Bylaws of the Open Voting Consortium, Inc. -- DRAFT
Open Voting Consortium, Inc.
4700 Allegretto Way
Granite Bay, CA 95746
916-791-0456
www.OpenVotingConsortium?.org
Table of Contents
ARTICLE I GENERAL
Section 1.1 Name
Section 1.2 Purpose, Process and Organization
Section 1.3 Known Place of Business
Section 1.4 Other Offices
Section 1.5 Nonprofit Status
ARTICLE II MEMBERS
Section 2.1 Basis and Conditions of Membership
Section 2.2 Classes of Membership
Section 2.3 Subsidiaries of Members, Consortia, and Other Organizations
Section 2.4 Deprivation or Suspension of Membership
Section 2.5 Resignation by Member
Section 2.6 Membership Book
Section 2.7 Levy of Dues, Assessments or Fees
Section 2.8 Use of Names
Section 2.9 Rights in Intellectual Property and Security of Information
ARTICLE III MEETINGS OF MEMBERS
Section 3.1 Time and Place of Meetings
Section 3.2 Regular Meetings of Committees
Section 3.3 Special Meetings
Section 3.4 Notice of Meetings
Section 3.5 Voting List
Section 3.6 Quorum
Section 3.7 Adjournments
Section 3.8 Action at Meetings
Section 3.9 Voting and Proxies
Section 3.10 Action Without Meeting
Section 3.11 Order of Business
ARTICLE IV THE BOARD OF DIRECTORS
Section 4.1 Powers and Responsibilities
Section 4.2 Number of Directors
Section 4.3 Election and Term of Office of Elected Directors
Section 4.4 Appointment and Term of Office of Appointed Directors
Section 4.5 Enlargement or Reduction
Section 4.6 Resignation and Removal
Section 4.7 Vacancies
Section 4.8 Ex Officio Directors
Section 4.9 Place of Meetings
Section 4.10 Regular Meetings
Section 4.11 Special Meetings
Section 4.12 Quorum, Action at Meeting, Adjournments
Section 4.13 Action by Consent
Section 4.14 Telephonic Meetings
Section 4.15 Inspection Rights
Section 4.16 Fees and Compensation
Section 4.17 Executive Committee
Section 4.18 Other Committees of the Board of Directors
Section 4.19 Meetings of Committees of the Board of Directors
Section 4.20 Term of Office of Members of Committees of the Board of Directors
Section 4.21 Board Committees with Non-Directors
ARTICLE V CONSORTIUM COMMITTEES
Section 5.1 The Strategic Advisory Committee
Section 5.2 The Planning Committee
Section 5.3 The Technical Committee
Section 5.4 The Review Board
ARTICLE VI OFFICERS
Section 6.1 Officers
Section 6.2 Filling Officer Vacancies
Section 6.3 Election of Officers
Section 6.4 Tenure of Officers
Section 6.5 President
Section 6.6 Vice Presidents
Section 6.7 Secretary
Section 6.8 Assistant Secretaries
Section 6.9 Treasurer
Section 6.10 Assistant Treasurers
Section 6.11 Officer Bond
Section 6.12 Officer Compensation
ARTICLE VII NOTICES
Section 7.1 Delivery
Section 7.2 Waiver of Notice
ARTICLE VIII INDEMNIFICATION
Section 8.2 Actions by or in the Right of the Consortium
Section 8.3 Success on the Merits
Section 8.4 Specific Authorization
Section 8.5 Advance Payment
Section 8.6 Non-Exclusivity
Section 8.7 Insurance
Section 8.8 Continuation of Indemnification and Advancement of Expenses
Section 8.9 Severability
Section 8.10 Intent of Article
ARTICLE IX BOOKS AND RECORDS
Section 9.1 Books and Records
Section 9.2 Form of Records
Section 9.3 Reports to Directors, Members and Others
Section 9.4 Record Date
Section 9.5 Registered Members
ARTICLE X CERTAIN TRANSACTIONS
Section 10.1 Transactions with Interested Parties
ARTICLE XI GRANTS, CONTRACTS, LOANS, ETC.
Section 11.1 Grants
Section 11.2 Execution of Contracts
Section 11.3 Loans
Section 11.4 Checks, Drafts, Etc.
Section 11.5 Deposits
Section 11.6 Legal Review
ARTICLE XII GENERAL PROVISIONS
Section 12.1 Fiscal Year
Section 12.2 Reserves
Section 12.3 Seal
Section 12.4 Proprietary Rights
ARTICLE XIII ANTITRUST COMPLIANCE
Section 13.1 General
Section 13.2 Availability of Technology
Section 13.3 No Obligation to Endorse
ARTICLE XIV AMENDMENTS
BYLAWS OF THE OPEN VOTING CONSORTIUM, INC.
ARTICLE I GENERAL
Section 1.1 Name
The corporation is referred to in these Bylaws as "the Consortium."
Section 1.2 Purpose, Process and Organization
(a) Vision and Mission: Our vision is a world in which voting systems
are inexpensive, readily available, reliable, easy to use, accessible,
universal, transparent, auditable, and produce verifiable election
results. Our mission is to develop, maintain, and deliver a universal
open voting system for use in public elections. Toward this end, the
Consortium shall seek to:
(i) Involve developers and users of voting equipment, including
vendors, integrators, government agencies, standards organizations,
and academia, in collaborative development of open source voting
system software, technology specifications, uniform election codes,
and work to promote the delivery of interoperable products;
(ii) Synchronize our work with current and emerging voting
technology standards based on open systems, distributed processing;
(iii) Provide an industry forum that promotes cooperative business
development initiatives related to the open voting system;
(iv) The Consortium may also perform certification of technology
conformant with the Consortium's standards and specifications, and
perform other related research and experimentation in, and
implementation of, related open systems standards and technology.
(b) Consensus process: The Consortium shall manage a formal committee
process that shall include the following:
(i) The Technical Committee process by which participants create
publicly available software interfaces and other shared technology;
(ii) The Planning Committee process by which members of the
Consortium oversee the adoption and positioning of these technologies
proposed by the Technical Committee.
(iii) The Strategic Advisory Committee process by which Strategic
Members of the Consortium make recommendations to the Board of
Directors and Membership concerning strategic opportunities for the
Consortium and its Membership.
(c) Organization: The Consortium's strategic framework is the concern
of the Consortium Board of Directors. Each committee operates by
consensus, and each committee is linked to the others by
representation and formal process. The Consortium's staff manages the
organization and process of each of these committees of the
organization to ensure the development of an effective consensus
process both within and between the bodies that make up the
Consortium.
Section 1.3 Known Place of Business
The known place of business of the Consortium (hereinafter the
"principal office") shall be initially located at 4700 Allegretto Way
in Granite Bay, California, 95746. The Board of Directors is
hereby granted full power and authority to change the principal office
from one location to another both within and without said state.
Section 1.4 Other Offices
Branch or subordinate offices may at any time be established by the
Board of Directors at any place or places.
Section 1.5 Nonprofit Status
(a) The Consortium is organized and shall be operated as a non-stock,
not-for-profit membership corporation organized under the Nonprofit
Mutual Benefit Corporation Law of the State of California.
