ARTICLE I
Business Offices
The corporation shall have such offices either within or outside the
State of Delaware and within or outside the United States, as the Board
of Directors may from time to time determine or as the business of the
corporation may require.
ARTICLE II
Registered Offices and Registered Agents
Section 2.1. Delaware. The address of the initial
registered office in the State of Delaware and the name of the initial
registered agent of the corporation at such address are set forth in
the Certificate of Incorporation. The corporation may, from time to
time, designate a different address as its registered office or a
different person as its registered agent, or both; provided, however,
that such designation shall become effective upon the filing of a
statement of such change with the Secretary of State of the State of
Delaware as is required by law.
Section 2.2. Other States. In the event the
corporation desires to qualify to do business in one or more states
other than Delaware, the corporation shall designate the location of
the registered office in each such state and designate the registered
agent for service of process at such address in the manner provided by
the law of the state in which the corporation elects to be
qualified.
ARTICLE III
Meetings of Members
Section 3.1. Place of Meetings. Meetings of the
members shall be held at the principal office of the corporation or any
other place (within or outside the State of Delaware and within or
outside the United States) designated in the notice of the meeting.
Section 3.2. Annual Meeting. A meeting of the
members shall be held annually at such time as the Board of Directors
may determine (which shall be, in the case of the first annual meeting,
not more than thirteen (13) months after the organization of the
corporation and, in the case of all other meetings, not more than
thirteen (13) months after the date of the last annual meeting), at
which annual meeting the members shall elect a Board of Directors and
transact other proper business.
Section 3.3. Special Meetings. Special meetings of
the members shall be held when directed by the Chairman, President or
the Board of Directors, or when requested in writing by not less than
ten percent (10%) of all members entitled to vote at the meeting. The
call for the meeting shall be issued by the Secretary, unless the
Chairman, President, Board of Directors or members requesting the
meeting shall designate another person to do so.
Section 3.4. Notice. Written notice stating the
place, date and hour of the meeting and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall
be delivered not less than ten (10) nor more than sixty (60) days
before the date of the meeting, either personally or by first class
mail, by or at the direction of the Chairman, President, the Secretary,
or the officer or persons calling the meeting, to each member of record
entitled to vote at such meeting. If mailed, such notice shall be
deemed to be delivered when deposited in the United States mail
addressed to the member at his or her address as it appears in the
membership records of the corporation, with postage thereon
prepaid.
Notwithstanding the above paragraph, the corporation shall not be
required to give notice of a members' meeting to any member to whom
notice of two consecutive annual meetings, and all notices of meetings
or of the taking of action by written consent without a meeting to such
member during the period between such two consecutive annual meetings,
have been mailed under the procedures outlined above and have been
returned undeliverable. Any action or meeting which shall be taken or
held without notice to such member shall have the same force and effect
as if such notice had been duly given. If any such member delivers to
the corporation a written notice setting forth his or her then current
address, the requirement that notice be given to such member shall be
reinstated.
Section 3.5. Notice of Adjourned Meetings. When a
meeting is adjourned to another time or place, the corporation shall
not be required to give any notice of the adjourned meeting if the time
and place to which the meeting is adjourned are announced at the
meeting at which the adjournment is taken. At the adjourned meeting,
any business may be transacted that might have been transacted at the
original meeting. If, however, the adjournment is for more than thirty
(30) days, or if after the adjournment the Board of Directors fixes a
new record date for the adjourned meeting, a notice of the adjourned
meeting shall be given as provided in Section 3.4 above, to each member
of record on the new record date entitled to vote at such meeting.
Section 3.6. Waiver of Notice. Whenever notice is
required to be given to any member, a waiver thereof in writing, signed
by the person or persons entitled to such notice, whether before or
after the time stated therein, shall be the equivalent to the giving of
such notice. Attendance by a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of business because the meeting is not
lawfully called or convened. Neither the business to be transacted at,
nor the purpose of any regular or special meeting of the members need
be specified in the written waiver of notice.
