--- Begin Message ---
- From: Tim Ney <ten gnome org>
- To: board gnome org
- Cc: ten gnome org
- Subject: GNOME Foundation By-laws
- Date: 25 Feb 2002 19:47:05 -0500
The set of by-laws for ratification by the board follows.
TABLE OF CONTENTS
Page
ARTICLE I
NAME 3
ARTICLE II
OFFICES 4
Section 1.Principal Office 4
Section 2.Other Offices 4
ARTICLE III
OBJECTIVES 4
ARTICLE IV
NONPARTISAN ACTIVITIES 4
ARTICLE V
DEDICATION OF ASSETS 5
ARTICLE VI
MEMBERSHIP 5
Section 1.Voting Members and Qualification 5
Section 2.Other Classes of Membership 5
Section 3.Honorary Nonmember Affiliates 6
Section 4.Term 6
Section 5.Admission and Removal 6
Section 6.Fees, Dues and Assessments 6
Section 7.Termination of Membership 6
Section 8.Reinstatement 7
Section 9.Property Rights 7
Section 10.Nonliability 7
Section 11.Non-transferability 7
ARTICLE VII
MEMBERSHIP MEETINGS 7
Section 1.Place of Meeting 7
Section 2.Annual Meetings and Election of Directors 8
Section 3.Special Meetings 8
Section 4.Notice of Meetings 8
Section 5.Adjourned Meetings 8
Section 6.Quorum 9
Section 7.Voting 9
Section 8.Action Without Meeting by Written Ballot 9
Section 9.Record Date 9
Section 10.Conduct of Meetings 10
ARTICLE VIII
DIRECTORS 10
Section 1.Powers 10
Section 2.Number and Qualification of Directors 11
Section 3.Election and Term of Office of Directors 11
Section 4.Vacancy 11
Section 5.Place of Meeting; Meetings by Telephone 13
Section 6.Annual Meeting 13
Section 7.Other Regular Meetings 13
Section 8.Special Meetings 13
Section 9.Quorum 14
Section 10.Waiver of Notice 14
Section 11.Adjournment 14
Section 12.Notice of Adjournment 14
Section 13.Action Without Meeting 15
Section 14.Fees and Compensation 15
ARTICLE IX
COMMITTEES 15
Section 1.Committees of the Board 15
Section 2.Meetings and Action of Committees 15
Section 3.Term of Office 16
Section 4.Vacancies 16
Section 5.Quorum 16
Section 6.Rules 16
Section 7.Limitations 16
ARTICLE X
OFFICERS 17
Section 1.Officers 17
Section 2.Election and Term of Office 17
Section 3.Subordinate Officers 17
Section 4.Removal and Resignation 17
Section 5.Vacancies 18
Section 6.Chairman of the Board 18
Section 7.President 18
Section 8.Vice President 18
Section 9.Treasurer 18
Section 10.Secretary 19
Section 11.Assistant Treasurers and Assistant Secretaries 19
ARTICLE XI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS 19
Section 1.Definitions 19
Section 2.Successful Defense by Agent 20
Section 3.Actions Brought by Persons Other than the Corporation 20
Section 4.Actions Brought by or on Behalf of the Corporation 20
Section 5.Determination of Agent's Good Faith Conduct 21
Section 6.Limitations 21
Section 7.Advance of Expenses 22
Section 8.Contractual Rights of Non-Directors and Non-Officers 22
Section 9.Insurance 22
Section 10.Fiduciaries of Corporate Employee Benefit Plan 22
ARTICLE XII
RECORDS AND REPORTS 22
Section 1.Maintenance and Inspection of Articles and Bylaws 22
Section 2.Maintenance and Inspection of Other Corporate Records 23
Section 3.Inspection by Directors 23
Section 4.Annual Report 23
ARTICLE XIII
CONTRACTS, CHECKS AND GIFTS 23
Section 1.Contracts 23
Section 2.Checks, Drafts, Etc 24
Section 3.Gifts 24
ARTICLE XIV
FISCAL YEAR 24
ARTICLE XV
CONSTRUCTION AND DEFINITION 24
ARTICLE XVI
AMENDMENTS 24
ARTICLE XVII
MISCELLANEOUS PROVISIONS 25
Section 1.Representation of Shares of Other Corporations 25
Section 2.Inspection of Bylaws 25
BYLAWS
OF
GNOME FOUNDATION
NAME
The name of the Corporation shall be Gnome Foundation (the
"Corporation"), a California Nonprofit Public Benefit Corporation.
OFFICES
Principal Office
The principal office for the transaction of business of the Corporation
shall be determined and may be changed from time to time by the Board of
Directors (the "Board").
Other Offices
The Board may at any time establish branch or subordinate offices at any
place or places where the Corporation is qualified to do business.
OBJECTIVES
The objectives of the Corporation shall be as stated in the Articles of
Incorporation. Specifically, the objectives shall include charitable
and educational purposes within the meaning of Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended (the "Internal Revenue Code"),
or the corresponding provision of any future United States internal
revenue law.
NONPARTISAN ACTIVITIES
The Corporation has been formed under the California Nonprofit Public
Benefit Corporation Law (the "CNPBCL") for the purposes described above,
and it shall be nonprofit and nonpartisan. No substantial part of the
activities of the Corporation shall consist of lobbying or propaganda,
or otherwise attempting to influence legislation, except as provided in
Section 501(h) of the Internal Revenue Code, and the Corporation shall
not participate or intervene in (including publishing or distributing
statements) any political campaign on behalf of any candidate for public
office except as provided in Section 501(h) of the Internal Revenue
Code.
The Corporation shall not, except in an insubstantial degree, engage in
any activities or exercise any powers that are not in furtherance of the
purposes described above.
