Readium Foundation Bylaws
BY-LAWS OF THE READIUM FOUNDATION
(as amended January 13, 2015)
ARTICLE I
NAME, PURPOSE AND OFFICES
Section 1.1 Name
The name of the corporation is “Readium Foundation” and the corporation is referred to in these By-laws as the “Foundation”.
Section 1.2 Principal Office
The principal office of the Foundation shall be located at 93 S. Jackson St. Ste 70719 Seattle, WA 98104, United States of America. The Board of Directors of the Foundation (the “Board of Directors”) is hereby granted full power and authority to change its principal office from one location to another both within and without said state.
Section 1.3 Other Offices
Branch or subordinate offices may at any time be established by the Board of Directors at any place or places.
Section 1.4 Purpose
The nature of the business or purposes to be conducted or promoted by the Foundation is to engage in any lawful act or activity for which corporations which are organized not for profit may be organized under the General Corporation Law of Delaware. The primary purpose of the Foundation is to engage in some or all of the following activities: (a) advance the creation, evolution, promotion, and support of software tools supporting the EPUB open standard environment (“Software”), (b) promote the development and adoption of open, accessible standards and specifications relating thereto (“Specifications”); (c) promote such Specifications and Software worldwide; and (d) undertake such other activities as may from time to time be appropriate to further the purposes and achieve the goals set forth above.
Section 1.5 Nonprofit Status
(a) The Foundation is organized and shall be operated as a non-stock, not for profit membership corporation organized under the General Corporation Law of the State of Delaware.
(b) The Board of Directors may, in its sole discretion, elect to seek exemption from Federal taxation for the Foundation pursuant to Section 501(a) of the Internal Revenue Code of 1986, as amended (hereinafter, the “Code”). In the event that such exemption is sought and until such time, if ever, as such exemption is denied or lost, the Foundation shall not knowingly engage directly or indirectly in any activity that it believes would be likely to invalidate its status as an organization exempt from federal income taxation under Section 501(a) of the Code as an organization described in Section 501(c) of the Code. All references to the Code contained herein are deemed to include corresponding provisions of any future United States Internal Revenue Law.
ARTICLE II
MEMBERS
Section 2.1 Classes of Membership
The Foundation shall initially have oneclass of membership: General Members. Additional classes of voting and non-voting members may be created in the future, and the rights of existing classes of members may be amended, in each case pursuant to Section 2.6 of these By-laws. General Members and any future classes of members that are entitled to voting rights (other than any class(es) of Members entitled solely to vote on the election of directors) shall be collectively referred to as “Voting Members.” All Voting and non-voting memberships in the Foundation are collectively referred to in these By-laws as “Memberships”, and a person or entity holding Membership is referred to in these By-laws as a “Member”.
Section 2.2 General Conditions of Membership
Any association, partnership, organization, company, corporation, academic entity or non-profit entity shall be admitted to Membership upon: (a) acceptance of its written application on such form as may be from time to time required by the Foundation (which acceptance shall be administered in a non-discriminatory fashion) and (b) unless otherwise provided by the Board of Directors, payment of such application fees, assessments, initiation fees (if any), annual dues or other fees for such class of Membership as may from time to time be established by the Board of Directors (collectively, “Fees”). A Member shall remain in good standing as a Member provided such Member is in compliance with the terms and conditions of the Foundation’s Certificate of Incorporation, By-laws, Membership Application and such rules and policies as the Board of Directors and/or any committees thereof (each a “Board Committee”) may from time to time adopt, including without limitation, timely payment of all Fees and penalties for late payment as may be determined by the Board of Directors (such Fees and penalties are collectivelyreferred to in the By-laws as “Financial Obligations”, and all of the foregoing good standing requirements are collectively referred to in the By-laws as “Membership Obligations”).
Section 2.3 Privileges of General Membership
Each General Member, while in good standing, shall be entitled to:
(a) participate in the election of members of the Board of Directors (each a “Director”) as provided in Article IV;
(b) nominate representatives to run for election as officers of the Foundation (each an “Officer”);
(c) nominate one representative to run for election as chairperson or vice-chairperson (if any) of any Committee of the Members (each a “Member Committee”) and Sub-Group thereof (as contemplated by Section 5.5(c);)
(d) appoint one (except as may be otherwise specified by the Board) voting representative, on a one vote per Member basis, to each Member Committee and Sub-Group thereof that the Foundation may establish, and, subject to any limitations on attendance imposed by the Board of Directors, appoint non-voting representatives to each such Member Committee and Sub-Group;
(e) attend all general and special meetings of the Membership provided for in Article III of these By-laws;
(f) vote on each matter submitted to a vote of the Voting Members;
(g) propose initiatives to be acted upon by the Foundation;
(h) receive one copy by electronic distribution, without charge, of all publications of the Foundation that are intended for regular distribution, prior to distribution to the public, including pre-public access to any Specifications under development and of all final Specifications as adopted by the Foundation;
(i) placement of a link to such Member’s Web site on the Foundation Web site;
(j) display the Foundation logo on such Member’s Web site, to indicate membership in the Foundation;
(k) receive such free or discounted services provided by the Foundation as the Board of Directors may designate from time to time;
(l) prominent listing in all appropriate Foundation marketing materials; and
(m) such other benefits, rights and privileges applicable to such Member’s Membership class as the Board of Directors may designate or the Voting Members may from time to time institute by vote at any meeting of the Voting Members.
Section 2.4 Rights in Intellectual Property
All intellectual property submitted to or owned, adopted or created by the Foundation, including without limitation, any of the same which may be represented by any Specifications, Software, guidelines, policies, procedures or tests (collectively, “Intellectual Property”), shall be subject to such licenses, polices and procedures as may from time to time be adopted by the Board of Directors. Any such rules or policies adopted by the Board of Directors shall control all rights of ownership and publication relating to such Intellectual Property, the specific license rights which Members may be entitled to therein, and the fees (if any) which the Foundation may charge Members and third parties for access to and use of such Intellectual Property.
Section 2.5 Subsidiaries, Etc.
(a) Only the legal entity which has been accepted as a Member of the Foundation and its Subsidiaries (as defined below) shall be entitled to enjoy the rights and privileges of such Membership; provided, however, that such Member and its Subsidiaries shall be treated together as a single Member. For purposes of this Section, the term “Subsidiaries” shall mean all companies controlled by the Member, where such control results from ownership, either directly or indirectly, of more than fifty percent of the voting securities or membership interests of the entity in question.
(b) If a Member is itself a Foundation, membership organization, user group or other entity that has members or sponsors, then the rights and privileges granted to such Member shall extend only to the paid representatives (employees and individuals serving on a contractor basis) of such Member, and not to its members or sponsors, unless otherwise approved by the Board of Directors in a specific case from time to time.