(b) The Board of Directors may, in its sole discretion, elect to seek
exemption from Federal taxation for the Consortium 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 Consortium
shall not be empowered to engage directly or indirectly in any
activity that it believes would be likely to invalidate its status as
an organization exempt from federal income taxation under Section
501(a) of the Code as an organization described in Section 501 (c) of
the Code. All references to the Code contained herein are deemed to
include corresponding provisions of any future United States Internal
Revenue Law.
ARTICLE II MEMBERS
Section 2.1 Basis and Conditions of Membership
(a) The basis of Membership is a Member's interest in the goals and
values of the Consortium.
(b) Conditions of Membership. Any association, partnership,
organization, company or corporation, which has an interest in the
purposes of the Consortium, may, upon satisfaction of the conditions
provided below, become a Consortium Member.
(i) Founding Members. Certain entities provided substantial aid to
the Open Voting project in support of the "EVM2003 Project" and
other related initiatives prior to the incorporation of the
Consortium and were granted Membership at appropriate levels without
payment of additional fees for their first year of Membership. These
Members are entitled to call themselves Founding Members; and the
Board of Directors may permit them to continue in such Membership
levels during subsequent years if the level of aid that they
continue to provide to the Consortium remains sufficient to warrant
the waiver of normal Membership fees during these years.
Section 2.2 Classes of Membership
(a) Strategic Membership level. With the approval of the Board of
Directors, Strategic Membership is provided for organizations that
wish to provide significant resources, over and above the level of
Principal Membership fees, in support of Consortium programs and
objectives, and that wish to play an active role both in setting the
direction of the Consortium's technology specification activities and
facilitating the use and acceptance of Consortium technology in
markets of strategic value to the Consortium and its member
organizations.
(b) Principal Membership level. Principal Membership is provided for
organizations that wish to participate in the planning and management
of the Consortium's technology development process.
(c) Technical Committee Membership level. Technical Committee Members
have voting rights in the Consortium's Technical Committee and the
right to submit technology proposals for consideration by the
Consortium.
(d) Associate Membership level. Each Associate Member, while in good
standing, shall be entitled to designate one non-voting Technical
Committee Representative and an alternate Technical Committee
representative to participate in the Technical Committee and in such
subcommittees, task forces, special interest groups, and working
groups of the Technical Committee as the Technical Committee's
Policies and Procedures may from time to time permit, and by this
means to closely observe the Consortium's technology development
process and participate in discussions that are part of this process.
(e) The conditions, benefits, rights, privileges, and powers (if any) of
any class of Members may be changed, and one or more additional classes
of Membership in the Consortium may be created, and the conditions,
benefits, rights, privileges, and powers of each such class may be
prescribed, by adoption of an amendment to these Bylaws pursuant to
ARTICLE XIV of the Bylaws. Such amendment may be proposed by the Planning
Committee but must be made by the Board of Directors.
Section 2.3 Subsidiaries of Members, Consortia, and Other Organizations
(a) Membership privileges shall be granted to organizational affiliates of
Members under certain circumstances.
Section 2.4 Deprivation or Suspension of Membership
Any Member in good standing may be deprived of its Membership or be
suspended as a Member for cause, and any Member not in good standing may
be deprived of its Membership or can be suspended as a Member without cause,
by action of the President, provided such action is approved by a majority
vote of the Board of Directors. Any annual dues, assessments, other fees
and/or penalties already paid shall not be refundable upon the Member's
suspension or deprivation of Membership. No deprivation or suspension of
Membership (other than for non-payment of dues, assessments or fees) shall
be effective, however, unless:
(a) The Member is given notice of the proposed deprivation 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 overnight courier service, sent to the last
address of the Member shown on the Consortium's records;
(c) Such notice is given at least thirty (30) days prior to the effective
date of the proposed deprivation or suspension of Membership;
(d) Such notice sets forth a procedure determined by the body (said body to
consist of the Planning Committee or a subcommittee of the Planning
Committee selected for that purpose by the Planning Committee) authorized
to decide whether or not the proposed deprivation 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) or in
writing, not less than five (5) days before the effective date of the
proposed deprivation or suspension; and
(e) The reason for such deprivation of Membership is that the Member in
question has violated the letter or spirit of the Membership agreement, and
has acted in such a way as to materially harm the reputation, activities or
property of the Consortium, or in other ways to interfere with or attempt to
obstruct the activities and programs of the Consortium as defined by the
Board of Directors and executed by the staff and Membership in its various
committees, special interest groups, task forces and working groups.
Any deprivation or suspension of Membership for non-payment of dues,
assessments or fees may be effected in the manner set forth in Section 3.10.
Section 2.5 Resignation by Member
A Member may resign as a Member at any time and for any reason by sending a
certified letter to the President stating its intention to resign. Any
Member, upon learning of and not wishing to be subject to an amendment of
Section 2.9 of these Bylaws, or to any adoption or amendment of any rule
referred to therein, may avoid the effect of such change by resigning in
the manner set forth above prior to the effective date of such amendment.
In all instances of resignation, any annual dues, assessments, other fees
and/or penalties already paid shall not be refundable, and the resigning
Member shall remain liable for any accrued but unpaid dues.
Section 2.6 Membership Book
The name and address of each Member shall be contained in a Membership Book
to be maintained at the principal office of the Consortium. Termination of
any Membership shall be recorded in the book together with the date of such
termination. Each Member shall be responsible for apprising the Consortium
in writing of all changes to its name and address, and of the names and
addresses of all representatives of such Member appointed to be members of
committees or to receive notices or vote on behalf of such Member.
Section 2.7 Levy of Dues, Assessments or Fees
(a) The Consortium may levy dues, assessments or fees upon its Members in
such amount as may be proposed by the staff from time to time and approved
by the Board of Directors. 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 or otherwise,
liable for such dues, assessments or fees. No provision of the Articles
of Incorporation or Bylaws of the Consortium 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 Consortium for consequential damages.
(b) It shall be the responsibility of the President, with the approval of
the Board of Directors, to determine the Membership fee structure of the
Consortium as part of the Consortium's business planning process. The fee
structure can be changed at any time consistent with the business planning
requirements of the Consortium, provided that all existing Membership
agreements at the time of such change are allowed to be in effect to the
end of their defined terms, and provided that a notice of such change is
given to the Membership at least three months before the change is to take
effect.
Section 2.8 Use of Names
Any Member may disclose and publicize such Member's Membership in the
Consortium, within guidelines proposed by the staff and approved by the
Planning Committee and, unless requested to the contrary in writing by a
Member at the time of application to the Consortium for Membership, the
Consortium may publicize such Member's Membership in the Consortium.
Section 2.9 Rights in Intellectual Property and Security of Information:
(a) All intellectual property, specifications, guidelines and any other
technology or assets (collectively, "Consortium Technology") developed
by the Consortium, whether developed by employees of Members while working
in Consortium meetings, or by employees of the Consortium alone or with
the assistance of employees or consultants of any Member(s), shall become
the sole property of the Consortium, unless otherwise determined pursuant
to such rules as the Board of Directors may adopt from time to time. In
addition, all Consortium Technology, and all other technology and
intellectual property rights which may be submitted to, adopted as, or
included in, specifications or other output of the Consortium ("Submitted
Technology"), and together with the Consortium Technology, "Technology"),
shall be governed by such rules as the Board of Directors may from time to
time adopt.
