Bylaws

Article I: Name, Purpose and Offices #

Section 1.1 Name #

The name of the corporation is “Rust Foundation” and the corporation is referred to in these Bylaws as the “Foundation.”

Section 1.2 Offices #

The corporation may establish offices in any location as the Board of Directors may from time to time determine.

Section 1.3 Purpose #

The nature of the business or purposes to be conducted or promoted by the Foundation is to engage in any lawful act or activity for which corporations that are organized not for profit may be organized under the General Corporation Law of Delaware. The primary purpose of the Foundation (collectively, the “Purpose”) is to: (a) support and promote the Rust Project, which is the principal developer of the Rust programming language, (b) support the promotion, maintenance and development, and security of the Rust programming language and other projects supporting the Rust language and the broader Rust ecosystem, (the “Projects”); (c) cultivate the Rust project team members and user communities, including by producing events; (d) manage the technical infrastructure underlying the development of Rust; (e) manage and steward the Rust trademark and other assets of the Foundation; and (f) undertake such other activities as may from time to time be appropriate to further the purposes and achieve the goals set forth above. In furtherance of these efforts, the Foundation shall seek to solicit the participation of all interested parties on a fair, equitable, and open basis.

Section 1.4 Nonprofit Status #

1. The Foundation is organized and shall be operated as a non-stock, not for profit membership corporation organized under the General Corporation Law of the State of Delaware.
2. The Board may, in its sole discretion, elect to seek exemption from Federal taxation for the Foundation pursuant to Section 501(a) of the Internal Revenue Code of 1986, as amended (hereinafter, the “Code”). In the event that such exemption is sought and until such time, if ever, as such exemption is denied or lost, the Foundation shall not knowingly engage directly or indirectly in any activity that it believes would be likely to invalidate its status as an organization exempt from federal income taxation under Section 501(a) of the Code as an organization described in Section 501(c)(6) 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 1.5 Joint Research and Development Venture #

In working toward the achievement of its stated purpose, the Foundation and its Members intend to comply with the National Cooperative Research and Production Act, 15 U.S.C.A. §4301 et seq., to engage in a joint research and development venture as described therein, and to the extent the Foundation and its Members undertake standards development activity, to do so consistent with that act’s definition of a “standards development organization.”

Article II: Members #

Section 2.1 Classes of Membership #

The Foundation shall have five classes of group membership: Platinum Members, Gold Members, Silver Members, Associate Members, and Individual 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 2.8 of these Bylaws. Platinum Members, Gold Members, and Silver Members shall be collectively referred to as “Corporate Members.” Corporate Members, Individual Members, and any future classes of members that are entitled to voting rights shall be collectively referred to as “Voting Members.” All voting and non-voting memberships in the Foundation are collectively referred to in these Bylaws as “Memberships,” and a person or entity holding Membership is referred to in these Bylaws as a “Member.”

Section 2.2 Conditions of Membership #

Any association, partnership, organization, governmental agency, company, corporation, academic entity, non-profit entity interested in supporting the Purpose shall be admitted to Corporate or Associate Membership upon: (a) acceptance of its written application on such form as may be from time to time required by the Foundation (which acceptance shall be administered in a non-discriminatory fashion), (b) unless otherwise provided by the Board, 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”).

The Individual Members of the Foundation shall be members of whatever governing body from time to time oversees the technical development of the Rust Project.

A Member shall remain in good standing provided such Member is in compliance with the terms and conditions of the Foundation’s Certificate of Incorporation, Bylaws, 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 Bylaws as “Financial Obligations,” and all of the foregoing good standing requirements are collectively referred to in these Bylaws as “Membership Obligations”).

Section 2.3 Privileges of Corporate Membership #

1. Each Platinum Member, while in good standing, shall be entitled to:
   1. subject to Sections 2.7(b) and 4.3 of these Bylaws, acting as its own single class of Membership and subject to the limitations of Section 4.3(a) of these Bylaws, nominate and elect one representative to serve as a member of the Board (a “Platinum Director”) in accordance with Section 4.3(a) and subject to Section 2.7 of these Bylaws;
   2. vote on each matter submitted to a vote of the Voting Members;
   3. in addition to the rights enumerated in these Bylaws, such other rights as may be approved from time to time by the Board.
2. Each Gold Member, while in good standing, shall be entitled to:
   1. Subject to Section 2.7(b) below, nominate a representative to run for election as a Gold Director and participate in the election of Directors in accordance with Section 4.3(b) and subject to Section 2.7(b) of these Bylaws;
   2. vote on each matter submitted to a vote of the Voting Members;
   3. in addition to the rights enumerated in these Bylaws, such other rights as may be approved from time to time by the Board.
3. Each Silver Member, while in good standing, shall be entitled to:
   1. Subject to Section 2.7(b) below, nominate a representative to run for election as a Silver Director and participate in the election of Directors in accordance with Section 4.3(c) and subject to Section 2.7(b) of these Bylaws;
   2. vote on each matter submitted to a vote of the Voting Members;
   3. in addition to the rights enumerated in these Bylaws, such other rights as may be approved from time to time by the Board.

