
- Encourage research and development of new methods and practices which would improve the efficiency and future of the grain and feed industry.
- NGFA Bylaws
The principal office of the corporation shall be located in the Washington, D.C., metropolitan region. The registered office of the corporation shall be 1 Brunswick St., P.O. Box 367 in Chillicothe, State of Missouri, and said office may be changed from time to time by the Board of Directors. The address of the registered agent shall be the same as that of the registered office.
The corporation may have such other offices, either within or without the State of Missouri, as may be required from time to time, and as may be deemed expedient or proper by the Board of Directors.
Section 1. Classes of Membership: The membership of this association shall be divided into five classes, namely: (1) Active Members; (2) Associate Members; (3) Honorary Members; (4) Affiliated Association Members; and (5) Associate/Trading Members.
Section 2. Qualifications: The qualifications for the five classes of membership are as follows:
(a) An Active Member shall be any individual or firm engaged in the warehousing, processing, manufacturing, merchandising, or distribution of grain or feed, or feed ingredients in the United States, and whose membership in this corporation is independent of his membership in any other organization.
(b) An Associate Member shall be any individual or firm engaged in a business allied with the grain or feed trade which is not required to be or has not elected to become an Associate/Trading Member, or an individual or firm engaged in the grain or feed industry without facilities in the United States, Canada or Mexico, which does not qualify for membership as an Associate/Trading Member.
(c) An Honorary Member shall be an individual who, because of eminent service to the grain or feed trade, or to this corporation, is elected to such membership by the Board; provided, however, that each Chairman of this corporation shall, at the end of his term of office, and because of his past service to the trade, be and become an Honorary Member without Board action.
(d) An Affiliated Association Member shall be any Association composed of persons or firms engaged in the grain or feed trade, or related business.
(e) An Associate/Trading Member shall be any individual or firm providing rail, barge, vessel or truck transportation within North America, any U.S.-based individual or firm otherwise qualified to be an Associate Member which elects to become an Associate/Trading Member, and any individual or firm located in Mexico or Canada that is engaged in the warehousing, processing, manufacturing, merchandising, or distribution of grain or feed, or feed ingredients, and whose membership is independent of membership in any other organization. No individual or firm which is eligible to be an Active Member may be an Associate/Trading Member. Except where otherwise provided, an Associate/Trading Member shall have no voting rights in the Association, but shall have the right to serve on arbitration committees and such other committees as determined by the Chairman of this Association. A prospective Associate/Trading Member must complete and sign an appropriate membership application form, pay dues according to the schedule approved by the Board of Directors, and agree to be bound by the Trade Rules (where applicable), Arbitration Rules (where applicable), Rail Arbitration Rules (where applicable), Bylaws and Code of Ethics of this Association. All New Members in membership classes bound under these rules to abide with Rail Arbitration Rules will be given the opportunity to withdraw from such obligation without being subject to any waiting period, providing such withdrawal is executed prior to the 30th day membership becomes effective.
(f) In addition to the aforesaid classes of membership, each of said classes of membership excepting Honorary Members may be divided into such subclasses of membership as the Board of Directors may determine from time to time, which said subclasses of membership may be determined in such manner as to the Board of Directors may seem expedient. The Board shall from time to time publish their determination of subclasses of said membership.
Section 3. Applications for Membership: (a) Every application for Active membership, Associate/Trading membership, and Associate membership shall be in writing and shall be upon a form prescribed by the Board.
(b) An application for Affiliated Association membership shall be signed by the President or Secretary of the applicant association.
(c) Each application for Active membership, Associate/Trading membership, Associate membership, and for Affiliated Association membership shall state the subclass of such membership desired by the applicant.
(d) Each application for Active, Associate/Trading, and Associate membership, shall be signed by the applicant as an individual or by the firm name of the applicant, over the signature of its proper officer.
(e) Every application for Active membership, Associate/Trading membership, Associate membership, and Affiliated Association membership shall designate an officer, partner, or employee of such applicant who, upon approval of such application, will be the official representative of such member with the Association. The official representative will receive all official and business communications from the Association to the member. A member may change its official representative upon written notice to the Secretary of the Association.
(f) Each applicant for membership shall, by making the application, or in such other manner as the Board of Directors may determine, subscribe to, and agree to be bound by and agree to conform with the Articles of Incorporation, these bylaws; and in addition in the case of Active members, the Trade Rules (where applicable), the Arbitration Rules and Code of Ethics of this Association. Associate/Trading Members shall not be bound to abide by the Trade Rules and/or Arbitration Rules except where they consent by contract or otherwise, or as provided as follows. Active members, Associate/Trading Members that are rail users and railroad Associate/Trading Members agree to be bound to abide by Rail Arbitration Rules, except that any member so bound may elect to withdraw by giving ninety (90) days notice of such withdrawal to the National Secretary. Any withdrawal shall become effective ninety (90) days after receipt by the NGFA, except that any withdrawal exercised during the first 30 days (November 1-30, 2002) of these amendments initially becoming effective, will be effective immediately on the date a written, signed withdrawal notice is received by the NGFA office. Any member exercising its right to withdrawal shall be obligated to arbitrate any covered disputes arising before the effective date of such withdrawal. Any member withdrawing from rail arbitration may reapply to the National Secretary to be bound to abide by the agreement, and such application shall become effective after a ninety (90) day waiting period. This Association shall have jurisdiction to arbitrate disputes involving Associate/Trading Members by their consent.
(g) Each application shall be for a membership of not less than one year, beginning with the month of approval of such application, and shall be an application for continuing membership unless membership is terminated under rules provided for in the Articles of Incorporation or these bylaws.
Section 4. Election of Membership: (a) Applications for Active membership, Associate/Trading membership, Associate membership, or Affiliated Association membership shall be received by the Secretary and referred by him to the members of the Board of Directors, and such membership shall be granted upon favorable vote of not less than two-thirds of the members of the Board. Such referral and such vote so taken may be by mail. Provided, however, that when any one or more negative votes are cast by mail on any such application, the Secretary shall withhold certification of membership until the members of the Board have been given opportunity to consider any statement offered concerning such negative vote and to reconsider their vote upon such application.