(c) Memberships shall be non-transferable, non-salable and non-assignable, except that any Member may transfer its Membership for the then current year to a successor to substantially all of its business and/or assets, whether by merger, sale or otherwise; provided that the transferee agrees to be bound by these By-laws, the Certificate of Incorporation and such policies and procedures as the Board of Directors may from time to time adopt.
Section 2.6 Additional Classes of Members
The conditions, privileges, powers, and voting rights (if any) of any class of Members may be changed, and one or more additional classes of Membership may be created, and the conditions, voting rights (if any), powers and privileges of each such class may be prescribed, by adoption of an amendment to these By-laws pursuant to Article XIV of the By-laws.
Section 2.7 Termination or Suspension of Membership
Any Member may be suspended from Membership or have its Membership terminated by the Board of Directors for failure to satisfy its Membership Obligations or for engaging in any conduct, either within or without the Foundation, that is contrary to the interests of the Foundation or to the advancement of the Foundation’s business or industry goals. Financial Obligations already paid shall not be refundable upon any such termination or suspension, and all Financial Obligations of such Member which may be accrued and unpaid as of the date of such termination shall remain due and payable. Terminations or suspensions of Membership for failure to satisfy Financial Obligations may be imposed with notice and without right of formal appeal under such procedures as the Board of Directors may from time to time approve. Except as provided in the last paragraph of this Section 2.7, no termination or suspension of Membership for any other purpose shall be effective unless:
(a) The Member is given notice of the proposed termination or suspension of Membership and of the reasons therefor;
(b) Such notice is delivered personally or by certified mail, return receipt requested, or by a national or international overnight courier service, sent to the last address of the Member shown on the Foundation’s records;
(c) Such notice is given at least thirty days prior to the effective date of the proposed termination or suspension of Membership; and
(d) Such notice sets forth a procedure determined by the Board of Directors (or other body authorized by the Board of Directors) to decide whether or not the proposed termination or suspension shall take place, whereby the Member is given the opportunity to be heard by such body, either orally (and represented by counsel if the Member so desires, at its sole cost and expense) or in writing, not less than five days before the effective date of the proposed termination or suspension.
Notwithstanding the foregoing, in the event that the Board of Directors believes in good faith that a Member is engaging in willful misconduct to the material detriment of the best interests of the Foundation and its Members, the Board of Directors may suspend such Member’s Membership immediately, provided that such Member is otherwise afforded the protections provided for in subsections (a), (b) and (d) of this Section 2.7.
Section 2.8 Resignation by Member
A Member may resign as a Member at any time upon notice to the Foundation in writing or by electronic transmission at the principal place of business of the Foundation or to the President or Secretary. Any Financial Obligations already paid by such Member shall not be refundable in such event, and all such Financial Obligations of such Member which may be accrued and unpaid as of such date shall remain due and payable.
Section 2.9 Membership Book
The name and address of each Member shall be contained in a membership book to be maintained at the principal office of the Foundation (the “Membership Book”). Termination of any Membership shall be recorded in the Membership Book together with the date of such termination. Each Member shall be responsible for apprising the Foundation in writing of all changes to its name and address, and of the names and addresses of all representatives of such Member appointed to be members of Member Committees designated by such Member in its application for Membership or to receive notices or to vote on behalf of such Member.
Section 2.10 Levy of Dues, Assessments or Fees
(a) The Foundation may levy dues, assessments or fees upon its Members in such amounts as may be approved from time to time by the Board of Directors, but a Member upon learning of any increase in dues, or of any levy of any assessments or fees, may avoid liability therefor by resigning from Membership prior to the date such dues, assessments or fees are due and payable, except where the Member is, by contract with the Foundation or otherwise, independently and explicitly liable for such dues, assessments or fees. No provision of the Certificate of Incorporation or By-Laws of the Foundation authorizing such dues, assessments or fees shall, of itself, create such liability. In no event shall the failure of a Member to pay any dues or assessments give rise to any claim in favor of the Foundation for indirect or consequential damages.
(b) The Board of Directors may exchange Memberships of the Foundation with other consortia, trade associations and similar non-profit organizations on a no-fee or reduced-fee basis, where the Board of Directors determines that such cross membership is in the best interests of the Foundation and its Members.
Section 2.11 Use of Names
Neither the Foundation nor any Member shall use the name of the other in any form of publicity without the written permission of the other, provided that the Foundation and any Member may each disclose and publicize such Member’s Membership in the Foundation. Notwithstanding the foregoing, if the Foundation has not made a filing under the National Cooperative Research and Production Act of 1993, as amended, a Member may request that its Membership not be disclosed if it makes a written request to such effect at the time of application to the Foundation for Membership.
ARTICLE III
MEETINGS OF MEMBERS
Section 3.1 Place of Meetings
All meetings of the Members shall physically be held at such place within or without the State of Delaware, or as may otherwise be permitted by law, and at such time as may be fixed from time to time by the Board of Directors or the President of the Foundation (the “President”), or if not so designated, at the registered office of the Foundation.
Section 3.2 Annual Meeting
Annual meetings of Members ordinarily shall be held by written consent pursuant to Section 3.10. Notwithstanding the foregoing, however, the Board of Directors may call any annual meeting to be held in person and each such meeting, once called, shall take place on the second Tuesday in September of the applicable year, if not a legal holiday, and if a legal holiday, then on the second secular day following, at 10:00 a.m. local time, or at such other date and time as shall be designated from time to time by the Board of Directors or the Chairperson, if any. Pursuant to such written consent, or at such meeting, as applicable, the Voting Members shall elect a Board of Directors in accordance with Section 4.3 and shall transact such other business as may properly be addressed by written consent, or at such meeting, as applicable. If no annual meeting is held (and no annual consent has been executed) in accordance with the foregoing provision, the Board of Directors shall cause a meeting to be held as soon thereafter as convenient, which meeting shall be designated a special meeting in lieu of annual meeting.
Section 3.3 Special Meetings
Special meetings of the Members, for any purpose or purposes, may, unless otherwise prescribed by statute or by the Certificate of Incorporation, be called by the Board of Directors, the President or the Secretary at the request in writing of a majority of the Directors then in office, or at the request in writing of Voting Members entitled to vote at least ten percent of the aggregate votes of all Voting Members. Such request shall state the purpose or purposes of the proposed meeting. Business transacted at any special meeting shall be limited to matters relating to the purpose or purposes stated in the notice of meeting.
Upon request by any person or persons entitled to call a special meeting of the Voting Members, the President, the Chairperson of the Board of Directors (the “Chairperson”) (if any), any Vice-President or the Secretary shall, within thirty days after receipt of the request, cause notice to be given to the Voting Members entitled to vote at such meeting that a special meeting will be held at a time chosen by the Board of Directors, but not less than thirty-five nor more than ninety days after receipt of such request.