Section 3.7. Fixing Record Date.
(a) For the purpose of determining members entitled to notice of or
to vote at any meeting of members or any adjournment thereof, the Board
of Directors may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted by
the Board of Directors, and which record date shall not be more than 60
nor less than 10 days before the date of such meeting. If no record
date is fixed by the Board of Directors, the record date for
determining members entitled to notice of or to vote at a meeting of
members shall be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting is
held. A determination of members of record entitled to notice of or to
vote at a meeting of members shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
(b) For purposes of determining the members entitled to consent to
corporate action in writing without a meeting, the Board of Directors
may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the
Board of Directors, and which date shall not be more than 10 days after
the date upon which the resolution fixing the record date is adopted by
the Board of Directors. If no record date has been fixed by the Board
of Directors, the record date for determining members entitled to
consent to corporate action in writing without a meeting, when no prior
action by the Board of Directors is required by the General Corporation
Laws of the State of Delaware, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be
taken is delivered to the corporation by delivery to its registered
office in the State of Delaware, its principal place of business or an
officer or agent of the corporation having custody of the books in
which proceedings of meetings of members are recorded. Delivery made to
a corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been
fixed by the Board of Directors and prior action by the Board of
Directors is required by the General Corporation Law of the State of
Delaware, the record date for determining members entitled to consent
to corporate action in writing without a meeting shall be at the close
of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
(c) For purposes of determining the members entitled to exercise any
rights, or for the purpose of any other lawful action, the Board of
Directors may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than 60 days prior to such
action. If no record date is fixed, the record date for determining
members for any such purpose shall be at the close of business on the
day on which the Board of Directors adopts the resolution relating
thereto.
Section 3.8. Record of Members Having Voting
Rights. The officer or agent having charge of the membership
records of the corporation shall prepare and make, at least ten (10)
days before each meeting of members, a complete list of the members
entitled to vote at such meeting, arranged in alphabetical order, and
showing the name, address, telephone number, facsimile number and
electronic mail address of each member. For a period of ten (10) days
prior to such meeting, the list shall be open to the examination of any
member, for any purpose germane to the meeting, during ordinary
business hours, either at a place within the city where such meeting is
to be held, which place shall be specified in the notice of the
meeting, or if not so specified, at the place where such meeting is to
be held. The list shall also be produced and kept open at the time and
place of the meeting and shall be subject to inspection by any member
at any time during the meeting. Upon the willful neglect or refusal of
the directors to produce such a list at any meeting for the election of
directors, such directors shall be ineligible for election to any
office at such meeting.
Section 3.9. Member Quorum. Except as otherwise
required by law, by the Certificate of Incorporation or by these
Bylaws, one-third (1/3) of the members entitled to vote, represented in
person or represented by proxy, shall constitute a quorum at a meeting
of members. When a specified item of business is required to be voted
on by a class of members (if the members are divided into classes), one
third (1/3) of such class of members, represented in person or
represented by proxy, shall constitute a quorum for the transaction of
such item of business by that class of members. If a quorum is present,
the affirmative vote of a majority of the members represented at the
meeting and entitled to vote on the subject matter shall be the act of
the members, unless the vote of a greater number or voting by class is
required by the General Corporation Law of the State of Delaware or by
the Certificate of Incorporation or by these Bylaws. The directors
shall be elected by a plurality of the votes of the members present in
person or represented by proxy at the meeting and entitled to vote on
the election of directors. Where a separate vote by class of members is
required, the affirmative vote of a plurality of members of such class
represented at the meeting shall be the act of such class unless the
vote of a greater number is required by the General Corporation Law of
the State of Delaware, the Certificate of Incorporation or these
Bylaws.
After a quorum has been established at a members' meeting, the
subsequent withdrawal of members, so as to reduce the number of members
in person or represented by proxy entitled to vote at the meeting below
the number required for a quorum, shall not affect the validity of any
action taken at the meeting or any adjournment thereof.