(b) Any applicant failing to receive the approval of the Board shall be notified in writing of his rejection with the reason or reasons therefore. Within thirty days after receiving such notice the applicant may request reconsideration of his application in writing to the Secretary setting forth any information or arguments which might counter the reasons for rejection. The request for reconsideration shall be presented to the members of the Board by the Secretary either by mail or at the next meeting of the Board. A two-thirds vote of the Board after reconsideration will be necessary for admission to membership.
(c) Membership shall begin on the first day of the month during which the membership application is approved and the membership is certified by the Secretary. Initial dues shall be payable when application is submitted for approval. Dues for subsequent years shall be payable on the date specified by the President.
Section 5. Dues: The annual rate of dues for each respective class of membership and for each respective subclass of membership shall be determined by the Board of Directors, and such rates shall remain in effect until changed by the Board of Directors.
Meeting of Members
Section 1. Annual Meeting: The annual meeting of the Members of this corporation for the election and appointment of officers and directors, and for such other business as may properly come before the meeting, shall be held at such place and at such time of each year as may be determined by the Board of Directors; but in the event the Board of Directors fails to make such determination, or in the event after such determination a change is required, then as may be determined by the Executive Committee after consultation with and recommendations from the Chairman and members of the Board of Directors. Said annual meeting shall commence at the hour and the date fixed in the notice of meeting. At such annual meeting, twenty-five (25) Members qualified to vote shall constitute a quorum.
Section 2. Special Meetings: Special meetings of members may be called at a designated place by the Chairman or by a majority vote of the Board of Directors.
Section 3. Notice of Meetings: Written or printed notice, stating the place, day and hour of the meeting and in case of a special meeting the purpose or purposes for which the meeting is called shall be mailed not less than ten (10) days nor more than forty (40) days before the date of the meeting from the principal office of the corporation, to each member qualified to vote, and may be deemed to be given when deposited in the United States mail in a sealed envelope, addressed to the members at their respective address as it appears on the records of the corporation, with postage prepaid.
Section 4. Informal Action by Members: Any action required to be taken at a meeting of the Members may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the Members entitled to vote with respect to the subject matter thereof.
Voting of Members
Section 1. Voting Privileges: Each Active member and each Affiliated Association member shall have the right to vote at all meetings of the members of this Association, and each shall be entitled to one vote upon any questions submitted to the membership at any annual meeting or special meeting. The vote of these members shall be cast by their official representative or alternate who shall be an officer, partner, or employee of that member. Except where otherwise provided, no other members shall have a right to vote at any meeting.
Section 2. Manner of Voting: Members present and entitled to vote at any meeting shall decide questions other than amendment of these bylaws by majority vote. An amendment of these bylaws shall require a two-thirds vote of Members present and entitled to vote. Such voting shall be by “yeas” or “nays”, unless a ballot vote be demanded by any Member. The presiding officer shall determine a division between the “yeas” and “nays”, or shall direct voting by ballot, in which event he shall appoint tellers of election to canvass such ballots.
Section 1. General Powers: The conduct of all affairs of this corporation, including the establishment of policy not inconsistent with resolutions adopted by the membership, at its annual meeting, shall be within the duties and powers of the Board of Directors; provided, however, that the Executive Committee may act for the Board when the Board is not in session insofar as any such action is not reserved to the Board only.
Section 2. Qualifications: (a) There shall be two categories of directors, namely, those elected, and those appointed.
(b) Except as provided in Section 3(b) of this Article, no person shall be elected or appointed a director of this Association unless he shall be an Active Member or an officer, partner, or employee of an Active Member. If a director of this Association ceases to be an Active Member or an officer, partner, or employee of the Active Member with whom he was an officer, partner, or employee at the time he became a director, his place on the Board of Directors shall automatically become vacant. A director appointed by an Affiliated Association Member shall be appointed upon certification by an officer of the Association designating him as a director. A director appointed by an Affiliated Association Member shall have the same qualifications as an elected director.
(c) In addition thereto, the Chairman, the immediate past Chairman, the First Vice Chairman, and the Second Vice Chairman, shall be ex-officio members of the Board of Directors.
Section 3. Number and Tenure: (a) The Board of Directors of the corporation shall consist of forty-five (45) directors to be elected by a vote of the Members entitled to vote. Except as provided in paragraph (b) of this Section, the term of office of directors to be elected shall be three (3) years, and a director may be elected by the members to only two (2) consecutive terms, but may be eligible for election to the Board after one (1) year following the last term of elected service.
(b) Up to two (2) of the forty-five (45) elected directors may be employees of an Affiliated Association Member. These two (2) directors are required only to be employees of an Affiliated Association Member with no other NGFA membership requirements. If either of these two (2) directors ceases to be an employee of the Affiliated Association Member with whom he was an employee at the time he became a director, his place on the Board of Directors shall automatically become vacant. The term of office of these two (2) directors shall be three (3) years, provided, however, that at the annual meeting of the Members in 2005, one (1) shall be elected to serve for two (2) years, and one (1) shall be elected to serve for three (3) years. A director, who is an employee of an Affiliated Association Member, may be elected by the members to only one (1) term, but may be eligible for election to the Board after one (1) year following the last term of elected service.
(c) The Board of Directors of the corporation also shall consist of one director for each Affiliated Association Member, to be designated and appointed as such director upon certification by an officer of said Affiliated Association Member, to serve at the discretion of the Affiliated Association appointing him; provided, however, such Affiliated Association otherwise meets the requirements as fixed by the Board of Directors with respect to the right to such appointment, and provided further, that notice of such appointment by such Affiliated Association Member shall be given at least ten (10) days prior to the date set for the annual meeting.
Section 4. Regular Meetings: The regular meeting of the Board of Directors shall be held immediately following the election of the Board at the annual meeting of the Members, and at the same place, and no notice thereof shall be necessary. The Board of Directors may provide by resolution the time and place for the holding of other regular meetings, without other notice than such resolution.
