Bylaws of The NetBSD Foundation
Table of Contents
- Article I: Business Offices
- Article II: Registered Offices and Registered Agents
- Article III: Membership
- Article IV: Meetings
- Article V - Directors
- Article VI: Officers
- Article VII: Elections and Nominating Committee
- Article VIII: Books and Records
- Article IX: Non-profit Status
- Article X: Corporate Seal
- Article XI: Limits on Liability of Directors
- Article XII: Indemnification of Officers and Directors
- Article XIII: General Provisions
- Article XIV: Intellectual Property
The NetBSD Foundation (the "Foundation") is intended to be a tax exempt, not-for-profit corporation. No member of the Foundation will personally benefit from any of the funds, if any, brought in by the Foundation. All fund transactions that could benefit members must be approved by the Board of Directors.
The Foundation shall devote itself to the traditional goals and Spirit of the NetBSD Project and own the trademark of the word "NetBSD". The primary goal of the Foundation is to promote the development of the NetBSD computer operating system and related software. The Foundation should promote development work that is:
- Well designed
The Foundation should emphasize technical issues in order to achieve clean designs and well architected solutions. This helps to promote stronger and easier to manage source code in NetBSD, where other similar systems that value features over code quality have found increasing problems with code management.
The Foundation should emphasize the maturity of its product. The users of this product should not be burdened by a system whose behavior changes drastically with every release, whose bugs are made evident on a daily basis, which requires many patches to operate in an expected fashion, or which requires frequent restarts or manual intervention as part of the operating routine. To achieve a high quality product, the Foundation should dedicate resources and guidance in NetBSD regression and release testing.
The Foundation should endeavor to make NetBSD a viable choice when compared to similar competing systems via commonly accepted performance benchmarks. This goal should not interfere with the goals of clean design and stable operation.
- Intellectually honest
The Foundation should promote NetBSD primarily on its technical merits, and the Foundation's operations management committee should feel confident in any official claims or advertisements that are made.
The Foundation should work to provide a relatively lean core NetBSD system, with all the base functionality expected of a modern, open operating system. This system must have the ability to recompile itself in its entirety. Extra facilities beyond the base functionality may be implemented via the third party package system, allowing NetBSD developers to concentrate their efforts on the base system.
The Foundation should continue NetBSD's original goal to have the widest range of multi-platform support of any similar system. Where possible, support utilities should be written to follow relevant industry standards so they may be usable on other operating systems, providing facilities for cross-development.
The Foundation should work to make NetBSD conform to widely accepted industry standards, and provide compatibility with popular system extensions, wherever is practical and does not unduly compromise the other technical merits of the system.
The Foundation should endeavor to design security into every component of NetBSD without sacrificing flexibility. In addition, the Foundation should provide the necessary resources to provide responses in a timely manner to well-known security watchdog organizations.
The Foundation should be responsive to the support needs of its target user community such that these users will feel confident in that support. This includes responsiveness to both bug reports and technical questions about NetBSD in general.
The Foundation should provide NetBSD as a freely available and re-distributable system that professionals, researchers and hobbyists can use in whatever manner they wish. No portion of NetBSD owned explicitly by the Foundation should be licensed for monetary gain. Where feasible, the Foundation should also solicit contribution of code copyright, to simplify licensing of the NetBSD operating system.
Any defined terms in this section which are referenced in any following section or in the Bylaws shall be referenced as a capitalized word or phrase.
The term "Active" shall refer to the Members of the Foundation for the purposes of determining which Members have voting rights. The spirit of this definition is that by being Active, a Member gains insight into the project which insight is necessary in order to cast a meaningful vote.
An "Active Member" is a Member who (1) has committed code to the NetBSD source tree within the twelve months prior to such designation and (2) wishes to be considered an Active Member. When the Board of Directors, or other authorized agent of the Foundation, shall promulgate the list of Active Members, each Member shall have thirty (30) days to express his/her desire not to be considered an Active Member. If any Member wishes to be considered an Active Member, but has not committed code to the NetBSD Source Tree within the previous twelve months, s/he may petition the Board of Directors for Active Member status, stating why such status should be conferred. The Board of Directors is responsible for responding to such petitions within ten days, in good faith, stating the reasons why Active Member status is or is not conferred. The Board of Directors may alter the specific criteria used to determine which members are Active, but any alterations must be approved by a majority of the Active Members. Any altered or new criteria may be incorporated into these Bylaws without the need for formal Amendment procedures.
A member is "Inactive" if s/he is not Active.
These terms retain their usual and customary meanings according to the Laws of the State of Delaware except that these are additionally measured as being in accordance with this Constitution and the Bylaws.
