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The Apache Software Foundation
Board of Directors Meeting Minutes
13 April 1999
1. Call to order
This meeting was held via a group teleconference hosted by IBM.
Roy T. Fielding (the Incorporator) served as interim chairman.
The meeting was called to order at 10:05am PDT -0700.
2. Roll Call
All directors were in attendance: Brian Behlendorf, Ken Coar,
Roy T. Fielding, Ben Hyde, Jim Jagielski, Ben Laurie, Sameer Parekh,
Randy Terbush, and Dirk-Willem van Gulik.
Guests: Drew Wright (counsel)
3. Minutes
This was our first meeting, so no minutes needed to be approved.
Ben Hyde and Dirk volunteered to take notes, with Dirk as backup
note-taker.
4. Incorporator's Report
Roy and Drew reported on the current status of the incorporation.
The certificate of incorporation was filed and accepted by Delaware
on March 26th. Drew now has the paperwork and incorporator consent
form, but we have postponed setting the effective date until we have
an initial set of members on file. For that reason, the decisions
made at this meeting won't be official until the whole set of
resolutions are complete and signed by the directors (the director
consent file).
The only thing left on the Incorporator's task list is to set up
the on-line account with CSC (www.cscnetworks.com), which will be
done after we agree on a Secretary and initial principal office.
5. Committee Reports
None given.
6. Special Orders
E. Officer Elections
Before electing a Chairman, it was decided by consensus to discuss
the overall set of officers desired and required for the corporation.
The Secretary and the President are required to be distinct. An
Executive Vice President was recommended by Drew (this officer
fills-in for the President in his absence). The Vice President,
HTTP Server Project is responsible for reporting project status
to the board and oversight of the project guidelines.
Roy indicated that, due to the workload and part-time nature of our
volunteers, he preferred to split the Chairman and President jobs.
Likewise, Randy suggested that separating Treasurer from Secretary
would reduce people concerns about being overloaded as Secretary.
We decided by general consent that we should elect separate people
as Chairman, President, Treasurer, Secretary, V.P. HTTP Server
Project, and V.P. Conferences at this meeting.
The issue of terms was raised. The bylaws allow these positions to
be changed by the board at any time. Drew suggested that the term
be until the members annual meeting (after the next Board election).
A) Election of the Chairman of the Board
Roy, Brian and Randy were nominated and seconded for the position
of Chairman. A discussion of what other positions they would be
willing to hold ensued, with the other directors also describing
their desires/time constraints. By roll call vote, Roy T. Fielding
was unanimously elected to the position of Chairman of the Board.
E1) Election of the President
Brian, Randy, Ken, and Ben Laurie were nominated and seconded for
the position of President. By roll call vote, Brian Behlendorf
was unanimously elected to the position of President.
E2) Election of the Treasurer
Randy, Sameer, and Ben Laurie were nominated and seconded for
the position of Treasurer. By roll call vote, Randy Terbush
was unanimously elected to the position of Treasurer.
E3) Election of the Secretary
Jim, Sameer, and Dirk were nominated and seconded for the position
of Secretary. By roll call vote, Jim Jagielski was unanimously
elected to the position of Secretary.
I1) Appointment of the V.P. - Apache HTTP Server Project
Dirk and Ben Hyde were nominated and seconded for the position
of Vice President, Apache HTTP Server Project. By roll call vote,
Ben Hyde was unanimously elected to the position of Vice President,
Apache HTTP Server Project.
J1) Appointment of the V.P. - Apache Conferences
Ken was nominated and seconded for the position of Vice President,
Apache Conferences. By general consent, Ken Coar was unanimously
elected to the position of Vice President, Apache Conferences.
E4) What V.P. is to be named Executive V.P.?
Sameer proposed a motion that the Executive V.P. be a separate
position from the existing officers. Discussion ensued, centering
around the problem of having too many people needing to be involved
in the day-to-day operations of the corporation. The motion failed
by roll call vote (3 yes, 6 no).
Randy proposed a motion that Executive V.P. position be assigned
to the Secretary, since the Secretary will be aware of the corporate
operations and the additional title will make the position more
attractive to volunteers. Some concern was expressed about the
wording of the bylaws indicating that the E.V.P. would be chosen
from among the set of V.P.s, but Drew indicated that simply declaring
the position to be a V.P. would be sufficient. The motion passed
by general consent. Jim Jagielski has therefore been appointed
Executive Vice President.
B. Ratification and Adoption of Acts of Incorporator
The following text was approved by general consent:
NOW, THEREFORE, BE IT RESOLVED, that the acts and conduct of the
incorporator, Roy T. Fielding, in connection with the organization
of the Corporation hereby are approved, ratified and adopted by the
Corporation as acts and conduct by and on behalf of the Corporation
and are deemed to be in its best interests; and be it further
RESOLVED, that the organizational and other activities for which the
incorporator was responsible have been completed, the incorporator
hereby is relieved of any further duties and responsibilities in
that regard, and the Corporation hereby agrees to indemnify and hold
harmless the incorporator for any loss, liability or expense arising
from the acts or conduct of the incorporator in such capacity.
C. Adoption of the Bylaws of The Apache Software Foundation
A minor change to the proposed Bylaws was approved by general consent:
In section 5.8, replace "fixed by these Bylaws" with "fixed in
accordance with the Bylaws".
The amended Bylaws (Exhibit A) were then approved by general consent:
RESOLVED, that the Bylaws attached hereto as Exhibit A be and
hereby are in all respects approved and adopted as the Bylaws of
this Corporation for the regulation of its business and affairs,
and said Bylaws shall be made a part of the minute book of the
Corporation along with these minutes.
D. Adoption of the Corporate Seal
The following text was approved by general consent:
RESOLVED, that a seal, circular in form and bearing the inscription
"The Apache Software Foundation - Corporate Seal - Delaware",
hereby is approved, ratified and adopted as the corporate seal of
the Corporation.
