BYLAWS OF THE ALLSEEN ALLIANCE, INC.
NAME, PURPOSE AND OFFICES
Section 1.1 Name
The name of the corporation is “AllSeen Alliance, Inc.”, and the corporation is referred to in these By-laws as the “Alliance”.
Section 1.2 Principal Office
The principal office of the Alliance shall be located at 660 York Street, San Francisco, CA 94110. The Board of Directors of the Alliance (each, a “Director,” and collectively, the “Board”) is hereby granted full power and authority to change the Alliance 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 at any place or places.
Section 1.4 Purpose
The nature of the business or purposes to be conducted or promoted by the Alliance is to engage in any lawful act or activity for which corporations which are organized as not-for-profit may be organized under the General Corporation Law of Delaware. The primary purpose and mission of the Alliance is to: (a) enable widespread adoption and help accelerate development of open source interoperable peer connectivity and communications solutions based on AllJoyn (the “Platform”) for devices and applications in the Internet of Everything and associated device-based Service Frameworks, (b) promote such Platform and Service Frameworks worldwide, and (c) undertake such other activities as may from time to time be appropriate to further the purposes and achieve the goals set forth above.
In support of such purpose, the Alliance may engage in some or all of the following activities: (a) drive the development of, disseminate, support and maintain the Platform, (b) create and own distinctive trademarks, service marks and/or certification marks, whether original to the Alliance or contributed along with associated goodwill by Members, and to support and administer the development and deployment of certification tests for software and hardware and testing as may be appropriate to ownership of said marks, (c) administer or subcontract a branding program, (d) create various printed and/or electronic materials for distribution to members and non-members, (e) maintain its own website, (f) coordinate the promotion of the Platform among members and non-members, as well as create basic marketing promotional collateral (e.g., both web pages as well as tangible materials), and (g) undertake those other activities as the Board may from time to time approve consistent with and in furtherance of the Purpose.
Section 1.5 Nonprofit Status
(a) The Alliance 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 may, in its sole discretion, elect to seek exemption from Federal taxation for the Alliance 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 Alliance 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.
Section 2.1 Classes of Membership
The Alliance shall have four classes of membership: Premier Members, Community Members, Sponsored Members, and Ecosystem 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 2.7 of these By-laws. Premier Members, Community Members, and any future classes of members that are entitled to voting rights shall be collectively referred to as “Voting Members.” Sponsored Members and Ecosystem Members shall be non-voting Members; provided, however, if the representative of a Sponsored Member chairs a Working Group (as defined in Section 5.5 below), then such representative shall be entitled to vote on matters before the Technical Steering Committee as a member of the Technical Steering Committee (as defined in Section 5.5(b) below). All voting and non-voting memberships in the Alliance 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 Conditions of Membership
(a) Any association, governmental agency, academic entity, individual contributor or non-profit entity shall be admitted to Sponsored Membership upon at least a majority approval of the Board. Any association, partnership, organization, governmental agency, company, corporation, limited liability company, partnership, academic entity, non-profit or other entity (or individual) shall be admitted to Premier Membership, Community Membership, or Ecosystem Membership upon: (a) acceptance of its written application on such form as may be from time to time required by the Alliance (which acceptance shall be administered in a non-discriminatory fashion), (b) satisfaction of such other conditions, including without limitation requirements for in-kind contributions (e.g., assignment of dedicated developers and maintainers to projects), as may from time to time be established by the Board for such class of Membership, if any, and (c) unless otherwise provided by the Board or these By-laws, payment of such application fees, assessments, initiation fees, annual dues or other fees for such class of Membership as may from time to time be established by the Board, if any (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 Alliance’s Certificate of Incorporation, By-laws, Membership Application and such rules and policies (and the terms of any agreements required thereby) as the Board and/or any committees thereof (each a “Board Committee”) may from time to time adopt, and is current in its fulfillment of all in-kind commitments and payment of all Fees and penalties for late payment as may be required or determined by the Board (such Fees and penalties are collectively referred to in the By-laws as “Financial Obligations”, and all of the foregoing good standing requirements are collectively referred to in these By-laws as “Membership Obligations”). No person or entity may be accepted for Membership if that person or entity has pre-existing, unpaid Financial Obligations to the Alliance.
(b) The initial term of Membership for all Premier Members shall be two years after the start date of such Premier Member’s Membership plus the period through the end of the calendar year (December 31) of the second year of Membership; and the initial term of Membership for all other Members shall be one year after the start of such Member’s Membership plus the period through the end of the calendar year (December 31) of the first year of Membership. Thereafter, a Member’s Membership and its Membership Obligations shall automatically renew on January 1 for one year periods, regardless of the class of Membership, unless such Member gives written notice of non-renewal to the Alliance not less than sixty (60) days prior to the end of its current Membership year, provided that the Alliance has given all Members notice of upcoming renewal not less than one hundred and twenty (120) and again ninety (90) days prior to December 31 in such year.