Section 5. Special Meetings: Special meetings of the Board may be called by or at the request of the Chairman or one-third of the number of directors. The person or persons authorizing the calling of said special meeting of the Board of Directors may fix any place, either within or without the State of Missouri, as the place for holding any special meeting of the Board of Directors called by them.
Section 6. Notice of Meetings: Notice of any special meeting shall be given at least five (5) days previously thereto by written notice delivered personally or mailed to each director at his business address, or by telegram. If mailed, such notice shall be deemed to be given when deposited in the United States mail in a sealed envelope so addressed, with postage thereon prepaid. If notice be given by telegram, such notice shall be deemed to be given when the telegram is delivered to the telegraph company. Any director may waive notice of any meeting. The attendance of a director at any 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 any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular meeting or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting.
Section 7. Quorum: One-half of the members of the Board of Directors shall constitute a quorum, provided that if less than a quorum is present at said meeting, a majority of the directors present may adjourn the meeting from time to time without further notice.
Section 8. Manner of Acting: The act of the majority of the directors present at a meeting of the directors at which a quorum is present shall be the act of the Board of Directors. The Board of Directors may, upon request of the Executive Committee, vote upon any proposal by mail or electronic means, with approval of two-thirds of those voting being necessary to pass any such proposal.
Section 9. Vacancies: Any vacancy occurring in the Board of Directors by reason of the death, resignation, or disqualification of one or more directors elected by the Members entitled to vote, may be filled by the appointment of a new director by the Chairman for the unexpired term. Any vacancy occurring in the Board by reason of an increase in the number of directors may be filled by appointment by the Chairman, such directors so appointed to serve until the next annual meeting of the Members. Any vacancy occurring on the Board by reason of the death, resignation, or disqualification of a director appointed by an Affiliated Association Member may be filled by the Affiliated Association originally appointing said director.
Section 1. Number and Title: The officers of this Association shall be a Chairman, two Vice Chairmen (to be known as First Vice Chairman, and Second Vice Chairman) a Treasurer, a Secretary, and a President. Either the Board of Directors or the Executive Committee may create such other offices as they or either of them may deem necessary or proper, and designate or define the duties of such offices and appoint persons thereto.
Section 2. Election of Certain Officers, Term of Office and Qualifications: The following officers, namely, the Chairman, the First and Second Vice Chairmen shall be elected annually by the members. Each of said officers must be either an Active member or an officer, partner, or employee of an Active member.
Section 3. Appointment of Certain Officers, and Term of Office: The President, the Secretary, and the Treasurer shall be appointed by the Board of Directors at their annual meeting, and if not so appointed, then said offices shall be filled by the Executive Committee; provided, however, that either the Board of Directors or the Executive Committee shall have the right to appoint said officers, or any of them, for a period of more than one year, but not more than three years, and to contract to pay such compensation to such persons so appointed as they may deem proper.
Section 4. Removal: Any officer or agent elected or appointed by the Board of Directors or by the Executive Committee may be removed by said Board or Committee whenever, in their respective judgment, the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of such person so removed.
Section 5. Vacancies: In the event of a vacancy of the office of Chairman, or First Vice Chairman, the officer next in rank shall succeed to the office vacated for the unexpired portion of the term. In the event the office of the Second Vice Chairman is vacated, such vacancy shall continue until the next annual election. A vacancy in the office of President, Secretary, or Treasurer, or any other office hereafter created, occurring during the year, shall be filled by action of the Executive Committee.
Section 6. Duties of Chairman: The Chairman shall be the principal executive officer of the corporation and shall, in general, supervise and control all the business and affairs of the corporation. He shall preside at all meetings of the Members and of the Board of Directors. He may sign, with the Secretary or any other proper officer of the corporation thereunto authorized by the Board of Directors, any deeds, mortgages, bonds, contracts, or other instruments which the Board of Directors have authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these bylaws to some other officers or agent of the corporation, or shall be required by law to be otherwise signed or executed; and in general, shall perform all duties incident to the office of Chairman, and such other duties as may be prescribed by the Board of Directors from time to time.
Section 7. Duties of the Vice Chairmen: In the absence of the Chairman, or in the event of his inability or refusal to act, the Vice Chairmen, in the order of their ranking, shall perform the duties of the Chairman, and when so acting shall have all the powers of and be subject to all the restrictions upon the Chairman. The Vice Chairmen shall perform such other duties as from time to time may be assigned to them by the Chairman, the Executive Committee, or by the Board of Directors.
Section 8. Duties of Treasurer: If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the Board of Directors shall determine. He shall: (a) have charge and custody of and be responsible for all funds and securities of the corporation; receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of Article VII of these bylaws; (b) in general, perform all the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him by the Chairman or by the Board of Directors.
Section 9. Duties of Secretary: The Secretary shall keep the minutes of the Members’ meetings and of the meetings of the Board of Directors, in one or more books provided for that purpose. He shall see that all notices are duly given to the Members and Directors, in accordance with the provisions of these bylaws or as required by law, be custodian of the corporate seal and of the records of the corporation, and see that the seal is affixed to all documents requiring the same, the execution of which is authorized in accordance with the provisions of these bylaws. He shall keep a register of the post office address of each Member and Director, which shall be furnished to the Secretary by such Member and Director. He shall make any and all reports as may from time to time be required of the corporation, and, in general, perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to him by the Chairman, by the Board of Directors, and by the Executive Committee.
Section 10. Duties of President: The President shall be the chief operating officer of the corporation, and shall supervise the carrying out of the policies and orders of the Board of Directors, Executive Committee, and of the membership of this corporation. He shall be authorized to from time to time, and within the budget of the corporation, employ such persons as he may deem necessary for the proper conduct of the affairs of this corporation, and determine the compensation to be paid therefor; and he shall do all and every such other things and acts pertaining to the office of President as may be directed by the Board of Directors and Executive Committee, and shall make such reports, recommendations, and suggestions to the Board of Directors and to the Executive Committee as in his judgment will be for the benefit of the business of this corporation.