F. Selection of an initial principal office
It was decided by general consent that the best location for the
initial principal office would be an address convenient for the
Secretary to receive mail.
RESOLVED, that the principal office of the Corporation shall be
The Apache Software Foundation
1901 Munsey Drive
Forest Hill, MD 21050-2747
U.S.A.
G. Adoption of the member consent form
The text of the member consent form (Exhibit B) was approved by
general consent. This form will be distributed to The Apache Software
Foundation membership upon completion and filing of the Bylaws
and director consent resolutions.
H. Adoption of the membership application form
The proposed membership application form was discussed and several
problems noted. The portion of the form regarding initial donations
was confusing and better left to a separate form. Likewise,
specifying which project committees a new member wishes to join
would necessitate frequent changes to the form, and is orthogonal
to the question of membership in the Foundation.
Since a new version was added to the repository just prior to the
meeting, we tabled this issue to be discussed on the Board mailing
list. Note that this is the gate preventing our completion of
the incorporation papers.
It was also noted that we need a plain-English description of what
needs to be signed by whom in order to completely transfer the
Apache Group licensed code to The Apache Software Foundation.
I. Creation of the Apache HTTP Server Project Management Committee
I2/K6) Approval of initial membership list
It was decided by general consent that the initial membership list
of the Apache HTTP Server Project Management Committee, and of The
Apache Software Foundation, would be the same as the Apache Group,
namely: Brian Behlendorf, Ken Coar, Mark Cox, Lars Eilebrecht,
Ralf S. Engelschall, Roy T. Fielding, Dean Gaudet, Ben Hyde,
Jim Jagielski, Alexei Kosut, Martin Kraemer, Ben Laurie,
Doug MacEachern, Aram Mirzadeh, Sameer Parekh, Cliff Skolnick,
Marc Slemko, William (Bill) Stoddard, Paul Sutton, Randy Terbush,
and Dirk-Willem van Gulik.
Aram's status was briefly discussed, since he hasn't responded to any
e-mail regarding Apache in a long time. It was noted that failure to
respond to the membership application form may require a change to
the initial membership.
For future Apache projects, there is a consensus that the project
management committee membership and V.P. be nominated by those
active in the project, rather than by the Board. The issue of
creating a set of procedures for establishing new projects and the
project committee membership was tabled for consideration at some
future meeting.
J. Creation of the Apache Conference Committee
J2) Approval of initial membership list
It was decided by general consent that the initial membership list
of the Apache Conference Committee would be the same as that created
by the Apache Group, namely: Ken Coar, Randy Terbush, Jim Jagielski,
Lars Eilebrecht, and Ben Laurie.
M) Apache Conference Committee report on LKE proposal for AC2000
We discussed LKE's desire to have a "voting" position on the
conference committee. We decided that it would not be appropriate
for LKE to be on the conference "procurement" committee, but that
there would not be an objection to LKE having a vote on the
conference "execution" committee once the contract with LKE was
established. The board delegates this issue to the conference
committee.
The following text was approved by general consent:
The Board votes to reaffirm our commitment to the
conference committee. We are pleased by the current
proposal and direct the conference committee to
proceed to complete the negotiation. We hope to
ratify that resulting contract if possible.
Ken, as chairman of the conference committee, was reminded that
we cannot sign a contract until the Bylaws and director consent
forms have been filed.
K. Miscellaneous Incorporation Resolutions
K1) Payment of Fees, Taxes and Reimbursements.
The following text was approved by general consent:
NOW, THEREFORE, BE IT FURTHER RESOLVED, that the officers of the
Corporation hereby are authorized and directed to pay and discharge
all taxes, fees and other expenses heretofore incurred or hereafter
to be incurred as a result of and in connection with the
organization of the Corporation, and to reimburse the incorporator,
the officers and all other persons for all expenditures heretofore
made by them in such connection.
K2) Procurement and Maintenance of Books and Records.
The following text was approved by general consent:
RESOLVED, that the officers of the Corporation hereby are authorized
and directed to procure and maintain the necessary corporate books
and records and to open and maintain share transfer records in
accordance with the Bylaws of the Corporation and the laws of the
State of Delaware, as well as the laws of any other applicable
jurisdiction.
K3) Employment of Professional Services.
The following text was approved by general consent:
RESOLVED, that in connection with discharging their respective
duties as officers of the Corporation, including, without
limitation, in connection with the maintenance, preparation and
filing of books, records, reports and returns, the officers of the
Corporation hereby are authorized and directed to procure, in
their discretion, such legal, accounting and other professional
services and assistance as they may reasonably require in order
to properly discharge the duties of said offices, and that the
reasonable expenses therefor shall be charged to and paid for
by the Corporation.
K4) Banking Resolutions.
The task of setting up a bank deposit account was assigned to the
Treasurer (Randy).
Discussion of the Banking Resolutions revealed that requiring more
than one signature for all checks would be too onerous. Dirk was
given the action item of proposing a revision to this section to
clarify the number of people with check signing authority and the
financial limits of that authority.
It was also recommended that the list of people with check-signing
authority be limited to the President, Executive Vice-President,
and Treasurer. This will be part of the revised banking resolution.
K5) Fiscal Year.
The originally proposed date of fiscal year-end was moved from
December 31st to April 30th in order to avoid the holiday season.
The following text was approved by general consent:
RESOLVED, that the fiscal year of the Corporation shall end on
April 30 of each calendar year.
L. Attorney
Drew Wright has been doing an admirable job, but will not be able
to act for us on issues that might have a conflict of interest with
IBM, and suggested we may want to find a counsel with specific
expertise in the area of 501(c)3 non-profits.
The President (Brian) has been given the action item of finding
us another pro-bono attorney, or at least getting a range of rates
for such a person.