Platinum Directors, Gold Directors, and Silver Directors shall alternatively be referred to, individually and collectively, as “Corporate Directors” in these Bylaws.

Section 2.4 Privileges of Individual Membership #

Each Individual Member, while in good standing, shall be entitled to:

(a) participate in the nomination of candidates for Project Director elections according to the procedures adopted from time to time by the Board;

(b) vote, together with all other Individual Members as a class, for Project Directors as described in Sections 4.3(d) of these Bylaws; and

(c) vote on each matter submitted to a vote of the Voting Members;

(d) such other rights as the Board of Directors may from time to time approve.

Section 2.5 Privileges of Associate Membership #

Each Associate Member, while in good standing, shall be entitled to such benefits, rights, and privileges as the Board may from time to time designate.

Section 2.6 Participation #

Participation in the Projects shall not be limited to Members.

Section 2.7 Subsidiaries, Etc. #

(a) Only the legal entity which has been accepted as a Member of the Foundation and its Subsidiaries (as defined below) shall be entitled to enjoy the rights and privileges of such Membership; provided, however, that such Member and its Subsidiaries (that have not themselves been accepted as Members) shall be treated together as a single Member. For purposes of this Section, the term "Subsidiaries" shall mean all Related Companies (as defined below) that a Member controls or is affiliated with (as defined in Section 2.7(b) below).

(b) Any number of Related Companies (as defined below) may apply for and be accepted as Corporate Members in any class or classes of membership, but (i) if one Related Company is a Platinum Member represented on the Board, none of its Related Companies shall nominate a candidate to stand for election as a Gold Director or a Silver Director, and (ii) if more than one Related Company is a Platinum Member, together such Related Companies shall be represented by a single Platinum Director.

(c) For purposes of these Bylaws, the term "Related Company" shall mean any entity which controls or is controlled by a Member, or which, together with a Member, is under the common control of a third party, in each case where such control results from ownership, either directly or indirectly, of more than fifty percent (50%) of the voting securities or membership interests of the entity in question; and "Related Companies" are entities that are each a Related Company of a Member.

(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) Except as may be approved by the Board of Directors, Memberships shall be non-transferable, non-salable and non-assignable, except that any Member may transfer its current Membership benefits and obligations to a successor to substantially all of its business and/or assets, whether by merger, sale or otherwise; provided that the transferee agrees to be bound by these By-laws, the Certificate of Incorporation and such policies and procedures as the Board may from time to time adopt.

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 Bylaws in accordance with Article XV.

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 in any conduct, either within or without the Foundation, that is contrary to the Purposes of the Foundation, including a violation of any Code of Conduct (“CoC”) from time to time approved by the Board. Once due process has been followed and all appeals exhausted, an individual Member’s Membership may be suspended or terminated in the case of such a violation, and a Corporate Member’s Membership may be suspended until it takes such action to address a CoC violation after receiving notice and the expiration of a reasonable opportunity to act on that notice. 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 90 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 by email, with delivery confirmed, or by certified mail, return receipt requested, or by a national or international overnight courier service, sent to the last address of the Member shown on the Foundation’s records;

(c) Such notice is given at least thirty days prior to the effective date of the proposed termination or suspension of Membership;

(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 Supermajority Vote of the Board.

Notwithstanding the foregoing, in the event that the Board believes in good faith that a Member is engaging in willful misconduct or otherwise acting to the material detriment of the best interests of the Foundation and its Members, the Board, acting by Supermajority 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 by giving notice to the Foundation in writing or by electronic transmission. Any Financial Obligations already paid by such Member shall not be refundable in such event, and all such Financial Obligations of such Member which may be accrued and unpaid as of such date shall remain due and payable.

Section 2.11 Levy of Dues, Assessments or Fees #

The Foundation may levy Fees upon its Members in such amounts as may be approved from time to time by the Board, provided, however, that no increase in annual Fees or new Fees will be effective prior to sixty (60) days following notice from the Foundation. A Member upon learning of any increase in dues, or of any levy of any assessments or fees, may avoid liability therefor by resigning from Membership prior to the date such dues, assessments or fees are due and payable, except where the Member is, by contract with the Foundation or otherwise, independently and explicitly liable for such dues, assessments or fees. No provision of the Certificate of Incorporation or Bylaws of the Foundation authorizing such dues, assessments or fees shall, of itself, create such liability. In no event shall the failure of a Member to pay any dues or assessments give rise to any claim in favor of the Foundation for indirect or consequential damages.