Section 3.4 Notice of Meetings
Except as otherwise provided by law or these By-laws, written notice of each meeting of the Members, annual or special, 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, and such other information as may be required by law shall be given not less than ten nor more than sixty days before the date of the meeting, to each Member entitled to attend such meeting.
Section 3.5 Voting List
The Officer who has charge of the Membership Book of the Foundation shall prepare and make a complete list of the Members entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each such Member. Nothing contained in this Section shall require the Foundation to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any Member, for any purpose germane to the meeting, for a period of at least ten days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Foundation. In the event that the Foundation determines to make the list available on an electronic network, the Foundation may take reasonable steps to ensure that such information is available only to Members of the Foundation. The list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any Member who is present.
Section 3.6 Quorum
Except as otherwise provided by statute, the Certificate of Incorporation or these By-laws, Voting Members entitled to vote more than twenty percent of the aggregate votes of all Voting Members (or such higher percentage of Voting Members as may be required by law, these By-laws or the Certificate of Incorporation to approve any action to be taken at such meeting), present in person or represented by proxy, shall constitute a quorum at all meetings of the Members for the transaction of business. Member Committees shall have the same rules relating to quorum requirements and voting majorities as provided for in these By-laws, unless otherwise approved by the affirmative vote of the Board of Directors.
Section 3.7 Adjournments
Any meeting of Members may be adjourned from time to time without notice to any other time and to any other place at which a meeting of Members may be held under these By-laws or by law if the time and place of such adjourned meeting, the means of remote communications, if any, by which Members may be deemed to be present in person and vote at such adjourned meeting and such other information as may be required by law are announced at the meeting at which the adjournment is taken. Such adjournment shall be approved by a majority of the Voting Members present in person or represented by proxy and entitled to vote at such meeting (regardless of whether a quorum is present), or, if no Voting Member is present or represented by proxy, by any Officer entitled to preside at or to act as Secretary of such meeting. At any reconvened meeting following such an adjournment the Foundation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to all Members entitled to attend such meeting.
Section 3.8 Action at Meetings
(a) Unless the question is one upon which, by express provision of law, the Certificate of Incorporation or these By-laws, a different vote is required (in which case such express provision shall govern and control the decision of such question), when a quorum is present at any meeting of Members, the vote of more than fifty percent of the aggregate votes of all Voting Members, present in person or represented by proxy and entitled to vote on the question, shall decide any question brought before such meeting.
(b) Notwithstanding Section 3.8(a), in the event that any vote is to be taken of a single class of Voting Members, then a quorum for such vote shall be not less than fifty percent of the Voting Members of that class, and when such quorum is present, the vote of more than fifty percent of the aggregate votes of the Voting Members of that class present in person or represented by proxy and entitled to vote on the question, shall decide such question.
Section 3.9 Proxies Each Member entitled to vote with respect to any corporate action at a meeting of Members, or to express consent or dissent to any corporate action in writing without a meeting, may authorize another person or persons to act for him or her by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. Without limiting the manner in which a Member may authorize another person or persons to act for such Member as proxy pursuant to this Section, the following shall constitute valid means by which a Member may grant such authority:
(a) A Member may execute a writing authorizing another person or persons to act for such Member as proxy. Execution may be accomplished by the Member or such Member’s authorized officer, director, employee or agent signing such writing or causing such person’s signature to be affixed to such writing by any reasonable means including, but not limited to, by facsimile signature.
(b) A Member may authorize another person or persons to act for such Member as proxy by transmitting or authorizing the transmission of a telegram, cablegram, or other means of electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such telegram, cablegram or other means of electronic transmission must either set forth or be submitted with information from which it can be determined that the telegram, cablegram or other electronic transmission was authorized by the Member. If it is determined that such telegrams, cablegrams or other electronic transmissions are valid, the inspectors or, if there are no inspectors, such other persons making that determination shall specify the information upon which they relied.
Section 3.10 Action Without Meeting
Any action required or permitted to be taken at any annual or special meeting of Members, or at any meeting of a Member Committee, Sub- Group thereof or other group of Members or subset of Members, may be taken without prior notice and without a vote, if a consent in writing, setting forth the action to be taken, shall be signed by Members (or members of a class of Members, as the case may be) making up not less than that percentage of all Members as would be necessary to authorize or take such action at a meeting at which all Members (or class of Members, as the case may be) entitled to vote thereon were present and voted. Prompt notice of the taking of any corporate action without a meeting by less than unanimous written consent shall be given to those otherwise entitled to vote thereon who have not consented in writing. An electronic transmission consenting to an action to be taken and transmitted by a Member or proxyholder, or by a person or persons authorized to act for a Member or proxyholder, shall be deemed to be written, signed and dated for the purposes of this Section, provided that any such electronic transmission sets forth or is delivered with information from which the Foundation can determine (A) that the electronic transmission was transmitted by the Member or proxyholder or by a person or persons authorized to act for the Member or proxyholder and (B) the date on which such Member or proxyholder or authorized person or persons transmitted such electronic transmission. The date on which such electronic transmission is transmitted shall be deemed to be the date on which such consent was signed. No consent given by electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form shall be delivered to the Foundation by delivery to its registered office in Delaware, its principal place of business or an Officer or agent of the Foundation having custody of the book in which proceedings of meetings of Members are recorded. Delivery made to the Foundation’s registered office shall be made by hand or by certified or registered mail, return receipt requested. Notwithstanding the foregoing limitations on delivery, consents given by electronic transmission may be otherwise delivered to the principal place of business of the Foundation or to an Officer or agent of the Foundation having custody of the book in which proceedings of meetings of Members are recorded if, to the extent and in the manner provided by resolution of the Board of Directors of the Foundation.
Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used, provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.
Section 3.11 Nomination and Election Procedures
Subject to the provisions of Section 4.3, the Board of Directors shall establish reasonable nomination and election procedures given the nature, size, and operations of the Foundation, including a reasonable means for Members of appropriate classes to nominate a person for election as a Director, a reasonable opportunity for a nominee to communicate to the Members the nominee’s qualifications and the reasons for the nominee’s candidacy (if requested by such nominee), a reasonable opportunity for all nominees to solicit votes (if requested by any such nominee), and a reasonable opportunity for all Members entitled to vote thereon to choose among the nominees.
Section 3.12 Order of Business
The order of business at all meetings of Members shall be as determined by the presiding Officer, but the order of business to be followed at any meeting at which a quorum is present may be changed by a vote of the Voting Members.