7. Unfinished Business
None of record.
8. New Business
None of record.
9. Announcements
The Board thanks Roy Fielding for taking on the task of the Incorporator
and dealing with the paperwork of setting up the corporation and the
initial Board meeting. The Board also thanks IBM for hosting the
teleconference, which proceeded smoothly without any technical problems.
Sameer announced that he has a new full-time job, details of which would
be posted to the members mailing list.
10. Adjournment
The meeting was adjourned at 12:22pm PDT -0700.
The next meeting has been scheduled for Tuesday, April 27, 1999,
from 10:00am PDT to 12:00pm PDT.
==================== Exhibit A: Bylaws ====================
BYLAWS
OF
THE APACHE SOFTWARE FOUNDATION
ARTICLE I
Business Offices
The corporation shall have such offices either within or outside the
State of Delaware and within or outside the United States, as the
Board of Directors may from time to time determine or as the business
of the corporation may require.
ARTICLE II
Registered Offices and Registered Agents
Section 2.1. Delaware. The address of the initial registered office
in the State of Delaware and the name of the initial registered agent
of the corporation at such address are set forth in the Certificate of
Incorporation. The corporation may, from time to time, designate a
different address as its registered office or a different person as
its registered agent, or both; provided, however, that such
designation shall become effective upon the filing of a statement of
such change with the Secretary of State of the State of Delaware as is
required by law.
Section 2.2. Other States. In the event the corporation desires to
qualify to do business in one or more states other than Delaware, the
corporation shall designate the location of the registered office in
each such state and designate the registered agent for service of
process at such address in the manner provided by the law of the state
in which the corporation elects to be qualified.
ARTICLE III
Meetings of Members
Section 3.1. Place of Meetings. Meetings of the members shall be
held at the principal office of the corporation or any other place
(within or outside the State of Delaware and within or outside the
United States) designated in the notice of the meeting.
Section 3.2. Annual Meeting. A meeting of the members shall be held
annually at such time as the Board of Directors may determine (which
shall be, in the case of the first annual meeting, not more than
thirteen (13) months after the organization of the corporation and, in
the case of all other meetings, not more than thirteen (13) months
after the date of the last annual meeting), at which annual meeting
the members shall elect a Board of Directors and transact other proper
business.
Section 3.3. Special Meetings. Special meetings of the members shall
be held when directed by the Chairman, President or the Board of
Directors, or when requested in writing by not less than ten percent
(10%) of all members entitled to vote at the meeting. The call for the
meeting shall be issued by the Secretary, unless the Chairman,
President, Board of Directors or members requesting the meeting shall
designate another person to do so.
Section 3.4. Notice. Written notice 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, shall be delivered not less
than ten (10) nor more than sixty (60) days before the date of the
meeting, either personally or by first class mail, by or at the
direction of the Chairman, President, the Secretary, or the officer or
persons calling the meeting, to each member of record entitled to vote
at such meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail addressed to the
member at his or her address as it appears in the membership records
of the corporation, with postage thereon prepaid.
Notwithstanding the above paragraph, the corporation shall not be
required to give notice of a members' meeting to any member to whom
notice of two consecutive annual meetings, and all notices of meetings
or of the taking of action by written consent without a meeting to
such member during the period between such two consecutive annual
meetings, have been mailed under the procedures outlined above and
have been returned undeliverable. Any action or meeting which shall be
taken or held without notice to such member shall have the same force
and effect as if such notice had been duly given. If any such member
delivers to the corporation a written notice setting forth his or her
then current address, the requirement that notice be given to such
member shall be reinstated.
Section 3.5. Notice of Adjourned Meetings. When a meeting is
adjourned to another time or place, the corporation shall not be
required to give any notice of the adjourned meeting if the time and
place to which the meeting is adjourned are announced at the meeting
at which the adjournment is taken. At the adjourned meeting, any
business may be transacted that might have been transacted at the
original meeting. If, however, the adjournment is for more than thirty
(30) days, or if after the adjournment the Board of Directors fixes a
new record date for the adjourned meeting, a notice of the adjourned
meeting shall be given as provided in Section 3.4 above, to each
member of record on the new record date entitled to vote at such
meeting.
Section 3.6. Waiver of Notice. Whenever notice is required to be
given to any member, a waiver thereof in writing, signed by the person
or persons entitled to such notice, whether before or after the time
stated therein, shall be the equivalent to the giving of such
notice. Attendance by a person at a meeting shall constitute a waiver
of notice of such meeting, except when the person attends a meeting
for the express purpose of objecting, at the beginning of the meeting,
to the transaction of business because the meeting is not lawfully
called or convened. Neither the business to be transacted at, nor the
purpose of any regular or special meeting of the members need be
specified in the written waiver of notice.
Section 3.7. Fixing Record Date.
(a) For the purpose of determining members entitled to notice of or
to vote at any meeting of members or any adjournment thereof, the
Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors, and which record date shall not be
more than 60 nor less than 10 days before the date of such meeting. If
no record date is fixed by the Board of Directors, the record date for
determining members entitled to notice of or to vote at a meeting of
members shall be at the close of business on the day next preceding
the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the
meeting is held. A determination of members of record entitled to
notice of or 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.
(b) For purposes of determining the members entitled to consent to
corporate action in writing without a meeting, the Board of Directors
may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the
Board of Directors, and which date shall not be more than 10 days
after the date upon which the resolution fixing the record date is
adopted by the Board of Directors. If no record date has been fixed by
the Board of Directors, the record date for determining members
entitled to consent to corporate action in writing without a meeting,
when no prior action by the Board of Directors is required by the
General Corporation Laws of the State of Delaware, shall be the first
date on which a signed written consent setting forth the action taken
or proposed to be taken is delivered to the corporation by delivery to
its registered office in the State of Delaware, its principal place of
business or an officer or agent of the corporation having custody of
the books in which proceedings of meetings of members are recorded.