This Constitution shall be structured so as to maintain the Spirit of the NetBSD Project throughout the lifetime of the Foundation. To that effect, this Constitution is provided as a two-part document. The first part is the Preamble, which is directed at establishing and maintaining the Spirit of the NetBSD Project. The second part is the Articles of the Bylaws, which constitute the traditional set of articles by which the organization shall be run.
This Constitution, together with any other documents which may define the roles, rights and responsibilities of any Member of the Foundation, shall as a whole be of such limited size and complexity that the member to which these documents pertain could reasonably be expected to comprehend any and all of the contents of these documents with a reasonable effort within a period of three months.
This Constitution and any subordinate documents shall be made readily available to the public in the most widely accessible media possible.
Amendments to this Constitution are to be recommended by a process which is determined by the Board of Directors. Such process shall be circulated in writing within one year of the ratification of these Bylaws. Such amendments shall be put forth to the Active Members for a vote at such times as the Board of Directors shall from time to time designate. Before any such vote takes place, the Foundation shall attempt in good faith to give notice to the Members of the Foundation of any alteration, amendment or repeal at least thirty (30) days prior to the vote, which notice and vote may take place by electronic means.
Amendments to the Preamble shall be considered as separate from amendments to the Bylaws, and ratification of each of these shall require a separate vote. Ratification of amendments to the Preamble shall require an affirmative vote of seventy five per cent (75%) of the Active Members. Ratification of amendments to the Bylaws shall require an affirmative vote of fifty one per cent (51%) of the Active Members.
At such time as the number of Active Members reaches 500, a new Constitution shall be proposed which shall be ratified as a whole through a vote requiring affirmation of seventy five percent (75%) of the Active Members. The new Constitution shall take effect immediately upon being ratified. Regardless of whether a new Constitution has been ratified, this present Constitution shall be considered to be repealed one year after such time as the number of Active Members reaches 500. During that year, the Board of Directors should amend and the Bylaws as necessary, and present them to the Members of the Foundation for Ratification as described above.
The Bylaws may contain the details of the process by which amendments are proposed, and the way in which the notification and votes take place.
Articles of the Bylaws
The Foundation 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 Foundation may require.
The address of the initial registered office in the State of Delaware and the name of the initial registered agent of the Foundation at such address are set forth in the Certificate of Incorporation. The Foundation 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.
In the event the Foundation desires to qualify to do business in one or more states other than Delaware, the Foundation 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 Foundation elects to be qualified.
Membership in the Foundation shall be open to all NetBSD developers who have signed the NetBSD Project Development Agreement as duly presented to them by an authorized Member of the Foundation. The Board of Directors and members of the Foundation's operations management committee (as described in Section 5.9) are authorized to present NetBSD Project Development Agreements to prospective Members. The Board of Directors may also authorize others to do so. A person who has signed such Agreement is termed a "Member".
The Board of Directors may, at its discretion, appoint a committee to develop and implement specific criteria for ascertaining which developers are Active for the purposes of participation in the official affairs of the Foundation. Until the promulgation of such criteria, all Members shall be considered Active Members.
A Member may have his/her membership terminated if s/he is Inactive pursuant to the criteria. Such termination may only take place after written notice is furnished to the Member (by mail or electronic mail) and an appropriate period of time has been allotted for response.
In addition, the Board of Directors may nominate Members as "Members Emeritus". Developers who have shown leadership and are highly respected within the community are generally good candidates for Emeritus status. Members Emeritus are granted at least the same rights and privileges as Active Members. The number of Members Emeritus shall not exceed five per cent (5%) of the number of Active Members.
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, such former Member may reapply for membership in accordance with these Bylaws.
Meetings of the Members shall be held at the place (within or outside the State of Delaware and within or outside the United States) designated in the Notice of the 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 ratification of these Bylaws; 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 transact all business relevant to the affairs of the Foundation.
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 Active Members. 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. A Special Meeting shall be held within six months of the ratification of these Bylaws for the purpose of electing the Board of Directors.
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 twenty (20) nor more than sixty (60) days before the date of the meeting, either by mail or by electronic mail, to each Active Member of record on the Record Date. If the Board of Directors or other Members intend to propose amendments to this Constitution, notice must be given not less than ten (10) nor more than sixty (60) days before the date of the meeting.
Notwithstanding the above paragraph, the Foundation 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 Foundation a written notice setting forth his or her then current address, the requirement that notice be given to such Member shall be reinstated.
When a meeting is adjourned to another time or place, the Foundation 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 4.4 above, to each Active Member of record on the new Record Date.