DEDICATION OF ASSETS
The properties and assets of the Corporation are irrevocably dedicated
to charitable and educational purposes meeting the requirements for
exemption provided by Section 214 of the California Revenue and Taxation
Code. No part of the net income or assets of the Corporation, on
dissolution or otherwise, shall inure to the benefit of any private
person or individual, or any member or Director of the Corporation. On
liquidation or dissolution of the Corporation, all properties and assets
and obligations shall be distributed and paid over to a nonprofit fund,
foundation or Corporation which is organized and operated exclusively
for charitable and educational purposes meeting the requirements for
exemption provided by Section 214 of the California Revenue and Taxation
Code, and which has established its tax-exempt status under Section
501(c)(3) of the Internal Revenue Code.
MEMBERSHIP
Voting Members and Qualification
. Initially, there shall be one class of voting members of the
Corporation. Membership will be determined on a case-by-case basis, at
the sole discretion of the Board and Membership Committee. Any
contributor to GNOME shall be eligible for membership. A "contributor"
shall be defined as any individual who has contributed to a non-trivial
improvement of the GNOME Project, such as code, documentation,
translations, maintenance of project-wide resources, or other
non-trivial activities which benefit the GNOME Project. Large amounts
of advocacy or bug reporting may qualify one as a contributor, provided
that such contributions are significantly above the level expected of an
ordinary user. Contributions made in the course of employment will be
considered and will be ascribed to the individuals involved, rather than
accruing to all employees of a "contributing" corporation.
Other Classes of Membership
. The Board may, from time to time, establish another class or classes
of members, with or without voting rights. The privileges, rights and
duties of such other class or classes of members shall be as provided by
the Board, subject to the terms of the Bylaws, as amended from time to
time. The Board may thereby confer some or all of the rights of the
members upon any person or persons. If such person or persons do not
have the right to vote for either: (i) the election of a Director or
Directors, on a disposition of all or substantially all of the assets of
this corporation, on a merger, on a dissolution or (ii) the selection of
delegates who possess any such voting rights or (iii) changes to the
corporation's Articles of Incorporation or Bylaws, such person shall not
be a member within the meaning of Section 5056 of the Nonprofit
Corporation Law of the State of California.
Honorary Nonmember Affiliates
. The Directors may designate certain persons or groups of persons as
sponsors, benefactors, contributors, advisors or friends of the
Corporation or such other title as they deem appropriate. Such persons
shall serve in an honorary capacity and, except as otherwise determined
by the Board, shall in such capacity have no right to notice of or to
vote at any meeting, shall not be considered for purposes of
establishing a quorum, and shall have no other rights or
responsibilities.
Term
. The term of membership shall be two (2) years.
Admission and Removal
. Admission or removal from membership shall be by the vote of a
majority of the number of Directors then in office.
Fees, Dues and Assessments
. The Board may determine from time to time an initial membership fee,
and set such other fees, dues and assessments for membership in the
corporation as the Board, in its discretion, from time to time
determines.
Termination of Membership
. The membership of any member shall terminate upon the occurrence of
any one or more of the following:
Resignation. Any member may resign from the Corporation in writing
filed with the Secretary of the Corporation. Such resignation shall
become effective upon receipt thereof.
Expiration and Disqualification. A membership issued for a period of
time shall expire when such period of time has elapsed unless the
membership is renewed. In the case of membership classifications for
which qualification requirements are established, membership of a member
shall terminate upon the determination of the Board or Membership
Committee that the member no longer meets the qualification requirements
for membership in the Corporation.
Removal or Suspension. Membership shall terminate upon the
determination of the Board or Membership Committee after a hearing duly
held in accordance with this Section 6(c), that the member has failed in
a material respect to observe the rules of conduct promulgated from time
to time by the Board and applicable to members, or otherwise has failed
in some material respect to merit continued membership privileges in the
Corporation. In the event of a removal or suspension of a member, the
following procedures shall be implemented:
A notice shall be sent by prepaid, first-class, certified or registered
mail to the most recent address of the member as shown on the
Corporation's records, setting forth the removal or suspension and the
reason therefore. Such notice shall be sent at least fifteen (15) days
before the proposed effective date of the removal or suspension.
The member being expelled or suspended shall be given an opportunity to
be heard, either orally or in writing, at a hearing to be held no fewer
than five (5) days before the removal. The hearing shall be held by the
Board or Membership Committee. The notice to the member of his or her
proposed removal or suspension shall state that such member is entitled,
upon request, to such hearing, shall state that a date, time and place
of hearing will be established upon receipt of request therefor, and
shall state, that in the absence of such request, the effective date of
the proposed suspension or removal.
Following the hearing, the Board, or Membership committee, as the case
may be, shall decide whether the member should in fact be expelled,
suspended, or sanctioned in some other way. The decision of the Board
or Membership Committee, as the case may be, shall be final.
Any action challenging a removal or suspension of membership, including
any claim alleging defective notice, must be commenced within one year
after the date of the removal or suspension.
Reinstatement
. Suspended or expelled members may be reinstated at the discretion of
the Board.
Property Rights
. No member shall have any right or interest in any of the property or
assets of this Corporation.
Nonliability
. No member shall be personally liable for the debts, liabilities, or
obligations of this Corporation.
Non-transferability
. No member may transfer for value or otherwise a membership or any
right arising therefrom, and all rights of membership shall cease upon
the member's death or dissolution of this Corporation.
MEMBERSHIP MEETINGS
Place of Meeting
. All meetings of members shall be held either at the principal office
of the Corporation or at any other place within or without the State of
California, which may be designated by the Board pursuant to the
authority hereinafter granted to the said Board, or by the written
consent of all members entitled to vote thereat, given either before or
after the meeting and filed with the Secretary of the Corporation.