Delivery made to a corporation's registered office shall be by hand or
by certified or registered mail, return receipt requested. If no
record date has been fixed by the Board of Directors and prior action
by the Board of Directors is required by the General Corporation Law
of the State of Delaware, the record date for determining members
entitled to consent to corporate action in writing without a meeting
shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action.
(c) For purposes of determining the members entitled to exercise any
rights, or for the purpose of any other lawful action, the Board of
Directors may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than 60 days prior to such
action. If no record date is fixed, the record date for determining
members for any such purpose shall be at the close of business on the
day on which the Board of Directors adopts the resolution relating
thereto.
Section 3.8. Record of Members Having Voting Rights. The officer or
agent having charge of the membership records of the corporation shall
prepare and make, at least ten (10) days before each meeting of
members, a complete list of the members entitled to vote at such
meeting, arranged in alphabetical order, and showing the name,
address, telephone number, facsimile number and electronic mail
address of each member. For a period of ten (10) days prior to such
meeting, the list shall be open to the examination of any member, for
any purpose germane to the meeting, during ordinary business hours,
either at a place within the city where such meeting is to be held,
which place shall be specified in the notice of the meeting, or if not
so specified, at the place where such meeting is to be held. The list
shall also be produced and kept open at the time and place of the
meeting and shall be subject to inspection by any member at any time
during the meeting. Upon the willful neglect or refusal of the
directors to produce such a list at any meeting for the election of
directors, such directors shall be ineligible for election to any
office at such meeting.
Section 3.9. Member Quorum. Except as otherwise required by law, by
the Certificate of Incorporation or by these Bylaws, one-third (1/3)
of the members entitled to vote, represented in person or represented
by proxy, shall constitute a quorum at a meeting of members. When a
specified item of business is required to be voted on by a class of
members (if the members are divided into classes), one third (1/3) of
such class of members, represented in person or represented by proxy,
shall constitute a quorum for the transaction of such item of business
by that class of members. If a quorum is present, the affirmative vote
of a majority of the members represented at the meeting and entitled
to vote on the subject matter shall be the act of the members, unless
the vote of a greater number or voting by class is required by the
General Corporation Law of the State of Delaware or by the Certificate
of Incorporation or by these Bylaws. The directors shall be elected by
a plurality of the votes of the members present in person or
represented by proxy at the meeting and entitled to vote on the
election of directors. Where a separate vote by class of members is
required, the affirmative vote of a plurality of members of such class
represented at the meeting shall be the act of such class unless the
vote of a greater number is required by the General Corporation Law of
the State of Delaware, the Certificate of Incorporation or these
Bylaws.
After a quorum has been established at a members' meeting, the
subsequent withdrawal of members, so as to reduce the number of
members in person or represented by proxy entitled to vote at the
meeting below the number required for a quorum, shall not affect the
validity of any action taken at the meeting or any adjournment
thereof.
After a quorum has been established at a members' meeting, the
subsequent admission of new members, so as to increase the number of
members required for a quorum above the number of members present in
person or represented by proxy entitled to vote at the meeting, shall
not affect the validity of any action taken at the meeting or any
adjournment thereof.
Section 3.10. Voting. Each member (except emeritus members) shall be
entitled to one vote on each matter submitted to a vote at a meeting
of the members, except as may otherwise be provided in the General
Corporation Law of the State of Delaware.
A member may vote either in person or by proxy executed in writing by
the member or his or her duly authorized attorney-in-fact.
Section 3.11. Proxies. Every member entitled to vote at a meeting of
members or to express consent or dissent to corporate action in
writing without a meeting, or a member's duly authorized
attorney-in-fact, may authorize another person or persons to act for
him/her by proxy.
Every proxy must be signed by the member or his or her
attorney-in-fact. No proxy shall be valid after three (3) years from
its date, unless otherwise provided in the proxy. All proxies shall be
revocable.
Section 3.12. Action by Members Without a Meeting. Any action
required to be taken or which may be taken at any annual or special
meeting of members of the corporation, may be taken without a meeting,
without prior notice and without a vote, if a written consent setting
forth the action so taken shall be signed by members having not less
than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all members entitled to vote
thereon were present and voted; provided, however, that no written
consent shall be effective unless such consent (i) bears the date of
signature by each member signing such consent and (ii) is delivered to
the corporation within sixty (60) days of the date on which the
earliest consent was delivered to the corporation. Prompt notice of
the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those members who have not
consented in writing.
ARTICLE IV
Members
Section 4.1 Admission of Members. To be eligible for membership, a
person or entity must be nominated by a current member of the
corporation and must complete a written membership application in such
form as shall be adopted by the Board of Directors from time to
time. The nomination and content of the membership application must be
included in a notice to the members, if any, of the corporation at
least ten (10) days prior to any vote on the applicant's admission,
which notice may be by electronic means. The initial members of the
corporation shall be admitted upon the affirmative vote of the Board
of Directors of the Corporation at the initial meeting of the Board of
Directors. Thereafter, members of the corporation shall be admitted as
members of the corporation only by a majority vote of the existing
members of the corporation.
Section 4.2. Emeritus Members. An emeritus member is a former member
whose membership has been suspended and converted to emeritus status,
either voluntarily or by action of the members, such that all
membership rights of the emeritus member, including the right to vote
and be counted for purposes of quorum, are suspended and terminated
until the emeritus member's membership is reinstated by subsequent
action of the members.
Upon the effective date of conversion of the membership of any member
to emeritus status, the membership, including all related voting
rights, of such member shall be suspended, except that such emeritus
member shall be entitled to attend (but not vote) at meetings of the
members, and the officers of the corporation shall attempt, in good
faith, to continue to deliver notices of meetings of the members of
the corporation to such emeritus member. References in these Bylaws to
a "member" or to the "members" of the corporation shall not include
any emeritus member unless explicitly provided otherwise.