ARTICLE IV
DIRECTORS
Section 4.1 Powers; Voting
The business and affairs of the Foundation shall be managed by its Board of Directors, which shall be, and shall possess all of the powers of, the “Governing Body” of the Foundation as a not-for-profit membership corporation under Delaware General Corporation Law. The Board of Directors may exercise all powers of the Foundation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By-laws directed or required to be exercised or done by the Members.
Section 4.2 Number and Classes of Directors
Subject to Section 4.4, the total number of Directors shall be be nine (9).
Each director shall be assigned to Class A, Class B, or Class C, and an effort shall be made to keep each class of directors of approximately equal size. Each director shall hold office for a term of three years, and thereafter until his or her successor shall be duly elected and qualified or until his or her earlier resignation or removal, except that for the initial Board elected in 2014: a. Directors in Class A shall have their term expire in 2015 (and every three years thereafter); b. Directors in Class B shall have their term expire in 2016 (and every three years thereafter); and c. Directors in Class C shall have their term expire in 2017 (and every three years thereafter).
No Director shall continuously serve more than two (2) consecutive three-year terms. Fulfilling an incomplete term is not considered part of the term limit. Section 4.3 Nomination, Election and Term of Office of Directors
(a) Each General Member (while remaining in good standing) shall be entitled to nominate one individual for election as a Director, and to participate in the election of Directors. Directors shall be elected by vote of the General Members at the annual meeting or at any special meeting of Members, each director so elected shall have a term of one year, and thereafter until his or her successor shall be duly elected and qualified or until his or her earlier resignation or removal.
(b) Each Director shall hold office until the earliest to occur of (i) the expiration of the term for which such Director was elected and such Director’s successor is elected and qualified, (ii) the expiration or termination of Membership of the Member that designated such Director (if so designated), (iii) the death, resignation or removal of such Director, (iv) if applicable, the combination, by merger, acquisition or otherwise, of two Members that each have representatives on the Board of Directors, upon which event one of the two representatives, as designated by the surviving Member, shall be deemed to have resigned or (v) if applicable, if requested by the Board of Directors, upon the termination of the employment of such Director by the Member represented by such Director. In addition, during such times as the Membership of any Member that has a representative serving as a Director is suspended pursuant to Section 2.7 above, the attendance and voting rights of such Director representative shall also be suspended until such time, if ever, as such suspension is lifted.
(e) Each Director (or, if applicable, the Member that designated or is the employer of such Director) may designate in writing (which designation may be withdrawn in writing at any time by such Director or Member) an individual to act as a Director in his or her stead, whether for a single meeting or as a standing alternate. Any such alternate Director shall be entitled to (i) attend and vote at all meetings which the designating Director does not attend, (ii) sign all written consents in lieu of the designating Director, and (iii) otherwise exercise the duties and enjoy the privileges of the designating Director in the absence or unavailability of the designating Director. In addition, in lieu of making such a substitution, any Director who will be absent for any meeting may deliver a written proxy to the President, authorizing the President to either vote as instructed in such proxy, or to vote in the stead of such absent Director in such manner as the President may believe appropriate. Any such proxy shall be valid only with respect to the meeting and such specific matters (or with respect to all matters, if so desired) as may be stated in such proxy.
(f) The Board of Directors may approve from time to time such reasonable attendance and other requirements as it shall deem to be advisable to ensure that seats on the Board of Directors are held by active, contributing individuals. Such rules may provide that any Member which has elected or nominated a Director, as the case may be, may lose its ability to elect and/or nominate a representative to the Board of Directors in the event that such requirements have not been met, and/or that a Director who fails to meet such requirements shall automatically be deemed to have resigned from the Board of Directors, but no such rule may be imposed retroactively.
Section 4.4 Enlargement or Reduction
Subject to Section 2.6 above, the number of Directors, the persons eligible to become Directors and the classes of Members eligible to elect and/or nominate Directors may be amended at any time by a vote of the Board of Directors or by a vote of the Voting Members.
Section 4.5 Resignation and Removal
Any Director may resign at any time upon notice to the Foundation in writing or by electronic transmission at the principal place of business of the Foundation or to the President or Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event. If applicable, any Director who was designated by a Member under Section 4.3 may be removed by that Member. Any or all of the Directors who were elected by a class of Members voting as a class or by the Board of Directors may be removed by a majority vote of such class of Members or Board of Directors, respectively. Unless otherwise specified by law or the Certificate of Incorporation, any Director may be removed by a majority of the other Directors then in office for engaging in any conduct, either within or without the Foundation, that is contrary to the interests of the Foundation or to the advancement of the Foundation’s business or industry goals; provided, however, that the Member or class of Members that designated and elected or nominated and elected (as the case may be) such removed Director shall be entitled to designate and elect or nominate and elect (as the case may be) a replacement for such removed Director to serve for the balance of such removed Director’s term.
Section 4.6 Vacancies
(a) Vacancies on the Board of Directors occurring as a result of the death, resignation or removal of a Director who was designated and elected by a Member, if applicable, may be filled by such Member. All other vacancies shall be filled by the vote of a majority of Directors then in office, whether or not less than a quorum, or by a sole remaining Director, if any, or by vote of the Members entitled to elect Directors under Section 4.3. The term of a Director so designated or elected shall be the unexpired portion of the term of the Director, if any, whom the Director so appointed or elected is replacing.
(b) In the event of a vacancy in the Board of Directors, the remaining Directors, except as otherwise provided by law or these By-laws, may exercise the powers of the full Board of Directors until the vacancy is filled.
Section 4.7 Place of Meetings
The Board of Directors may hold meetings, both regular and special, either within or without the State of Delaware.
Section 4.8 Regular Meetings
Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the Board of Directors; provided that any Director who is absent when such a determination is made shall be given prompt notice of such determination. A regular meeting of the Board of Directors may be held without notice immediately after and at the same place as the annual meeting of Members.
Section 4.9 Special Meetings
Special meetings of the Board of Directors may be called by the President, Secretary, or on the written request of two or more Directors, or by one Director in the event that there is only one Director in office. Two business days’ notice to each Director, either personally or by telecopy, commercial delivery service, electronic transmission, or similar means sent to his or her business or home address, or three business days’ notice by written notice deposited in the mail, shall be given to each Director by the Secretary or by the Officer or one of the Directors calling the meeting. A notice or waiver of notice or any waiver by electronic transmission of a meeting of the Board of Directors need not specify the purposes of the meeting.
Section 4.10 Quorum, Action at Meeting, Adjournments
(a) At all meetings of the Board of Directors a majority of Directors then in office, shall constitute a quorum for the transaction of business and the act of a majority of such Directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by law, the Certificate of Incorporation or these By-laws.