Section 11. Salaries: The salaries of all officers employed or appointed by the Board of Directors or by the Executive Committee shall be fixed from time to time by the said Board or by the Executive Committee.
Contracts, Loans, Checks and Deposits
Section 1. Contracts: The Board of Directors or the Executive Committee may authorize any officer or officers, agent or agents, to enter into any contract or to execute and deliver any instrument in the name of or in behalf of the corporation, and such authority may be general or confined to specific instances.
Section 2. Loans: No loans shall be contracted on behalf of the corporation and no evidence of indebtedness shall be issued in its name unless authorized by a resolution of the Board of Directors. Such authority may be general or confined to specific instances.
Section 3. Checks, Drafts, etc.: All checks, drafts, or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers, agent or agents, of the corporation, and in such manner, as shall from time to time be determined by resolution of the Executive Committee.
Section 4. Deposits: All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies, or other depositories as the Executive Committee may select.
Section 1. Manner of Appointment and Number: Immediately upon election at the annual meeting, the Board shall meet and choose thirteen directors, who with the Chairman, the First Vice Chairman, the Second Vice Chairman, and the immediate Past Chairman shall constitute the Executive Committee to serve until the date of the next annual meeting. The President shall be an ex-officio member of this committee.
Section 2. Chairman of Executive Committee: The members of the Executive Committee shall, at their first meeting, elect as Executive Committee Chairman one of their own members.
Section 3. Quorum: A majority of the members of the Executive Committee meeting in person shall constitute a quorum.
Section 4. Duties and Powers: The Executive Committee shall have general charge of the affairs of this corporation, acting in the name of the Board when the Board is not in session, except where action is reserved to the Board only.
Section 5. Voting by Mail or Electronic Means: The Executive Committee may, upon request of its Chairman, vote upon any proposal by mail or electronic means, a majority vote to decide any such question so submitted.
Section 6. Meetings: The Executive Committee shall meet on the call of the Chairman of the corporation, or the Chairman of the Executive Committee.
Section 7. Vacancies: Any vacancy occurring in the Executive Committee by reason of death, resignation, or disqualification, may be filled by a joint appointment of a new member(s) by the chairman, first vice chairman and second vice chairman.
Withdrawals, Expulsions, or Suspensions
Section 1. Withdrawals: Any member in good standing, with dues fully paid up for the year of his membership, may resign from this corporation by filing his written resignation with the Secretary; provided, however, that no resignation can be accepted while unadjusted trade differences exist, or while arbitration is pending, or while an award of an Arbitration Committee remains unsettled.
Section 2. Grounds for Expulsion or Suspension: (a) the Executive Committee by at least two-thirds vote of the total Committee, shall have authority to suspend or expel any Member from this corporation for violation of any provision of the Articles of Incorporation, Bylaws, Trade Rules, Arbitration Rules, Rail Arbitration Rules, or the Code of Ethics.
(b) Neglect, after written request by the Secretary of the Association, or refusal to submit to arbitration the subject matter of any controversy with another Member defined as subject to compulsory arbitration under the Arbitration Rules or the Bylaws of this Association, or failure to comply with the award of an Arbitration Committee, shall be deemed uncommercial conduct, and grounds for expulsion from membership in this Association.
(c) Failure of a Member to sign a contract for arbitration in such form and manner as may be determined by the Executive Committee in accordance with the Arbitration Rules after requested by the Secretary of this association to do so, shall be deemed to be a refusal to submit to arbitration.
(d) Any Member who admits, in writing, his inability to meet his financial obligations, shall, upon complaint of a Member and approval by at least two-thirds votes of either the Board of Directors or the Executive Committee, be dropped from the membership rolls of this corporation.
(e) Any Member who shall be delinquent for more than three months in the payment of his dues, shall be dropped from the roll of Members.
Section 3. Reinstatement: Any individual or firm who withdraws, or is suspended or expelled, from this corporation, may be reinstated to membership by action of the Board or the Executive Committee.
Proceedings for Expulsion or Suspension
Section 1. Procedure: Before a Member shall be expelled or suspended, he shall receive a written notice from the Secretary of this corporation, which notice shall be sent by certified mail, and which shall state the grounds for the proposed action. Within five days thereafter, said Member shall make written reply to the Secretary of the corporation, stating the objections, if any, or the defense, if any he may have, against said action. Said Member may, if he so desires, request an oral hearing before the Executive Committee. If such hearing is requested, the Executive Committee shall set a time and place for same. If no oral hearing is requested the Executive Committee shall determine from the evidence placed before it in writing by the Secretary whether or not the Member should be suspended or expelled. If an oral hearing is requested, then after said hearing or the time fixed therefor, the Executive Committee shall determine whether said Member should be suspended or expelled.
Section 2. Appeal: Any Member so suspended or expelled by the Executive Committee may appeal said suspension or expulsion to the Board of Directors within ten days after being notified thereof in writing by the Secretary of this corporation. Said appeal shall be in writing, and same shall state all pertinent facts pertaining to the matter. A copy thereof shall be sent to the Secretary for transmittal to the Board of Directors. The decision of the Board of Directors shall be final.
Trade Rules and Arbitration Rules
The Trade Rules, Arbitration Rules, and Rail Arbitration Rules of the National Grain and Feed Association now in effect, or as same may be from time to time amended, shall be and the same are hereby adopted as part of the Bylaws of this corporation, with the same force and effect as though said Trade Rules, Arbitration Rules, and Rail Arbitration Rules were incorporated herein.
Appointment of Committees
Section1. Arbitration: (a) Within thirty days following the close of any annual meeting, the Chairman of the corporation shall appoint twelve persons who are officers, partners or employees of NGFA members eligible to arbitrate disputes before the National Grain and Feed Association, who shall serve until the date of the next annual meeting, as members of the arbitration appeals panel, any four of whom shall serve with the chairman of the arbitration appeals panel to constitute the committee. The Chairman shall appoint the permanent chairman of the of the arbitration appeals panel and designate the four members to serve on the committee for each case. In case a member of the arbitration appeals panel is unable to serve because of a temporary or permanent disability or for any other reason including a successful challenge by a party, the Chairman of the corporation shall fill such vacancy by either temporary or permanent appointment for the remainder of the term.