Section 2.12 Use of Names #

Unless otherwise provided herein or pursuant to the terms of another agreement or as otherwise legally permitted, neither the Foundation nor any Member shall use the name, logo, trademark, service mark or other distinctive mark of a Member in any form of publicity unless such Member gives its permission in writing or by electronic transmission, provided that the Foundation and any Member may each disclose and publicize such Member’s Membership in the Foundation.

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 Foundation or any other material policy or procedure of the Foundation 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 Bylaws to seek or obtain the consent by a Supermajority Vote of the Directors, unless approved by a Supermajority Vote of the Directors and the Foundation gives not less than sixty (60) days’ prior written notice to all Members of the effective date of such adoption or change, such that any Member may resign its Membership prior to the effective date thereof in accordance with Section 2.10 above. A material change shall be deemed to include, without limitation, the imposition of any patent license obligation or encumbrance on Members, a change in a contribution agreement or license applicable to Members’ contributions, the combination or formal affiliation of the Foundation with another organization, any alteration in the definition of "Related Company," or a change in the IP Policy relating to the choice and/or approval of exceptions of outbound licenses for software developed by the Projects (the "Open Source Software").

Article III: Actions of Members #

Section 3.1 Place of Meetings; Action Without Meeting #

(a) Any face to face meetings of the Members shall physically be held at such place within or without the State of Delaware, or as may otherwise be permitted by law, and at such time as may be fixed from time to time by the Board of Directors or President, or if not so designated, at the registered office of the Foundation. Any such meeting shall be held, and any notice of such meeting shall be given, in compliance with the General Corporation Law of Delaware.

(b) Notwithstanding Section 3.1(a) above, the Foundation intends to ordinarily conduct all Member activities permitted or required under the General Corporation Law of Delaware on an electronic consent basis. Accordingly, 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 the General Corporation Law of Delaware.

Prompt electronic 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 Foundation 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 Foundation or to an Officer or agent of the Foundation 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 Foundation or to an Officer or agent of the Foundation 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 Foundation, including a reasonable means for Members of appropriate classes to nominate a person for election as a Director, a reasonable opportunity for a nominee to communicate to the Members the nominee’s qualifications and the reasons for the nominee’s candidacy (if requested by such nominee), a reasonable opportunity for all nominees to solicit votes (if requested by any such nominee), and a reasonable opportunity for all Members entitled to vote thereon to choose among the nominees.

Article IV: Directors #

Section 4.1 Powers; Voting #

The business and affairs of the Foundation shall be managed by its Board, which shall be, and shall possess all of the powers of, the “Governing Body” of the Foundation as a not-for-profit membership corporation under the General Corporation Law of Delaware. The Board may exercise all powers of the Foundation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these Bylaws directed or required to be exercised or done by the Members.

Section 4.2 Number of Directors #

(a) Subject to Sections 4.3 and 4.4, the total number of individuals on the Board of Directors (each a “Director”) shall be at least five and not more than twenty. The Board shall comprise the Directors elected as described in Section 4.3 below.

(b) In the event that an entity joins as a Platinum Member at a time when all available seats on the Board are taken, its name shall be registered on a waiting list. Platinum Director seats that become available while there are Platinum Members on such waiting list shall be filled from the list in the order entered.

Section 4.3 Nomination, Election and Term of Office of Directors #

(a) Each Platinum Member (while remaining in good standing), acting as its own single class of Membership, shall be entitled individually to nominate and elect one Director (each a “Platinum Director”). Each Platinum Director shall serve in accordance with Section 4.3(g) below for a term of two (2) years or until their successor shall be duly elected or until their earlier resignation or removal.

(b) Each Gold Member (while remaining in good standing) shall have the right to vote, together with the other Gold Members as a class, to elect Directors (each, a “Gold Director”), as follows: if the number of Gold Members is (x) between four (4) and seven (7), there shall be one Gold Director; and (y) eight (8) or more, there shall be two (2) Gold Directors.

Each Gold Director shall serve in accordance with Section 4.3(g) below for a term of two (2) years or until their earlier resignation or removal.

(c) Each Silver Member (while remaining in good standing) shall have the right to vote, together with the other Silver Members as a class, to elect one (1) Director (the “Silver Director”), provided that no Silver Director shall be elected except when, at the time of election, the number of Silver Members is equal to or greater than ten (10). Election of the Silver Director, when appropriate, shall be held biannually. If the threshold for the addition of a Silver Director shall be reached between biannual elections, the Board shall call an interim election to fill such seat. In the event the number of Silver Members falls below the threshold for a Silver Director between biannual elections, the sitting Silver Director shall complete their term and the Silver Director seat shall be eliminated or maintained, as appropriate, at the next biannual election based upon the then current number of Silver Members.

Each Silver Director shall serve in accordance with Section 4.3(g) below for a term of two (2) years or until their earlier resignation or removal.

(d) Each Individual Member (while remaining in good standing) shall have the right to vote, together with the other Individual Members as a class, to elect five (5) Directors (the “Project Directors”).