After a quorum has been established at a members' meeting, the
subsequent admission of new members, so as to increase the number of
members required for a quorum above the number of members present in
person or represented by proxy entitled to vote at the meeting, shall
not affect the validity of any action taken at the meeting or any
adjournment thereof.
Section 3.10. Voting. Each member (except emeritus
members) shall be entitled to one vote on each matter submitted to a
vote at a meeting of the members, except as may otherwise be provided
in the General Corporation Law of the State of Delaware.
A member may vote either in person or by proxy executed in writing
by the member or his or her duly authorized attorney-in-fact.
Section 3.11. Proxies. Every member entitled to
vote at a meeting of members or to express consent or dissent to
corporate action in writing without a meeting, or a member's duly
authorized attorney-in-fact, may authorize another person or persons to
act for him/her by proxy.
Every proxy must be signed by the member or his or her
attorney-in-fact. No proxy shall be valid after three (3) years from
its date, unless otherwise provided in the proxy. All proxies shall be
revocable.
Section 3.12. Action by Members Without a Meeting.
Any action required to be taken or which may be taken at any annual or
special meeting of members of the corporation, may be taken without a
meeting, without prior notice and without a vote, if a written consent
setting forth the action so taken shall be signed by members having not
less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all members
entitled to vote thereon were present and voted; provided, however,
that no written consent shall be effective unless such consent (i)
bears the date of signature by each member signing such consent and
(ii) is delivered to the corporation within sixty (60) days of the date
on which the earliest consent was delivered to the corporation. Prompt
notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those members who have
not consented in writing.
ARTICLE IV
Members
Section 4.1. Admission of
Members. To be eligible for membership, a person or entity
must be nominated by a current member of the corporation and must
complete a written membership application in such form as shall be
adopted by the Board of Directors from time to time. The nomination and
content of the membership application must be included in a notice to
the members, if any, of the corporation at least ten (10) days prior to
any vote on the applicant's admission, which notice may be by
electronic means. The initial members of the corporation shall be
admitted upon the affirmative vote of the Board of Directors of the
Corporation at the initial meeting of the Board of Directors.
Thereafter, members of the corporation shall be admitted as members of
the corporation only by a majority vote of the existing members of the
corporation.
Section 4.2. Emeritus Members. An emeritus member
is a former member whose membership has been suspended and converted to
emeritus status, either voluntarily or by action of the members, such
that all membership rights of the emeritus member, including the right
to vote and be counted for purposes of quorum, are suspended and
terminated until the emeritus member's membership is reinstated by
subsequent action of the members.
Upon the effective date of conversion of the membership of any
member to emeritus status, the membership, including all related voting
rights, of such member shall be suspended, except that such emeritus
member shall be entitled to attend (but not vote) at meetings of the
members, and the officers of the corporation shall attempt, in good
faith, to continue to deliver notices of meetings of the members of the
corporation to such emeritus member. References in these Bylaws to a
"member" or to the "members" of the corporation shall not include any
emeritus member unless explicitly provided otherwise.
Section 4.3. Voluntary Conversion of Membership to Emeritus
Status. Members may convert their membership to emeritus
status at any time upon ten (10) days' written, signed notice delivered
to an officer of the corporation.
Section 4.4. Involuntary Conversion of Membership to
Emeritus Status. Upon an affirmative vote of a two-thirds
majority of the members of the corporation, the membership of a member
shall be converted into an emeritus membership.
Section 4.5. Reinstatement of Membership of Emeritus
Members. Upon receipt of a written request and a new
membership application from an emeritus member and upon an affirmative
vote of a majority of the members of the corporation approving such
membership application, such emeritus member membership shall be
reinstated as a full member of the corporation, and shall be entitled
to exercise all rights as a member of the corporation, including all
related voting rights.
Section 4.6. Voluntary Withdrawal from Membership.
Members (including emeritus members) may withdraw from membership in
the corporation at any time upon ten (10) days' written, signed notice
delivered to an officer of the corporation.
Section 4.7. Termination from Membership. No member
may have his, her or its membership terminated except by an affirmative
vote of a two-thirds majority of the members of the corporation.