Section 2.3 Privileges of Membership
Each Member, while in good standing, shall be entitled to:
(a) participate in such Working Groups as may from time to time be specified by the Technical Steering Committee;
(b) nominate its representative on any Working Group in which it participates to be the chair of such Working Group; and
(c) such further rights and benefits as may from time to time be designated by the Board.
Section 2.4 Additional Privileges of Premier Membership
Each Premier Member, while in good standing, shall, in addition to all other rights of a Member as provided by these By-laws, the Board or the law from time to time, be entitled to:
(a) appoint one representative to serve as a Director on the Board, subject to Section 2.7 below;
(b) eligibility for the Director representative it appoints to the Board to run for election as the chairperson of the Board or President of the Alliance;
(c) optionally appoint one voting representative to the Technical Steering Committee if such Premier Member is otherwise not represented on the Technical Steering Committee, at the discretion of the Premier Member, notwithstanding the fact that such Premier Member is also represented on the Technical Steering Committee by one or more Working Group chairs or the Technical Steering Committee chair; and
(d) appoint one voting representative, on a one vote per Member basis, to each Member Committee other than the Technical Steering Committee (for example, a Marketing Committee, Finance Committee, etc.), and to each subcommittee that the Board may establish.
Section 2.5 Additional Privileges of Community Membership
Each Community Member, while in good standing, shall, in addition to all other rights of a Member as provided by these By-laws, the Board or the law from time to time, be entitled to nominate a representative to run for election and be elected and serve as a Director in accordance with Section 4.3(b) of these By-laws and subject to Section 2.7 below.
Section 2.6 Participation
Participation in development projects under Working Groups sponsored by the Alliance shall not be limited to Members, but may be subject to such operating procedures and terms of participation and other rules as may from time to time be approved by the Board.
Section 2.7 Subsidiaries, Etc.
(a) Only the entity that has been accepted as a Member of the Alliance and its Subsidiaries (as defined below) shall be entitled to enjoy the rights and privileges of such Member’s Membership; provided, however, that such Member and its Subsidiaries shall be treated together as a single Member except as otherwise provided in Section 2.7(b) below. For purposes of this Section, the term “Subsidiaries” shall mean all Related Companies (as defined in Section 2.7(c) below) that a Member Controls (as defined in Section 2.7(c) below).
(b) Only one Member which is part of a group of Related Companies (defined below) shall be entitled at one time to have a representative on the Board or vote on matters voted upon by the Members (except as otherwise provided below); provided, however, that each Chair of a Working Group that is a representative of a Premier Member shall be entitled to serve as a member of the Technical Steering Committee, and the Chair of the Technical Steering Committee may also serve on the Board of Directors, notwithstanding the fact that such Premier Member is also represented on the Board by virtue of its right to appoint a Director under Sections 2.3(a) and 4.3(a) of these By-laws. If a Parent (as defined below) of a Member (i.e., the Subsidiary) applies to and becomes a Member of the Alliance, then the Parent becomes the “Member” for all purposes, and the Subsidiary shall be entitled to enjoy the rights and privileges of such Parent Member’s Membership as provided in Section 2.7(a) above. Notwithstanding anything to the contrary contained herein, a Related Company of a Member may join the Alliance as a Community Member and be entitled to vote separately in elections of Community Directors in accordance with Section 4.3(b) below, provided that such Related Company shall not be entitled to nominate a representative to run for election. For avoidance of doubt, a Parent of a Member is not a “Related Company” and is not permitted to join as a separate Member of the Alliance.
(c) For purposes of these By-laws, the term “Subsidiary” shall mean any entity which is controlled by the Member and the term “Related Company” shall mean any entity which is controlled by a Member or which, together with a Member, is under the common control by a third party. “Control(s)” shall mean that one entity (the “Parent”) owns, either directly or indirectly, more than fifty percent (50%) of the voting power of another entity (the Subsidiary), and each entity in which the Subsidiary owns, either directly or indirectly, more than fifty percent (50%) of the voting power of such subsidiary ad infinitum.
(d) Except with respect to Related Companies, if a Member is a corporation, limited liability company, foundation, consortium, membership organization, user group or other entity that has stockholders, members or sponsors, then the rights and privileges granted to such Member shall extend only to the employee-representatives of such Member, and not to its stockholders, members, sponsors, etc., unless otherwise approved by the Board in a specific case from time to time.