(b) Any amendment to the foregoing Subsection 2.9(a), and the adoption or
amendment of any rule referred to therein, including without limitation
relating to rights of publication, ownership, the license rights which
Members and non-Members may be entitled to in Technology, and the fees (if
any) which the Consortium may charge Members and non-Members for access to
such Technology, shall (i) have prospective (only), and not retrospective
effect, and (ii) shall not have an effective date less than sixty days
from the date that the President gives a detailed notice of such change to
all Members.
(c) No technology shall be made available by Members of the Consortium to
non-Members prior to general release of such Technology by the Consortium
according to a release plan approved by the Consortium's Planning Committee.
ARTICLE III MEETINGS OF MEMBERS
Section 3.1 Time and Place of Meetings
All meetings of the various committees of the Consortium shall be scheduled
to be held at such place within or without the State of California and at
such time as may be fixed from time to time by the Staff after consultation
with the respective committees.
Section 3.2 Regular Meetings of Committees
Regular meetings of the various committees of the Consortium shall be
scheduled at regular intervals during the calendar year and at such times
as may be fixed from time to time by the Staff after consultation with the
respective committees.
Section 3.3 Special Meetings
(a) Special meetings of the Strategic Advisory Committee for any purpose or
purposes permitted by law, the Articles of Incorporation or these Bylaws,
unless otherwise prescribed by statute or by the Articles of
Incorporation, may be called by the Board of Directors or the President at
the request in writing of a majority of the Board of Directors, or by the
Strategic Advisory Committee at the request in writing of at least a
majority of all Strategic Members, as appropriate.
(b) Special meetings of the Planning Committee for any purpose or purposes
permitted by law, the Articles of Incorporation or these Bylaws, unless
otherwise prescribed by statute or by the Articles of Incorporation, may
be called by the Board of Directors, the President or Secretary at the
request in writing of a majority of the Board of Directors, or by the
Planning Committee at the request in writing of at least ten percent (10%)
of all Principal Members, as appropriate.
(c) Special meetings of the Technical Committee may be called by the Board
of Directors, the President, the Secretary, the Planning Committee at the
request in writing of at least ten percent (10%) of all Principal Members,
or by the Technical Committee at the request in writing of at least ten
percent (10%) of all Members.
(d) Such requests shall state the purpose or purposes of the proposed
meetings. Business transacted at any special meeting shall be limited to
matters relating to the purpose or purposes stated in the notice of meeting.
Section 3.4 Notice of Meetings
Except as otherwise provided by law or these Bylaws, written notice (as
defined in Section 7.1(a) of these Bylaws) of each meeting of the Strategic
Advisory Committee, the Planning Committee and of the Technical Committee,
or such other committee as may be defined in these Bylaws and comprised in
whole or in part by Members of the Consortium, regular or special, stating
the place, date and hour of the meeting and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, and such
other information as may be required by law, shall be given not less than
two weeks nor more than sixty days before the date of the meeting, to each
Member entitled to attend such meeting.
Section 3.5 Voting List
The officer who has charge of the Membership Book of the Consortium shall
prepare and make a complete list of the Members entitled to vote at each
Strategic Advisory Committee, Planning Committee and Technical Committee
meeting (as the case may be), or meeting of such other committee as may be
defined in these Bylaws and comprised in whole or in part by Members of
the Consortium, arranged in alphabetical order, and showing the address
of each such Member. Nothing contained in this Section shall require the
Consortium to include electronic mail addresses or other electronic contact
information on such list. Such list shall be open to the examination of
any Member, for any purpose germane to the meeting, for a period of at
least ten (10) days prior to the meeting: (i) on a reasonably accessible
electronic network, provided that the information required to gain access
to such list is provided with the notice of the meeting, or (ii) during
ordinary business hours, at the principal place of business of the
Consortium. In the event that the Consortium determines to make the list
available on an electronic network, the Consortium may take reasonable
steps to ensure that such information is available only to Members of the
Consortium. The list shall be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
Member who is present.
Section 3.6 Quorum
(a) The quorum for any meeting of the board of directors shall be a simple
majority.
Section 3.7 Adjournments
Any meeting of the Strategic Advisory Committee, the Planning Committee
or the Technical Committee, or a meeting of such other committee as may
be defined in these Bylaws and comprised in whole or in part by Members
of the Consortium, may be adjourned from time to time to any other time
and to any other place at which such a meeting may be held under these
Bylaws.
Section 3.8 Action at Meetings
Unless the question is one upon which by express provision of law, the
ARTICLEs of Incorporation or these Bylaws, a different vote is required
(in which case such express provision shall govern and control the decision
of such question), when a quorum is present at any meeting, the vote of
a majority of the Members present in person or represented by proxy and
entitled to vote on the question shall decide any question brought before
such meeting.
Section 3.9 Voting and Proxies
Except as otherwise provided in the Articles of Incorporation, each Technical
Committee Member shall at every meeting of the Technical Committee be
entitled to one vote; each Principal Member shall at every meeting of the
Planning Committee be entitled to one vote; each Strategic Member shall at
every meeting of the Strategic Advisory Committee be entitled to one vote,
and each Member of such other committee as may be defined in these Bylaws
and comprised in whole or in part by Members of the Consortium shall at
every meeting of said committee be entitled to one vote. Each Member
entitled to vote at such a meeting, or to express consent or dissent to
corporate action in writing without a meeting, may authorize another person
or persons to act for him by proxy, but no such proxy shall be voted or
acted upon after three years from its date, unless the proxy provides for
a longer period.
Section 3.10 Suspension of Rights for Non-Payment of Fees
In the event that any Member is more than 90 days in arrears with regard to
dues, assessments or fees owed to the Consortium, then until such payment
has been made, all such Member's rights shall be suspended until such time
as such payments have been made. If such payment has not been made in full
within a further 30 days, such Membership shall automatically terminate.
Section 3.11 Action Without Meeting
Any action required to be taken at any meeting of the Technical Committee,
Planning Committee or Strategic Advisory Committee, or any action which
may be taken at any meeting of such committees respectively, may be taken
without prior notice and without a vote, under certain circumstances.
Section 3.12 Order of Business
The order of business at all meetings of the Strategic Advisory Committee,
the Planning Committee and the Technical Committee shall be as determined
by the presiding officer, but the order of business to be followed at any
meeting at which a quorum is present may be changed by a vote of the Voting
Members. Meetings shall be conducted under the guidance of Robert's Rules
of Order.
ARTICLE IV THE BOARD OF DIRECTORS
Section 4.1 Powers and Responsibilities
(a) The business and affairs of the Consortium shall be governed by its
Board of Directors, which shall be, and shall possess all of the powers of,
the "Governing Body" of the Consortium as a not-for-profit membership
corporation under California Nonprofit Mutual Benefit Corporation Law. The
Board of Directors may exercise all powers of the Consortium and do all
such lawful acts and things as are not by statute or by the Articles of
Incorporation or by these Bylaws directed or required to be exercised or
done by the Members.