Annual Meetings and Election of Directors
. The annual meetings of members of the Corporation shall be held on
the second Saturday in April of each year at 10:00 a.m., or at any other
time and place determined by the resolution of the Board. Directors
shall be elected and other proper business may be transacted at the
annual meeting of members.
Special Meetings
. Special meetings of members, for any lawful purpose, may be called at
any time by the President or by the Board. Furthermore, special
meetings of the members for any lawful purpose may be called by, upon
request in writing by ten or more members, stating the business to be
transacted at the special meeting, mailed to the principal office of the
Corporation, or delivered to the chairman of the Board, the President,
the Vice President or Secretary. It shall be the duty of the President
to cause notice to be given, within seven (7) days from receipt of such
a request, to be held no more than twenty (20) days after the receipt of
such a request.
Notice of Meetings
. A notice of each annual meeting, written ballot for election of
Directors or otherwise, if any, and special meeting shall be given by
the President or, in case of his or her failure or refusal, by any other
officer or any Director; shall specify the place, time, day and hour of
the meeting or the date on which the ballot shall be returned, if
applicable; in the case of an annual meeting at which Directors shall be
elected, shall specify the names of all those who are candidates for
election of Directors at the time the notice is given, and in the case
of special meetings, the nature of the business to be transacted
thereat. Such notice shall be given in writing to every member of the
Corporation who, on the record date for notice of the meeting, is
entitled to vote thereat. Such notice shall be given either personally
or by sending a copy thereof by first-class mail or by telephone
communication, including a voice messaging system or other system or
technology designed to record and communicate messages, telegraph,
facsimile, electronic mail, or other electronic means, either directly
to the member or to a person at the member's office who would reasonably
be expected to communicate such notice promptly to the member at least
thirty (30) days prior to the date fixed for such meeting in the case of
an annual meeting and at least ten (10) days in the case of all other
meetings.
Adjourned Meetings
. Any members' meeting, annual or special, whether or not a quorum is
present, may be adjourned from time to time by the vote of a majority of
the members, but in the absence of a quorum no other business may be
transacted at any such meeting. No meeting may be adjourned for more
than forty-five (45) days. It shall not be necessary to give any such
notice of the time and place of the adjourned meeting or of the business
to be transacted thereat, other than by an announcement at the meeting
at which such adjournment is taken. If after the adjournment a new
record date is fixed for notice or voting, a notice of the adjourned
meeting shall be given to each member who, on the record date for notice
of the meeting, is entitled to vote at the meeting.
Quorum
. At any meeting of the members, those attending in person shall
constitute a quorum, except when a larger quorum is required by law, by
the Articles of Organization or by these Bylaws.
Voting
. Each voting member in good standing is entitled to one vote on each
matter submitted to a vote of the members. Voting shall be by voice
vote, unless the chairman of the meeting at which such vote takes place
directs such voting to be by ballot. No single vote shall be split into
fractional votes.
Action Without Meeting by Written Ballot
. Any action which may be taken at any regular or special meeting of
members may be taken without a meeting if the Corporation distributes a
written ballot to every member entitled to vote on the matter. Such
ballot shall set forth the proposed action, provide an opportunity to
specify approval or disapproval of any proposal, and provide a
reasonable time within which to return the ballot to the corporation.
Approval by written ballot shall be valid only when the number of votes
cast by ballot within the time period specified equals or exceeds a
quorum of the members, and the number of approvals equals or exceeds the
number of votes that would be required to approve at a meeting at which
the total number of votes cast was the same as the number of votes cast
by ballot.
Record Date
. The Board may fix, in advance, a record date for the purpose of
determining the members entitled to notice of and to vote at any meeting
of members, give consent to corporate action in writing without a
meeting, receive any report, receive any allotment of rights, or
exercise rights in respect to any change in membership rights or
liabilities. Only members of record on the record date are entitled to
notice of and to vote at any such meeting, give consent without a
meeting, receive any reports, receive allotment of rights, or exercise
the rights, as the case may be, notwithstanding any transfer of
memberships on the books of the corporation after the record date,
except as otherwise provided in the Articles of Incorporation or these
Bylaws. The Board shall fix, in advance, record dates as follows:
Notice. The record date for determination of the members entitled to
notice of any meeting of members shall not be more than ninety (90) nor
less than ten (10) days before the date of the meeting. If no record
date is fixed, members at the close of business on the business day
preceding the day on which notice is given or, if notice is waived, at
the close of business on the business day preceding the day on which the
meeting is held are entitled to notice of a meeting of members shall
apply to any adjournment of the meeting unless the Board fixes a new
record date for the adjourned meeting.
Vote. The record date for the purpose of determining the members
entitled to vote at a meeting of members shall not be more than sixty
(60) days before the date of the meeting. Such record date shall also
apply in the case of an adjournment of the meeting unless the Board
fixes a new record date for the adjourned meeting. If no record date is
fixed, members on the day of the meeting who are otherwise eligible to
vote are entitled to vote at the meeting of members or, in the case of
an adjourned meeting, members on the day of the adjourned meeting who
are otherwise eligible to vote are entitled to vote at the adjourned
meeting of members.
Written Ballots. The record date for the purpose of determining members
entitled to cast written ballots shall not be more than sixty (60) days
before the day on which the first written ballot is mailed or
solicited. If no record date is fixed, members on the day of the first
written ballot is mailed or solicited who are otherwise eligible to vote
are entitled to cast written ballots.
Conduct of Meetings
. Meetings of members shall be presided over by the President of the
Corporation, or in his or her absence, by the Chairman of the
Corporation, or in his or her absence, by a chairman chosen by a
majority of the members present. The Secretary of the Corporation shall
act as the secretary of all meetings of members, provided that in his or
her absence the presiding officer shall appoint another member to act as
Acting Secretary of the meeting.