(e) Memberships shall be non-transferable, non-salable and non-assignable, except that any Member may transfer its current Membership benefits and obligations to: (i) any entity within its same Control Group (as defined below) if the transferee qualifies for Membership in the transferring Member’s class and the Board in its discretion permits such transfer, provided, however, that the transferor and transferee shall be and remain jointly and severally liable for any unpaid membership dues, fees, or assessments of the transferring member; and (ii) a successor of all or substantially all of such Member’s securities, business and/or assets, whether by merger, sale, operation of law or otherwise (such transferee (i) and/or (b) shall be referred to as “Successor”). For the purpose of these By-laws, the term “Control Group” shall mean all entities which are Controlled by a Member, which Control a Member, or which are also Controlled by this entity Controlling a Member. The Successor shall be bound by these By-laws, the Certificate of Incorporation, any membership agreement, and such policies and procedures as the Board may from time to time adopt, and the Successor shall assume the rights, liabilities and obligations of the Membership, including without limitation, all Membership Obligations, participation obligations, commitments, contributions and activities of the acquired Member, which shall continue and be binding upon such successor and shall inure to the benefit of the Alliance. In the event of a transfer within a Control Group where the Successor would be required to pay a higher dues amount than the transferor has already paid for the transferred Membership, the Successor shall pay the difference on a pro rated basis for the balance of the then current Membership year; however, under no circumstance shall a refund of any amounts already paid by the transferor be due to the Successor as a result of a transfer, and any amounts still owing by the transferor at the time of a transfer shall remain due and payable by the Successor. In the event of a transfer under (ii) above, if the Successor is also a Member, then at the election of the Successor, either the Membership of the acquired Member or the Membership of the Successor shall terminate effective upon closing of the acquisition; provided, however, the Membership Obligations and participation obligations, commitments, contributions and activities of the acquired Member shall continue and be binding upon such Successor and shall inure to the benefit of the Alliance.
Section 2.8 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 amendment to these By-laws in accordance with Article XIV.
Section 2.9 Termination or Suspension of Membership
Any Member may be suspended from Membership or have its Membership terminated by the Board for failure to satisfy its Membership Obligations or for engaging, either within or without the Alliance, in any (1) willful misconduct or otherwise acting to the material detriment of the best interests of the Alliance and its Members, or (2) conduct that is contrary to the Purposes of the Alliance or to the advancement of the Alliance’s business or industry goals, as reasonably determined by the Board in good faith. 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 within 60 days of invoice may be imposed with notice and without right of formal appeal under such procedures as the Board may from time to time approve. Except as provided in the last paragraph of this Section 2.9, 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 Alliance’s records;
(c) Such notice is given at least thirty days prior to the effective date of the proposed termination or suspension of Membership;
(d) Such notice sets forth a procedure determined by the Board (or other body authorized by the Board) 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; and
(e) Such termination or suspension of Membership is approved by Super Majority Vote (as defined in Section 4.10(b) below) of the Board.
Notwithstanding the foregoing, in the event that the Board reasonably believes in good faith that a Member is engaging, either within or without the Alliance, in any (1) willful misconduct or otherwise acting to the material detriment of the best interests of the Alliance and its Members, or (2) conduct that is contrary to the Purposes of the Alliance or to the advancement of the Alliance’s business or industry goals, the Board, acting by Super Majority Vote, 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 2.9.
Section 2.10 Resignation by Member
A Member may resign as a Member at any time. Any Financial Obligations already paid by such Member shall not be refundable upon any resignation, including any resignation pursuant to Section 2.11 or 2.13 below, and all such Financial Obligations of such Member which may be accrued and unpaid as of such date shall remain due and payable. If a Premier Member does not give written notice of renewal or resigns as a Member, or is terminated, the Alliance shall promptly give notice of such event to all Members.
Section 2.11 Levy of Dues, Assessments or Fees
The Alliance may levy dues, assessments or fees upon its Members in such amounts as may be approved from time to time by the Board, but shall provide at least thirty (30) days’ notice of such levy. For the avoidance of doubt, no such levy shall be effective until at least thirty (30) days have passed since the provision of notice. 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 Alliance or otherwise, independently and explicitly liable for such dues, assessments or fees. No provision of the Certificate of Incorporation or By-Laws of the Alliance 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 Alliance for indirect or consequential damages.
Section 2.12 Use of Names
Unless otherwise provided herein, neither the Alliance nor any Member shall use the name, logo, trademark, service mark or other distinctive mark of another Member in any form of publicity without the written permission of the other member, provided that the Alliance and any Member may each disclose and publicize such Member’s Membership in the Alliance.
Section 2.13 Rights in Intellectual Property
The Members and Board shall neither adopt, nor make any material change to, (1) any intellectual property rights policy of the Alliance or any other material policy or procedure of the Alliance governing intellectual property (individually and collectively, as the context requires, an “IP Policy”), or (2) any proposed or requested change to any requirement or obligation in the By-laws to seek or obtain the unanimous consent of the then-serving Directors of the Alliance, unless approved by the unanimous vote of the then-serving Directors. A material change shall be deemed to include, without limitation, the imposition of any patent license obligation on Members, a change in the contribution agreement or license applicable to Members’ contributions, the combination or formal affiliation of the Alliance with another organization, any alteration in the definition of “Related Company,” or a change in the outbound licensing of the Open Source Software (currently the ISC license) under which the Alliance provides its Open Source Software. No change in any of the areas named in this Section 2.13 may be adopted or modified, nor may any amendment be made to these By-laws which alter the initial position of the By-laws affecting these areas, including but not limited to this Section 2.13, unless it has been approved by unanimous vote of the then-serving Directors.