Each Project Director shall serve in accordance with Section 4.3(g) below for a term of two (2) years or until their earlier resignation or removal.

(e) The Executive Director shall serve ex-officio as a non-voting member of the Board.

(f) The selection of nominees for any elected Director position shall be performed under such nominating procedures as may be set by the Board from time to time. Any Director elected by any class of Members, or by a Platinum Member, may, but shall not automatically, be re-nominated and re-elected for additional terms.

(g) Each Corporate Director shall, at the time of their election, be an employee of the Member which nominated them. No person may be elected Project Director if, at the time of election, that person is employed by a Corporate Member and that Corporate Member or any Related Company already employs a Project Director. 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 (as the case may be) and qualified, or until their earlier death, resignation or removal. If, during the term of any Corporate Director: (i) the Director’s employment is terminated by the Member that they represent or by such Director, such Director shall be deemed to have resigned as a Corporate Director. In addition, during such times as the Membership of any Member that has a representative serving as a Corporate Director is suspended pursuant to Section 2.9 above, the attendance and voting rights of such Corporate Director shall also be suspended until such time, if ever, as the suspension of such Member is lifted.

(h) Each Director may designate in writing or by electronic transmission to the Chairperson or Secretary (which designation may be withdrawn in writing at any time by such Director or Member) an individual to act as a Director in their stead, whether for a single meeting or as a standing alternate. Any such alternate Director shall be entitled to (i) attend and vote at all meetings which the designating Director does not attend, (ii) sign all written consents in lieu of the designating Director, and (iii) otherwise exercise the duties and enjoy the privileges of the designating Director in the absence or unavailability of the designating Director; provided, however, that no such alternate Director may propose a vote or vote upon any Committee of the Board.

(i) 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 nominated a Director, or nominated and elected a Director, as the case may be, may lose its ability to a nominate, or nominate and elect, a representative to the Board, as the case may be, 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 2.8 above and Section 4.10 below, the number of Directors, the persons eligible to become Directors and the classes of Members eligible to elect and/or nominate Directors may be amended at any time by a Supermajority 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 Foundation in writing or by electronic transmission at the principal place of business of the Foundation or to the Chairperson 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 elected by a Platinum Member under Section 4.3(a) may be removed by that Platinum 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 Supermajority Vote of the other Directors (not counting the Director subject to such removal vote in determining the requisite vote) for engaging within the Foundation, in their capacity as Director, in any (1) violating the Foundation’s Code of Conduct or otherwise engaging in willful misconduct or acting to the material detriment of the best interests of the Foundation and its Members, or (2) conduct that is contrary to the Purpose of the Foundation or to the advancement of the Foundation’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 nominated, or nominated and elected (as the case may be) such removed Director shall be entitled to nominate, or nominate and elect (as the case may be) a replacement for such removed Director to serve for the balance of such removed Director’s term.

Section 4.6 Vacancies #

(a) Vacancies on the Board shall be filled as set forth in Section 4.3. The term of a Director so nominated, or nominated and elected (as the case may be) shall be the unexpired portion of the term of the replaced Director , or otherwise until the next election of Directors.

(b) In the event of a vacancy in the Board, the remaining Directors, except as otherwise provided by law or these Bylaws, may exercise the powers of the full Board until the vacancy is filled.

Section 4.7 Place of Meetings #

The Board may hold meetings, both regular and special, either within or without the State of Delaware, and at times that accommodate to the extent reasonably possible the range of time zones from which Directors are participating virtually.

Section 4.8 Regular Meetings #

Regular meetings of the Board may be held at such time and at such place as shall from time to time be determined by the Board; 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, Secretary, or on the request of two or more Directors in writing or by electronic transmission, 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 the Director’s 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. A notice of a special meeting of the Board must specify the purposes of the meeting.