Whenever notice is required to be given to any Member, a waiver thereof in writing, signed by the Member 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 Member at a meeting shall constitute a waiver of notice of such meeting, except when such Member 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.
(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 sixty (60) nor less than twenty (20) 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 after 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 twenty (20) 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 Foundation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the Foundation having custody of the books in which proceedings of meetings of Members are recorded. Delivery made to a Foundation'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.
The officer or agent having charge of the membership records of the Foundation shall prepare and make, at least twenty (20) days before each meeting of Members, a complete list of the Active Members entitled to vote at such meeting, arranged in alphabetical order, and showing the Member's name, electronic mail address, and, if the Member desires, address and telephone number. For a period of twenty (20) 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, online at a web address made known to the Members, and 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 any Officer or agent to produce such a list at any meeting, such Officer or agent shall be ineligible for election to any office at such meeting.
Except as otherwise required by law, by the Certificate of Incorporation or by these Bylaws, one-quarter (1/4) of the Active Members entitled to vote, represented in person, electronically, or represented by proxy, shall constitute a "Quorum" at a meeting of Members. If a Quorum is present, the affirmative vote of a majority of the Active 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.
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.
If a Quorum is not established, the meeting will be adjourned for three (3) weeks and the new date and time will be announced electronically to all Members. The second meeting does not need one-quarter (1/4) of the Active Members to establish a Quorum.
Each Active Member 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, electronically, or by proxy executed in writing by the Member or his or her duly authorized attorney-in-fact. Appropriate procedures for electronic voting shall be approved by the Board of Directors.
Every Active 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. Digitally signed documents may also be accepted.
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.
Any action required to be taken or which may be taken at any Annual or Special Meeting of Members of the Foundation, 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 Foundation within sixty (60) days of the date on which the earliest consent was delivered to the Foundation. 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, and such notice shall be in accordance with the general procedures for giving notice contained in this Article.
The business and affairs of the Foundation shall be managed by or be under the direction of the set of Directors known as the "Board of Directors", which may exercise all such powers of the Foundation and do all such lawful acts and things as are not specifically reserved to the Members by statute or by the Certificate of Incorporation or by these Bylaws.
The Board shall designate, at its option, a Chairman of the Board and a Vice Chairman.
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.
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.
Directors need not be residents of Delaware or of the United States. Directors must be Active Members at the time of their election. Members must be Active for not less than one year before they are eligible to be nominated as a Director.
The Foundation shall initially have five (5) Directors, as described in Section 7.6. Thereafter, the number of Directors shall be fixed by the Members at each annual meeting of Members, which number shall be odd, shall not be less than three (3), and shall not exceed nine (9).
Each Director shall serve for two years. The terms shall be staggered so that no fewer than two new Directors shall be chosen each year, unless the number of Directors is three (3) in which case two (2) Directors will be chosen one year and one (1) Director will be chosen the next year. Terms will end and commence on the day after the Annual Meeting.
A Director may resign at any time upon written request to the Foundation. Furthermore, any Director or the entire Board of Directors may be removed, with an explanation provided for their removal, by a vote of seventy five per cent (75%) of the Active Members entitled to vote or as otherwise provided in the General Corporation Law of the State of Delaware.
Should a vacancy on the Board of Directors appear in the middle of a term, including any vacancy created by reason of an increase in the authorized number of Directors, the most recent Nominating Committee to have met shall reconvene, solicit nominations for the Director, select a candidate, and present the candidate for confirmation by the Active Members. Such confirmed Director shall serve the remainder of the term allotted to the vacated seat.
Should a vacancy occur three months or fewer prior to the end of the term, the Nominating Committee may fill the vacancy at the same time as its ordinary procedures. Positions filled in that way will be valid until the end of the term.
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.
The Board of Directors, by resolution adopted by a majority of the full Board of Directors, may designate an "Executive Committee" from among the members of the Foundation 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 Foundation, as limited by the laws of the State of Delaware.
Such Executive Committees may include a committee to oversee membership, as contemplated in Section 3.1, and a committee to manage operations of the Foundation. The NetBSD Project's Core Group will serve both of these functions until such time as the Board of Directors appoints a new committee.
The Board of Directors, by resolution adopted in accordance with this Article, 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.
A complete list of Executive Committees, along with their authorizing resolutions, shall be made available to the Members online at a known web address within ten (10) business days of any addition, deletion or change to any such committee.
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. By agreement of all the Directors, meetings may be held online according to an appropriate means for attendance and electronic voting to be decided by the Directors.