ACTIONS OF MEMBERS
Section 3.1 Action Without Meeting
Any action required or permitted to be taken by the Members, or any class of Members under the General Corporation Law of Delaware, or at any meeting of a Member Committee, Working Group thereof or other group of Members or subset of Members, may be taken without prior notice and without an in-person vote, if a consent in writing, setting forth the action to be taken, shall be signed by Members (or all 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, in accordance with Section 2.13(c) of the General Corporation Law of Delaware. Pursuant to such written consent, the Voting Members shall elect a Board in accordance with Section 4.3 on an annual basis. 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 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 Alliance can determine (a) that the electronic transmission was transmitted by the Member or by a person or persons authorized to act for the Member and (b) the date on which such Member 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. Consents given by electronic transmission (i) may be delivered by electronic transmission to the principal place of business of the Alliance or to an Officer or agent of the Alliance having custody of the book in which actions of Members without a meeting are recorded, need not be reproduced in paper form, and may be maintained in electronic form as long as they are capable of being readily reproduced in paper form, and (ii) may be otherwise delivered to the principal place of business of the Alliance or to an Officer or agent of the Alliance having custody of the book in which actions of Members without a meeting are recorded if, to the extent and in the manner provided by resolution of the Board.
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 3.2 Nomination and Election Procedures
Subject to the provisions of Section 4.3, the Board shall establish reasonable nomination and election procedures given the nature, size, and operations of the Alliance, 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 4.1 Powers; Voting
The business and affairs of the Alliance shall be managed by its Board, which shall be, and shall possess all of the powers of, the “Governing Body” of the Alliance as a not-for-profit membership corporation under Delaware General Corporation Law. The Board may exercise all powers of the Alliance 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 of Directors
Subject to Section 4.4, the total number of Directors shall be at least one and not more than two (2) times the number of Premier Members, less one (1) (the “Maximum Director Number”). The Board shall comprise the Directors described in Section 4.3 below.
Section 4.3 Nomination, Election and Term of Office of Directors
(a) Each Premier Member (while remaining in good standing) shall be entitled individually to appoint one Director (each a “Premier Director”). Each Premier Director shall serve until the next annual action of Members without a meeting and until his or her successor shall be duly appointed or until his or her earlier resignation or removal.
(b) Each Community Member (while remaining in good standing) shall have the right to vote, together with the other Community Members as a class, to elect the least of (i) three Directors, (ii) that number of Directors equal to the number of Community Members then in good standing divided by ten (10) (rounded down to the nearest whole number), and (iii) the number of Premier Directors then being appointed or in office, less two (2) (each such Director being referred to as a “Community Director”). Prior to the first annual action of Members, the initial Community Director(s) shall be elected by the Board.
Each Community Director shall serve in accordance with Section 4.3(f) below and until his or her successor is elected and qualified or until his or her earlier resignation or removal. The selection of nominees for such position(s) shall be performed under such nominating procedures as may be set by the Board from time to time. Notwithstanding anything to the contrary contained herein, in the event that after any annual election of Directors, the number of Premier Members decreases, resulting in a corresponding decrease in the Maximum Director Number, and such decrease causes a situation where the number of Community Directors previously elected exceeds the number of Premier Directors, then in such event all Community Directors previously elected may serve until the next annual election of Directors, at which time the required decrease in the number of Community Directors shall take effect.
(c) The Chair of the Technical Steering Committee, by virtue of his or her office, shall automatically be a member of the Board for so long as he or she shall hold such position.
(d) Any Director nominated, appointed or elected by any class of Members, or by any Member, may, but shall not automatically, be re-nominated, re-appointed and/or re-elected for additional terms.
(e) Each Director shall be an employee of the Member that nominated or appointed him or her. Each Director shall hold office until the earliest to occur of the expiration of the term for which such Director was elected and such Director’s successor is elected and qualified, or until his or her earlier death, resignation, removal or termination of employment for any reason with the nominating or appointing Member, and in the case of a Premier or Community Director, until the earlier of (i) expiration or termination of Membership of the Member that nominated or appointed such Director, (ii) the combination, by merger, acquisition or otherwise, of two Members that each have representatives on the Board (disregarding for such purpose the TSC Director), upon which event one of the two representatives, as designated by the surviving Member, shall be deemed to have resigned, or (iii) if requested by the Board or the employer of such Director, 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 2.9 above, the attendance and voting rights of such Director representative shall also be suspended until such time, if ever, as the suspension of such Member is lifted.