Section 4.10 Quorum, Action at Meeting, Adjournments #

1. The Board shall strive to make all decisions by consensus. If consensus cannot be reached on a particular matter, the Board will make the decision by a vote. At all meetings of the Board, quorum for the transaction of business shall mean attendance by: (i) a majority of Directors then in office; (ii) a majority of Corporate Directors then in office; and (iii) a majority of Project Directors then in office. At any meeting at which there is a quorum, an act of the Board shall be any act approved by (x) a majority of all Directors present; (y) a majority of Corporate Directors present; and (z) a majority of Project Directors present, in each case except as may be otherwise specifically provided by law, the Certificate of Incorporation or these Bylaws.
2. In order to pass a "Supermajority Vote," a resolution must be:
   1. taken at a meeting of the Board at which at least two-thirds of all Directors, at least two-thirds of Corporate Directors, and at least two-thirds of Project Directors are present and participating (whether in person, by proxy, or otherwise), and approved by a vote of least two-thirds of all Directors, at least two-thirds of Corporate Directors, and at least two-thirds of Project Directors; or
   2. approved by equivalent proportions of Directors acting by written consent in the manner described in Section 4.11 below.
3. A Supermajority Vote of the Board shall be required with respect to the following matters:
   1. Amending the Certificate of Incorporation;
   2. Adopting or recommending to the Members an agreement of merger or consolidation;
   3. Approving or recommending to the Members the sale, lease or exchange of all or substantially all of the Foundation’s property and assets;
   4. Approving or recommending to the Members the dissolution, liquidation or winding up of the Foundation or a revocation of any such dissolution, liquidation or winding up;
   5. Amending the Bylaws;
   6. Amending or modifying the eligibility requirements for Membership on the Board;
   7. Termination or suspension of a Member’s Membership, pursuant to Section 2.9 above;
   8. Hiring or termination of the Executive Director; or
   9. Adopting or modifying any policy relating to intellectual property.
4. 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 Bylaws or the Certificate of Incorporation. If a quorum shall not be present at any meeting of the Board, a majority of the Directors present may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. In the event that one or more of the Directors shall be disqualified from voting at any meeting upon any matter, then the required quorum as it relates to the consideration of such matter shall be reduced by one for each such Director so disqualified.

Section 4.11 Action by Consent #

1. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken by the Board 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 Foundation for the taking of any such action at a meeting) consent thereto in writing or by electronic transmission, and the writing or writings, or electronic transmission or transmissions, are filed with the minutes of proceedings of the Board, provided that:
   1. such written consent or electronic transmission shall have been sent simultaneously to all Directors then in office for their consideration;
   2. 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
   3. two or more such Directors have not objected to the taking of any such action by written notice delivered to the Foundation within ten (10) 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.

2. 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.
3. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, 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 Remote Meeting Participation #

Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, 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, web conference, or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.

Section 4.13 Inspection Rights #

Every Director shall have the right at any time, for any purpose reasonably related to the Director’s position as a Director, to inspect, copy and make extracts of, in person or by agent or attorney, all books, records and documents of every kind, and to inspect the physical properties of the Foundation.

Section 4.14 Fees and Compensation #

Directors may receive such compensation, if any, for their services and such reimbursement for expenses as may be fixed or determined by resolution of the Board of Directors; provided that such compensation shall be reasonable and shall be comparable to that compensation paid by unaffiliated entities for a like position. Nothing herein contained shall be construed to preclude any Director from serving the Foundation in any other capacity as an Officer and receiving compensation therefor. The Directors may also approve reimbursement of expenses for members of Board Committees in connection with their service on such Board Committees.

Article V: Committees #

Section 5.1 Committees of the Board #

1. The Board may, by resolution, create such Board Committees, each consisting of two 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 Bylaws. No Committee shall have the power or authority with respect to:
   1. approving any action which requires approval of the Voting Members;
   2. filling vacancies on the Board;
   3. fixing compensation of the Directors, Executive Director, and other employees for serving on the Board or on any Board Committee;
   4. amending or repealing the Bylaws or adopting new Bylaws;
   5. amending or repealing any policy adopted by the Board;
   6. amending or repealing any resolution of the Board which by its express terms is not so amendable or repealable;
   7. amending the Certificate of Incorporation;
   8. adopting an agreement of merger or consolidation;
   9. recommending to the Members the sale, lease or exchange of all or substantially all of the Foundation’s property and assets;
   10. recommending to the Members a dissolution of the Foundation or a revocation of a dissolution; or
   11. taking any other action for which a vote of more than a simple majority of the Board is required by these Bylaws, the Certificate of Incorporation, or law.
2. 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. 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 #

Except as otherwise provided in these Bylaws 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 Bylaws for the conduct of the business of the Board.

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 their election.

Section 5.5 Committees of the Members #

From time to time, the Board may establish Member Committees. Membership attendance and voting rights in all Member Committees shall be as defined by the Board. Unless otherwise specified in these Bylaws or by the Board, each Member Committee may have such sub-committees, working groups and special interest groups as from time to time may be approved by such Member Committee, within the strategic direction established by the Board (each a “Working Group”).

Article VI: Officers #

Section 6.1 Officers #

The Officers of the Foundation shall be a Chairperson, a Treasurer and a Secretary. The Foundation may also have, at the discretion of the Board, an Executive Director, one or more Vice-Chairpersons, one or more Assistant Secretaries and/or Assistant Treasurers, and such other Officers (which may or may not be Directors, as so specified by a vote of the Board) with such titles, terms of office and duties as may be elected in accordance with the provisions of Section 6.3.

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 Bylaws for regular elections to such office and may be filled by the Board, at its discretion.

Section 6.3 Election #

The Board shall elect a Chairperson, a Secretary and a Treasurer. These and other Officers may be elected by the Board, and any or all Officers may be replaced, at any meeting of, or by written consent of, the Board.