Section 4.3. Voluntary Conversion of Membership to Emeritus
Status. Members may convert their membership to emeritus status at any
time upon ten (10) days' written, signed notice delivered to an
officer of the corporation.
Section 4.4. Involuntary Conversion of Membership to Emeritus
Status. Upon an affirmative vote of a two-thirds majority of the
members of the corporation, the membership of a member shall be
converted into an emeritus membership.
Section 4.5. Reinstatement of Membership of Emeritus Members. Upon
receipt of a written request and a new membership application from an
emeritus member and upon an affirmative vote of a majority of the
members of the corporation approving such membership application, such
emeritus member membership shall be reinstated as a full member of the
corporation, and shall be entitled to exercise all rights as a member
of the corporation, including all related voting rights.
Section 4.6. Voluntary Withdrawal from Membership. Members (including
emeritus members) may withdraw from membership in the corporation at
any time upon ten (10) days' written, signed notice delivered to an
officer of the corporation.
Section 4.7. Termination from Membership. No member may have his, her
or its membership terminated except by an affirmative vote of a
two-thirds majority of the members of the corporation.
Section 4.8. Effect of Withdrawal or Termination of Membership. Upon
any withdrawal or termination of the membership of any member, the
membership, including all related voting rights, of such member shall
be terminated. After a withdrawal or termination of the membership of
any member, or a conversion of the membership of any member to
emeritus status, such member may reapply for membership in accordance
with Section 4.1 of these Bylaws.
ARTICLE V
Directors
Section 5.1. Powers. The business and affairs of the corporation
shall be managed by or under the direction of the Board of Directors,
which may exercise all such powers of the corporation and do all such
lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws specifically reserved to the members.
Section 5.2. Qualification. Directors need not be residents of
Delaware or of the United States nor members of the corporation.
Section 5.3. Compensation. The Board of Directors shall have
authority to fix the compensation of directors unless otherwise
provided in the Certificate of Incorporation.
Section 5.4. Number. The corporation shall initially have nine (9)
directors. Thereafter, the number of directors shall be fixed by the
members at each annual meeting of members.
Section 5.5. Election and Term. Each person named in the Certificate
of Incorporation or elected by the incorporator(s) at the organization
meeting, as the case may be, as a member of the initial Board of
Directors shall hold office until the first annual meeting of members
and until his or her successor shall have been elected and qualified
or until his or her earlier resignation, removal or death.
At the first annual meeting of members and at each annual meeting
thereafter, the members shall elect directors to hold office until the
next succeeding annual meeting. Each director shall hold office for
the term for which he or she is elected and until his or her successor
shall have been elected and qualified or until his or her earlier
resignation, removal or death.
Section 5.6. Resignation and Removal of Directors. A director may
resign at any time upon written request to the corporation.
Furthermore, any director or the entire Board of Directors may be
removed, with or without cause, by a vote of the majority of the
members entitled to vote for the election of directors or as otherwise
provided in the General Corporation Law of the State of Delaware.
Section 5.7. Vacancies. Any vacancy occurring in the Board of
Directors, including any vacancy created by reason of an increase in
the authorized number of directors, may be filled by the affirmative
vote of a majority of the remaining directors though less than a
quorum of the Board of Directors or by a sole remaining director. If
there is more than one class of members, vacancies of directorships
elected by such class may be filled by a majority of the directors
elected by such class or by a sole remaining director. A director
elected to fill a vacancy shall hold office only until the next
election of directors by the members.
Section 5.8. Quorum and Voting. A majority of the number of
directors fixed in accordance with these Bylaws shall constitute a
quorum for the transaction of business. The vote of a majority of the
directors present at a meeting at which a quorum is present shall be
the act of the Board of Directors.
Section 5.9. Executive and Other Committees. The Board of Directors,
by resolution adopted by a majority of the full Board of Directors,
may designate an Executive Committee from among its members and such
other committees consisting of at least one director as determined by
the Board of Directors from time to time. Each committee, to the
extent provided in such authorizing resolution, shall have and may
exercise all the power and authority of the Board of Directors in the
management of the business and affairs of the corporation, as limited
by the laws of the State of Delaware.
The Board of Directors, by resolution adopted in accordance with this
section, may designate one or more directors as alternate members of
any such committee, who may act in the place and stead of any absent
or disqualified member or members at any meeting of such committee.
In the absence or disqualification of any member of any such committee
or committees, the member or members thereof present at any meeting
and not disqualified from voting, whether or not they constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or
disqualified member.
Section 5.10. Place of Meetings. Regular and special meetings of the
Board of Directors may be held within or outside the State of Delaware
and within or outside the United States.
Section 5.11. Time, Notice and Call of Meetings. Regular meetings of
the Board of Directors shall be held immediately following the annual
meeting of members each year and at such times thereafter as the Board
of Directors may fix. No notice of regular directors' meetings shall
be required.
Special meetings of the Board of Directors shall be held at such
times as called by the Chairman of the Board, the President of the
corporation, or any two (2) directors. Written notice of the time and
place of special meetings of the Board of Directors shall be given to
each director by either personal delivery, telegram, cablegram, or
telefax at least two (2) days before the meeting, or by notice mailed
to each director at least five (5) days before the meeting.
Notice of a meeting of the Board of Directors need not be given to
any director who signs a waiver of notice, either before or after the
meeting. Attendance of a director at a meeting shall constitute a
waiver of notice of such meeting and waiver of any and all objections
to the place of the meeting, the time of the meeting, or the manner in
which it has been called or conveyed, except when a director states,
at the beginning of the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened.
Members of the Board of Directors may participate in a meeting of
such Board or of any committee designated by such Board by conference
telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other at the same
time. Participating by such means shall constitute presence in person
at a meeting.