(f) Each Premier or Community Director (or the Member that appointed or is the employer of such Director), and the TSC 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 also be an employee of the Member that appointed or nominated the original Director (except for the alternate of the TSC Director, which shall be another member of the Technical Steering Committee). 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; provided, however, that no such alternate Director may propose a vote or vote upon any Board Committee. 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 Chairperson, President or Secretary, authorizing such Officer to either vote as instructed in such proxy, or to vote in the stead of such absent Director in such manner as such Officer may believe appropriate, consistent with the instructions of the proxy. 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.
(g) The Board 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 are held by active, contributing individuals. Such rules may provide that any Member which has appointed or nominated a Director, as the case may be, may lose its ability to appoint and/or nominate a representative to the Board 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, but no such rule may be imposed retroactively.
Section 4.4 Enlargement or Reduction
Subject to Section 2.7 above and Section 4.10 below, the number of Directors, the persons eligible to become Directors and the classes of Members eligible to appoint, elect and/or nominate Directors may be amended at any time by a Super Majority Vote (as defined in Section 4.10(.b)) of the Board.
Section 4.5 Resignation and Removal
Any Director may resign at any time upon notice to the Alliance in writing or by electronic transmission at the principal place of business of the Alliance 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. Any Director who was appointed by a Member under Section 4.3(a) may be removed by that Member at any time, and for any reason, or for no reason. Any or all of the Directors who were elected by a class of Members voting as a class or by the Board may be removed by a majority vote of such class of Members or the Board, respectively. Unless otherwise specified by law or the Certificate of Incorporation, any Director may be removed by a Super Majority Vote of the other Directors then in office for engaging, either within or without the Alliance, in any (1) willful misconduct or otherwise acting to the material detriment of the best interests of the Alliance and its Members, or (2) conduct that is contrary to the Purposes of the Alliance or to the advancement of the Alliance’s business or industry goals, as reasonably determined in good faith by such other Directors; provided, however, that the Member or class of Members that appointed and elected or nominated and elected (as the case may be) such removed Director shall be entitled to appoint 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.
Notwithstanding the foregoing, in the event that the Board reasonably believes in good faith that a Member is engaging, either within or without the Alliance, in any (1) willful misconduct or otherwise acting to the material detriment of the best interests of the Alliance and its Members, or (2) conduct that is contrary to the Purposes of the Alliance, the Board, acting by Super Majority Vote, 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 2.9.
Section 4.6 Vacancies
(a) Vacancies on the Board occurring as a result of the death, resignation, removal or termination of employment of a Director who was appointed and elected by a Member, or who was nominated and elected by a class of Members, may be filled by such Member or class of Members, as applicable. 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. The term of a Director so appointed 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, the remaining Directors, except as otherwise provided by law or these By-laws, may exercise the powers of the full Board until the vacancy is filled.
Section 4.7 Place of Meetings; Telephonic Meetings
The Board may hold meetings, both regular and special, either within or without the State of Delaware. Unless otherwise restricted by the Certificate of Incorporation or these By-laws, members of the Board or of any Board Committee may participate in a meeting of the Board 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 4.8 Regular Meetings
Regular meetings of the Board may be held on a scheduled basis at such time and at such place as shall from time to time be determined by the Board and communicated to the Members; provided that any Director who is absent when such a determination is made shall be given prompt notice of such determination.
Section 4.9 Special Meetings
Special meetings of the Board may be called by the Chairperson, 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 need not specify the purposes of the meeting.
Section 4.10 Quorum, Action at Meeting, Adjournments
(a) At all meetings of the Board 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, except as may be otherwise specifically provided by law, the Certificate of Incorporation or these By-laws.
(b) In order to pass a “Super Majority Vote”, a resolution must be taken at a meeting of the Board at which a quorum is present and in support of which two-thirds of the Directors present and participating (whether in person, by proxy or otherwise) have voted affirmatively, or by an equivalent number of Directors acting by written consent in the manner described in Section 4.11 below. A Super Majority Vote of the Board shall be required with respect to the following matters:
- (i) Amending the Certificate of Incorporation;
- (ii) Adopting or recommending to the Members an agreement of merger or consolidation;
- (iii) Approving or recommending to the Members the sale, lease or exchange of all or substantially all of the Alliance’s property and assets;
- (iv) Approving or recommending to the Members the dissolution, liquidation or winding up of the Alliance or a revocation of any such dissolution, liquidation or winding up;
- (v) Enlarging or reducing the size of the Board; (vi) Amending or modifying the eligibility requirements for membership on the Board or the classes of Members eligible to appoint and/or elect Directors;
- (vii) Termination or suspension of a Member’s Membership, pursuant to Section 2.9 above; and
- (viii) Elimination of the Premier Member right set forth in Section 2.3(a) above.
(c) Any amendment to the By-laws that alters the initial position of the By-laws affecting any area listed in Section 2.13 shall require unanimous approval of the then-serving Directors.