(b) The Board vests in the Planning Committee and Staff such
responsibilities as are outlined in these Bylaws, and the Board can amend
the Bylaws to delegate powers as it sees fit, but unless the Board
specifically amends these Bylaws to delegate specific Board
responsibilities, the following responsibilities shall remain the Board's
responsibilities: to formulate the Strategic Plan for the Consortium,
including technical and market positioning and relation to the standards
community; to approve the Consortium Business Plan; to assist the President
in bringing resources to the Consortium; and to maintain the Consortium's
Bylaws.
Section 4.2 Number of Directors
The total number of Directors shall be no less than five and no more than
twenty-five, constituting all of the Director(s) elected by the Planning
Committee, and three appointed directors: the President, who shall be a
Director by virtue of his office as President, the Vice President and Chief
Technology Officer, who shall be a Director by virtue of his office as Vice
President and Chief Technology Officer, and the Vice President, Operations
and Finance, who shall be a Director by virtue of his office as Vice
President, Operations and Finance. There may be, in addition to these, ex
officio Directors who may be appointed pursuant to Section 4.8.
Section 4.3 Election and Term of Office of Elected Directors
(a) Before the last Planning Committee meeting of the year preceding a new
two year term of office for Directors, the Executive Committee, as
established in Section 4.17, shall recommend to the Board of Directors
a full slate of Director candidates who shall be respected industry,
government, and academic leaders able to perform the duties of Directors
as outlined in this Article IV, and who may include persons currently
serving as Directors. Nominees and Directors need not be affiliated with
Consortium's Member organizations. The Board shall vote to approve a slate
of candidate directors.
(b) At the last Planning Committee meeting of the year preceding a new two
year term of office for Directors, the Board of Directors shall nominate
a slate of Director nominees to the Planning Committee for election.
(c) The term of office of all elected Directors shall be two years. The
first two-year term shall begin December 12, 2003.
Section 4.4 Appointment and Term of Office of Appointed Directors
(a) The President, by virtue of his office, shall automatically be
a Director (an "Appointed Director"). The President shall hold office as
a Director until the earliest to occur of (i) his death, resignation, or
termination as a director, and (ii) his resignation or termination as
President.
(b) The Vice President and Chief Technology Officer, by virtue of his
office, shall automatically be a Director (an "Appointed Director"). The
Vice President and Chief Technology Officer shall hold office as a Director
until the earliest to occur of (i) his death or resignation as a director,
and (ii) his resignation or termination as Vice President and Chief
Technology Officer.
(c) The Vice President, Operations and Finance, by virtue of his office,
shall automatically be a Director (an "Appointed Director"). The Vice
President, Operations and Finance shall hold office as a Director until the
earliest to occur of (i) his death or resignation as a director, and (ii)
his resignation or termination as Vice President, Operations and Finance.
Section 4.5 Enlargement or Reduction
The number of Directors, the persons eligible to become Directors and the
classes of any Members eligible to elect Directors may be amended at any
time by a vote of two-thirds of the currently serving Directors.
Section 4.6 Resignation and Removal
Any Director may resign at any time upon written notice to the Consortium
in writing or by electronic transmission at its principal place of business
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 elected Director may be removed,
with or without cause, by a majority of the other Directors. An Appointed
Director may be removed with cause by a two-thirds affirmative vote of the
elected Directors. When any director misses two consecutive meetings an
action may be initiated by the Executive Committee to do a formal review of
whether that Director ought to remain on the Board.
Section 4.7 Vacancies
(a) A Vacancy on the Board of Directors caused by the death, resignation or
removal of any elected Director, or by an increase in the number of
authorized elected Directors, may be filled by the usual process, that is,
the Executive Committee shall offer a candidate or candidates for approval
by a majority of the Planning Committee membership. The term of a Director
so elected shall be the unexpired portion of the term of the Director, if
any, whom the Director so elected is replacing, or until the next general
election of Directors, in the case of an expansion of the Board.
(b) In the event of a vacancy or vacancies in the Board of Directors, the
remaining Directors, except as otherwise provided by law or these Bylaws,
may exercise the powers of the full Board until the vacancy or vacancies
have been filled.
Section 4.8 Ex Officio Directors
In addition to the elected and appointed Directors provided for in Sections
4.1, 4.3 and 4.4 the Board of Directors may elect such ex officio Directors
as it may find appropriate.
Section 4.9 Place of Meetings
The Board of Directors may hold meetings, both regular and special, either
within or without the State of California.
Section 4.10 Regular Meetings
Regular meetings of the Board of Directors may be held at such time and at
such place as shall from time to time be determined by the Board, or by the
President after due consultation with all of the Directors to maximize
attendance at the meetings and timeliness of the meetings. Any Director who
is absent from a meeting during which the time of such future meeting is
set shall be given prompt notice of the time and place of such future
meeting.
Section 4.11 Special Meetings
Special meetings of the Board may be called by the President, Secretary,
or on the written request of two or more Directors, or by one Director in
the event that there is only one Director in office. Two calendar weeks
notice to each Director, either personally or by telegram, cable, telecopy,
commercial delivery service, telex, electronic transmission or similar
means sent to his business or home address, or sixteen business days'
notice by another form of written notice (as defined in Section 7.1(a)
of these Bylaws), shall be given to each Director by the Secretary or by
the officer or one of the Directors calling the meeting. A notice or waiver
of notice or any waiver by electronic transmission of a meeting of the
Board of Directors need not specify the purposes of the meeting.
Section 4.12 Quorum, Action at Meeting, Adjournments
At all meetings of the Board a majority of Directors then in office, but
in no event less than one third of the entire Board shall constitute a
quorum for the transaction of business and the act of a majority of the
Directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically
provided by law or by the Articles of Incorporation. For purposes of this
Section the term "entire board" shall mean the number of directors last
fixed by the Directors, in accordance with law and these Bylaws; provided,
however, that if less than all the number so fixed of Directors were
elected, the "entire board" shall mean the greatest number of Directors
so elected to hold office at any one time pursuant to such authorization.
If a quorum shall not be present at any meeting of the Board of Directors,
a majority of the Directors present thereat may adjourn the meeting,
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 4.13 Action by Consent
(a) Unless otherwise restricted by the Articles of Incorporation or these
Bylaws, any action required or permitted to be taken by the Board of
Directors may be taken without a meeting and without prior notice if a
majority of Directors then in office (or such greater number of Directors
as may be required by law or the bylaws of the Consortium for the taking of
any such action at a meeting) consent thereto in writing or by electronic
transmission, and the writing or writings, or electronic transmission or
transmissions, are filed with the minutes of proceedings of the Board of
Directors, provided that:
(i) Such written consent shall have been sent simultaneously to all
Directors then in office for their consideration;
(ii) Prompt written notice (as defined in Section 7.1.a of these Bylaws)
of any action so taken is given to those Directors who have not consented
in writing or by electronic transmission; and
(iii) Two or more such Directors have not objected to the taking of any
such action by written notice delivered to the Consortium 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 4.13(a)(iii) above shall not prevent any such action from being
taken at a later date at an actual meeting of the Board of Directors.