Section 4.8. Effect of Withdrawal or Termination of
Membership. Upon any withdrawal or termination of the
membership of any member, the membership, including all related voting
rights, of such member shall be terminated. After a withdrawal or
termination of the membership of any member, or a conversion of the
membership of any member to emeritus status, such member may reapply
for membership in accordance with Section 4.1 of these Bylaws.
ARTICLE V
Directors
Section 5.1. Powers. The business and affairs of
the corporation shall be managed by or under the direction of the Board
of Directors, which may exercise all such powers of the corporation and
do all such lawful acts and things as are not by statute or by the
Certificate of Incorporation or by these Bylaws specifically reserved
to the members.
Section 5.2. Qualification. Directors need not be
residents of Delaware or of the United States nor members of the
corporation.
Section 5.3. Compensation. The Board of Directors
shall have authority to fix the compensation of directors unless
otherwise provided in the Certificate of Incorporation.
Section 5.4. Number. The corporation shall
initially have nine (9) directors. Thereafter, the number of directors
shall be fixed by the members at each annual meeting of members.
Section 5.5. Election and Term. Each person named
in the Certificate of Incorporation or elected by the incorporator(s)
at the organization meeting, as the case may be, as a member of the
initial Board of Directors shall hold office until the first annual
meeting of members and until his or her successor shall have been
elected and qualified or until his or her earlier resignation, removal
or death.
At the first annual meeting of members and at each annual meeting
thereafter, the members shall elect directors to hold office until the
next succeeding annual meeting. Each director shall hold office for the
term for which he or she is elected and until his or her successor
shall have been elected and qualified or until his or her earlier
resignation, removal or death.
Section 5.6. Resignation and Removal of Directors.
A director may resign at any time upon written request to the
corporation. Furthermore, any director or the entire Board of Directors
may be removed, with or without cause, by a vote of the majority of the
members entitled to vote for the election of directors or as otherwise
provided in the General Corporation Law of the State of Delaware.
Section 5.7. Vacancies. Any vacancy occurring in
the Board of Directors, including any vacancy created by reason of an
increase in the authorized number of directors, may be filled by the
affirmative vote of a majority of the remaining directors though less
than a quorum of the Board of Directors or by a sole remaining
director. If there is more than one class of members, vacancies of
directorships elected by such class may be filled by a majority of the
directors elected by such class or by a sole remaining director. A
director elected to fill a vacancy shall hold office only until the
next election of directors by the members.
Section 5.8. Quorum and Voting. A majority of the
number of directors fixed in accordance with these Bylaws shall
constitute a quorum for the transaction of business. The vote of a
majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors.
Section 5.9. Executive and Other Committees. The
Board of Directors, by resolution adopted by a majority of the full
Board of Directors, may designate an Executive Committee from among its
members and such other committees consisting of at least one director
as determined by the Board of Directors from time to time. Each
committee, to the extent provided in such authorizing resolution, shall
have and may exercise all the power and authority of the Board of
Directors in the management of the business and affairs of the
corporation, as limited by the laws of the State of Delaware.
The Board of Directors, by resolution adopted in accordance with
this section, may designate one or more directors as alternate members
of any such committee, who may act in the place and stead of any absent
or disqualified member or members at any meeting of such committee. In
the absence or disqualification of any member of any such committee or
committees, the member or members thereof present at any meeting and
not disqualified from voting, whether or not they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified
member.
Section 5.10. Place of Meetings. Regular and
special meetings of the Board of Directors may be held within or
outside the State of Delaware and within or outside the United
States.
Section 5.11. Time, Notice and Call of Meetings.
Regular meetings of the Board of Directors shall be held immediately
following the annual meeting of members each year and at such times
thereafter as the Board of Directors may fix. No notice of regular
directors' meetings shall be required.