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, 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, electronic mail, or fax at least two (2) business days before the meeting, or by notice mailed to each Director at least five (5) business 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.
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.
No individual Director shall act on behalf of the Foundation, or make strategic decisions for the Foundation, without the consent of the Board of Directors. No Director shall make representations on behalf of the Foundation without the consent of the Board of Directors. Such consent need not be in writing, but must be obtained in advance of such actions by an individual Director.
Consent shall be deemed granted by the vote of the majority of a Quorum at a meeting of the Board of Directors, or otherwise by a majority of the Board of Directors. Notice of such consent will be made known to all Directors by the same means as in Section 5.11.
No contract or other transaction between the Foundation and one or more of its Directors or between the Foundation and any other corporation, partnership, association or other organization in which one or more of the Directors of the Foundation are directors or officers or are personally or financially interested, shall be void or voidable solely because of such relationship or interest or solely because such Director(s) are present at 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 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 Foundation at the time it is authorized, approved or ratified by the Board of Directors, a committee of the Board of Directors or the Members of the Foundation.
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.
Interested Directors should refrain from campaigning for or otherwise leading the effort of any business of the Foundation in which that Director has a personal or financial interest.
The officers of the Foundation shall be appointed by the Board of Directors. The officers shall consist of a President, a Secretary and a Treasurer. In addition, 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.
All officers of the Foundation have the duty to deal in Good Faith with the Members and are subject to the direction of the Board of Directors. The officers of the Foundation shall have the following specific duties:
The President shall be the chief executive officer of the Foundation and shall have general and active management of the business and affairs of the Foundation (other than the management of projects managed by a Project Management Committee), subject to the direction and approval 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.
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.
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 Foundation and shall keep, at the registered or principal office of the Foundation, a record of the Members of the Foundation 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. Until the first Board of Directors of the Foundation is elected, Christos Zoulas will be acting Secretary of the Foundation.
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.
In addition to the Officers of the Foundation, the Board of Directors may, by resolution, establish one or more Project Management Committees consisting of at least one Officer of the Foundation, who shall be designated chairman of such committee, and may include one or more other Members of the Foundation. 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 Foundation.
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 Foundation may, by resolution, terminate a Project Management Committee at any time.
A complete list of all Project Management Committees, along with their authorizing resolutions and Project Descriptions, shall be made available to the Members online at a known web address within ten (10) business days of any addition, deletion or change to such committee.
The Officers of the Foundation 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.
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 Foundation will be served thereby.
Any vacancy, however occurring, in any office or any Project Management Committee may be filled by the Board of Directors.
The compensation, if any, of all officers of the Foundation 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 Foundation, other than Officers elected or appointed by the Board of Directors and members of Project Management Committees.
Directors shall be chosen by a Nominating Committee ("NomCom"). The principal functions of the NomCom are to review the open Director positions and to either nominate its incumbent or recruit a superior candidate. The NomCom shall consist of ten (10) voting volunteers and one non-voting chair. The non-voting chair will be appointed by the Board of Directors.
All Active Members of the Foundation, as defined in Article III of these Bylaws, except Directors, may submit their names for membership in the NomCom. The non-voting chair randomly selects the 10 voting volunteers from the pool of names of volunteers using a method that can be independently verified to be unbiased and fair. A method is fair in this case if each eligible volunteer is equally likely to be selected. A method is unbiased if no one can influence its outcome. The method must include an announcement of an enumerated list of the pool of names together with the specific algorithm for how names will be chosen from the list. The output of the selection algorithm must depend on random data whose value is not known at the time the list and algorithm are announced. (Some possible methods are outlined in RFC-2777).
All announcements, including that of the ten voting volunteers selected, must be made public via electronic mail or other appropriate method as supervised by the Board of Directors. The list of members of the NomCom must be made available to the Members online at a known web address within ten (10) business days of the selection.
Once the NomCom is selected, it shall publish to the Members of the Foundation via e-mail (1) the number of Board of Directors seats to be filled, and (2) an e-mail address to which nominations may be sent. The number of the Board of Director seats to be filled is specified by the sitting Board in accordance with the Bylaws. Nominations shall be accepted for thirty days. Incumbents must notify the nominating committee if they do not wish to be nominated, and any other nominees may freely decline the nomination. No member of NomCom is eligible for election to the Board of Directors; this includes members who resign from NomCom within three months of the selection of candidates.
The Board of Directors may designate a minimum number of nominations needed for each candidate for Director. In lieu of such a designation, only one Nomination shall be needed.