(c) Unless otherwise restricted by the Articles of Incorporation or these
Bylaws, any action required or permitted to be taken at any meeting of any
committee of the Board of Directors may be taken in the manner set forth
in the preceding clauses 4.13(a) and (b).
Section 4.14 Telephonic Meetings
Unless otherwise restricted by the Articles of Incorporation or these
Bylaws, members of the Board of Directors or of any committee thereof may
participate in a meeting of the Board of Directors or of any committee, as
the case may be, by means of conference telephone, videoconference
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 4.15 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 Consortium
books, records and documents of every kind and to inspect the physical
properties of the Consortium.
Section 4.16 Fees and Compensation
Directors shall not receive any stated salary for their services as
Directors, but, by resolution of the Board of Directors, a fixed fee may be
allowed for attendance at each meeting. Directors may be reimbursed in such
amounts as may be determined from time to time by the Board of Directors
for expenses incurred while acting on behalf of the Consortium and/or
expenses incurred in attending meetings of the Board of Directors. Nothing
herein contained shall be construed to preclude any Director from serving
the Consortium in any other capacity as an officer, agent, employee, or
otherwise, and receiving compensation therefor. The Directors may also
allow compensation for members of committees for service on such committees.
Section 4.17 Executive Committee
(a) The Board of Directors shall have as their first order of business, at
the first meeting of their two-year term, the election of an Executive
Committee, consisting of two or more Directors, including the President,
Vice President and Chief Technology Officer, and Vice President Operations
and Finance should said offices then be filled. The President shall nominate
Executive Committee candidates for the Board's approval. The number of
Directors on the Executive Committee shall be set at such meeting or by
resolution adopted by a majority of the Directors then in office (provided
a quorum is present.) The Board of Directors may designate one or more
Directors as alternate members of such committee, who may replace any
absent member at any meeting of such committee.
(b) The Executive Committee, subject to any limitations imposed by the
Articles of Incorporation, by these Bylaws, by statute, and/or by the Board
of Directors, shall have and may exercise all of the powers of the Board of
Directors. However, the Executive Committee shall have no authority with
respect to those items listed in (i) through (viii) below:
(i) The approval of any action that also requires approval of the Voting
Members in the Technical Committee;
(ii) The fixing of compensation of the Elected Directors for serving on
the Board of Directors or on any committee;
(iii) The amendment or repeal of the Bylaws or the adoption of new Bylaws;
(iv) The amendment or repeal of any resolution of the Board of Directors
that by its express terms is not so amendable or repealable;
(v) Amending the Articles of Incorporation;
(vi) Adopting an agreement of merger or consolidation;
(vii) Recommending to the Members the sale, lease or exchange of all or
substantially all of the Consortium's property and assets; and
(viii) Recommending to the Members a dissolution of the Consortium or a
revocation of a dissolution.
Section 4.18 Other Committees of the Board of Directors
(a) The Board of Directors may, by resolution adopted by a majority of the
Directors then in office (provided a quorum is present), create such other
audit, compensation and other committees, each consisting of two (2) or
more Directors appointed by the Board, as it 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 committee by the Board of Directors, subject
to the limitations imposed by the Articles of Incorporation or by these
Bylaws. No such committee shall have the power or authority to take any
action prohibited by Section 4.17.b above to be taken by the Executive
Committee. The Board of Directors may designate one or more Directors as
alternate members of any committee, who may replace any absent member at
any meeting of the committee. Any committee or committees shall have such
name or names as may be determined from time to time by resolution adopted
by the Board of Directors. Each committee shall keep regular minutes of its
meetings and make such reports to the Board of Directors as the Board of
Directors may request.
(b) The Board of Directors may, by resolution adopted by a majority of the
Directors then in office (provided a quorum is present), appoint a single
Director to work with the Vice President, Business Development to coordinate
a reporting mechanism and business review process designed to keep the Board
informed on the Consortium's business status.
Section 4.19 Meetings of Committees of the Board of Directors
Except as otherwise provided in these Bylaws or by resolution of the Board
of Directors, each committee of the Board of Directors may adopt its own
rules governing the time and place of holding and the method of calling its
meetings and the conduct of its proceedings and shall meet as provided by
such rules, but unless otherwise provided by resolution of the Board of
Directors or in such rules, its business shall be conducted as nearly as
possible in the same manner as is provided in these Bylaws for the conduct
of the business the Board of Directors.
Section 4.20 Term of Office of Members of Committees of the Board of Directors
Each member of a committee of the Board of Directors shall serve at the
pleasure of the Board of Directors.
Section 4.21 Board Committees with Non-Directors
From time to time, the Board of Directors may establish additional committees
and sub-committees whose members need not be Directors. If so required by the
Board, only persons representing Technical Committee or Principal Members
shall be voting, participating members on any such committee or subcommittee.
ARTICLE V CONSORTIUM COMMITTEES
Section 5.1 The Strategic Advisory Committee
A Consortium Strategic Advisory Committee shall be established that shall have
such rights and privileges as shall from time to time be established by the
Board of Directors, and that shall meet at such times and places as provided
in Article III hereof and shall operate in accordance with such rules as shall
from time to time be established by the Board of Directors or such committee.
The membership and functions of the Strategic Advisory Committee shall be as
follows:
(a) Membership of the Strategic Advisory Committee
(i) Each Strategic Member of the Consortium shall be a voting member of
the Strategic Advisory Committee.
(ii) The President shall be a voting member and Chairman of the Strategic
Advisory Committee.
(iii) The Vice President and Chief Technology Officer shall be a voting
member of the Strategic Advisory Committee.
(iv) The Vice President of Operations and Finance shall be a voting member
of the Strategic Advisory Committee.
(b) Strategic Advisory Committee Functions
Subject to oversight of the Board of Directors, the Strategic Advisory
Committee shall have responsibility for performing the following functions:
(i) To recommend areas of strategic opportunity for Consortium operations
to the Board of Directors, Consortium staff and the Membership;
(ii) To recommend resource strategies in support of Consortium programs;
and
(iii) According to the requirements of the Strategic Members, to support
the Interoperability Program and Specification Programs with management
and operational resources.
Section 5.2 The Planning Committee
A Consortium Planning Committee shall be established that shall have such
rights and privileges as shall from time to time be established by the Board
of Directors, and that shall meet at such times and places as provided in
Article III hereof and shall operate in accordance with such rules as shall
from time to time be established by the Board of Directors or such committee.
The membership and functions of the Planning Committee shall be as follows:
(a) Membership in the Planning Committee
(i) Each Principal Member of the Consortium shall be a voting member of
the Planning Committee.
(ii) Each Strategic Member of the Consortium shall be a voting member of
the Planning Committee.
(iii) The President shall appoint a Consortium staff member to be Chairman
and a voting member of the Planning Committee.
(iv) The President may appoint a Consortium staff member to be Vice
Chairman and a voting member of the Planning Committee.
(v) Each member of the Executive Committee of the Board of Directors shall
be a voting member of the Planning Committee.
(vi) The primary liaison between the organized standards community and the
Technical Committee shall be a voting member of the Planning Committee.
(vii) Two representatives of the Technical Committee from the group of
Technical Committee organizations shall be voting members of the Planning
Committee.