(b) No Director whose attendance and voting rights have been suspended shall be counted for purposes of determining quorum, the number of Directors then in office or the number of Directors required for voting purposes, unless otherwise required by law, these By-laws or the Certificate of Incorporation. If a quorum shall not be present at any meeting of the Board of Directors, a majority of the Directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. In the event that one or more of the Directors shall be disqualified from voting at any meeting upon any matter, then the required quorum as it relates to the consideration of such matter shall be reduced by one for each such Director so disqualified.
Section 4.11 Action by Consent
(a) Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, any action required or permitted to be taken by the Board of Directors may be taken without a meeting and without prior notice if a majority of Directors then in office (or such greater number of Directors as may be required by law or the By-laws of the Foundation for the taking of any such action at a meeting) consent thereto in writing or by electronic transmission, and the writing or writings, or electronic transmission or transmissions, are filed with the minutes of proceedings of the Board of Directors, provided that:
(i) such written consent shall have been sent simultaneously to all Directors then in office for their consideration;
(ii) prompt written notice of any action so taken is given to those Directors who have not consented in writing or by electronic transmission; and
(iii) two or more such Directors have not objected to the taking of any such action by written notice delivered to the Foundation within ten business days following the date that written notice of the Directors action is mailed or otherwise delivered to such Directors.
Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
(b) Notwithstanding the foregoing, the ability of two or more non-consenting Directors to prevent the taking of an action by written consent under clause 4.11(a)(iii) above shall not prevent any such action from being taken at a later date at an actual meeting of the Board of Directors.
(c) Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any meeting of any Board Committee may be taken in the manner set forth in the preceding clauses 4.11(a) and (b).
Section 4.12 Telephonic Meetings
Unless otherwise restricted by the Certificate of Incorporation or these By-laws, members of the Board of Directors or of any Board Committee may participate in a meeting of the Board of Directors or of any Board Committee, as the case may be, by means of conference telephone, video conference equipment, or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
Section 4.13 Inspection Rights
Every Director shall have the absolute right at any time to inspect, copy and make extracts of, in person or by agent or attorney, all books, records and documents of every kind, and to inspect the physical properties of the Foundation.
Section 4.14 Fees and Compensation
Directors shall not receive any stated salary or reimbursements for their services as Directors; provided that, by resolution of a majority of the Board of Directors, the Foundation may reimburse Directors for expenses incurred while acting on behalf of the Foundation and/or expenses incurred in attending meetings of the Board of Directors, in such amounts as the Board of Directors may determine to be appropriate. Nothing herein contained shall be construed to preclude any Director from serving the Foundation in any other capacity as an Officer, agent, employee or otherwise, and receiving compensation therefor. The Directors may also approve reimbursement of expenses for members of Board Committees in connection with their service on such Board Committees.
ARTICLE V
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 5.1 Executive Committee
The Board of Directors may (but shall not be required), by resolution adopted by a majority of the Directors then in office (provided a quorum is present), create an Executive Committee, consisting of one or more Directors. The Board of Directors may designate one or more Directors as alternate members of such Executive Committee, who may replace any absent member at any meeting of such Executive Committee. The Executive Committee, subject to any limitations imposed by the Certificate of Incorporation, these By-laws, statute and/or resolution adopted by the Board of Directors, shall have and may exercise all of the powers of the Board of Directors which are delegated to the Executive Committee from time to time by the Board of Directors; provided, however, that the Executive Committee shall have no authority with respect to:
(a) Approving any action which requires approval of the Voting Members;
(b) Filling vacancies on the Board of Directors;
(c) Fixing compensation of the Directors for serving on the Board of Directors or on any Board Committee;
(d) Amending or repealing the By-laws or adopting new By-laws;
(e) Amending or repealing any policy relating to Intellectual Property that is applicable to the Members;
(f) Amending or repealing any resolution of the Board of Directors which by its express terms is not so amendable or repealable;
(g) Amending the Certificate of Incorporation;
(h) Adopting an agreement of merger or consolidation;
(i) Recommending to the Members the sale, lease or exchange of all or substantially all of the Foundation’s property and assets; and
(j) Recommending to the Members a dissolution of the Foundation or a revocation of a dissolution.
Section 5.2 Other Committees of the Board of Directors
The Board of Directors may, by resolution adopted by a majority of the Directors then in office (provided a quorum is present), create such nominating, audit, compensation and other Board Committees, each consisting of one or more Directors appointed by the Board of Directors, as the Board of Directors may from time to time deem advisable, to perform such general or special duties as may from time to time be delegated to any such Board Committees by the Board of Directors, subject to the limitations imposed by the Certificate of Incorporation or by these By-laws. No such Committee shall have the power or authority to take any action prohibited by Section 5.1 above to be taken by the Executive Committee. The Board of Directors may designate one or more Directors as alternate members of any Board Committees, who may replace any absent member at any meeting of such Board Committees. Any such Board Committee or Board Committees shall have such powers, duties and name or names as may be determined from time to time by resolution adopted by the Board of Directors. Each Board Committee shall keep regular minutes of its meetings and make such reports to the Board of Directors as the Board of Directors may request.
Section 5.3 Meetings of Committees of the Board of Directors
Except as otherwise provided in these By-laws or by resolution of the Board of Directors, each Board Committee may adopt its own rules governing the time and place of holding and the method of calling its meetings and the conduct of its proceedings and shall meet as provided by such rules, but unless otherwise provided by resolution of the Board of Directors or in such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these By-laws for the conduct of the business of the Board of Directors.
Section 5.4 Term of Office of Members of Committees of the Board of Directors
Each member of a Board Committee shall serve for such term as shall be established at the time of his or her election.
Section 5.5 Committees of the Members
(a) A technical committee of the Foundation (the “Technical Committee”) shall be established. Such Technical Committee may have such Sub-Groups as from time to time may be approved by the Board of Directors, and the members of neither such Technical Committee norsuch Sub-Groups need be Directors. The Technical Committee and its Sub-Groups shall be the principal Member-level forum for the discussion and preliminary adoption of technical specifications and standards, subject to the review, and within the strategic direction established by, the Board of Directors, and the Technical Committee shall otherwise have such rights and privileges as shall from time to time be established by the Board of Directors, or as set forth in such Technical Committee rules and policies as shall have been previously adopted by the Board of Directors. The Technical Committee may make technical recommendations to the Board of Directors concerning specifications and standards, enhancements thereto, and testing, may coordinate and implement the same, and may undertake such other tasks as may from time to time be established by the Board of Directors, provided that all specifications and standards may only be finally adopted by the Board of Directors.