Special meetings of the Board of Directors shall be held at such
times as called by the Chairman of the Board, the President of the
corporation, or any two (2) directors. Written notice of the time and
place of special meetings of the Board of Directors shall be given to
each director by either personal delivery, telegram, cablegram, or
telefax at least two (2) days before the meeting, or by notice mailed
to each director at least five (5) days before the meeting.
Notice of a meeting of the Board of Directors need not be given to
any director who signs a waiver of notice, either before or after the
meeting. Attendance of a director at a meeting shall constitute a
waiver of notice of such meeting and waiver of any and all objections
to the place of the meeting, the time of the meeting, or the manner in
which it has been called or conveyed, except when a director states, at
the beginning of the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened.
Members of the Board of Directors may participate in a meeting of
such Board or of any committee designated by such Board by conference
telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other at the same
time. Participating by such means shall constitute presence in person
at a meeting.
Section 5.12. Action Without a Meeting. Any action
required or permitted to be taken at a meeting of the Board of
Directors or of any committee thereof may be taken without a meeting if
all the members of the board or committee, as the case may be, consent
thereto in writing, and such writing is filed with the minutes of the
proceedings of the board or committee. Such consent shall have the same
effect as a unanimous vote.
Section 5.13. Director Conflicts of Interest. No
contract or other transaction between the corporation and one or more
of its directors or between the corporation and any other corporation,
partnership, association or other organization in which one or more of
the directors of the corporation are directors or officers or are
financially interested, shall be void or voidable solely because of
such relationship or interest or solely because such director or
directors are present at or participate in the meeting of the Board of
Directors or a committee thereof which authorizes, approves or ratifies
such contract or transaction or solely because his or her or their
votes are counted for such purpose, if:
A. The material facts as to the director's relationship or interest
and as to the contract or transaction are disclosed or are known to the
Board of Directors or committee, and the Board of Directors or
committee in good faith authorizes, approves or ratifies the contract
or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be
less than a quorum; or
B. The material facts as to their relationship or interest and as to
the contract or transaction are disclosed or known to the members
entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of such members; or
C. The contract or transaction is fair as to the corporation at the
time it is authorized, approved or ratified by the Board of Directors,
a committee of the Board of Directors or the members.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or a
committee thereof which authorizes, approves or ratifies such contract
or transaction.
ARTICLE VI
Officers
Section 6.1. Officers. The officers of the
corporation shall consist of a President, a Secretary and a Treasurer,
each of whom shall be elected by the Board of Directors. A Chairman of
the Board, one or more Vice Chairmen, one or more Vice Presidents, and
such other officers and assistant officers and agents as may be deemed
necessary may be elected or appointed by the Board of Directors from
time to time. Any two (2) or more offices may be held by the same
person, except the offices of President and Secretary.
Section 6.2. Duties. The officers of the
corporation shall have the following duties:
A. Chairman of the Board. The Chairman of the
Board, if one is elected, shall preside at all meetings of the Board of
Directors and members and shall have such other duties and authority as
may be conferred by the Board of Directors.
B. Vice Chairman. The Vice Chairman, if one is
elected, shall, in the absence or disability of the Chairman of the
Board, perform the duties and exercise the powers of the Chairman of
the Board. The Vice Chairman shall also perform whatever duties and
have whatever powers the Board of Directors may from time to time
assign him/her. If more than one Vice Chairman is elected and the
Chairman is absent or becomes disabled, the Board of Directors shall
choose one Vice Chairman to perform the duties and exercise the powers
of the Chairman.
C. President. The President shall be the chief
executive officer of the corporation and shall have general and active
management of the business and affairs of the corporation (other than
the management of projects managed by a Project Management Committee),
subject to the direction of the Board of Directors. If a Chairman of
the Board is not elected, the President shall preside at all meetings
of the Board of Directors and members.
D. Vice President. The Vice President, if one is
elected, shall, in the absence or disability of the President, perform
the duties and exercise the powers of the President. He or she also
shall perform whatever duties and have whatever powers the Board of
Directors may from time to time assign him or her. If more than one
Vice President is elected, one thereof shall be designated as Executive
Vice President and shall, in the absence or disability of the
President, perform the duties and exercise the powers of the President
and each other Vice President shall only perform whatever duties and
have whatever powers the Board of Directors may from time to time
assign him or her.