(b) Planning Committee Functions
Subject to oversight of the Board of Directors, the Planning Committee shall
have the responsibility for performing the following functions:
(i) Strategic technology planning regarding the Consortium's development
of open voting specifications which have the greatest possible chance of
being adopted in the market.
(ii) Ratification of Open Voting Specification development plans, release
schedules, conformance testing plans, and any other major documents
produced by the Technical Committee;
(iii) Final acceptance of Open Voting Implementation Specifications as
reported out of the Technical Committee;
(iv) Development of the Consortium's message and strategic positioning
within the IT community and formulation of the Consortium's Information
Community and market outreach strategies;
(v) Ratification of the slate of Director nominees nominated by the Board
of Directors;
(vi) Maintenance of policies and procedures that establish the Planning
Committee's internal organization and process. Such organization and
process may involve the creation of such subcommittees, ad hoc working
groups, or task forces as the Management Committee deems necessary. The
Board of Directors has the authority to review the document containing
"Planning Committee policies and procedures" to be sure they are consistent
with the implementation of corporate strategy, and the Board of Directors
must ratify all modifications of such policies and procedures as from time
to time proposed by the Planning Committee.
Section 5.3 The Technical Committee
A Consortium Technical Committee shall be established that shall have such
rights and privileges as shall from time to time be established by the Board
of Directors, and that shall meet at such times and places as provided in
Article III hereof and shall operate in accordance with such rules as shall
from time to time be established by the Board of Directors or such committee.
The membership and functions of the Technical Committee shall be as follows:
(a) Membership in the Technical Committee
(i) Each Technical Member of the Consortium shall be a voting member of
the Technical Committee.
(ii) Each Principal Member of the Consortium shall be a voting member of
the Technical Committee.
(iii) Each Strategic Member of the Consortium shall be a voting member of
the Technical Committee.
(iv) The President shall appoint a Consortium staff member to be Chairman
and a voting member of the Technical Committee.
(v) The President may appoint a Consortium staff member to be Vice
Chairman and a voting member of the Technical Committee.
(b) Technical Committee Functions
Subject to the oversight of the Planning Committee, the Technical Committee
shall have the authority to perform the following functions:
(i) Development of the Open Voting Specification through a cooperative
consensus process involving the Members;
(ii) Creation of its own internal organization and process, which it shall
submit for the approval of the Planning Committee. Such organization and
process may involve the creation of such Task Forces, Special interest
Groups (SIGs), Working Groups and Subcommittees as the Technical Committee
deems necessary. The Planning Committee shall have the authority to modify
the Technical Committee process and must ratify all revisions of said
process as from time to time proposed by the Technical Committee; and
(iii) Presentation of version drafts of the Open Voting Abstract
Specification and Open Voting Implementation Specifications, and any other
related major documents to the Planning Committee for approval.
Section 5.4 The Review Board
(a) Membership of the Review Board
(i) The Vice President and Chief Technology Officer shall be a member and
Chairman of the Review Board.
(ii) The Vice President and Chief Technology Officer will from time to time
make additional appointments of Consortium staff or other qualified
individuals to be members of the Review Board.
(b) Review Board Functions
Working under the direction of the Vice President and Chief Technology
Officer, the Review Board shall have responsibility for performing the
following functions:
(i) To recommend policies and procedures governing the review and
coordination of the Consortium's architecture development activities,
including rules of order and decision-making for Review Board operation;
(ii) To conceptualize and document a unified architecture and reference
model to represent the interface development work of the Consortium;
(iii) To coordinate the work of the several consensus committees and
project teams within the architecture framework of the Consortium;
(iv) To adjudicate conflict among committees, working groups, project teams
and Membership with respect to the architecture framework of the Consortium;
(v) To reconcile Consortium architecture and development methodologies
with prevailing trends in the IT industry and standards community and to
make recommendations to the Membership accordingly;
(vi) To make recommendations to the Planning Committee concerning
acceptance of Technical Committee technology proposals; and
(vii) To inform the Board of Directors on a regular basis of the
positioning of Consortium architecture and relevant technology developments.
ARTICLE VI OFFICERS
Section 6.1 Officers
(a) The officers of the Consortium shall be a President, a Treasurer and
a Secretary. The Consortium may also have, at the discretion of the Board
of Directors, 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. One person may hold two or more offices unless the Articles of
Incorporation otherwise provides.
(b) Any individual may serve in one or more (or all) of the offices described
within this Article VI.
Section 6.2 Filling Officer 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 Bylaws for regular elections to such office.
Section 6.3 Election of Officers
The Board of Directors shall choose a President. All other officers of the
Consortium shall be appointed by the President subject to election by
a majority vote of the Board of Directors at a regularly scheduled meeting
of the Board of Directors or by majority written consent. All officers may
be replaced by the President and/or Board of Directors, as appropriate.
Section 6.4 Tenure of Officers
Each officer of the Consortium shall serve at the pleasure of the President
and the Board of Directors for indefinite terms, and shall hold office until
a successor is chosen and qualifies, unless a different term is specified
in the vote choosing or electing him, or until his earlier death, resignation
or removal. Any officer elected by the Board of Directors may be removed at
any time with or without cause by a majority vote of the entire Board of
Directors or a committee duly authorized by the Board of Directors to do so.
Any vacancy occurring in any office of the Consortium may be filled by the
Board of Directors, at its discretion. Any officer may resign by delivering
his written resignation to the Consortium at its principal place of business
or to the Secretary. Such resignation shall be effective upon receipt unless
it is specified to be effective at some other time or upon the happening of
some other event.
Section 6.5 President
The President shall be the Chief Executive Officer of the Consortium. The
President shall, unless the Board of Directors provides otherwise in
a specific instance or generally, preside as Chairman at all meetings of the
Board of Directors, have general management of the business of the Consortium
and see that all orders and resolutions of the Board of Directors are carried
into effect. Without limiting the foregoing, the President shall:
(a) Execute bonds, mortgages, and other contracts requiring a seal, under the
seal of the Consortium, except where required or permitted by law to be
otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of the Consortium; all such instruments and contracts shall
have been approved by legal counsel;
(b) Direct and administer the affairs of the Consortium, including setting
compensation of non-executive staff, and the hiring and discharge of office
employees;
(c) Have complete charge of the records of the Consortium (other than
corporate records maintained by the Secretary);
(d) Initiate and promote programs which serve and advance the purpose and
objective of the Consortium;
(e) Coordinate, assist and monitor all committees and their programs;
(f) Direct all Consortium functions;
(g) Submit an annual budget, together with supporting documentation;
(h) Create, and update when necessary, employee job descriptions and hold
individual annual reviews with each employee;
(i) Serve as a member and chairman of the Board of Directors and any
Executive Committee with full voting rights, except as to matters relating
to his compensation or the terms of any agreement with the Consortium
pursuant to which he is retained to render services; and
(j) Perform such other duties as may from time to time be assigned by the
Board of Directors and/or any Executive Committee.
Section 6.6 Vice Presidents
The Consortium shall have two Vice Presidents: (1) the Vice President and
Chief Technology Officer and (2) Vice President, Operations and Finance.