(b) A marketing committee of the Foundation (the “Marketing Committee”) may be established at such time as deemed advisable by the Board of Directors. Such Member Committee may have such Sub-Groups as from time to time may be approved by the Board of Directors, and the members of neither the Marketing Committeenor suchSub-Groups need be Directors. The Marketing Committee and its Sub-Groups shall be the principal Member-level forum for the discussion of activities intended to promote the mission of the Foundation generally in the industry, subject to the review, and within the strategic direction established by, the Board of Directors, and the Marketing Committee shall otherwise have such rights and privileges, and shall have such number of voting members, as shall from time to time be established by the Board of Directors, or as set forth in such Marketing Committee rules and policies as shall have been previously adopted by the Board of Directors. The Marketing Committee may make recommendations to the Board of Directors concerning promotional matters relating to Foundation adopted standards and specifications, may coordinate and implement the same, and may undertake such other tasks as may from time to time be permitted by the Board of Directors.
(c) From time to time, the Board of Directors may establish additional Member Committees. Each Member, unless otherwise provided by the Board of Directors on a per Membership class basis, so long as it remains a Member in good standing, shall be entitled to appoint such representatives to each such Member Committee, with such voting rights (if any), as set forth in Article II. Unless otherwise specified in these By-laws or by the Board of Directors, each Member Committee may have such sub-committees, working groups and special interest groups as from time to time may be approved by such Member Committee, within the strategic direction established by the Board of Directors (each a “Sub-Group”), and the members of neither such Member Committee nor its Sub-Groups need be Directors.
ARTICLE VI
OFFICERS
Section 6.1 Officers
The Officers of the Foundation shall be a President, a Treasurer and a Secretary. The Foundation may also have, at the discretion of the Board of Directors, a Chairperson, an Executive Director, one or more Vice-Presidents, one or more Assistant Secretaries and/or Assistant Treasurers, and such other Officers with such titles, terms of office and duties as may be elected in accordance with the provisions of Section 6.3. When the Foundation has a Chairperson (and otherwise, the President), that individual shall preside over meetings of the Board of Directors. One person may hold two or more offices unless the Certificate of Incorporation or these By-laws otherwise provide. Each Officer shall be an employee of an General Member (except that the Assistant Secretary need not be such an employee), provided that in the event that any Officer shall cease to be such an employee (either because such Member has ceased to be an General Member, or because such Officer has ceased to be an employee of such a Member) before the appointed term of such Officer has expired, then he or she may, with the consent of the Foundation, continue to be an Officer for a period of up to sixty days. If, by the end of such period, such Officer has become an employee of an General Member again, then he or she may continue as an Officer. Otherwise, his or her term shall be deemed to have expired as of the end of such 60 day period, or as of the date of any earlier request by the Foundation.
Section 6.2 Vacancies
A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in these By-laws for regular elections to such office and may be filled by the Board of Directors, at its discretion.
Section 6.3 Election
The Board of Directors at its first meeting after each annual meeting of Members shall choose a President, Chairperson (if desired), a Secretary and a Treasurer. Other Officers may be elected by the Board of Directors at such meeting, and any or all Officers may be replaced, at any other meeting of, or by written consent of, the Board of Directors.
Section 6.4 Tenure
Each Officer of the Foundation shall hold office until his or her successor is chosen and qualifies, unless a different term is specified in the vote choosing or electing him, or until his or her earlier death, resignation or removal. Any Officer elected by the Board of Directors may be removed at any time by the Board of Directors or a Board Committee duly authorized to do so. Any Officer may resign by delivering his or her written resignation to the Foundation at its principal place of business or to the Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event.
Section 6.5 President
The President shall have all of the powers normally associated with the role of chief executive officer and preside at all meetings of the Board of Directors and the Members. The President shall oversee the management of the business of the Foundation and see that all orders and resolutions of the Board of Directors are carried into effect. Without limiting the foregoing, the President shall:
(a) Execute bonds, mortgages, and other contracts requiring a seal, under the seal of the Foundation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other Officer or agent of the Foundation;
(b) Oversee the Executive Director (if any); and
(c) Perform and/or delegate such other duties as may from time to time be assigned by the Board of Directors and/or any Executive Committee.
Section 6.6 Executive Director
The Executive Director (if any) shall preside over the day-to-day affairs of the Foundation under the direction of the Board of Directors and the President and perform such other duties and have such other powers as the Board of Directors or the President may from time to time prescribe.
Section 6.7 Vice-Presidents
In the absence of the President or in the event of his or her inability or refusal to act, a Vice-President, or if there be more than one Vice-President, the Vice-Presidents in the order designated by the Board of Directors (or in the absence of any designation, then in the order determined by their tenure in office), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice-Presidents shall perform such other duties and have such other powers as the Board of Directors or the President may from time to time prescribe.
Section 6.8 Secretary
The Secretary shall have such powers and perform such duties as are incident to the office of Secretary, and shall:
(a) Prepare and maintain lists of Members and their addresses as required;
(b) Attend all meetings of the Board of Directors and all meetings of the Members and record all the proceedings of the meetings of the Foundation and of the Board of Directors in a book to be kept for that purpose and perform like duties for the standing Board Committees when required;
(c) Give, or cause to be given, notice of all meetings of the Members and special meetings of the Board of Directors, and perform such other duties as may be from time to time prescribed by the Board of Directors, and be under their supervision; and
(d) Have custody of the corporate seal of the Foundation and the Secretary, or an Assistant Secretary, have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by signature of the Secretary or by the signature of such Assistant Secretary. The Board of Directors may give general authority to any other Officer to affix the seal of the Foundation and to attest the affixing by such Officer’s signature.
Section 6.9 Assistant Secretaries
The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board of Directors, the President or the Secretary (or if there be no such determination, then in the order determined by their tenure in office), shall, in the absence of the Secretary or in the event of his or her inability or refusal to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board of Directors, the President or the Secretary may from time to time prescribe. In the absence of the Secretary or any Assistant Secretary at any meeting of Members or Directors, the person presiding at the meeting shall designate a temporary or acting Secretary to keep a record of the meeting.
Section 6.10 Treasurer
The Treasurer shall perform such duties and shall have such powers as may be assigned to him or her by the Board of Directors or the President. In addition, the Treasurer shall perform such duties and have such powers as are incident to the office of Treasurer. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Foundation and shall deposit all moneys and other valuable effects in the name and to the credit of the Foundation in such depositories as may be designated by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors, when the President or Board of Directors so requires, an account of all his or her transactions as Treasurer and of the financial condition of the Foundation.
Section 6.11 Compensation
The compensation, if any, of the Officers shall be fixed from time to time by the Board of Directors, and no Officer shall be prevented from receiving such compensation by reason of the fact that the Officer is also a Director of the Foundation.