DIRECTORS
Powers
General corporate powers. Subject to the provisions of the CNPBCL and
any other applicable laws, the business and affairs of the Corporation
shall be managed, and all corporate powers shall be exercised, by or
under the direction of the Board.
Specific powers. Without prejudice to these general powers, and subject
to the same limitations, the Board shall have power to:
Select and remove all officers, agents and employees of the Corporation;
prescribe any powers and duties for them that are consistent with law,
with the Articles of Incorporation and with these bylaws; and fix their
compensation.
Change the principal executive office or the principal business office
from one location to another; cause the Corporation to be qualified to
do business in any other state, territory, dependency or country and
conduct business within or outside the State of California; and
designate any place within or outside the State of California for the
holding of any members' meeting or meetings, including annual meetings.
Adopt, make and use a corporate seal and alter the form of the seal.
Borrow money and incur indebtedness on behalf of the Corporation and
cause to be executed and delivered for the Corporation's purposes, in
the corporate name, promissory notes, bonds, debentures, deeds of trust,
mortgages, pledges, hypothecations and other evidences of debt and
securities.
Number and Qualification of Directors
The Directors shall fix their number at an annual meeting. At any
special or regular meeting, the Directors then in office may increase
the number of Directors and elect new Directors to complete the number
so fixed; or they may decrease the number of Directors, but only to
eliminate vacancies existing by reason of the death, resignation,
removal or disqualification of one or more Directors.
A Director shall be a Member.
The initial number of Directors shall be eleven (11).
No organization, corporation or similar entity, or any affiliate
thereof, shall hold, directly or indirectly, more than 40% of the Board
seats, regardless of election results. In the event that any election
of directors results in a single entity representing greater than 40% of
the Board, than the nominee representing that entity receiving the least
number of votes, shall be replaced by the nominee receiving the greatest
number of votes who was not elected to the Board. In the event that the
resignation or removal of a director results in a single entity
representing greater than 40% of the Board, the Board shall as soon as
practicable, appoint a new director not representing that entity to
serve until the next election of directors. For the purposes of this
section, "affiliate" shall mean representatives who are employees,
officers, or members of the Board of Directors of an entity; who have a
significant consulting relationship with an entity; or who own at least
1% of the equity or debt, or derivatives thereof, of an entity.
Election and Term of Office of Directors
Each of the directors shall hold office for one (1) year.
Directors shall be elected by the membership in accordance with the
rules set forth on http://foundation.gnome.org/electionrules.html.
Each Director shall serve until his successor is duly elected and
qualified or until his earlier death, resignation or removal. No
reduction of the authorized number of Directors shall have the effect of
removing any Director before that Director's term of office expires.
Vacancy
Events causing vacancy. A vacancy or vacancies in the Board shall be
deemed to exist on the occurrence of the following:
The death, resignation or removal of any Director.
The declaration by resolution of the Board of a vacancy of the office of
a Director who has been declared of unsound mind by an order of court or
convicted of a felony or has been found by final order or judgment of
any court to have breached a duty under Article 3 of Chapter 2 of the
CNPBCL.
The increase of the authorized number of Directors.
Resignations. Except as provided in this paragraph, any Director may
resign, which resignation shall be effective on giving written notice to
the chairman of the Board, the president, the secretary or the Board of
Directors, unless the notice specifies a later time for the resignation
to become effective. If the resignation of a Director is effective at a
future time, the Board of Directors may elect a successor to take office
when the resignation becomes effective. No Director may resign when the
Corporation would then be left without a duly elected Director or
Directors in charge of its affairs.
Removals. A Director may be removed for cause. In the event such
removal, the following procedures shall be implemented:
A notice shall be sent by mail by prepaid, first-class, certified or
registered mail to the most recent address of the member as shown on the
Corporation's records, setting forth the removal and the reason
therefore. Such notice shall be sent at least seven (7) days before the
proposed effective date of the removal.
The Director being removed shall be given an opportunity to be heard,
either orally or in writing, at a hearing to be held no fewer than five
(5) days before the removal. The hearing shall be held by the Board.
The notice to the Director of his or her proposed removal shall state
that such member is entitled, upon request, to such hearing, shall state
that a date, time and place of hearing will be established upon receipt
of request therefor, and shall state, that in the absence of such
request, the effective date of the proposed removal.
Following the hearing, the Board shall decide whether the Director
should in fact be expelled, suspended, or sanctioned in some other way.
The decision of the Board shall be final.
Filling vacancies. Vacancies on the Board may be filled by a majority
of the Directors then in office, whether or not less than a quorum, or
by a sole remaining Director.
No vacancy on reduction of number of Directors. No reduction of the
authorized number of Directors shall have the effect of removing any
Director before that Director's term of office expires.
Restriction on interested Directors. Not more than forty-nine percent
(49%) of the persons serving on the Board at any time may be interested
persons. An interested person is (i) any person being compensated by
the Corporation for services rendered to it in the previous twelve (12)
months, whether as a full-time or part-time employee, independent
contractor or otherwise, excluding any reasonable compensation paid to a
Director as Director; and (ii) any brother, sister, ancestor,
descendant, spouse, brother-in-law, sister-in-law, son-in-law,
daughter-in-law, mother-in-law or father-in-law of any such person.
However, any violation of the provisions of this paragraph shall not
affect the validity or enforceability of any transaction entered into by
the Corporation.
The Board shall have and may exercise all its powers notwithstanding the
instance of one or more vacancies.