(a) The Vice President and Chief Technology Officer shall be responsible
to ensure that the technology policy of the corporation supports the
strategic guidelines set forth by the Board of Directors, and that such
policy is coordinated across all organizations and activities of the
Consortium. The Vice President and Chief Technology Officer will be the lead
technology architect for the Consortium and in that capacity will authorize
technical staff to propose and implement projects designed to promote
consistent and sound architecture approaches for the Consortium. The Vice
President and Chief Technology Officer will be a permanent member of the
Executive Committee of the Board of Directors, and will be Chairman of the
Review Board, or any other committee that includes Member representation
formed for the purpose of review or coordination of the Consortium's
technology strategy. In the absence of the President or in the event of his
inability or refusal to act, the Vice President and Chief Technology Officer
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.
(b) In the absence of both the President and the Vice President and Chief
Technology Officer, or in the event of the inability or refusal of both to
act, the Vice President, Operations and Finance 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.
(c) The Vice Presidents shall perform such other duties and have such other
powers as the Board of Directors or the President may from time to time
prescribe.
(d) The President shall propose Vice Presidents' appointments, and the Board
of Directors shall approve these appointments.
(e) The Vice President, Operations and Finance, is responsible for corporate
financial and business planning, management of the corporate budgeting
process, and management of the Consortium's business and technical programs
operations.
Section 6.7 Secretary
The Secretary shall have such powers and perform such duties as are incident
to the office of Secretary, and shall:
(a) Prepare and maintain, or cause to be prepared and maintained, lists of
Members and their addresses as required;
(b) Attend all meetings of the Board of Directors and all meetings of the
Planning Committee and record all the proceedings of these meetings in
a book to be kept for that purpose, and shall perform like duties for the
standing committees when required;
(c) Give, or cause to be given, notice of all meetings of the Planning
Committee and special meetings of the Board of Directors, and shall perform
such other duties as may be from time to time prescribed by the Board of
Directors, and shall be under their supervision;
and
(d) Have custody of the corporate seal of the Consortium and the Secretary,
or an Assistant Secretary, shall have authority to affix the same to any
instrument requiring it and when so affixed, it may be attested by signature
of the Secretary or by the signature of such Assistant Secretary. The Board
of Directors may give general authority to any other officer to affix the
seal of the Consortium and to attest the affixing by such officer's
signature.
Section 6.8 Assistant Secretaries
The Assistant Secretary, or if there be more than one, the Assistant
Secretaries in the order determined by the Board of Directors, the President
or the Secretary (or if there be no such determination, then in the order
determined by their tenure in office), shall, in the absence of the Secretary
or in the event of his inability or refusal to act, perform the duties and
exercise the powers of the Secretary and shall perform such other duties and
have such other powers as the Board of Directors, the President or the
Secretary may from time to time prescribe. In the absence of the Secretary
or any Assistant Secretary at any meeting of Members or Directors, the person
presiding at the meeting shall designate a temporary or acting Secretary to
keep a record of the meeting.
Section 6.9 Treasurer
The Treasurer shall perform such duties and shall have such powers as may be
assigned to him by the Board of Directors or the President. In addition, the
Treasurer shall perform such duties and have such powers as are incident to
the office of Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Consortium and shall deposit all
moneys and other valuable effects in the name and to the credit of the
Consortium in such depositories as may be designated by the Board of Directors,
taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, when the President or Board of Directors
so requires, an account of all his transactions as Treasurer and of the
financial condition of the Consortium.
Section 6.10 Assistant Treasurers
The Assistant Treasurer, or if there shall be more than one, the Assistant
Treasurers in the order determined by the Board of Directors, the President
or the Treasurer (or if there be no such determination, then in the order
determined by their tenure in office), shall, in the absence of the Treasurer
or in the event of his inability or refusal to act, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties and
have such other powers as the Board of Directors, the President or the
Treasurer may from time to time prescribe.
Section 6.11 Officer Bond
If required by the Board of Directors, any officer shall give the Consortium
a bond in such sum and with such surety or sureties and upon such terms and
conditions as shall be satisfactory to the Board of Directors, including
without limitation a bond for the faithful performance of the duties of his
office and for the restoration to the Consortium of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control and belonging to the Consortium.
Section 6.12 Officer Compensation
The compensation, if any, of the officers shall be fixed from time to time
by the Board of Directors, and no officer shall be prevented from receiving
such compensation by reason of the fact that the officer is also a Director
of the Consortium. The President, although a member of the Board of Directors,
shall not vote on matters relating to his compensation or duration in office.
ARTICLE VII NOTICES
Section 7.1 Delivery
(a) For purposes of these Bylaws, "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.
(b) Without limiting the foregoing, the Consortium adopts electronic mail as
its principal source of communication with its Members. Each Member
acknowledges and agrees that the Consortium shall not be under any obligation
(except as required by law or these Bylaws) 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 Articles of Incorporation or of these Bylaws, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether before or
after the time stated therein, or a waiver by electronic transmission by the
person entitled to notice, shall be deemed equivalent thereto.
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Actions other than by or in the Right of the Consortium
The Consortium 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 Consortium) by reason of the
fact that he is or was a Director, ex officio member of the Board, officer,
employee or agent of the Consortium, or is or was serving at the request of
the Consortium 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 in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Consortium, 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 reasonably believed to be in or not opposed to the best
interests of the Consortium, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 8.2 Actions by or in the Right of the Consortium
The Consortium 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 Consortium to procure a judgment in its
favor by reason of the fact that he is or was a director, ex officio member
of the Board, officer, employee or agent of the Consortium, or is or was
serving at the request of the Consortium 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 in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Consortium and
except 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
California 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 California 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 shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him
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 Consortium 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 has
met the applicable standard of conduct set forth in said Sections. Such
determination shall be made (1) by the Board of Directors by a majority vote
of a quorum consisting of Directors who were not parties to such action,
suit or proceeding, or (2) by the Members of the Consortium.
Section 8.5 Advance Payment
Expenses incurred in defending a civil or criminal action, suit or proceeding
may be paid by the Consortium 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 is not entitled to indemnification by the
Consortium 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 Bylaw, agreement, vote of
Voting Members or disinterested Directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding
such office.
Section 8.7 Insurance
The Board of Directors may authorize, by a vote of the majority of the full
Board, the Consortium to purchase and maintain insurance on behalf of any
person who is or was a Director, ex officio member of the Board, officer,
employee or agent of the Consortium, or is or was serving at the request of
the Consortium as a Director, ex officio member of the Board, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as such, whether
or not the Consortium would have the power to indemnify him against such
liability under the provisions of this Article VIII.
Section 8.8 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, ex officio member of the Board, officer, employee or agent
and shall inure to the benefit of the heirs, executors and administrators
of such a person.
Section 8.9 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 8.10 Intent of Article
The intent of this Article VIII is to provide for indemnification and
advancement of expenses to the fullest extent permitted under the Nonprofit
Mutual Benefit Corporation Law of California. To the extent that such
Section or any successor section may be amended or supplemented from time
to time, this Article VIII shall be amended automatically and construed
so as to permit indemnification and advancement of expenses to the fullest
extent from time to time permitted by law.