ARTICLE VII
NOTICES
Section 7.1 Delivery
(a) Whenever, under the provisions of law, or of the Certificate of Incorporation or these By-laws, written notice is required to be given to any Director or Member, such notice may be given by mail, addressed to such Director or Member, at his, her or its address as it appears on the records of the Foundation, with postage thereon prepaid. Unless written notice by mail is required by law, the Certificate of Incorporation or another provision of these By-laws, and subject to the provisions below relating to notice by electronic transmission to Members, written notice may also be given by electronic mail, telecopy, commercial delivery service, or similar means, addressed to such Director or Member at his, her or its address as it appears on the records of the Foundation. Without limiting the manner by which notice otherwise may be given effectively to Members, any notice to Members given by the Foundation under any provision of law, the Certificate of Incorporation, or the By-laws, unless written notice by mail is required by law, the Certificate of Incorporation or another provision of these By-laws, shall be effective if given by a form of electronic transmission consented to by the Member to whom the notice is given. Any consent by a Member to receive notice by electronic transmission shall be revocable by that Member by written notice to the Foundation. Any such consent shall be deemed revoked if (1) the Foundation is unable to deliver by electronic transmission two consecutive notices given by the Foundation in accordance with such consent and (2) such inability becomes known to the Secretary or an Assistant Secretary of the Foundation or to the transfer agent, or other person responsible for the giving of notice; provided, however, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.
(b) Notice given pursuant to this Section shall be deemed given: (1) if by facsimile telecommunication (A) to a Member, when directed to a number at which the Member has consented to receive notice and (B) to a Director, when directed to the number for such Director as it appears on the records of the Foundation; (2) if by electronic mail to (A) a Member, when directed to an electronic mail address at which the Member has consented to receive notice and (B) to a Director, when directed to the electronic mail address for such Director as it appears on the records of the Foundation; (3) if by a posting on an electronic network together with separate notice to the Member or Director of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; (4) if by any other form of electronic transmission, when directed to the Member or Director; (5) if by in-hand delivery or oral notice, at the time it is actually given; (6) if by mail, three days after the same shall be deposited in the United States mail; and (7) if by commercial delivery carrier or similar means, at the time when the same shall be deposited with the carrier, in each case the transmission charge to be paid by the Foundation or the person sending such notice and not by the addressee. An affidavit of the Secretary or an Assistant Secretary or of the transfer agent or other agent of the Foundation that the notice has been given by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
(c) For purposes of these By-laws, “electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved, and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.
(d) Without limiting the foregoing, the Foundation adopts electronic mail as its principal source of communication with its Members. Each Member acknowledges and agrees that the Foundation shall not be under any obligation (except as required by law or these By-laws) to send any notice to any Member by any means other than electronic mail, and it is therefore the responsibility of each Member to avail itself of and make such arrangements as may be necessary to receive notice in such fashion.
Section 7.2 Waiver of Notice
Whenever any notice is required to be given under the provisions of law or of the Certificate of Incorporation or of these By-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, or a waiver by electronic transmission by the person entitled to notice, shall be deemed equivalent thereto.
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Actions other than by or in the Right of the Foundation
The Foundation shall indemnify any 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, 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 expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Foundation, and, with respect to any criminal action or proceedings, had no reasonable cause to believe this conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Foundation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful.
Section 8.2 Actions by or in the Right of the Foundation
The Foundation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Foundation to procure a judgment in its favor by reason of the fact that he or she is or was a Director, Officer, 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 expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Foundation; provided, however, that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable unless, and only to the extent that, the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery of the State of Delaware or such other court shall deem proper.
Section 8.3 Success on the Merits
To the extent that any person described in Section 8.1 or 8.2 of this Article VIII has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in said Sections, or in defense of any claim, issue or matter therein, he or she shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection therewith.
Section 8.4 Specific Authorization
Any indemnification under Section 8.1 or 8.2 of this Article VIII (unless ordered by a court) shall be made by the Foundation only as authorized in the specific case upon a determination that indemnification of any person described in said Sections is proper in the circumstances because he or she has met the applicable standard of conduct set forth in said Sections. Such determination shall be made (1) by a majority vote of a such Directors who were not parties to such action, suit or proceeding, even though less than a quorum or (2) by the Members of the Foundation.
Section 8.5 Advance Payment
Expenses incurred in defending a civil or criminal action, suit or proceeding may 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 any person described in said Section to repay such amount if it shall ultimately be determined that he or she is not entitled to indemnification by the Foundation as authorized in this Article VIII.
Section 8.6 Non-Exclusivity
The indemnification and advancement of expenses provided by, or granted pursuant to, the other Sections of this Article VIII shall not be deemed exclusive of any other rights to which those provided indemnification or advancement of expenses may be entitled under any By-law, agreement, vote of Voting 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 8.7 Jurisdiction of Delaware Court of Chancery
The Delaware Court of Chancery is vested with exclusive jurisdiction to hear and determine all actions for advancement of expenses or indemnification. The Delaware Court of Chancery may summarily determine the Foundation’s obligation to advance expenses (including attorney’s fees).
Section 8.8 Insurance
The Board of Directors may authorize the Foundation to purchase and maintain insurance on behalf of any person who is or was a Director, Officer, 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 VIII.
Section 8.9 Continuation of Indemnification and Advancement of Expenses
The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall continue as to a person who has ceased to be a Director, Officer, employee or agent of the Foundation and shall inure to the benefit of the heirs, executors and administrators of such a person.
Section 8.10 Severability
If any word, clause or provision of this Article VIII or any award made hereunder shall for any reason be determined to be invalid, the provisions hereof shall not otherwise be affected thereby but shall remain in full force and effect.
Section 8.11 Intent of Article
The intent of this Article VIII is to provide for indemnification and advancement of expenses to the fullest extent permitted by Section 145 of the General Corporation Law of Delaware. To the extent that such Section or any successor section may be amended or supplemented from time to time, this Article VIII shall be amended automatically and construed so as to permit indemnification and advancement of expenses to the fullest extent from time to time permitted by law.
ARTICLE IX
BOOKS AND RECORDS
Section 9.1 Books and Records
The Foundation shall keep adequate and correct books and records of account, minutes of the proceedings of the Members, the Board of Directors and Board Committees, and a record of the Members giving their names and addresses and the class of Membership held by each.
Section 9.2 Form of Records
Minutes shall be kept in written form. Other books and records shall be kept either in written form or in any other form capable of being converted into written form.
Section 9.3 Reports to Directors, Members and Others
The Board of Directors shall cause such reports to be prepared, filed and/or distributed as may be required.
Section 9.4 Record Date
In order that the Foundation may determine the Members entitled to notice of or Voting Members entitled to vote at any meeting of Members or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any distribution, if any, permitted by law and the Foundation’s then current federal and state tax status, or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of Membership or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty days nor fewer than ten days before the date of such meeting, nor prior to the adoption of the resolution by the Board of Directors fixing such record date. A determination of Members of record entitled to notice of or Voting Members entitled 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. If no record date is fixed, the record date for determining Members entitled to notice of or Voting Members entitled to vote at a meeting of Members shall be at the close of business on the day before the day on which notice is given or, if notice is waived, at the close of business on the day before the day on which the meeting is held. The record date for determining Members entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is necessary, shall be the day on which the first written consent is delivered to the Foundation. The record date for determining Members entitled to express consent to corporate action in writing without a meeting, when prior action by the Board of Directors is necessary, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.