(b) In addition to those persons appointed pursuant to subsection (a), the Chairman of the corporation may at any time appoint as many additional qualified persons to the arbitration appeals panel on either a temporary or permanent basis as he/she deems necessary. Such persons shall have the same authority as those appointed pursuant to subsection (a).
Section 2. Nominations: At least ten days prior to any annual meeting the Chairman shall appoint a Nominations Committee, whose duty it shall be to recommend to the membership at the annual meeting the names of persons to be elected to office.
Section 3. Trade Rules: The Chairman shall appoint thirteen or more persons to serve upon a Trade Rules Committee, at least three as a subcommittee on feed rules, at least three as a subcommittee on grain rules, at least three as a subcommittee on barge rules, and at least three as a subcommittee on barge freight trading rules, and a chairman. It shall be the duty of this Committee to consider the Trade Rules of this Association, and proposals for changes in or additions to such Trade Rules, and to report its recommendations to the membership at any annual meeting or to the Board.
Section 4. Chairman: The Chairman of the corporation shall appoint the chairman for any committee provided for in this Article.
Section 5. Other Committees: The Chairman of the corporation may appoint any committee he considers necessary for the conduct of business of this corporation, and may, in his discretion, fill any vacancy on any such committee.
Section 6. Term: The term of service of any committee appointed by the Chairman shall expire on the date of the next annual meeting, or upon an earlier date indicated by the Chairman.
Section 7. Voting: In the event that a Member of this Association has more than one representative on a committee provided for under this Article, each Association Member is entitled to only one vote upon any questions submitted to that committee.
Indemnifications of Officers
and Directors Against Liabilities
and Expenses in Actions
Each director and officer, or former director or officer, of this corporation, and his legal representatives, shall be indemnified by this corporation against liabilities, expenses, counsel fees and costs reasonably incurred by him or his estate in connection with, or arising out of, any action, suit, proceeding or claim in which he is made a party by reason of his being or having been, such director or officer; provided that in no case shall the corporation indemnify such director or officer with respect to any matters as to which he shall be finally adjudged in any such action, suit, or proceeding to have been liable for negligence or misconduct in the performance of his duties as such director or officer. The indemnification herein provided for, however, shall apply also in respect of any amount paid in compromise of any such action, suit, proceeding or claim asserted against such director or officer (including expenses, counsel fees, and costs reasonably incurred in connection therewith), provided the Board of Directors of the corporation shall have first approved such proposed compromise settlement and determined that the director or officer involved was not guilty of negligence or misconduct; but in taking such action, any director involved shall not be qualified to vote thereon, and if for this reason a quorum of the Board cannot be obtained to vote on such matter, it shall be determined by the Executive Committee. In determining whether or not a director or officer was guilty of negligence or misconduct in relation to any such matters, the Board of Directors or Executive Committee may rely conclusively upon an opinion of independent legal counsel selected by such Board of Directors or Executive Committee. The right to indemnification herein provided shall not be exclusive of any other rights to which such director of officer may be lawfully entitled.
The Board of Directors shall provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the corporation and the word, ‘’Seal”.
The fiscal year of the corporation shall commence on February 1, beginning with February 1, 1960.
Section 1. Adoption: At the first annual meeting of the Board of Directors, said Board shall adopt or fix a total budget for the year ahead; provided, however, that the details of the budget shall be fixed by the Executive Committee acting from time to time. No funds in excess of the total so budgeted, excluding expenses of the convention and other meetings for which expenses are offset against registration fees, shall be paid out without order of the Board.
Section 2. Expenses: Expenses for travel and subsistence of employees and officers may be authorized by the Executive Committee in such manner and amount as it deems proper.
The rules contained in Roberts’ Rules of Order shall govern the procedure of any meeting in all cases to which they are applicable and in which they are not in conflict with these bylaws.
Section 1. By the Membership: These bylaws may be amended by a two-thirds vote of the Members present at any annual meeting, or by a two-thirds vote of the members of the Board of Directors, subject to an affirmative vote of two-thirds of the voting power present at the next annual meeting of the Members. Any amendment to be proposed to the membership shall be sent in writing to each Member at least thirty days prior to such annual meeting.
Section 2. By the Board of Directors: Alterations and amendments made by the Board of Directors shall take effect at such time as they may designate, and shall continue in force until approved or rejected by the members at an annual meeting, as hereinbefore provided. Notices of any alterations or amendments made by the Board of Directors shall be mailed to each Affiliated Association and to each Active member at least thirty days prior to the date set for the next annual meeting.
Section 3. Trade Rules and Arbitration Rules: Amendments made to the Trade Rules and Arbitration Rules shall become effective 30 days after the date of adoption as provided for in either Section 1 or Section 2 of this Article. Such changes and amendments shall be applicable to transactions and arbitration proceedings initiated after their effective date, and shall not be applicable to any transaction or arbitration proceedings which took place or were initiated prior to the effective date of such changes or amendments.
- Articles of Incorporation
- Antitrust Compliance
NATIONAL GRAIN AND FEED ASSOCIATION:
STATEMENT OF ANTITRUST COMPLIANCE POLICY
In view of everpresent government scrutiny of business activity and enforcement of the antitrust laws, all businesses, including trade associations, must be certain to maintain strict compliance with the antitrust laws. The Association is firmly committed to full compliance with Federal and state antitrust laws. This manual is a brief statement of the antitrust compliance program of the National Grain and Feed Association and is meant as a general guide only. Association Board members and employees who have questions about the antitrust laws or their application to the activities of the Association should contact the President or the Association’s antitrust counsel. Because the Association cannot and does not render legal advice to individual companies, specific questions of law should be referred to an individual’s or company’s legal counsel.