At the close of the nomination period, the NomCom shall publish the list of nominees along with the number of nominations received by each. The NomCom will then conduct appropriate deliberations and vote internally to select their candidates to be Directors, by simple majority. In case of a tie, the non-voting chair shall break the tie.
The NomCom shall present its slate of Directors to the Active Members of the Foundation, who shall approve or disapprove the slate in its entirety. Voting may take place electronically, according to procedures established by the Board of Directors. A majority of fifty one per cent (51%) of those voting is needed to confirm a slate. If the slate is voted down, the NomCom shall meet again and nominate a new slate and present it to the Members of the Foundation. If the second slate is voted down, a new NomCom will be selected according to the provisions of this Article.
If the first slate of the second NomCom is voted down, then the second slate of the second NomCom will be confirmed without requiring the vote of the Members. Members should bear this in mind when casting their votes.
The entirety of this process, from solicitation of volunteers for the NomCom to the submission of candidates to the membership, is expected to take less than three months.
The first non-voting chair shall be chosen by Christos Zoulas, acting Secretary of the Foundation, within fifteen (15) days of the initial ratification of these bylaws. The non-voting chair will immediately commence the solicitation of volunteers for the NomCom. It is expected that a new slate of five Directors, which may include existing Directors, will be presented to the membership within three months of the ratification of these Bylaws. The first NomCom shall decide prior to selection which Directors shall expire in one year and which shall serve the full two years, and this selection shall be published along with the selection of the slate.
The Foundation 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 status of that Member and 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 Foundation 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 period of time.
Any person who is a Member, upon written demand under oath or affirmation stating the purpose thereof, shall have the right to examine, in person or by agent or attorney, at any time during the Foundation's usual hours for business, for any proper purpose as determined under the General Corporation Law of the State of Delaware, the Foundation's membership records and other books and records of the Foundation, and to make copies or extracts therefrom.
The Foundation is organized and shall be operated as a not-for-profit membership corporation organized under Delaware law. If the Board of Directors of the Foundation elects to seek and obtains an exemption for the Foundation 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 Foundation shall not be empowered to engage directly or indirectly in any activity which the Foundation 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.
The Board of Directors shall provide a corporate seal which shall have the name of the Foundation inscribed thereon, and may be a facsimile, engraved, printed, or an impression seal.
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 Foundation shall not be personally liable to the Foundation or its Members for monetary damages for breach of fiduciary duty as a Director.
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 Foundation), by reason of the fact that he or she is or was a Director, Officer or Member of the Foundation, or is or was serving at the request of the Foundation 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 Foundation; provided, however, that the Foundation 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.
Expenses (including reasonable attorneys' fees) incurred by any person who is or was an Officer, Director or Member of the Foundation, or who is or was serving at the request of the Foundation 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 Foundation 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 Foundation.
If a claim under this Article is not paid in full by the Foundation within ninety (90) days after a written claim has been received by the Foundation, the claimant may at any time thereafter bring suit against the Foundation 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 Foundation 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 Foundation. Neither the failure of the Foundation (including its Board of Directors, its Members, or independent legal counsel) 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 Foundation (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.
The provisions of this Article shall be a contract between the Foundation 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.
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.
The Foundation may purchase and maintain insurance on behalf of any person who is or was a Director, Officer, Member, employee or agent of the Foundation, or is or was serving at the request of the Foundation 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 Foundation would have the power to indemnify him or her against such liability under the provisions of this Article or of applicable law.
For purposes of this Article, references to the "Foundation" or "the Foundation" 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. 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. 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. 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.
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.
No loans shall be contracted on behalf of the Foundation 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.
All funds of the Foundation not otherwise employed shall be deposited from time to time to the credit of the Foundation in such depositories as the Board of Directors, or a suitable designee of that Board such as the Treasurer, shall direct.
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 Foundation, and such authority may be general or confined to specific instances.
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 Foundation 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.
The Foundation may hold intellectual property in the form of Statutory Invention Registrations (SIRs) and Copyrights. Licenses to these SIRs and Copyrights may be freely assigned in accordance with the Spirit of this Constitution by the Board of Directors. The Board of Directors shall seek to establish a standard license agreement.
The term "Perpetual License" shall be taken to mean a world-wide, irrevocable, non-exclusive, paid-up and royalty free license to freely copy and use in any manner whatsoever the property covered by any and all of the SIRs and copyrights assigned to the Foundation prior to and during the period of enforcement of these Bylaws. This license shall contain any and all of the rights of any standard license that the Board of Directors may designate.
A Perpetual License shall be assigned to each of the members of the initial Board of Directors and to any Member that achieves the status of Emeritus. Such Perpetual Licenses will become valid only if the Foundation dissolves.
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