Place of Meeting; Meetings by Telephone
Regular meetings of the Board may be held at any place within or outside
the State of California that has been designated from time to time by
resolution of the Board or in the notice of the meeting. In the absence
of such designation, regular meetings shall be held at the principal
executive office of the Corporation. Special meetings of the Board
shall be held at any place within or outside the State of California
that has been designated in the notice of the meeting or, if not stated
in the notice, or if there is no notice, at the principal executive
office of the Corporation. Notwithstanding the above provisions of this
Section 5, a regular or special meeting of the Board may be held at any
place consented to in writing by all the Board members, either before or
after the meeting. If consents are given, they shall be filed with the
minutes of the meeting. Any meeting, regular or special, may be held by
conference telephone or similar communication equipment, so long as all
Directors participating in the meeting can hear one another, and all
such Directors shall be deemed to be present in person at such meeting.
Annual Meeting
At such time and place fixed by the Board, the Board shall hold a
regular annual meeting for the purpose of organization, election of
officers and the transaction of other business.
Other Regular Meetings
Regular meetings of the Board shall be held on a quarterly basis
following the annual meeting of the Corporation. Such regular meetings
may be held without notice.
Special Meetings
Authority to call. Special meetings of the Board for any purpose may be
called at any time by the chairman of the Board or any two (2)
Directors.
Notice.
Manner of giving. Notice of the time and place of special meetings
shall be given to each Director by one of the following methods: (i) by
personal delivery or written notice; (ii) by first-class mail, postage
prepaid; (iii) by telephone communication, including a voice messaging
system or other system or technology designed to record and communicate
messages, telegraph, facsimile, electronic mail, or other electronic
means, either directly to the Director or to a person at the Director's
office who would reasonably be expected to communicate such notice
promptly to the Director. All such notices shall be given or sent to
the Director's address or telephone number as shown on the records of
the Corporation.
Time requirements. Notices sent by first-class mail shall be deposited
into a United States mailbox at least four (4) days before the time set
for the meeting. Notices given by personal delivery or by telephone
shall be delivered at least forty-eight (48) hours before the time set
for the meeting.
Notice contents. The notice shall state the time and place for the
meeting. However, it need not specify the purpose of the meeting, or
the place of the meeting if it is to be held at the principal executive
office of the Corporation.
Quorum
.
A majority of the authorized number of Directors shall constitute a
quorum for the transaction of business, except to adjourn as provided in
Section 11 of this Article VIII. Every action taken or decision made by
a majority of the Directors present at a meeting duly held at which a
quorum is present shall be regarded as the act of the Board, subject to
the provisions of the CNPBCL, especially those provisions relating to:
(i) approval of contracts or transactions in which a Director has a
direct or indirect material financial interest, (ii) creation of and
appointment to committees of the Board and (iii) indemnification of
Directors. A meeting at which a quorum is initially present may
continue to transact business, notwithstanding the withdrawal of
Directors, if any action taken is approved by at least a majority of the
required quorum for that meeting.
Waiver of Notice
The transactions of any meeting of the Board of Directors, however
called and noticed or wherever held, shall be as valid as though taken
at a meeting duly held after regular call and notice if (i) a quorum is
present and (ii) either before or after the meeting, each of the
Directors not present signs a written waiver of notice, a consent to
holding the meeting or an approval of the minutes. The waiver of notice
or consent need not specify the purpose of the meeting. All waivers,
consents and approvals shall be filed with the corporate records or made
a part of the minutes of the meeting.
Notice of a meeting shall also be deemed given to any Director who
attends the meeting without protesting before or at its commencement
about the lack of adequate notice.
Adjournment
A majority of the Directors present, whether or not constituting a
quorum, may adjourn any meeting to another time and place.
Notice of Adjournment
Notice of the time and place of holding an adjourned meeting need not be
given, unless the meeting is adjourned for more than twenty-four (24)
hours, in which case personal notice of the time and place shall be
given before the time of the adjourned meeting to the Directors who were
not present at the time of adjournment.
Action Without Meeting
Any action required or permitted to be taken by the Board may be taken
without a meeting if all members of the Board, individually or
collectively, consent in writing to the action; provided, however, that
the consent of any Director who has a material financial interest in a
transaction to which the Corporation is a party and who is an
"interested Director" as defined in Section 5233 of the California
Corporations Code shall not be required for approval of that
transaction. Such action by written consent shall have the same force
and effect as a unanimous vote of the Board. Such written consent or
consents shall be filed with the minutes of the proceedings of the
Board.
Fees and Compensation
Directors as such shall not receive any compensation for their services,
but by resolution of the Board, expenses of attendance, if any, may be
allowed for attendance at regular or special meetings of the Board; but
nothing herein contained shall be construed to preclude any Director
from serving the Corporation in any other capacity and receiving
compensation therefor.
COMMITTEES
Committees of the Board
The Board, by resolution adopted by a majority of the Directors then in
office, provided a quorum is present, may create one or more committees,
each consisting of two or more Directors and no persons who are not
Directors, to serve at the pleasure of the Board. Appointments to
committees of the Board shall be by majority vote of the Directors then
in office. The Board may appoint one or more Directors as alternate
members of any such committee, who may replace any absent member at any
meeting of the committee.
Meetings and Action of Committees
Meetings and actions of committees of the Board shall be governed by,
held and taken in accordance with the provisions of these bylaws
concerning meetings and other Board actions, except that the time for
regular meetings of such committees and the calling of special meetings
of such committees may be determined either by Board resolution or, if
there is none, by resolution of the committee of the Board. Minutes of
each meeting of any committee of the Board shall be kept and shall be
filed with the corporate records. The Board may adopt rules for the
government of any committee, provided they are consistent with these
bylaws, or in the absence of rules adopted by the Board, the committee
may adopt such rules.
Term of Office
Each member of a committee shall continue as such until the next annual
meeting of the Board of the Corporation and until his successor is
appointed, unless the committee shall be sooner terminated, or unless
such member be removed from such committee, or unless such member shall
cease to qualify as a member thereof.
Vacancies
Vacancies in the membership of any committee may be filled by
appointments made in the manner as provided in the case of the original
appointments.