E. Secretary and Assistant Secretary. The Secretary
shall keep accurate records of the acts and proceedings of all meetings
of the members and directors. The Secretary shall give all notices
required by law and by these Bylaws. In addition, the Secretary shall
have general charge of the corporate books and records and of the
corporate seal, and he or she shall affix, or attest the affixing of,
the corporate seal to any lawfully executed instrument requiring it.
The Secretary shall have general charge of the membership records of
the corporation and shall keep, at the registered or principal office
of the corporation, a record of the members showing the name, address,
telephone number, facsimile number and electronic mail address of each
member. The Secretary shall sign such instruments as may require his or
her signature and, in general, shall perform all duties as may be
assigned to him or her from time to time by the Chairman, the President
or the Board of Directors. The Assistant Secretary, if one is
appointed, shall render assistance to the Secretary in all the
responsibilities described above.
F. Treasurer and Assistant Treasurer. The Treasurer
shall have custody of all corporate funds and financial records, shall
keep full and accurate accounts of receipts and disbursements and
render accounts thereof at the annual meetings of members, and shall
perform such other duties as may be prescribed by the Chairman, the
President or the Board of Directors. The Assistant Treasurer, if one is
appointed, shall render assistance to the Treasurer in all of the
responsibilities described above.
Section 6.3. Project Management Committees. In
addition to the officers of the corporation, the Board of Directors
may, by resolution, establish one or more Project Management Committees
consisting of at least one officer of the corporation, who shall be
designated chairman of such committee, and may include one or more
other members of the corporation. Unless elected or appointed as an
officer in accordance with Sections 6.1 and 6.4 of these Bylaws, a
member of a Project Management Committee shall not be deemed an officer
of the corporation.
Each Project Management Committee shall be responsible for the
active management of one or more projects identified by resolution of
the Board of Directors which may include, without limitation, the
creation or maintenance of "open-source" software for distribution to
the public at no charge. Subject to the direction of the Board of
Directors, the chairman of each Project Management Committee shall be
primarily responsible for project(s) managed by such committee, and he
or she shall establish rules and procedures for the day to day
management of project(s) for which the committee is responsible.
The Board of Directors of the corporation may, by resolution,
terminate a Project Management Committee at any time.
Section 6.4. Election and Term. The officers of the
corporation and the members of each existing Project Management
Committee shall be appointed by the Board of Directors or appointed by
an officer empowered by the Board to make such appointment. Such
appointment by the Board of Directors may be made at any regular or
special meeting of the Board. Each officer shall hold office and each
member of a Project Management Committee shall serve on such committee
for a period of one year or until his or her successor is elected and
qualified or until his or her earlier resignation or removal.
Section 6.5. Removal of Officers. Any officer or
agent and any member of a Project Management Committee elected or
appointed by the Board of Directors may be removed by the Board
whenever, in its judgment, the best interests of the corporation will
be served thereby.
Section 6.6. Vacancies. Any vacancy, however
occurring, in any office or any Project Management Committee may be
filled by the Board of Directors.
Section 6.7. Compensation. The compensation, if
any, of all officers of the corporation and of all members of each
existing Project Management Committee shall be fixed by the Board of
Directors and may be changed from time to time by a majority vote of
the Board of Directors. The fact that an officer is also a director
shall not preclude such person from receiving compensation as either a
director or officer, nor shall it affect the validity of any resolution
by the Board of Directors fixing such compensation. The President shall
have authority to fix the salaries, if any, of all employees of the
corporation, other than officers elected or appointed by the Board of
Directors and members of Project Management Committees.
ARTICLE VII
Books and Records
Section 7.1. Books and Records. The corporation
shall keep correct and complete books and records of accounts and shall
keep minutes of the proceedings of its members, Board of Directors and
committees of directors.