Section 9.5 Registered Members
The Foundation shall be entitled to recognize the exclusive right of a person registered on its books as a Member or a representative of a Member to receive distributions, if any, and to vote, if such records indicate that such person is a Voting Member or a representative of a Voting Member, and to hold liable for Financial Obligations each Member registered on its books, and shall not be bound to recognize any equitable or other claim to or interest in Membership on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the Delaware General Corporation Law.
ARTICLE X
CERTAIN TRANSACTIONS
Section 10.1 Transactions with Interested Parties
No contract or transaction between the Foundation and one or more of its Directors or Officers, or between the Foundation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because such Director or Officer (or other director or officer) is present at or participates in the meeting of the Board of Directors or Board Committee which authorizes the contract or transaction or solely because his, her or their votes are counted for such purpose, if:
(a) The material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or such Board Committee, and the Board of Directors or such Board Committee in good faith authorizes 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 his or her relationship or interest and as to the contract or transaction are disclosed or are known to the Voting Members entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the Voting Members; or
(c) The contract or transaction is fair as to the Foundation as of the time it is authorized, approved or ratified, by the Board of Directors, a Board Committee, or the Voting Members.
Common or interested Directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or Board Committee that authorizes the contract or transaction.
ARTICLE XI
GRANTS, CONTRACTS, LOANS, ETC.
Section 11.1 Grants
The making of grants and contributions, and otherwise rendering financial assistance for the purposes of the Foundation, may be authorized by the Board of Directors. The Board of Directors may authorize any Officer or Officers, agent or agents, in the name of and on behalf of the Foundation to make any such grants, contributions or assistance.
Section 11.2 Execution of Contracts
The Board of Directors may authorize any Officer, employee or agent of the Foundation, in the name and on behalf of the Foundation, to enter into any contract or execute and satisfy any instrument, and any such authority may be general or confined to specific instances, or otherwise limited. In the absence of any action by the Board of Directors to the contrary, the President shall be authorized to execute such contracts and instruments on behalf of the Foundation, but must inform the Board of Directors of any such actions.
Section 11.3 Checks, Drafts, Etc.
All checks, drafts and other orders for the payment of money out of the funds of the Foundation, and all notes or other evidences of indebtedness of the Foundation, shall be signed on behalf of the Foundation in such manner as shall from time to time be determined by resolution of the Board of Directors.
Section 11.4 Deposits
The funds of the Foundation not otherwise employed shall be deposited from time to time to the order of the Foundation in such banks, trust companies, or other depositories, or shall be otherwise invested, as the Board of Directors may select or direct, or as may be selected or directed by an Officer, employee or agent of the Foundation to whom such power may from time to time be specifically delegated by the Board of Directors.
ARTICLE XII
GENERAL PROVISIONS
Section 12.1 Fiscal Year
The fiscal year of the Foundation shall be determined, and may be changed, by resolution of the Board of Directors.
Section 12.2 Reserves
The Directors may set apart out of any funds of the Foundation a reserve or reserves for any proper purpose and may abolish any such reserve.
Section 12.3 Seal
The Board of Directors may, by resolution, adopt a corporate seal. The corporate seal shall have inscribed thereon the name of the Foundation, the year of its organization and the word “Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. The seal may be altered from time to time by the Board of Directors.
Section 12.4 Proprietary Rights
(a) Except as specifically provided to the contrary in such policies and procedures as may from time to time be approved by the Board of Directors, all information disclosed by any participant during any official meeting or activity of the Foundation, including but not limited to Member meetings, Member Committee Meetings, Sub-Group meetings, Board of Directors meetings, meetings of Board Committees and sub-committees thereof, electronic mail or the like, shall be deemed to have been disclosed on a non-confidential basis, but without waiver of any rights represented by valid patents, patent applications, and Federal and international statutory copyrights.
(b) No express or implied right, whether by implication, estoppel, or otherwise, to any patent, copyright, trademark, trade secret, or other intellectual property right of any Member is or shall be deemed to be granted to the Foundation or to any other Member by reason of its membership in or participation in the activities of the Foundation, except as may be provided in a separate written agreement.
(c) No Member shall at any time be required to exchange proprietary information with any other Member solely by reason of its being a Member of the Foundation.
ARTICLE XIII
ANTITRUST COMPLIANCE
Section 13.1 General
The Foundation will conduct all of its activities in conformance with all international, U.S. federal and state antitrust laws, including the Sherman Act, the Clayton Act, the Robinson-Patman Act and the Federal Trade Commission Act. The Board of Directors and the President shall consult legal counsel and seek legal review whenever necessary to insure that the activities of the Foundation are conducted in conformance with such laws.
Section 13.2 Availability of Intellectual Property
It is the good faith objective of the Foundation (i) to make all Intellectual Property available as soon as its development and adoption by the Foundation is complete on the same terms to all Members who have not participated in the development or determination of such Intellectual Property as well as to all those Members who have participated, (ii) to make all such Intellectual Property available at the same point in time to all Members, and (iii) to make all such Intellectual Property available to all non-Members on fair and reasonable terms and conditions.
Section 13.3 No Obligation to Endorse
No Member shall, by reason of its Membership or participation in the Foundation or otherwise, be obligated to license from the Foundation, use or endorse any Intellectual Property (as defined in Section 2.4) developed or endorsed by the Foundation, or to conform any of its products to any standards or Specifications developed or adopted by the Foundation, nor shall any such Member be precluded from independently licensing, using or endorsing similar intellectual property, software, specifications or documentation developed by it or by others.
ARTICLE XIV
AMENDMENTS
Except where such power is expressly limited by law, the Certificate of Incorporation or these By-laws as to any specific action, these By-laws may be altered, amended or repealed, and new By-laws may be adopted, in each case by an affirmative majority vote of the Voting Members then in good standing, at any annual or special meeting of the Voting Members, provided, however, that in the case of a special meeting, notice of such alteration, amendment, repeal or adoption of new By-laws shall be contained in the notice of such meeting.
Register of Amendments to the By-law
| Date | Sections Affected | Change |
|---|---|---|
| July 10, 2013 | 1.2, 2.8 | update corporate address; specific procedure for member resignation |
| January 13, 2014 | Article 14 | provide that only members may modify bylaws |
| January 13, 2015 | Article 4 | specify number (9), term (3 years) and term limits for directors |