Quorum
Unless otherwise provided in the resolution of the Board designating a
committee, a majority of the whole committee shall constitute a quorum
and the act of a majority of the members present at a meeting at which a
quorum is present shall be the act of the committee.
Rules
Each committee may adopt rules for its own government not inconsistent
with these bylaws or with rules adopted by the Board.
Limitations
No committee may:
fill any vacancies on the Board or on any committee;
fix compensation of the Directors for serving on the Board or on any
committee;
amend or repeal bylaws or adopt new bylaws;
amend or repeal any resolution of the Board which by its express terms
is not so amendable or repealable;
appoint any committees of the Board or the members thereof;
expend corporate funds to support a nominee for Director after there are
more people nominated for Director than can be elected;
approve any transaction: (i) to which the Corporation is a party and one
or more Directors have a material financial interest; or (ii) between
the Corporation and one or more of its Directors or between the
Corporation or any person in which one or more of its Directors have a
material financial interest.
OFFICERS
Officers
The officers of the Corporation shall be a Chairman of the Board (if
appointed by the Board), a President, one or more Vice Presidents (the
number thereof to be determined by the Board), a Secretary, a Treasurer
and such other officers as may be elected in accordance with the
provisions of this Article X. Except insofar as their duties may
conflict, any two or more offices may be held by the same person, except
that neither the Secretary nor the Treasurer may serve concurrently as
the President or Chairman of the Board.
Election and Term of Office
The officers of the Corporation, except such officers as may be
appointed in accordance with the provisions of Section 3 or Section 5 of
this Article X, shall be chosen annually by the Board, and each shall
hold his or her office until he or she shall resign or shall be removed
or otherwise disqualified to serve, or his or her successor shall be
elected and qualified, subject to the rights, if any, of an officer
under any contract of employment. New offices may be created and filled
at any meeting of the Board. Each officer shall hold office until that
officer's successor shall have been duly elected and shall have
qualified.
Subordinate Officers
The Board may appoint such other officers, including one or more
assistant secretaries and one or more assistant treasurers, as it shall
deem desirable, each such officer to have the authority and perform the
duties prescribed from time to time by the Board and to hold office
until he or she shall resign or shall be removed or otherwise
disqualified to serve.
Removal and Resignation
Removal. Any officer, other than the President, may be removed with or
without cause. In the event such removal, the following procedures
shall be implemented:
A notice shall be sent by mail by prepaid, first-class, certified or
registered mail to the most recent address of the officer as shown on
the Corporation's records, setting forth the removal and the reason
therefore. Such notice shall be sent at least seven (7) days before the
proposed effective date of the removal.
The officer being removed shall be given an opportunity to be heard,
either orally or in writing, at a hearing to be held no fewer than five
(5) days before the removal. The hearing shall be held by the Board.
The notice to the Officer of his or her proposed removal shall state
that such member is entitled, upon request, to such hearing, shall state
that a date, time and place of hearing will be established upon receipt
of request therefor, and shall state, that in the absence of such
request, the effective date of the proposed removal.
Following the hearing, the Board shall decide whether the Officer should
in fact be expelled, suspended, or sanctioned in some other way. The
decision of the Board shall be final.
Resignation. Any officer may resign at any time by giving written
notice to the Board or to the president or to the secretary of the
Corporation. Any such resignation shall take effect at the date of the
receipt of such notice or at any later time specified therein; and,
unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective. Any resignation shall be
without prejudice to the rights, if any, of the Corporation under any
contract to which the officer is a party.
Vacancies
A vacancy in any office, because of death, resignation, removal,
disqualification or otherwise, may be filled by the Board for the
unexpired portion of the term.
Chairman of the Board
The Chairman of the Board, if there be such an officer, shall preside at
all meetings of the Board of Directors and perform such other duties as
the Directors may assign.
President
The President shall be the chief executive officer of the Corporation
and shall in general supervise and control all of the business and
affairs of the Corporation. The President may sign, with the secretary
or any other proper officer of the Corporation authorized by the Board,
any deeds, mortgages, bonds, contracts or other instruments that the
Board of Directors has authorized to be executed, except in cases where
the signing and execution thereof shall be specially designated by the
Board or by these bylaws or by statute to some other officer or agent of
the Corporation; and in general he or she shall perform all duties
incident to the office of president and such other duties as may be
prescribed from time to time by the Board.
Vice President
In the absence of the president, or in the event of his or her inability
or refusal to act, the vice president (or, if there be more than one
vice president, the first vice president) shall perform the duties of
the president, and when so acting shall have all the powers and be
subject to all the restrictions upon the president. The vice president
shall have such other powers and perform such other duties as may be
prescribed from time to time by the Board.
Treasurer
The Treasurer shall keep and maintain, or cause to be kept and
maintained, adequate and correct books and accounts of the Corporation's
properties and transactions. The Treasurer shall send or cause to be
given to the Directors such financial statements and reports as are
required to be given by law, by these bylaws or by the Board. The books
of account shall be open to inspection by any Director at all reasonable
times.
The Treasurer shall deposit, or cause to be deposited, all money and
other valuables in the name and to the credit of the Corporation with
such depositories as the Board may designate, shall disburse the
Corporation's funds as the Board may order, shall render to the
president, chairman of the Board and the Board, when requested, an
account of all transactions as Treasurer and of the financial condition
of the Corporation and shall have such other powers and perform such
other duties as the Board or these bylaws may prescribe.
If required by the Board, the Treasurer shall give the Corporation a
bond, in the amount and with the surety or sureties specified by the
Board, for faithful performance of the duties of the office and for
restoration to the Corporation of all of its books, papers, vouchers,
money and other property of every kind in the possession or under the
control of the Treasurer on his or her death, resignation, retirement or
removal from office.