The corporation shall keep at its registered office or principal
place of business, or at the office of its transfer agent or registrar,
a record of the name, address, telephone number, facsimile number and
electronic mail address of each member, together with the date of any
withdrawal or termination of such member's membership, or any
conversion of such member's membership to emeritus status.
Each member shall be responsible for notifying the corporation of
changes to such member's address, telephone number, facsimile number or
electronic mail address.
Any books, records and minutes may be in written form or in any
other form capable of being converted into clearly legible written form
within a reasonable time.
Section 7.2. Members' Inspection Rights. Any person
who is a member, upon written demand under oath stating the purpose
thereof, shall have the right to examine, in person or by agent or
attorney, at any time during the corporation's usual hours for
business, for any proper purpose as determined under the General
Corporation Law of the State of Delaware, the corporation's membership
records and its other books and records and to make copies or extracts
therefrom.
ARTICLE VIII
Nonprofit Status
The corporation is organized and shall be operated as a
not-for-profit membership corporation organized under Delaware law. If
the Board of Directors of the corporation elects to seek and obtains an
exemption for the corporation from federal taxation pursuant to Section
501(a) of the Internal Revenue Code, as amended (the "IRC"), and until
such time, if ever, that such exemption is denied or lost, the
corporation shall not be empowered to engage directly or indirectly in
any activity which the corporation believes would be likely to
invalidate its status as an organization exempt from federal taxation
under Section 501(a) of the IRC as an organization described in Section
501(c) of the IRC.
ARTICLE IX
Corporate Seal
The Board of Directors shall provide a corporate seal which shall
have the name of the corporation inscribed thereon, and may be a
facsimile, engraved, printed, or an impression seal.
ARTICLE X
Amendment
These Bylaws may be altered, amended or repealed by the Board of
Directors or by the members, and new Bylaws may be adopted by the Board
of Directors or by the members. No alteration, amendment or repeal of
these Bylaws shall be effective unless and until the corporation
attempts, in good faith, to give notice to the members of the
corporation of such alteration, amendment or repeal at least fifteen
(15) days prior to the effective date of such alteration, amendment or
repeal, which notice may be by electronic means.
ARTICLE XI
Limits on Liability of Directors
To the fullest extent permitted by the General Corporation Law of
the State of Delaware, as the same exists or may hereafter be amended,
a director of the corporation shall not be personally liable to the
corporation or its members for monetary damages for breach of fiduciary
duty as a director.
ARTICLE XII
Indemnification of Officers and Directors
Section 12.1. Right to Indemnification. Each person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit, or proceeding, whether
civil, criminal, administrative, or investigative (other than an action
by or in the right of the corporation), by reason of the fact that he
or she is or was a director, officer or member of the corporation, or
is or was serving at the request of the corporation as a director,
officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise, shall be entitled to
indemnification against expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement to the fullest extent
now or hereafter permitted by applicable law as long as such person
acted in good faith and in a manner that such person reasonably
believed to be in or not be opposed to the best interests of the
corporation; provided, however, that the corporation shall indemnify
any such person seeking indemnity in connection with an action, suit or
proceeding (or part thereof) initiated by such person only if such
action, suit or proceeding (or part thereof) was authorized by the
Board of Directors.
Section 12.2. Advance Payment of Expenses. Expenses
(including reasonable attorneys' fees) incurred by any person who is or
was an officer, director or member of the corporation, or who is or was
serving at the request of the corporation as an officer or director of
another corporation, partnership, joint venture, trust or other
enterprise, in defending any civil, criminal, administrative or
investigative action, suit or proceeding, shall be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
person to repay such amount if it is ultimately determined that he or
she is not entitled under applicable law to be indemnified by the
corporation.