(d) 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, 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 Written 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 or any committee thereof 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 Alliance 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, provided that:
- (i) such written consent or electronic transmission shall have been sent simultaneously to all Directors then in office for their consideration;
- (ii) prompt written notice of any action so taken (which notice may be given by electronic transmission) 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 Alliance 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.
(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 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 Alliance.
Section 4.13 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, the Alliance may reimburse Directors for expenses incurred while acting on behalf of the Alliance and/or expenses incurred in attending meetings of the Board, in such amounts as the Board may determine to be appropriate. Nothing herein contained shall be construed to preclude any Director from serving the Alliance 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.
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 5.1 Executive Committee
The Board 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 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, shall have and may exercise all of the powers of the Board which are delegated to the Executive Committee from time to time by the Board; 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;
(c) Fixing compensation of the Directors, Executive Director, and other employees for serving on the Board or on any Board Committee;
(d) Amending or repealing the By-laws or adopting new By-laws; (e) Adopting a policy or amending or repealing any policy adopted by the Board;
(f) Amending or repealing any resolution of the Board 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 Alliance’s property and assets;
(j) Recommending to the Members a dissolution of the Alliance or a revocation of a dissolution; and
(k) Taking any other action for which a vote of more than a simple majority of the Board is required by these By-laws, the Certificate of Incorporation, or by law.
Section 5.2 Other Committees of the Board
The Board 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, as the Board 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, subject to the limitations imposed by law, the Certificate of Incorporation or these By-laws. No Committee shall have the power or authority to take any action prohibited by Section 5.1 above to be taken by the Executive Committee. Unless a Member objects, the Board 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, unless the Premier Member objects in writing to a replacement of the Director appointed by such Premier Member. 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. Each Board Committee shall keep regular minutes of its meetings and make such reports to the Board as the Board may request.
Section 5.3 Meetings of Committees of the Board
(a) Except as otherwise provided in these By-laws or by resolution of the Board, 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 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.
(b) At all meetings of any Committee of the Board, a majority of the members who have joined the Committee and who have active voting rights on the Committee shall constitute a quorum for the transaction of business, and the act of a majority of such members present at any meeting at which there is a quorum shall be the act of the Committee. The voting rights of a Committee member shall become active upon joining the Committee. The voting rights of any member who misses two consecutive meetings of the Committee shall be suspended, and the member not counted for purposes of determining quorum. The voting rights of members who have been suspended for non-attendance shall be restored as of the call to order of the next meeting the member attends of that Committee.
Section 5.4 Term of Office of Members of Committees of the Board
Each member of a Board Committee shall serve for such term as shall be established at the time of his or her election as a Director.
Section 5.5 Committees of the Members
(a) From time to time, the Board may establish Member Committees in addition to the Technical Steering Committee (as described in paragraph (b) below). Unless otherwise specified in these By-laws or by the Board, each Member Committee may have such Working Groups as from time to time may be approved by such Member Committee, within the strategic direction established by the Board.
(b) A Technical Steering Committee (TSC) of the Alliance shall be established consisting of (i) the Chair of each Working Group, (ii) a representative who may be optionally designated by each Premier Member at the discretion of the Premier Member, notwithstanding the fact that such Premier Member is also represented on the TSC by one or more Working Group chairs, (iii) the TSC Chair; and (iv) the TSC Vice Chair. The operation of the TSC shall be governed by the rules of process of such Committee as from time to time approved by the Board. The TSC Chair may only be an employee of a Premier Member. The TSC Vice Chair may be an employee of a Premier Member or Community Member. The TSC Chair and Vice-Chair shall be elected annually by a majority vote of the TSC members. The TSC Chair and Vice Chair may be reelected for additional terms without limit. The TSC shall be under the leadership of the TSC Chair. The TSC Chair shall attend meetings of the Board as a member of the Board, and may vote at such meetings.
(c) At all meetings of any Committee of the Members, a majority of the members who have joined the Committee and who have active voting rights on that Committee shall constitute a quorum for the transaction of business, and the act of a majority of such members present at any meeting at which there is a quorum shall be the act of the Committee. The voting rights of a member shall become active upon joining the Committee. The voting rights of any member who misses two consecutive meetings of the Committee shall be suspended for that Committee, and the member not counted for purposes of determining quorum. The voting rights of members who have been suspended for non-attendance shall be restored as of the call to order of the next meeting the member attends of that Committee.
Section 6.1 Officers
The Officers of the Alliance shall be a Chairperson and a President (each of which shall be a Premier Director, unless no Premier Director is willing to be nominated to such position) and a Treasurer and a Secretary (each of whom shall also be a Director, unless no Director is willing to be nominated for such position). The Alliance may also have, at the discretion of the Board, 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. The Chairperson shall be elected by a majority of the Premier Members, and shall preside over meetings of the Board.
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, at its discretion.
Section 6.3 Election
The Board at its annual meeting each year shall choose a Chairperson, a President, a Secretary and a Treasurer. Other Officers may be elected by the Board at any such meeting, and any or all Officers may be replaced, at any other meeting of, or by written consent, the Board.