Secretary
The Secretary shall keep or cause to be kept the minutes of the meetings
of the Board of Directors in one or more books provided for that
purpose, see that all notices are duly given in accordance with the
provisions of these bylaws or as required by law, be custodian of the
corporate records and of the seal of the Corporation, see that the seal
of the Corporation is affixed to all documents, the execution of which
on behalf of the Corporation under its seal is duly authorized in
accordance with the provisions of these bylaws, and in general perform
all duties incident to the office of secretary and such other duties as
pertain to the office or as prescribed from time to time by the Board of
Directors.
Assistant Treasurers and Assistant Secretaries
If required by the Board, the assistant treasurers shall give bonds for
the faithful discharge of their duties, in such sums and with such
sureties as the Board shall determine. The assistant treasurers and
assistant secretaries, in general, shall perform such duties as shall be
assigned to them by the treasurer or the secretary or by the president
or the Board.
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS
Definitions
For the purpose of this Article I:
"agent" means any person who is or was a Director, officer, employee or
other agent of the Corporation; or is or was serving at the request of
the Corporation as a Director, officer, employee or other agent of
another foreign or domestic Corporation, partnership, joint venture,
trust or other enterprise; or was a Director, officer, employee or other
agent of a foreign or domestic Corporation that was a predecessor
Corporation of the Corporation or of another enterprise at the request
of the predecessor Corporation.
"proceeding" means any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or investigative;
and
"expenses" includes, without limitation, all attorneys' fees, costs and
any other expenses incurred in the defense of any claims or proceedings
against an agent by reason of his or her position or relationship as
agent and all attorneys' fees, costs and other expenses incurred in
establishing a right to indemnification under this Article XI.
Successful Defense by Agent
To the extent that an agent of the Corporation has been successful on
the merits in the defense of any proceeding referred to in this Article
XI, or in the defense of any claim, issue or matter therein, the agent
shall be indemnified against expenses actually and reasonably incurred
by the agent in connection with the claim. If an agent either settles
any such claim or sustains a judgment rendered against him or her, then
the provisions of Sections 3 through 5 below shall determine whether the
agent is entitled to indemnification.
Actions Brought by Persons Other than the Corporation
Subject to the required findings to be made pursuant to Section 5 below,
the Corporation shall indemnify any person who was or is a party, or is
threatened to be made a party, to any proceeding, other than an action
brought by, or on behalf of, the Corporation, or by an officer, Director
or person granted related status by the Attorney General, or by the
Attorney General on the ground that the defendant Director was or is
engaging in self-dealing within the meaning of California Corporations
Code Section 5233, or by the Attorney General or a person granted
related status by the Attorney General for any breach of duty relating
to assets held in charitable trust, by reason of the fact that such
person is or was an agent of the Corporation, for all expenses,
judgments, fines, settlements and other amounts actually and reasonably
incurred in connection with the proceeding.
Actions Brought by or on Behalf of the Corporation
Claims settled out of court. If any agent settles or otherwise disposes
of a threatened or pending action brought by or on behalf of the
Corporation, with or without court approval, the agent shall receive no
indemnification for either amounts paid pursuant to the terms of the
settlement or other disposition or for any expenses incurred in
defending against the proceeding.
Claims and suits awarded against agent. The Corporation 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 brought by or on behalf
of the Corporation, by reason of the fact that the person is or was an
agent of the Corporation, for all expenses actually and reasonably
incurred in connection with the defense of that action, provided that
both of the following are met:
The determination of good faith conduct required by Section 5 below must
be made in the manner provided for in that section; and
Upon application, the court in which the action was brought must
determine that, in view of all of the circumstances of the case, the
agent should be entitled to indemnity for the expenses incurred. If the
agent is found to be so entitled, the court shall determine the
appropriate amount of expenses to be reimbursed.
Determination of Agent's Good Faith Conduct
The indemnification granted to an agent in Sections 3 and 4 above is
conditioned on the following:
Required standard of conduct. The agent seeking reimbursement must be
found, in the manner provided below, to have acted in good faith, in a
manner he or she believed to be in the best interest of the Corporation,
and with such care, including reasonable inquiry, as an ordinarily
prudent person in a like position would use in similar circumstances.
The termination of any proceeding by judgment, order, settlement,
conviction, or on a plea of nolo contendere or its equivalent, shall
not, in itself, create a presumption that the person did not act in good
faith or in a manner which he or she reasonably believed to be in the
best interest of the Corporation or that he or she had reasonable cause
to believe that his or her conduct was unlawful. In the case of a
criminal proceeding, the person must have had no reasonable cause to
believe that his or her conduct was unlawful.
Manner of determination of good faith conduct. The determination that
the agent did act in a manner complying with paragraph a above shall be
made by:
the Board, by a majority vote of a quorum consisting of Directors who
are not parties to the proceeding; or
the court in which the proceeding is or was pending. Such determination
may be made on application brought by the Corporation or the agent or
the attorney or other person rendering a defense to the agent, whether
or not the application by the agent, attorney or other person is opposed
by the Corporation.
Limitations
No indemnification or advance shall be made under this Article XI,
except as provided in Section 2 or 5(b) above, in. any circumstance when
it appears:
That the indemnification or advance would be inconsistent with a
provision of the Articles of Incorporation, a resolution of the Board or
an agreement in effect at the time of the accrual of the alleged cause
of action asserted in the proceeding in connection with which the
expenses were incurred, or other amounts were paid, which prohibits or
otherwise limits indemnification; or
That the indemnification would be inconsistent with any condition
expressly provided by a court in approving a settlement.
Advance of Expenses
Expenses incurred in defending any proceeding may be advanced by the
Corporation before the final disposition of the proceeding, on receipt
of an undertaking by or on behalf of the agent to repay the amount of
the advance unless it is determined ultimately that the agent is
entitled to be indemnified as authorized in this Article XI.