PROVISIONS OF THE ANTITRUST LAWS
The most important federal antitrust statutes relating to activities of trade associations are in Section 1 of the Sherman Act and Section 5 of the Federal Trade Commission Act. Section 1 of the Sherman Act prohibits a “contract, combination . . ., or conspiracy . . . in restraint of trade or commerce . . . .” Section 5 of the Federal Trade Commission Act prohibits “Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce,” by individuals or corporations. Unlike the Sherman Act, the Federal Trade Commission Act reaches anticompetitive acts, whether or not there is any agreement or “combination”; but, like the Sherman Act, it also covers joint actions.
The Sherman Act and Federal Trade Commission Act apply not only to interstate commerce but also to activities “affecting” such commerce, which the government says includes practically every business, and especially those handling products from other states.
In addition to federal laws, every state has antitrust and unfair competition statutes that apply to conduct within, or affecting commerce in, that state. Indeed, states have been extremely active in investigating and prosecuting violations of their antitrust laws. Therefore, no local business can expect to avoid antitrust liability by claiming that the localized nature of its business shields it from the antitrust laws. States have also actively pursued violations of federal antitrust laws through parens patriae actions. These actions, expressly authorized under federal law, permit states to bring treble damage actions against violators on behalf of their citizens who have been injured as a result of federal antitrust law violations.
Because a trade association by its very nature is a combination, associations and their members must be especially familiar with Sherman Act Section 1 and its prohibitions. The courts have interpreted Sherman Act Section 1 to prohibit only “unreasonable” restraints of trade. Certain types of agreements or understandings are so inherently unreasonable and anticompetitive, however, that they are considered per se illegal without regard to their reasonableness, effect or justification on economic or other grounds. In other words, there is no defense to a per se violation. For example, if competitors reach any form of an understanding or agreement concerning price, they cannot justify the understanding by showing that it is reasonable or that it will benefit consumers or other customers. Agreements considered to be per se illegal under the Sherman Act, and which the Association and its members must avoid in the conduct of Association activities or otherwise, include:
- Agreements or understandings among competitors, distributors or customers regarding prices, terms or conditions of sale.
- Agreements or understandings affecting the price of a product regardless of the purpose of the understanding.
- Agreements or understandings allocating markets, customers or territories.
- Agreements or understandings to limit production or supply.
- Agreements with others to refuse to deal with a potential or actual customer, supplier or competitor (known as “group boycotts” or “refusals to deal”).
To constitute a violation of the antitrust laws, an agreement need not be an express written or oral agreement. Informal, unwritten or even unspoken agreements or understandings are treated the same as written ones. An agreement or understanding may be inferred where casual communication is followed by similar or parallel conduct by competitors. Mere attendance at a meeting where competitors engage in an illegal discussion concerning pricefixing may imply acquiescence and make a nonparticipant criminally responsible and subject to as great a penalty as the active participants in the discussion. Moreover, innocent contacts with competitors, whether formal or informal, can often be misconstrued. Thus, great care must be taken to avoid even anappearance of improper conduct. This is especially true during trade association meetings, which often bring competitors together in formal and informal gatherings.
POTENTIAL ANTITRUST PROBLEM AREAS FOR TRADE ASSOCIATIONS
Because trade associations bring competitors together, considerable caution must be exercised in the conduct of the formal meetings of the Association and the conduct of individual members in their contacts with competitors during these meetings and informal gatherings. Not only must individual members and their employees avoid engaging in communications with competitors that might be interpreted by a third party as an illegal agreement or understanding, but the Association must also avoid such things as adopting or undertaking restrictive membership requirements, restrictive codes of ethics or conduct, compulsory or discriminatory performance or product standards, and exchanges of confidential financial information, each of which may be subject to antitrust scrutiny.
The Association undertakes antitrust safeguards that are intended to avoid violations of the antitrust laws. These safeguards include the retention of antitrust counsel who reviews the minutes and agenda and who attends meetings with potential antitrust significance.
TOPICS TO AVOID IN DISCUSSIONS WITH OTHER INDUSTRY MEMBERS
There are several topics that industry members should never discuss with another industry member or members. This applies whether the discussions take place in an office, at a convention, on a golf course, or anywhere else that two or more industry members may get together. This also applies to correspondence and telephone calls.NEVER DISCUSS:
(1)Current or future prices (The only safe policy is to avoid any mention whatsoever of prices, even of past prices);
(2)What constitutes a “fair” profit level;
(3)Possible increases or decreases in prices;
(4)Standardization or stabilization of prices;
(5)Pricing procedures, including margins, markups, cost percentages, or formulas or policies for arriving at prices;
(8)Control of sales;
(9)Allocation of markets by territory or customer;
(10)Blacklisting or boycotting certain customers or suppliers;
(11)Refusal to deal with a supplier because of its pricing or distribution practices;
(12)Whether or not the pricing practices of any industry member or supplier are unethical or constitute an unfair trade practice;
(13)Restricting or limiting production, supply or output; or
(14)Bids, or your intent to bid or not to bid a contract.
PENALTIES FOR VIOLATION OF THE ANTITRUST LAWS
Federal antitrust laws may be enforced against individuals and corporations both by government officials and by private parties through treble damage actions. In both cases, penalties are severe. A violation of the Sherman Act is a felony. An individual convicted of a criminal violation of the Sherman Act may be fined as much as $1 million and imprisoned for up to ten years for each violation. A corporation (including a trade association) convicted of such a criminal offense may be fined as much as $100 million for each violation. Both may be subjected to court injunctions severely restricting their activities, and to further penalties for violating such injunctions. This can result in dissolution of a trade association.
Violation of the Federal Trade Commission Act can result in issuance of a cease and desist order, which can place extensive governmental restraints on the activities of an association and its members. Failure to obey such an order can result in penalties of as much as $10,000 per day.