Section 5.12. Action Without a Meeting. Any action required or
permitted to be taken at a meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all the members of
the board or committee, as the case may be, consent thereto in
writing, and such writing is filed with the minutes of the proceedings
of the board or committee. Such consent shall have the same effect as
a unanimous vote.
Section 5.13. Director Conflicts of Interest. No contract or other
transaction between the corporation and one or more of its directors
or between the corporation and any other corporation, partnership,
association or other organization in which one or more of the
directors of the corporation are directors or officers or are
financially interested, shall be void or voidable solely because of
such relationship or interest or solely because such director or
directors are present at or participate in the meeting of the Board of
Directors or a committee thereof which authorizes, approves or
ratifies such contract or transaction or solely because his or her or
their votes are counted for such purpose, if:
A. The material facts as to the director's relationship or interest
and as to the contract or transaction are disclosed or are known to
the Board of Directors or committee, and the Board of Directors or
committee in good faith authorizes, approves or ratifies 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 their relationship or interest and as to
the contract or transaction are disclosed or known to the members
entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of such members; or
C. The contract or transaction is fair as to the corporation at the
time it is authorized, approved or ratified by the Board of Directors,
a committee of the Board of Directors or the members.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or a
committee thereof which authorizes, approves or ratifies such contract
or transaction.
ARTICLE VI
Officers
Section 6.1. Officers. The officers of the corporation shall consist
of a President, a Secretary and a Treasurer, each of whom shall be
elected by the Board of Directors. A Chairman of the Board, one or
more Vice Chairmen, one or more Vice Presidents, and such other
officers and assistant officers and agents as may be deemed necessary
may be elected or appointed by the Board of Directors from time to
time. Any two (2) or more offices may be held by the same person,
except the offices of President and Secretary.
Section 6.2. Duties. The officers of the corporation shall have the
following duties:
A. Chairman of the Board. The Chairman of the Board, if one is
elected, shall preside at all meetings of the Board of Directors and
members and shall have such other duties and authority as may be
conferred by the Board of Directors.
B. Vice Chairman. The Vice Chairman, if one is elected, shall, in the
absence or disability of the Chairman of the Board, perform the duties
and exercise the powers of the Chairman of the Board. The Vice
Chairman shall also perform whatever duties and have whatever powers
the Board of Directors may from time to time assign him/her. If more
than one Vice Chairman is elected and the Chairman is absent or
becomes disabled, the Board of Directors shall choose one Vice
Chairman to perform the duties and exercise the powers of the
Chairman.
C. President. The President shall be the chief executive officer of
the corporation and shall have general and active management of the
business and affairs of the corporation (other than the management of
projects managed by a Project Management Committee), subject to the
direction of the Board of Directors. If a Chairman of the Board is not
elected, the President shall preside at all meetings of the Board of
Directors and members.
D. Vice President. The Vice President, if one is elected, shall, in
the absence or disability of the President, perform the duties and
exercise the powers of the President. He or she also shall perform
whatever duties and have whatever powers the Board of Directors may
from time to time assign him or her. If more than one Vice President
is elected, one thereof shall be designated as Executive Vice
President and shall, in the absence or disability of the President,
perform the duties and exercise the powers of the President and each
other Vice President shall only perform whatever duties and have
whatever powers the Board of Directors may from time to time assign
him or her.
E. Secretary and Assistant Secretary. The Secretary shall keep
accurate records of the acts and proceedings of all meetings of the
members and directors. The Secretary shall give all notices required
by law and by these Bylaws. In addition, the Secretary shall have
general charge of the corporate books and records and of the corporate
seal, and he or she shall affix, or attest the affixing of, the
corporate seal to any lawfully executed instrument requiring it. The
Secretary shall have general charge of the membership records of the
corporation and shall keep, at the registered or principal office of
the corporation, a record of the members showing the name, address,
telephone number, facsimile number and electronic mail address of each
member. The Secretary shall sign such instruments as may require his
or her signature and, in general, shall perform all duties as may be
assigned to him or her from time to time by the Chairman, the
President or the Board of Directors. The Assistant Secretary, if one
is appointed, shall render assistance to the Secretary in all the
responsibilities described above.
F. Treasurer and Assistant Treasurer. The Treasurer shall have
custody of all corporate funds and financial records, shall keep full
and accurate accounts of receipts and disbursements and render
accounts thereof at the annual meetings of members, and shall perform
such other duties as may be prescribed by the Chairman, the President
or the Board of Directors. The Assistant Treasurer, if one is
appointed, shall render assistance to the Treasurer in all of the
responsibilities described above.
Section 6.3. Project Management Committees. In addition to the
officers of the corporation, the Board of Directors may, by
resolution, establish one or more Project Management Committees
consisting of at least one officer of the corporation, who shall be
designated chairman of such committee, and may include one or more
other members of the corporation. Unless elected or appointed as an
officer in accordance with Sections 6.1 and 6.4 of these Bylaws, a
member of a Project Management Committee shall not be deemed an
officer of the corporation.
Each Project Management Committee shall be responsible for the active
management of one or more projects identified by resolution of the
Board of Directors which may include, without limitation, the creation
or maintenance of "open-source" software for distribution to the
public at no charge. Subject to the direction of the Board of
Directors, the chairman of each Project Management Committee shall be
primarily responsible for project(s) managed by such committee, and he
or she shall establish rules and procedures for the day to day
management of project(s) for which the committee is responsible.
The Board of Directors of the corporation may, by resolution,
terminate a Project Management Committee at any time.