Section 6.4 Tenure #

Each Officer of the Foundation shall hold office for a term of 2 years and until their successor is elected and qualified, or until their earlier death, resignation or removal. Any Officer may serve a maximum of two consecutive terms. 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 their resignation in writing or by electronic transmission to the Foundation at its principal place of business or to the Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event.

Section 6.5 Chairperson and Executive Director #

1. The Chairperson shall have all of the powers normally associated with the role of chief executive officer and preside at all meetings of the Board and the Members. At such times as the Foundation has an Executive Director, the Chairperson may delegate any or all of their duties to such individual. The Chairperson shall oversee the management of the business of the Foundation and see that all orders and resolutions of the Board are carried into effect. Without limiting the foregoing, the Chairperson shall:
   1. Execute bonds, mortgages, and other contracts requiring a seal, under the seal of the Foundation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board to some other Officer or agent of the Foundation; and
   2. Oversee the Executive Director (if any).
2. The Executive Director (if any) shall preside over the day-to-day affairs of the Foundation under the direction of the Board and the Chairperson and perform such other duties and have such other powers as the Board or the Chairperson may from time to time prescribe.
3. In the absence of the Chairperson or in the event of their inability to act, the Vice-Chair, or if unavailable, the Treasurer, shall perform the duties of the Chairperson, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Chairperson.

Section 6.6 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 recording all the proceedings of the meetings of the Foundation 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 Foundation and to attest the affixing by such Officer’s signature.

Section 6.7 Assistant Secretaries #

Any Assistant Secretary shall, in the absence of the Secretary or in the event of their 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 6.8 Treasurer #

The Treasurer shall perform such duties and shall have such powers as may be assigned to them by the Board or the Chairperson. Unless otherwise determined by the Board, the Treasurer shall chair the Audit and Finance Committees (if established) of the Foundation. In addition, the Treasurer shall perform, or supervise individual(s) who perform, such duties and have such powers as are incident to the office of Treasurer. The Treasurer, or individuals supervised by the Treasurer, shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Foundation and shall deposit all moneys and other valuable effects in the name and to the credit of the Foundation in such depositories as may be designated by the Board, taking proper vouchers for such disbursements, and shall render to the Chairperson and the Board, when the Chairperson or Board so requires, an account of all the Foundation’s transactions and of the financial condition of the Foundation.

Section 6.9 Vice Chairs #

Any Vice Chairperson shall, in the absence of the Chairperson or in the event of their inability to act, perform the duties and exercise the powers of the Chairperson.

Article VII: Notices #

Section 7.1 Delivery #

(a) Whenever, under the provisions of law, the Certificate of Incorporation, or these Bylaws, written notice is required to be given to any Director or Member, such notice may be given by mail, addressed to such Director or Member, at his, her, or its address as it appears on the records of the Foundation, with postage thereon prepaid. Unless written notice by mail is required by law, the Certificate of Incorporation or another provision of these Bylaws, and subject to the provisions below relating to notice by electronic transmission to Members, written notice may be given by electronic mail, telecopy, commercial delivery service, or similar means, addressed to such Director or Member at his, her or its physical, email, or telecopy address or number as it appears on the records of the Foundation. Without limiting the manner by which notice otherwise may be given effectively to Members, any notice to Members given by the Foundation under any provision of law, the Certificate of Incorporation, or the Bylaws, unless written notice by mail is required by law, the Certificate of Incorporation or another provision of these Bylaws, shall be effective if given by a form of electronic transmission to any Member who has not notified the Foundation in writing or by electronic transmission of their objection to receiving notice by electronic transmission.

(b) Notice given pursuant to this Section shall be deemed given: (i) if by electronic mail to (A) a Member, when directed to the Member’s electronic mail address and (B) to a Director, when directed to the electronic mail address for such Director as it appears on the records of the Foundation; (ii) 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; (iii) if by facsimile telecommunication (A) to a Member, when directed to a number at which the Member has consented to receive notice and (B) to a Director, when directed to the number for such Director as it appears on the records of the Foundation; (iv) if by any other form of electronic transmission, when directed to the Member or Director; (v) if by hand delivery or oral notice, at the time it is actually given; (vi) if by mail, at the time when the notice is deposited in the United States mail; and (vii) if by commercial delivery carrier or similar means, at the time when the notice is deposited with the carrier, in each case the transmission charge to be paid by the Foundation or the person sending such notice and not by the addressee. An affidavit of the Secretary or an Assistant Secretary or of the transfer agent or other agent of the Foundation that the notice has been given by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.

(c) For purposes of these 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.

(d) Without limiting the foregoing, the Foundation adopts electronic mail as its principal source of communication with its Members. Each Member acknowledges and agrees that the Foundation shall not be under any obligation (except as required by law or these 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 Certificate 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 Foundation #

Subject to confirmation of the appropriateness of such action by the Board as provided in Section 8.4 below, the Foundation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Foundation) by reason of the fact that the person is or was a Director, Officer, employee or agent of the Foundation, or is or was serving at the request of the Foundation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the Foundation, and, with respect to any criminal action or proceedings, had no reasonable cause to believe this conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which they reasonably believed to be in or not opposed to the best interests of the Foundation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that their conduct was unlawful.