Contractual Rights of Non-Directors and Non-Officers
Nothing contained in this Article XI shall affect any right to
indemnification to which persons other than Directors and officers of
the Corporation, or any subsidiary hereof, may be entitled by contract
or otherwise.
Insurance
The Board may adopt a resolution authorizing the purchase and
maintenance of insurance on behalf of any agent of the Corporation
against any liability asserted against or incurred by the agent in such
capacity or arising out of the agent's status as such, whether or not
the Corporation would have the power to indemnify the agent against that
liability under the provisions of this Article XI; provided, however,
that the Corporation shall not have the power to purchase and maintain
such insurance to indemnify any agent of the Corporation for a violation
of Section 5233 of the California Corporations Code.
Fiduciaries of Corporate Employee Benefit Plan
This Article XI does not apply to any proceeding against any trustee,
investment manager or other fiduciary of an employee benefit plan in
that person's capacity as such, even though that person may also be an
agent of the Corporation as defined in Section la of this Article XI.
Nothing contained in this Article XI shall limit any right to
indemnification to which such a trustee, investment manager or other
fiduciary may be entitled by contract or otherwise, which shall be
enforceable to the extent permitted by applicable law.
RECORDS AND REPORTS
Maintenance and Inspection of Articles and Bylaws
The Corporation shall keep at its principal executive office, or if its
principal executive office is not in the State of California, at its
principal business office in such state, the original or a copy of the
Articles of Incorporation and bylaws as amended to date.
Maintenance and Inspection of Other Corporate Records
The accounting books, records and minutes of proceedings of the Board
and any committee(s) of the Board shall be kept at such place or places
designated by the Board, or, in the absence of such designation, at the
principal executive office of the Corporation. The minutes shall be
kept in written or typed form, and the accounting books and records
shall be kept either in written or typed form or in any other form
capable of being converted into written, typed or printed form.
Inspection by Directors
Every Director shall have the absolute right at any reasonable time to
inspect all books, records and documents of every kind and the physical
properties of the Corporation and each of its subsidiary Corporations.
This inspection by a Director may be made in person or by an agent or
attorney, and the right of inspection includes the right to copy and
make extracts of documents.
Annual Report
An annual report shall be sent to the Directors within one hundred
twenty (120) days of the close of the Corporation's fiscal year,
containing the following information in reasonable detail:
The assets and liabilities, including the trust funds, of the
Corporation as of the end of the fiscal year.
The principal changes in assets and liabilities, including trust funds,
during the fiscal year.
The revenue or receipts of the Corporation, both unrestricted and
restricted to particular purposes, for the fiscal year.
The expenses or disbursements of the Corporation, for both general and
restricted purposes, during the fiscal year.
Any information required by California Corporations Code Section 6322.
CONTRACTS, CHECKS AND GIFTS
Contracts
The Board, except as otherwise provided in these bylaws, may authorize
any officer or officers, or any agent or agents, to enter into any
contract or execute any instrument in the name and on behalf of the
Corporation, and such authority may be general or confined to specific
instances; and unless so authorized by the Board, no officer, agent or
employee shall have any power or authority to bind the Corporation by
any contract or engagement or to pledge its credit or to render it
liable for any purpose or in any amount.
Checks, Drafts, Etc
.
All checks, drafts or other orders for payment of money, notes or other
evidences of indebtedness, issued in the name of or payable to the
Corporation, shall be signed or endorsed by such person or persons and
in such manner as, from time to time, shall be determined by resolution
of the Board. In the absence of such determination by the Board, such
instruments shall be signed by the treasurer or an assistant treasurer
and countersigned by the president or a vice president of the
Corporation.
Gifts
The Board of Directors may accept on behalf of the Corporation any
contribution, gift, bequest or devise for the general purposes or for
any specific purpose of the Corporation.
FISCAL YEAR
The fiscal year of the Corporation shall begin on the first day of
October and end on the last day of September in each year.
CONSTRUCTION AND DEFINITION
Unless the context requires otherwise, the general provisions, rules of
construction and definitions in the CNPBCL shall govern the construction
of these bylaws. Without limiting the generality of the above, the
masculine gender includes the feminine and neuter, the singular number
includes the plural, the plural number includes the singular, and the
term "person" includes both the Corporation and a natural person.
AMENDMENTS
Bylaws may be adopted, amended or repealed by the Board to the extent
permitted by CNPBCL Section 5150(a). The Board may not extend the term
of a Director beyond that for which the Director was elected.
MISCELLANEOUS PROVISIONS
Representation of Shares of Other Corporations
The president, or such other officers as the Board may select for that
purpose, are authorized to vote, represent and exercise on behalf of the
Corporation all rights incident to any and all voting securities of any
other Corporations standing in the name of the Corporation. The
authority herein granted to said officers to vote or represent on behalf
of the Corporation any and all voting securities held by the Corporation
in any other Corporations may be exercised either by such officers in
person or by any person authorized to do so by proxy or power of
attorney duly executed by such officer.
Inspection of Bylaws
These bylaws, as amended or otherwise altered to date, certified by the
secretary shall be open to inspection by the Directors at all reasonable
times during office hours.
CERTIFICATE OF ADOPTION OF BYLAWS
OF
GNOME FOUNDATION
Certificate by Secretary of Bylaws
The undersigned hereby certifies that he/she is the duly elected,
qualified and acting Secretary of Gnome Foundation and that the
foregoing bylaws, comprising nineteen (19) pages, are the true and
correct bylaws of the Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto set his/her hand and
affixed the corporate seal this ________ day of ____________, ____.
____________, Secretary
CERTIFICATE OF AMENDMENT OF BYLAWS
OF
GNOME FOUNDATION
BYLAWS
OF
GNOME FOUNDATION
Initially Adopted on February 26, 2002
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