Re: election plans

[Frank Hecker <frank collab net>]

kelly@poverty.bloomington.in.us wrote:
> On 24 Jul 2000 09:44:38 -0400, Havoc Pennington <hp@redhat.com> said:
> 
> >Do we need to elect the board in the next few weeks, before we
> >legally incorporate, or do we elect it as the first action of the new
> >foundation? Aren't we legally required to list the initial board in
> >the incorporation documents?
> 
> State law varies on this; in Indiana your incorporation document
> declares a set of "incorporators" who, at their first meeting,
> generally appoint the initial board and immediately resign their
> offices.

The process associated with incorporation in Delaware appears to be
similar though not necessarily identical, based on the experiences of
the Apache Software Foundation.  As I understand it, the sequence of
events for the ASF went roughly as follows:

1. Filing of ASF certificate of incorporation (by Roy Fielding, on 25
March 1999):

http://www.apache.org/foundation/records/certificate.html

This established the formal legal aspects of the ASF, including its
status as a Delaware nonprofit corporation. (As a side note, this is not
the same as a US tax-exempt non profit organization, or "501(c)(3)"
organization; this requires a separate filing procedure with the US
Internal Revenue Service.)

This document embodied some basic principles of the organization, most
notably it would be a nonprofit membership organization, with a board of
directors and a set of bylaws; however it did not in and of itself
specify the exact bylaws, leaving that to the board of directors.

2. Filing of the "written consent of incorporator" statement (again by
Roy Fielding, on 5 April 1999):

http://www.apache.org/foundation/records/incorporator.html

This specified the initial board of directors (9 people, both from the
US and other countries) and charged them to adopt a set of bylaws;
however again it did not specify the bylaws themselves.

3. Minutes of the first board meeting (on 13 April 1999):

http://www.apache.org/foundation/records/minutes/1999/board_minutes_1999_04_13.txt

It's only at this point that the initial set of bylaws was formally
adopted and the initial membership list defined. (The meeting also
formally ratified the list of directors specified in the "written
consent of incorporator" form.) Once that was done, further board
elections and changes to the membership could be done according to the
bylaws.

I don't know exactly when the first "real" ASF board election occurred,
but the initial bylaws required that it happen no more than 13 months
after formal incoporation; the GNOME Foundation initial bylaws could
contain a similar provision, with whatever time limit people feel is
reasonable. (For example, you might want elections to occur within 6
months, or 3 months, or whatever.)

However I wouldn't necessarily set the time limit too short, because I
think it would be better to let the initial board of directors have
enough time to complete all the formal legal actions required as a
consequence of incorporation, prior to having to deal with the
complexity of a full election.

Frank
-- 
Frank Hecker
frank@collab.net