Section 8.2 Actions by or in the Right of the Foundation #

Subject to confirmation of the appropriateness of such action by the Board as provided in Section 8.4 below, the Foundation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Foundation to procure a judgment in its favor by reason of the fact that the person is or was a Director, Officer, employee or agent of the Foundation, or is or was serving at the request of the Foundation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the Foundation; provided, however, that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable unless, and only to the extent that, the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery of the State of Delaware or such other court shall deem proper.

Section 8.3 Success on the Merits #

To the extent that any person described in Section 8.1 or 8.2 of this Article VIII has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in said Sections, or in defense of any claim, issue or matter therein, they shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by them in connection therewith.

Section 8.4 Specific Authorization #

Any indemnification under Section 8.1 or 8.2 of this Article VIII (unless ordered by a court) shall be made by the Foundation only as authorized in the specific case upon a determination that indemnification of any person described in said Sections is proper in the circumstances because the person has met the applicable standard of conduct set forth in said Sections. Such determination shall be made (a) by a majority vote of such Directors who were not parties to such action, suit or proceeding, even though less than a quorum or (b) by the Members of the Foundation.

Section 8.5 Advance Payment #

Expenses incurred in defending a civil or criminal action, suit or proceeding shall be paid by the Foundation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of any person described in said Section to repay such amount if it shall ultimately be determined that the person is not entitled to indemnification by the Foundation as authorized in this Article VIII.

Section 8.6 Non-Exclusivity #

The indemnification and advancement of expenses provided by, or granted pursuant to, the other Sections of this Article VIII shall not be deemed exclusive of any other rights to which those provided indemnification or advancement of expenses may be entitled under any Bylaw, agreement, vote of disinterested Directors or otherwise, both as to action in an official capacity and as to action in another capacity while holding such office.

Section 8.7 Jurisdiction of Delaware Court of Chancery #

The Delaware Court of Chancery is vested with exclusive jurisdiction to hear and determine all actions for advancement of expenses or indemnification. The Delaware Court of Chancery may summarily determine the Foundation’s obligation to advance expenses (including attorney’s fees).

Section 8.8 Insurance #

The Board may authorize the Foundation to purchase and maintain insurance on behalf of any person who is or was a Director, Officer, employee or agent of the Foundation, or is or was serving at the request of the Foundation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against that person and incurred by them in any such capacity, or arising out of their status as such, whether or not the Foundation would have the power to indemnify the person against such liability under the provisions of this Article VIII.

Section 8.9 Continuation of Indemnification and Advancement of Expenses #

The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall continue as to a person who has ceased to be a Director, Officer, employee or agent of the Foundation and shall inure to the benefit of the heirs, executors and administrators of such a person.

Section 8.10 Severability #

If any word, clause or provision of this Article VIII or any award made hereunder shall for any reason be determined to be invalid, the provisions hereof shall not otherwise be affected thereby but shall remain in full force and effect.

Section 8.11 Intent of Article #

The intent of this Article VIII is to provide for indemnification and advancement of expenses to the fullest extent permitted by Section 145 of the General Corporation Law of Delaware. To the extent that such Section or any successor section may be amended or supplemented from time to time, this Article VIII shall be amended automatically and construed so as to permit indemnification and advancement of expenses to the fullest extent from time to time permitted by law.

Article IX: Books and Records #

Section 9.1 Books and Records #

The Foundation shall keep adequate and correct books and records of account, minutes of the proceedings of the Members, the Board 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 #

The minutes and other books and records of the Foundation may be kept in any form (including electronic) provided that they can be converted into clearly legible paper form within a reasonable time.

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 Foundation 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 Foundation’s then current federal and state tax status, or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of Membership or for the purpose of any other lawful action, the Board 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 Foundation shall be entitled to recognize the exclusive right of a person registered on its books as a Member or a representative of a Member to receive distributions, if any, and to vote, if such records indicate that such person is a Voting Member or a representative of a Voting Member, and to hold liable for Financial Obligations each Member registered on its books, and shall not be bound to recognize any equitable or other claim to or interest in Membership on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the Delaware General Corporation Law.

Article X: Certain Transactions #

Section 10.1 Transactions with Interested Parties #

No contract or transaction between the Foundation and one or more of its Directors or Officers, or between the Foundation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because such Director or Officer (or other director or officer) is present at or participates in the meeting of the Board 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 the person’s 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 the person’s 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 to the Foundation as of the time it is authorized, approved or ratified, by the Board, a Board Committee, or the Voting Members.

Interested Directors and Directors representing Related Companies may each be counted in determining the presence of a quorum at a meeting of the Board or Board Committee that authorizes the contract or transaction.