Section 12.3. Right of Claimant to Bring Suit. If a
claim under this Article is not paid in full by the corporation within
ninety (90) days after a written claim has been received by the
corporation, the claimant may at any time thereafter bring suit against
the corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be
paid also the expense of prosecuting such claim. It shall be a defense
to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any action or proceeding in advance of
its final disposition where the required undertaking has been tendered
to the corporation unless such action is based on the claimant having
committed an act involving moral turpitude) that the claimant has not
met the standards of conduct which make indemnification permissible
under the General Corporation Law of the State of Delaware, but the
burden of proving such defense shall be on the corporation. Neither the
failure of the corporation (including its Board of Directors,
independent legal counsel, or its members) to have made a determination
prior to the commencement of such action that indemnification of the
claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the General Corporation Law
of the State of Delaware, nor an actual determination by the
corporation (including its Board of Directors, independent legal
counsel, or its members) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of
conduct.
Section 12.4. Contract Rights. The provisions of
this Article shall be a contract between the corporation and each
director, officer or member to which this Article applies. No repeal or
modification of these Bylaws shall invalidate or detract from any right
or obligation with respect to any state of facts existing prior to the
time of such repeal or modification.
Section 12.5. Rights Non-exclusive. The
indemnification and advancement of expenses provided by or granted
pursuant to this Article shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of
expenses may be entitled under any bylaw, agreement, vote of members or
disinterested directors or otherwise, both as to action in his or her
official capacity and as to action in another capacity while holding
such office.
Section 12.6. Insurance. The corporation may
purchase and maintain insurance on behalf of any person who is or was a
director, officer, member, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted
against him or her and incurred by him or her in any such capacity, or
arising out of his or her status as such, whether or not the
corporation would have the power to indemnify him or her against such
liability under the provisions of this Article or of applicable
law.
Section 12.7. Definitions. For purposes of this
Article, references to "the corporation" shall include, in addition to
the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power
and authority to indemnify its directors, officers, and employees or
agents, so that any person who is or was a director, officer, employee
or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this
Article with respect to the resulting or surviving corporation as he or
she would have with respect to such constituent corporation if its
separate existence had continued, and references to "other enterprises"
shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to any
employee benefit plan; and references to "serving at the request of the
corporation" shall include any service as a director, officer, employee
or agent of the corporation which imposes duties on, or involves
services by, such director, officer, employee, or agent with respect to
an employee benefit plan, its participants, or beneficiaries; and a
person who acted in good faith and in a manner he or she reasonably
believed to be in the interest of the participants and beneficiaries of
an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in
this Article.
Section 12.8. Continued Coverage. The
indemnification and advancement of expenses provided by, or granted
pursuant to this Article shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer or member and shall inure to the benefit of the
heirs, executors and administrators of such person.
ARTICLE XIII
General Provisions
Section 13.1. Checks. All checks or demands for
money and notes of the corporation shall be signed by such officer or
officers or such other person or persons as the Board of Directors may
from time to time designate.
Section 13.2. Fiscal Year. The fiscal year of the
corporation shall be fixed by resolution of the Board of Directors.
Section 13.3. 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 13.4. Deposits. All funds of the
corporation not otherwise employed shall be deposited from time to time
to the credit of the corporation in such depositories as the Board of
Directors shall direct.
Section 13.5. Contracts. The Board of Directors may
authorize any officer or officers, agent or agents, to enter into any
contract or execute and deliver any instrument on behalf of the
corporation, and such authority may be general or confined to specific
instances.
Section 13.6. Counterpart Execution: Facsimile
Execution. Any document requiring the signature of the
directors and/or members may be executed in any number of counterparts
with the same effect as if all of the required signatories had signed
the same document. Such executions may be transmitted to the
corporation and/or the other directors and/or members by facsimile and
such facsimile execution shall have the full force and effect of an
original signature. All fully executed counterparts, whether original
executions or facsimile executions or a combination, shall be construed
together and shall constitute one and the same agreement.
THESE BYLAWS WERE READ, APPROVED AND ADOPTED BY THE BOARD OF DIRECTORS
OF THE APACHE SOFTWARE FOUNDATION ON THE 1ST DAY OF JUNE, 1999.
(signed)
Jim Jagielski, Secretary