Section 6.4. Election and Term. The officers of the corporation and
the members of each existing Project Management Committee shall be
appointed by the Board of Directors or appointed by an officer
empowered by the Board to make such appointment. Such appointment by
the Board of Directors may be made at any regular or special meeting
of the Board. Each officer shall hold office and each member of a
Project Management Committee shall serve on such committee for a
period of one year or until his or her successor is elected and
qualified or until his or her earlier resignation or removal.
Section 6.5. Removal of Officers. Any officer or agent and any
member of a Project Management Committee elected or appointed by the
Board of Directors may be removed by the Board whenever, in its
judgment, the best interests of the corporation will be served
thereby.
Section 6.6. Vacancies. Any vacancy, however occurring, in any
office or any Project Management Committee may be filled by the Board
of Directors.
Section 6.7. Compensation. The compensation, if any, of all officers
of the corporation and of all members of each existing Project
Management Committee shall be fixed by the Board of Directors and may
be changed from time to time by a majority vote of the Board of
Directors. The fact that an officer is also a director shall not
preclude such person from receiving compensation as either a director
or officer, nor shall it affect the validity of any resolution by the
Board of Directors fixing such compensation. The President shall have
authority to fix the salaries, if any, of all employees of the
corporation, other than officers elected or appointed by the Board of
Directors and members of Project Management Committees.
ARTICLE VII
Books and Records
Section 7.1. Books and Records. The corporation shall keep correct
and complete books and records of accounts and shall keep minutes of
the proceedings of its members, Board of Directors and committees of
directors.
The corporation shall keep at its registered office or principal
place of business, or at the office of its transfer agent or
registrar, a record of the name, address, telephone number, facsimile
number and electronic mail address of each member, together with the
date of any withdrawal or termination of such member's membership, or
any conversion of such member's membership to emeritus status.
Each member shall be responsible for notifying the corporation of
changes to such member's address, telephone number, facsimile number
or electronic mail address.
Any books, records and minutes may be in written form or in any other
form capable of being converted into clearly legible written form
within a reasonable time.
Section 7.2. Members' Inspection Rights. Any person who is a member,
upon written demand under oath stating the purpose thereof, shall have
the right to examine, in person or by agent or attorney, at any time
during the corporation's usual hours for business, for any proper
purpose as determined under the General Corporation Law of the State
of Delaware, the corporation's membership records and its other books
and records and to make copies or extracts therefrom.
ARTICLE VIII
Nonprofit Status
The corporation is organized and shall be operated as a
not-for-profit membership corporation organized under Delaware law. If
the Board of Directors of the corporation elects to seek and obtains
an exemption for the corporation from federal taxation pursuant to
Section 501(a) of the Internal Revenue Code, as amended (the "IRC"),
and until such time, if ever, that such exemption is denied or lost,
the corporation shall not be empowered to engage directly or
indirectly in any activity which the corporation believes would be
likely to invalidate its status as an organization exempt from federal
taxation under Section 501(a) of the IRC as an organization described
in Section 501(c) of the IRC.
ARTICLE IX
Corporate Seal
The Board of Directors shall provide a corporate seal which shall
have the name of the corporation inscribed thereon, and may be a
facsimile, engraved, printed, or an impression seal.
ARTICLE X
Amendment
These Bylaws may be altered, amended or repealed by the Board of
Directors or by the members, and new Bylaws may be adopted by the
Board of Directors or by the members. No alteration, amendment or
repeal of these Bylaws shall be effective unless and until the
corporation attempts, in good faith, to give notice to the members of
the corporation of such alteration, amendment or repeal at least
fifteen (15) days prior to the effective date of such alteration,
amendment or repeal, which notice may be by electronic means.
ARTICLE XI
Limits on Liability of Directors
To the fullest extent permitted by the General Corporation Law of the
State of Delaware, as the same exists or may hereafter be amended, a
director of the corporation shall not be personally liable to the
corporation or its members for monetary damages for breach of
fiduciary duty as a director.
ARTICLE XII
Indemnification of Officers and Directors
Section 12.1. Right to Indemnification. Each 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 corporation), by reason of the fact that he or she is or
was a director, officer or member of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise, shall be entitled to indemnification
against expenses (including attorneys' fees), judgments, fines, and
amounts paid in settlement to the fullest extent now or hereafter
permitted by applicable law as long as such person acted in good faith
and in a manner that such person reasonably believed to be in or not
be opposed to the best interests of the corporation; provided,
however, that the corporation shall indemnify any such person seeking
indemnity in connection with an action, suit or proceeding (or part
thereof) initiated by such person only if such action, suit or
proceeding (or part thereof) was authorized by the Board of Directors.
Section 12.2. Advance Payment of Expenses. Expenses (including
reasonable attorneys' fees) incurred by any person who is or was an
officer, director or member of the corporation, or who is or was
serving at the request of the corporation as an officer or director of
another corporation, partnership, joint venture, trust or other
enterprise, in defending any civil, criminal, administrative or
investigative action, suit or proceeding, shall be paid by the
corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such
person to repay such amount if it is ultimately determined that he or
she is not entitled under applicable law to be indemnified by the
corporation.
Section 12.3. Right of Claimant to Bring Suit. If a claim under this
Article is not paid in full by the corporation within ninety (90) days
after a written claim has been received by the corporation, the
claimant may at any time thereafter bring suit against the corporation
to recover the unpaid amount of the claim and, if successful in whole
or in part, the claimant shall be entitled to be paid also the expense
of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred
in defending any action or proceeding in advance of its final
disposition where the required undertaking has been tendered to the
corporation unless such action is based on the claimant having
committed an act involving moral turpitude) that the claimant has not
met the standards of conduct which make indemnification permissible
under the General Corporation Law of the State of Delaware, but the
burden of proving such defense shall be on the corporation. Neither
the failure of the corporation (including its Board of Directors,
independent legal counsel, or its members) to have made a
determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because
he or she has met the applicable standard of conduct set forth in the
General Corporation Law of the State of Delaware, nor an actual
determination by the corporation (including its Board of Directors,
independent legal counsel, or its members) that the claimant has not
met such applicable standard of conduct, shall be a defense to the
action or create a presumption that the claimant has not met the
applicable standard of conduct.