In addition to governmental prosecution for a criminal or civil violation, antitrust lawsuits brought by private parties pose a comparably substantial risk to the Association and its members. Competitors, customers or suppliers who are financially injured as a result of an antitrust law violation can recover “treble damages,” or three times actual damages, plus the costs of bringing the lawsuit and attorneys’ fees. These suits are often brought as class actions on behalf of all persons injured as a result of an alleged violation, making such suits a potentially devastating economic weapon. Even if an antitrust lawsuit lacks merit, such suits are extremely expensive to defend. Thus, it is very important not only to comply with the antitrust laws, but also to avoid even the appearance of unlawful conduct which could raise suspicions that a violation has occurred and lead to antitrust litigation.
YOUR ASSOCIATION AND THE ANTITRUST LAWS
The provisions of the antitrust laws and the penalties for violation can be applied to associations, their officers staffs and members. Illegal conduct is not made less so because it is done in the course of Association activities.
Strict compliance with the antitrust laws is and always has been the policy of the Association. To this end, competent counsel attends the Annual meeting, all Executive Committee and Board of Directors meetings, as well as other meetings where antitrust issues could arise, such as Trade Rules Committee meetings. Counsel also reviews all meeting agendas to determine when presence of counsel is required and reviews all minutes before they are disseminated. The Association exercises extreme care, with the advice and assistance of its legal counsel, to avoid not only violations, but anything that might justify even a suspicion of possible violations, of the antitrust laws.
This policy is essential for the protection of all members and for the Association’s continued existence and activities for the improvement and promotion of the industry, and it will be continued.
SUGGESTED ANTITRUST COMPLIANCE POLICY FOR MEMBERS
OF NATIONAL GRAIN AND FEED ASSOCIATION
It is the policy of this company [name of company] to comply fully with all federal and state antitrust
laws. This memorandum restates our commitment to that goal, and describes what is expected of each employee.
Antitrust laws in this country date back to the 1800’s. They have become an increasingly important factor in the dayto-day conduct of a business. Of course, monopolies are still attacked under the antitrust laws, just as the infamous trusts were challenged by Teddy Roosevelt. More important today is the applicability of the antitrust laws to such daytoday business problems as our pricing practices and other relations with customers, suppliers, and competitors. The theme behind most antitrust laws is preservation of our free enterprise system. Both the public interest and our corporate best interests will be served best by vigorous competition, unhindered by such artificial restraints as pricefixing agreements among competitors.
There is another practical reason for compliance with the antitrust laws. Violations can subject the Company to heavy fines and to costly lawsuits for damages and injunctions. Individual violators can be sent to jail for as long as ten years and fined up to $1 million for each violation, and the Company can be fined up to $100 million per violation.
In many instances the antitrust laws are clear and you can guide your conduct accordingly, both as to what you should and should not do. In those areas which are not as clear, however, we can only alert you to the pitfalls. It is absolutely essential that you consult with your superiors or counsel whenever questions arise. Any infraction of this Policy will subject the employee or employees involved to disciplinary measures.
This manual addresses the principal Federal antitrust statutes: the Sherman Act, the Clayton Act (as amended by the Robinson-Patman Act) and the Federal Trade Commission Act. Together, these laws govern the conduct of our business with respect to our competitors, suppliers, distributors and customers.
AGREEMENTS WITH COMPETITORS
Section 1 of the Sherman Act prohibits any “contract, combination . . ., or conspiracy . . . in restraint of trade or commerce . . . .” The courts have interpreted this law to prohibit only “unreasonable” restraints of trade. However, certain types of activities are regarded as so inherently anticompetitive that they are considered per se illegal, without regard to their reasonableness, effect or justification on economic or other grounds. In other words, there is no defense to a per se violation. Agreements considered to be per se illegal include:
1. Agreements to Fix Prices. It is per se unlawful to reach any agreement or understanding with a competitor (whether formal or informal) regarding the price at which products or services will be sold. This applies to agreements to raise, lower, or stabilize prices, and to agreements that either directly or indirectly affect prices. This prohibition includes discussions of demurrage. No officer, employee or representative of[name of company] should ever discuss prices with any officer, employee or representative of a competitor.
2. Agreements to Divide Markets or Territories. It is per se unlawful to enter into any agreement or understanding concerning the markets or territories in which [name of company] or a competitor sells, or regarding any division or allocation of markets or territories. Unlawful behavior includes agreements with competitors to stay out of their territory in return for their staying out of your territory, agreements to share business, or agreements to divide or allocate geographic markets.
3. Agreements to Divide Customers. It is per se unlawful to enter into any agreement or understanding concerning the customers to which [name of company] or a competitor sells, or any division or allocation of customers. This includes any agreement whereby competitors agree to stay away from each other’s customers or potential customers.
4. Agreements Restricting Production. It is per se unlawful to enter into any agreement or understanding with a competitor regarding production volume, supply or output, or any restrictions on the level of production, supply or output;
5. Agreements Regarding Terms and Conditions of Sale. It is per se unlawful to enter into any agreement or understanding with a competitor regarding any terms or conditions of sale used by [name of company] or its competitors. This includes such things as discounts, rebates, freight and delivery charges, deposits, and allowances.
AGREEMENTS WITH DISTRIBUTORS AND CUSTOMERS
1. TieIn Arrangements. It is generally illegal to condition the sale of one product or service upon the purchaser’s agreement to purchase another product from the seller. Therefore, you may not force a customer to carry more of our product line than it wants, or refuse to sell a product that a customer wants unless it also buys another product or group of products which it does not want.
2. Reciprocal Arrangements. It is illegal to enter into an agreement or understanding that conditions the purchase of a product from another company upon that company’s purchase of products from this Company. These “I’ll buy from you if you buy from me” arrangements may violate both the Sherman Act and the Federal Trade Commission Act. It is not unlawful for a company to buy from its own customers, but it is unlawful to exert pressure (subtle or otherwise) by threatening to withdraw patronage in order to obtain reciprocal purchasing.