Article XI: Grants, Contracts, Loans, etc. #

Section 11.1 Grants #

The making of grants and contributions, and otherwise rendering financial assistance for the Purposes of the Foundation, may be authorized by the Board. The Board may authorize any Officer or Officers, agent or agents, in the name of and on behalf of the Foundation to make any such grants, contributions or assistance.

Section 11.2 Execution of Contracts #

The Board may authorize any Officer, employee or agent of the Foundation, in the name and on behalf of the Foundation, to enter into any contract or execute and satisfy any instrument, and any such authority may be general or confined to specific instances, or otherwise limited. In the absence of any action by the Board to the contrary, the Chairperson shall be authorized to execute such contracts and instruments on behalf of the Foundation as the Chairperson may deem to be reasonably necessary, subject to such standing limits as may from time to time have been established by vote of the Board, 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 Foundation, and all notes or other evidences of indebtedness of the Foundation, shall be signed on behalf of the Foundation in such manner as shall from time to time be determined by resolution of the Board.

Section 11.4 Deposits #

The funds of the Foundation not otherwise employed shall be deposited from time to time to the order of the Foundation in such banks, trust companies, or other depositories, or shall be otherwise invested, as the Board may select or direct, or as may be selected or directed by an Officer, employee or agent of the Foundation to whom such power may from time to time be specifically delegated by the Board.

Article XII: General Provisions #

Section 12.1 Fiscal Year #

The Foundation fiscal year shall end on the 31st day of December in each year. The fiscal year of the Foundation may be changed by resolution of the Board.

Section 12.2 Reserves #

The Directors may set apart out of any funds of the Foundation a reserve or reserves for any proper purpose and may abolish any such reserve.

Section 12.3 Seal #

The Board may, by resolution, adopt a corporate seal. The corporate seal shall have inscribed thereon the name of the Foundation, the year of its organization and the word “Delaware.” The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. The seal may be altered from time to time by the Board.

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 Foundation, including but not limited to Board meetings, Member meetings, Member Committee Meetings, Foundation meetings, electronic mail or the like, shall be deemed to have been disclosed on a non-confidential basis, but without waiver of any rights represented by valid patents, patent applications, and Federal and international statutory copyrights.

(b) No express or implied right, whether by implication, estoppel, or otherwise, to any patent, copyright, trademark, trade secret, or other intellectual property right of any Member is or shall be deemed to be granted to the Foundation or to any other Member by reason of its membership in or participation in the activities of the Foundation, except as may be provided in a separate written agreement.

(c) No Member shall at any time be required to exchange proprietary information with any other Member solely by reason of its being a Member of the Foundation.

Article XIII: Antitrust Compliance #

Section 13.1 General #

The Foundation will conduct all of its activities in conformance with all international, U.S. federal and state antitrust laws and competition laws, including but not limited to the Sherman Act, the Clayton Act, the Robinson-Patman Act, the Federal Trade Commission Act and the EU Competition Regulations. The Board and the Chairperson shall consult legal counsel and seek legal review whenever necessary to ensure that the activities of the Foundation are conducted in conformance with such laws.

Each of the Members of the Foundation is committed to fostering competition in the development of new products and services, and the activities of the Foundation 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 state, federal or international antitrust laws or regulations. Without limiting the generality of the foregoing, Members that are competitors shall not discuss issues relating to product costs, product pricing, methods or channels of product distribution, any division of markets, or allocation of customers, or any other topic that would be prohibited by applicable antitrust laws.

Each Member shall assume responsibility to provide appropriate legal counsel to its representatives acting under these Bylaws regarding the importance of limiting the scope of their discussions to the topics that relate to the Purposes of the Foundation, whether or not such discussions take place during formal meetings, informal gatherings, or otherwise.

Section 13.2 Availability of Intellectual Property #

It is the good faith objective of the Foundation (a) to make all Open Source Software available promptly as it is developed on the same terms and conditions to all Members and at the same point in time to all Members, and (b) to make all such Open Source Software available to all non-Members under the same Open Source License(s).

Section 13.3 No Obligation to Endorse #

No Member shall, by reason of its Membership or participation in the Foundation or otherwise, be obligated to license, use or endorse any intellectual property, software, specifications or documentation (collectively, “Deliverables”) the development of which is supported by the Foundation or endorsed by the Foundation, or to conform any of its products thereto, nor shall any such Member be precluded from independently licensing, using or endorsing similar Deliverables. No provision of these Bylaws or any Membership Agreement shall be interpreted to prevent any Member from using a programming language or environment other than those used by the Projects, 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.

Article XIV: Amendments #

Except where such power is expressly limited by law, the Certificate of Incorporation or these Bylaws as to any specific action, these Bylaws may be altered, amended or repealed, and new Bylaws may be adopted, in each case by an affirmative Supermajority Vote of the Board.