Section 12.4. Contract Rights. The provisions of this Article shall
be a contract between the corporation and each director, officer or
member to which this Article applies. No repeal or modification of
these Bylaws shall invalidate or detract from any right or obligation
with respect to any state of facts existing prior to the time of such
repeal or modification.
Section 12.5. Rights Non-exclusive. The indemnification and
advancement of expenses provided by or granted pursuant to this
Article shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of members or disinterested
directors or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such
office.
Section 12.6. Insurance. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer,
member, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him or her and
incurred by him or her in any such capacity, or arising out of his or
her status as such, whether or not the corporation would have the
power to indemnify him or her against such liability under the
provisions of this Article or of applicable law.
Section 12.7. Definitions. For purposes of this Article, references
to "the corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority
to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of
such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this Article with
respect to the resulting or surviving corporation as he or she would
have with respect to such constituent corporation if its separate
existence had continued, and references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect to any employee
benefit plan; and references to "serving at the request of the
corporation" shall include any service as a director, officer,
employee or agent of the corporation which imposes duties on, or
involves services by, such director, officer, employee, or agent with
respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
or she reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner "not opposed to the best interests of the
corporation" as referred to in this Article.
Section 12.8. Continued Coverage. The indemnification and advancement
of expenses provided by, or granted pursuant to this Article shall,
unless otherwise provided when authorized or ratified, continue as to
a person who has ceased to be a director, officer or member and shall
inure to the benefit of the heirs, executors and administrators of
such person.
ARTICLE XIII
General Provisions
Section 13.1. Checks. All checks or demands for money and notes of
the corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to
time designate.
Section 13.2. Fiscal Year. The fiscal year of the corporation shall
be fixed by resolution of the Board of Directors.
Section 13.3. Loans. No loans shall be contracted on behalf of the
corporation and no evidence of indebtedness shall be issued in its
name unless authorized by a resolution of the Board of Directors. Such
authority may be general or confined to specific instances.
Section 13.4. Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the
corporation in such depositories as the Board of Directors shall
direct.
Section 13.5. Contracts. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or
execute and deliver any instrument on behalf of the corporation, and
such authority may be general or confined to specific instances.
Section 13.6. Counterpart Execution: Facsimile Execution. Any
document requiring the signature of the directors and/or members may
be executed in any number of counterparts with the same effect as if
all of the required signatories had signed the same document. Such
executions may be transmitted to the corporation and/or the other
directors and/or members by facsimile and such facsimile execution
shall have the full force and effect of an original signature. All
fully executed counterparts, whether original executions or facsimile
executions or a combination, shall be construed together and shall
constitute one and the same agreement.
THESE BYLAWS WERE READ, APPROVED AND ADOPTED BY THE BOARD OF DIRECTORS
OF THE APACHE SOFTWARE FOUNDATION ON THE ____ DAY OF ___________, 1999.
________________________________________
________________, Secretary
==================== Exhibit B: Member Consent ====================
WRITTEN CONSENT OF THE MEMBERS OF
THE APACHE SOFTWARE FOUNDATION
TO
ACTION WITHOUT MEETING
The undersigned, being all of the members of The Apache Software
Foundation, a Delaware corporation (the "Corporation"), do hereby
adopt, consent to and approve the following resolutions by signing
written consent thereto pursuant to the provisions of Section 228 of
the Delaware General Corporation Law.
1. Ratification of Actions of Incorporator.
WHEREAS, the incorporator, Roy T. Fielding, has as of ____________,
1999, executed a Written Consent of Sole Incorporator in Lieu of
Organizational Meeting (the "Consent of Incorporator") which elected
the initial directors of the Corporation.
NOW THEREFORE, BE IT RESOLVED, that the election by the incorporator
of the persons listed immediately below as the directors of the
Corporation hereby is approved, ratified and adopted as an act and
deed of the Corporation, each such appointment to continue with
respect to each such director until the death, resignation,
retirement, removal, disqualification of each such director, or his or
her successor shall have been duly elected and qualified.
_Brian_Behlendorf__ _Jim_Jagielski_____
_Ken_Coar__________ _Ben_Laurie________
_Roy_T._Fielding___ _Sameer_Parekh_____
_Dirk-Willem_van_Gulik _Randy_Terbush_____
_Ben_Hyde__________
2. Ratification of Actions of Directors.
WHEREAS, the directors of the Corporation have as of _____________,
1999, executed a Written Consent of the Directors of The Apache Software
Foundation to Action Without Meeting (the "Organizational Action")
which adopted and approved several organizational resolutions,
including the adoption of Bylaws for the Corporation.
NOW, THEREFORE, BE IT FURTHER RESOLVED, that the Bylaws for the
Corporation, as adopted in the Organizational Action, be, and hereby
are, approved and ratified as the Bylaws for the Corporation for the
regulation of its business and affairs, including without limitation,
the provisions of Articles XI and XII thereof regarding limits on the
liability of, and the indemnification of, directors; and be it further
RESOLVED, that the undersigned, having reviewed and considered the
Organizational Action and all documents attached thereto, hereby
approve, ratify and adopt in all respects the acts taken by the Board
of Directors of the Corporation pursuant to the Organizational Action.
The undersigned, by executing this Written Consent in the space
provided below, do hereby direct that this document be filed with the
minutes and proceedings of the Corporation, and agree that the actions
set forth in the foregoing resolutions shall have the same force and
effect as if taken at a duly constituted meeting of the members of the
Corporation.
The above actions shall be effective as of the _____ day of
_____________, 1999.
Members:
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________
==================== End of Exhibits ====================
Index