3. Exclusive Dealing Arrangements and Requirements Contracts. Arrangements which take a person or company out of the market by limiting his dealings to one person or product may be illegal if a substantial amount of business is involved and there are insufficient alternatives for other firms wishing to deal with the Company. Examples of these arrangements include (i) requirements contracts, or agreements to purchase all of a company’s requirements of a product from a single seller, and (ii) exclusive dealing arrangements, by which a dealer agrees not to sell the products of a competitor. Because the antitrust analysis of these arrangements is complex, you must consult with Company counsel prior to entering into any such arrangements.
4. Resale Price Maintenance. The antitrust laws prohibit agreements between a seller and its customers relating to resale prices. Although it is permissible for a seller to suggest or recommend resale prices, the customers must be free to decide independently what retail prices they will charge for the seller’s products. Never attempt to enforce or police suggested prices.
5. Boycotts. It is per se unlawful to agree with other parties to refuse to deal with, or boycott, a particular supplier, customer or competitor.
6. Unilateral Refusals to Deal. A company is generally free to make a unilateral decision that it will not deal with a particular customer or supplier. There are certain limitations on this right, generally when there are inadequate alternative sources of supply. There are many lawful reasons for terminating customer or supplier relationships (i.e., refusing to deal), including slow pay or other credit problems, inability to receive deliveries, a history of consumer complaints, and failure to maintain product quality. These reasons should be fully documented. If you have any doubts about whether your reasons for desiring not to deal with a customer or prospective customer are legally sufficient, check with your superiors or counsel before you act.
RELATIONSHIPS WITH CUSTOMERS
Price Discrimination. With certain exceptions noted below, the Robinson-Patman Act makes it illegal to discriminate against a customer or group of customers by charging another customer a lower price for goods of like grade and quality, if the effect is to injure competition.
Unjustified differences in terms of payment, delivery or other conditions of sale, as well as disparate rebates, cash allowances or service charges, can also constitute price discrimination.
A lower price can be charged if (1) the lower price is cost justified by lower manufacturing costs, selling costs, or some other circumstance affecting the cost of serving that particular customer; (2) the lower price is offered in a good faith effort to meet, but not beat, the price of a competitor; or (3) some other legally acceptable defense, such as the noncontemporaneous nature of the sales, permits the lower price.
Promotions, such as allowances, payments, services or facilities provided in connection with the sale of a product, must also be made available on proportionately equal terms to all customers who compete in the resale of the products involved. Merchandising, advertising or warehousing assistance must therefore be made available on a pro rata basis to all competing purchasers.
Finally, a buyer who knowingly receives or induces a supplier to extend discriminatory prices or terms of sale may also be liable.
Contact your superiors or counsel if you have any question about the legality of a price or promotion which you are contemplating.
WHAT IS AN “AGREEMENT”
To constitute a violation of the antitrust laws, an agreement need not be an express written or oral agreement. Informal, unwritten or even unspoken agreements or understandings are treated the same as written ones. An agreement or understanding may be inferred where casual communication is followed by similar or parallel conduct by competitors. Mere attendance at a meeting where competitors engage in an illegal discussion concerning pricefixing may imply acquiescence and make a nonparticipant responsible and subject to as great a penalty as the active participants in the discussion. Moreover, innocent contacts with competitors, whether formal or informal, can often be misconstrued. Thus, great care must be taken to avoid even an appearance of improper conduct. This is especially true during trade association meetings, which often bring competitors together in formal and informal gatherings.
ENFORCEMENT AND PENALTIES FOR VIOLATION OF THE ANTITRUST LAWS
Federal antitrust laws may be enforced against individuals and corporations both by government officials and by private parties through treble damage actions. In both cases, penalties are severe. A violation of the Sherman Act is a felony. An individual convicted of a criminal violation of the Sherman Act may be fined as much as $1 million and imprisoned for up to ten years for each violation. A corporation convicted of such a criminal offense may be fined as much as $100 million. Both may be subjected to court injunctions severely restricting their activities, and to further penalties for violating such injunctions.
Violation of the Federal Trade Commission Act can result in issuance of a cease and desist order, which can place extensive governmental restraints on the activities of a corporation. Failure to obey such an order can result in penalties of as much as $10,000 per day.
In addition to federal laws, every state has antitrust and unfair competition statutes that apply to conduct within or affecting commerce in that state. Indeed, states have been extremely active in investigating and prosecuting violations of their antitrust laws. Therefore, no local business can expect to avoid antitrust liability by claiming that the localized nature of its business shields it from the antitrust laws. States have also actively pursued violations of federal antitrust laws through parens patriae actions. These actions, expressly authorized under federal law, permit states to bring treble damage actions against violators on behalf of their citizens who have been injured as a result of federal antitrust law violations.
In addition to governmental prosecution for a criminal or civil violation, antitrust lawsuits brought by private parties pose an equally substantial risk to the Company and its employees. Competitors, customers or suppliers who are financially injured as a result of an antitrust law violation can recover “treble damages,” or three times actual damages, plus the costs of bringing the lawsuit and attorneys’ fees. These suits are often brought as class actions on behalf of all persons injured as a result of an alleged violation, making such suits a potentially devastating economic weapon. Even if an antitrust lawsuit lacks merit, such suits are extremely expensive to defend. Thus, it is very important not only to comply with the antitrust laws, but also to avoid even the appearance of unlawful conduct which could raise suspicions that a violation has occurred and lead to antitrust litigation.
Because trade associations bring competitors together, considerable caution must be exercised in the conduct of Company employees and their contacts with competitors during these meetings. This also applies to any informal gatherings that may take place in connection with the formal meetings. Not only must you avoid engaging in prohibited conduct or communications with competitors, it is also essential to avoid engaging in communications that could somehow be misconstrued or interpreted by a third party as resulting in an illegal agreement or understanding.
If the subject of pricing, bidding, territorial or customer allocation or refusal to deal is mentioned during any trade association meeting, you must promptly leave the meeting, request that your departure be recorded in the minutes, and contact your supervisor and the Company’s counsel as soon as possible.
In no event should Company information, including pricing information, distribution or sales practices, or any other proprietary information be distributed or exchanged during trade association meetings.