Section 6.4 Tenure
Each Officer of the Alliance 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 may be removed at any time by the Board or a Board Committee duly authorized to do so. Any Officer may resign by delivering his or her written resignation to the Alliance 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 and Executive Director
(a) 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 (in the absence of a Chairperson) and the Members. The President shall oversee the management of the business of the Alliance and see that all orders and resolutions of the Board are carried into effect. Without limiting the foregoing, the President shall:
- (i) Execute bonds, mortgages, and other contracts requiring a seal, under the seal of the Alliance, 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 to some other Officer or agent of the Alliance; and
- (ii) Oversee the Executive Director (if any).
(b) The Executive Director (if any) shall preside over the day-to-day affairs of the Alliance under the direction of the Board and the President and perform such other duties and have such other powers as the Board or the President may from time to time prescribe.
Section 6.6 Vice-Presidents
In the absence of the President or in the event of his or her inability or refusal to act, the Executive Director or a Vice-President, or if there be more than one Vice-President, the Executive Director and Vice-Presidents in the order designated by the Board (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 or the President may from time to time prescribe.
Section 6.7 Secretary
The Secretary shall have such powers and perform such duties as are incident to the office of Secretary under the General Corporation Law of Delaware, including without limitation a recording all the proceedings of the meetings of the Alliance and of the Board. The Secretary, and each Assistant Secretary, shall have authority to affix the Corporate seal 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 may give general authority to any other Officer to affix the seal of the Alliance and to attest the affixing by such Officer’s signature.
Section 6.8 Assistant Secretaries
Any Assistant Secretary 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. In the absence of the Secretary or any Assistant Secretary at any meeting of Directors, the person presiding at the meeting shall designate a temporary or acting Secretary to keep a record of the meeting.
Section 6.9 Treasurer
The Treasurer shall perform such duties and shall have such powers as may be assigned to him or her by the Board or the President. Unless otherwise determined by the Board, the Treasurer shall chair the Audit and Finance Committees of the Alliance. 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 Alliance and shall deposit all moneys and other valuable effects in the name and to the credit of the Alliance in such depositories as may be designated by the Board, taking proper vouchers for such disbursements, and shall render to the President and the Board, when the President or Board so requires, an account of all his or her transactions as Treasurer and of the financial condition of the Alliance.
Section 6.10 Compensation
The compensation, if any, of the Officers shall be budgeted and fixed from time to time by the Board, and no Officer shall be prevented from receiving such compensation by reason of the fact that the Officer is also a Director of the Alliance.
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 Alliance, 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 Alliance. Without limiting the manner by which notice otherwise may be given effectively to Members, any notice to Members given by the Alliance 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.
(b) Notice given pursuant to this Section shall be deemed given: (i) 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 Alliance; (ii) 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 Alliance; (iii) 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; (iv) if by any other form of electronic transmission, when directed to the Member or Director; (v) if by in-hand delivery or oral notice, at the time it is actually given; (vi) if by mail, at the time when the same shall be deposited in the United States mail; and (vii) 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 Alliance 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 Alliance 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 Alliance adopts electronic mail as its principal source of communication with its Members. Each Member acknowledges and agrees that the Alliance 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.
Section 8.1 Actions other than by or in the Right of the Alliance
Subject to confirmation of the appropriateness of such action by the Board as provided in Section 8.4 below, the Alliance 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 Alliance) by reason of the fact that he or she is or was a Director, Officer, employee or agent of the Alliance, or is or was serving at the request of the Alliance 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 Alliance, 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 Alliance, 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 Alliance
Subject to confirmation of the appropriateness of such action by the Board as provided in Section 8.4 below, the Alliance 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 Alliance 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 Alliance, or is or was serving at the request of the Alliance 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 Alliance; 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 Alliance 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 by a majority vote of a such Directors who were not parties to such action, suit or proceeding, even though less than a quorum.
Section 8.5 Advance Payment
Expenses incurred in defending a civil or criminal action, suit or proceeding shall be paid by the Alliance 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 Alliance 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 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 Alliance’s obligation to advance expenses (including attorney’s fees).
Section 8.8 Insurance
The Board may authorize the Alliance to purchase and maintain insurance on behalf of any person who is or was a Director, Officer, employee or agent of the Alliance, or is or was serving at the request of the Alliance 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 Alliance 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 Alliance 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.
BOOKS AND RECORDS
Section 9.1 Books and Records
The Alliance shall keep adequate and correct books and records of account, minutes of the proceedings of the Members, the Board 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 shall cause such reports to be prepared, filed and/or distributed as may be required.