ARTICLE IX BOOKS AND RECORDS
Section 9.1 Books and Records
The Consortium shall keep adequate and correct books and records of account,
minutes of the proceedings of the Planning Committee and Technical Committee,
the Board of Directors and committees of the Board of Directors, and a record
of the Members giving their names and addresses and the class of Membership
held by each.
Section 9.2 Form of Records
Minutes shall be kept in written form. Other books and records shall be kept
either in written form or in any other form capable of being converted into
written form.
Section 9.3 Reports to Directors, Members and Others
The Board of Directors shall cause such reports to be prepared, filed and/or
distributed as may be required.
Section 9.4 Record Date
In order that the Consortium may determine the Members entitled to notice of
or Members entitled to vote at any meeting of the Consortium or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any distribution, if any,
permitted by law and the Consortium'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 stock or for the purpose of
any other lawful action, the Board of Directors may fix, in advance, a record
date, which shall not be more than sixty days nor fewer than ten days before
the date of such meeting, nor more than sixty days prior to any other action
to which such record date relates. A determination of Members of record
entitled to notice of or Voting Members entitled to vote at a meeting of
Members shall apply to any adjournment of the meeting; provided, however, that
the Board of Directors may fix a new record date for the adjourned meeting.
If no record date is fixed, the record date for determining Members entitled
to notice of or Voting Members entitled to vote at a meeting of Members shall
be at the close of business on the day before the day on which notice is
given, or, if notice is waived, at the close of business on the day before the
day on which the meeting is held. The record date for determining Members
entitled to express consent to corporate action in writing without a meeting,
when no prior action by the Board of Directors is necessary, shall be the day
on which the first written consent is delivered to the Consortium. The record
date for determining Members for any other purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating to such purpose.
Section 9.5 Registered Members
The Consortium 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 fees, penalties and assessments a person or entity registered on its books
as a Member, 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 Nonprofit Mutual Benefit Corporation Law of California.
ARTICLE X CERTAIN TRANSACTIONS
Section 10.1 Transactions with Interested Parties
No contract or transaction between the Consortium and one or more of its
Directors or officers, or between the Consortium 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 the Director or officer is present at or participates in the meeting
of the Board or committee thereof 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 relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board or 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 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 Consortium as of the time
it is authorized, approved or ratified, by the Board of Directors,
a committee thereof, or the Voting Members.
ARTICLE XI GRANTS, CONTRACTS, LOANS, ETC.
Section 11.1 Grants
The making of grants and contributions, and otherwise rendering financial
assistance for the purposes of the Consortium, may be authorized by the Board
of Directors. The Board of Directors may authorize any officer or officers,
agent or agents, in the name of and on behalf of the Consortium to make any
such grants, contributions or assistance.
Section 11.2 Execution of Contracts
The Board of Directors may authorize any officer, employee or agent, in the
name and on behalf of the Consortium, to enter into any contract or execute
and satisfy any instrument, and any such authority may be general or confined
to specific instances, or otherwise limited. In the absence of any action by
the Board of Directors to the contrary, the President shall be authorized to
execute such contracts and instruments on behalf of the Consortium.
Section 11.3 Loans
The President or any other officer, employee or agent authorized by the Board
of Directors may effect loans and advances at any time for the Consortium
from any bank, trust company or other institutions or from any firm,
association or individual, and for such loans and advances may make, execute
and deliver promissory notes, bonds or other certificates or evidences of
indebtedness of the Consortium, and when authorized by the Board of Directors
so to do, may pledge and hypothecate or transfer assets of the Consortium as
security for any such loans or advances. Such authority conferred by the Board
of Directors may be general or confined to specific instances or otherwise
limited.
Section 11.4 Checks, Drafts, Etc.
All checks, drafts and other orders for the payment of money out of the funds
of the Consortium, and all notes or other evidences of indebtedness of the
Consortium, shall be signed on behalf of the Consortium in such manner as
shall from time to time be determined by resolution of the Board of Directors.
Section 11.5 Deposits
The funds of the Consortium not otherwise employed shall be deposited from
time to time to the order of the Consortium in such banks, trust companies,
or other depositories, or shall be otherwise invested, as the Board of
Directors may select or direct, or as may be selected or directed by an
officer, employee or agent of the Consortium to whom such power may from time
to time be specifically delegated by the Board of Directors.
Section 11.6 Legal Review
In the ordinary course, but subject to the judgment of the President in any
given case, all material contracts and commitments shall be reviewed by
legal counsel.
ARTICLE XII GENERAL PROVISIONS
Section 12.1 Fiscal Year
The fiscal year of the Consortium shall be determined, and may be changed,
by resolution of the Board of Directors.
Section 12.2 Reserves
The Directors may set apart out of any funds of the Consortium a reserve or
reserves for any proper purpose and may abolish any such reserve.
Section 12.3 Seal
The Board of Directors may, by resolution, adopt a corporate seal. The
corporate seal shall have inscribed thereon the name of the Consortium, the
year of its organization and the word "California". The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced
or otherwise. The seal may be altered from time to time by the Board of
Directors.
Section 12.4 Proprietary Rights
(a) All information disclosed by any participant during any official meeting
or activity of the Consortium, including but not limited to Board meetings,
Strategic, Planning and Technical Committee meetings, Sub-committee meetings,
electronic mail or the like, shall be deemed to have been disclosed on a
non-confidential basis, and, subject to rights and restrictions represented
by valid patents, patent applications, and Federal and international statutory
copyrights (no waiver of any rights pertaining to which shall be implied from
such disclosure or the terms of this Section 12.4), may be used by anyone
without restriction.
(b) Except as provided in Section 2.9 or otherwise in these Bylaws, 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 Consortium or
to any other Member by reason of its Membership in or participation in the
activities of the Consortium, 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 Consortium.
ARTICLE XIII ANTITRUST COMPLIANCE
Section 13.1 General
The Consortium will conduct all of its activities in conformance with
all international and U.S. federal and state antitrust laws, including
the Sherman Act, the Clayton Act, the Robinson-Patman Act and the
Federal Trade Commission Act. The Board of Directors and the President
of the Consortium shall consult legal counsel and seek legal review
whenever necessary to ensure that the activities of the Consortium are
conducted in conformance with such laws.
Section 13.2 Availability of Technology
It is the good faith objective of the Consortium to make all
Technology available as soon as its development and adoption by the
Consortium is complete to all Members, and to all Members
simultaneously, who have not participated in the development or
determination of such Technology as well as to all those who have
participated on the same terms, and to make all such Technology
available to all non-Members on fair and reasonable terms and
conditions.
Section 13.3 No Obligation to Endorse
No Member shall, by reason of its Membership or participation in the
Consortium or otherwise, be obligated to license, use or endorse any
Technology developed or endorsed by the Consortium, or to conform any
of its products to any standards or specifications developed or
adopted by the Consortium, nor shall any such Member be precluded
from independently licensing, using or endorsing similar intellectual
property, software, specifications or documentation developed by it
or by others.
ARTICLE XIV AMENDMENTS
These Bylaws may be altered, amended or repealed or new Bylaws may be
adopted by the Board of Directors, except where such power is
expressly limited or reserved to the Members (or any class or classes
of Members) by law or the Articles of Incorporation, at any regular
meeting of the Board of Directors or at any special meeting of the
Board of Directors.