Section 9.4 Record Date
In order that the Alliance may determine the Members entitled to express consent to corporate action in writing without a meeting, or the Members entitled to receive payment of any distribution, if any, permitted by law and the Alliance’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 may fix, in advance, a record date, which shall not be (i) more than sixty (60) days prior to the adoption of the resolution by the Board and (in the case of consent to corporate action in writing without a meeting) the date upon which such written consent is delivered to the Members, nor (ii) later than the date upon which the Board adopts the resolution proposing the taking of such action. In the absence of such a determination, the record date shall be at the close of business on the day on which the Board adopts the resolution proposing the taking of such action.
Section 9.5 Registered Members
The Alliance 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.
Section 10.1 Transactions with Interested Parties
No contract or transaction between the Alliance and one or more of its Directors or Officers, or between the Alliance 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 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 or such Board Committee, and the Board 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 Alliance as of the time it is authorized, approved or ratified, by the Board, 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 or Board Committee that authorizes the contract or transaction.
GRANTS, CONTRACTS, LOANS, ETC.
Section 11.1 Grants
The making of grants and contributions, and otherwise rendering financial assistance for the Purposes of the Alliance, may be authorized by the Board. The Board may authorize any Officer or Officers, agent or agents, in the name of and on behalf of the Alliance to make any such grants, contributions or assistance.
Section 11.2 Execution of Contracts
The Board may authorize any Officer, employee or agent of the Alliance, in the name and on behalf of the Alliance, 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 to the contrary, the President shall be authorized to execute such contracts and instruments on behalf of the Alliance, but must inform the Board 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 Alliance, and all notes or other evidences of indebtedness of the Alliance, shall be signed on behalf of the Alliance in such manner as shall from time to time be determined by resolution of the Board.
Section 11.4 Deposits
The funds of the Alliance not otherwise employed shall be deposited from time to time to the order of the Alliance in such banks, trust companies, or other depositories, or shall be otherwise invested, as the Board may select or direct, or as may be selected or directed by an Officer, employee or agent of the Alliance to whom such power may from time to time be specifically delegated by the Board.
Section 12.1 Fiscal Year
The fiscal year of the Alliance shall initially end on December 31, subject to change at any time by resolution of the Board.
Section 12.2 Reserves
The Directors may set apart out of any funds of the Alliance a reserve or reserves for any proper purpose and may abolish any such reserve.
Section 12.3 Seal
The Board may, by resolution, adopt a corporate seal. The corporate seal shall have inscribed thereon the name of the Alliance, 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.
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, all information disclosed by any participant during any official meeting or activity of the Alliance, including but not limited to Member meetings, Member Committee Meetings, Alliance meetings, Board 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 Alliance or to any other Member by reason of its Membership in or participation in the activities of the Alliance, 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 Alliance.
Section 13.1 General
The Alliance desires its activities to conform to all international, U.S. federal and state antitrust laws and competition laws. The Board and the President shall consult legal counsel and seek legal review whenever necessary to insure that the activities of the Alliance are conducted in conformance with such laws.
Each of the Members of the Alliance is committed to fostering competition in the development of new products and services, and the activities of the Alliance are intended to promote such competition. Each Member acknowledges that it may compete with other Members in various lines of business and that it is therefore imperative that they and their representatives act in a manner that does not violate any applicable antitrust laws or regulations. Without limiting the generality of the foregoing, Members that are competitors shall not discuss with one another issues relating to their product and marketing costs, product pricing, methods or channels of product distribution, any division of markets, territories or customers.
Each Member shall assume responsibility to provide appropriate legal counsel to its representatives acting under these By-Laws regarding activities and discussions of the Alliance or members thereof in furtherance of the Alliance’s purposes.
Section 13.2 Availability of Intellectual Property
It is the good faith objective of the Alliance (a) to make all Open Source Software available promptly as it is developed and owned by the Alliance on the same terms and conditions to all Members and at the same point in time to all Members, and (c) to make all such Open Source Software available to all non-Members under the same Open Source copyright license, and to make available to the public, any Alliance owned or controlled certification test software and documentation on a fair, reasonable, and non-discriminatory basis.
Section 13.3 No Obligation to Endorse
No Member shall, by reason of its Membership or participation in the Alliance or otherwise, be obligated to license from the Alliance, use or endorse any intellectual property developed or endorsed by the Alliance, or to conform any of its products to any Platform developed or adopted by the Alliance, nor shall any such Member be precluded from independently licensing, using or endorsing similar intellectual property, platform, software, specifications or documentation developed by it or by others. No provision of these By-Laws or the Membership Agreement shall be interpreted to prevent any Member from using any technology or platform other than the Platform technology, or from engaging in other activities or business ventures, independently or with others, whether or not competitive with the activities contemplated herein or those of any Member.
Except where such power is expressly limited by law, the Certificate of Incorporation or these By-laws as to any specific action, including without limitation, provisions of these By-laws requiring a unanimous vote is affected (in which case a change may only be made by unanimous vote), these By-laws may be altered, amended or repealed, and new By-laws may be adopted, in each case by an affirmative vote of a Super Majority Vote of all then serving Directors.