RESF Foundation Charter & Bylaws

FOUNDATION CHARTER

ARTICLE I - VISION

The vision of the Rocky Enterprise Software Foundation (the “Foundation”) is to create and nurture a community of individuals and organizations that are committed to ensuring the longevity, stewardship, and innovation of enterprise grade/class open source software that is always freely available.

ARTICLE II - PRINCIPLES OF THE FOUNDATION

These principles serve as the fundamental, immutable, truths that guide the decisions and goals of the Foundation. No action(s) may be taken by the Foundation that is contrary to the following principles which is both enforced and made transparent by the Foundation Bylaws:

  1. Community Responsibility. The Foundation is here for the benefit of the public community. We are a self imposed not-for-profit organization[^1] and thus we will never be driven, motivated, or manipulated by profit or monetary gain. The Foundation is structured and governed via systems of checks and balances (as set forth in the Foundation Bylaws) ensuring that no single entity, organization, corporation, association, or individual is permitted to have a single controlling influence over any assets, the Foundation as a whole, or its Projects. Additionally, the community is to be represented, by the community for the community, with no “pay to play” for control; board and leadership seats are never bought, they are earned.

  2. Free, Open Source, and Reproducible. Everything we do is intended to be freely available and open source and will leverage only OSI approved permissive, non-copyleft open-source licenses for our Projects. All of our build tools, dependencies, and SBOMs will always be available so others can completely reproduce all release artifacts. Projects will be encouraged to avoid dependencies on copyleft libraries, and to be transparent about possible license conflicts with permissive licenses for Projects.

  3. Projects. The Foundation will build, host, and “adopt” open source Projects which are of value to the enterprise community and/or other Foundation projects. Each project will abide by these principles and strive for longevity, reproducibility, and community collaboration as well as the betterment of the project, community, and ecosystem. Projects will avoid end-of-life for support except with ample advance notice. If a project must cease maintenance or leave the Foundation, the Foundation will endeavor to move the project, including its trademark rights, to a successor.

  4. Transparency. The Foundation will remain transparent to the community as defined by our bylaws and bound by our data security policy. This means all development processes, discussions, and critical communication, to the fullest extent possible, will always be done in the open with nothing held back from the community or sold for fees.

  5. Growth and Equality of Opportunity: The Foundation strives to build and maintain a collaborative and respectful environment that provides equal access to opportunities and resources for everyone within the community. This charter defines a merit-based process so that anybody can become a contributor, committer, or leader within the Foundation or any of the Foundation projects. Growth and inclusiveness of all individuals and organizations is imperative for the long-term stability and success of the Foundation’s vision. The Foundation will encourage Projects to develop robust documentation, promote maximum inclusion, and encourage the admission and contributions of non-technical Members.

ARTICLE III - BYLAWS

In addition to this Charter, the Foundation is governed by the Foundation Board and the Foundation Bylaws.


FOUNDATION BYLAWS

ARTICLE I - MEMBERS

  1. Members. Members (“Members”) of The Rocky Enterprise Software Foundation (the “Foundation”) are persons who are involved and active participants on one or more Project Team(s). A person must be a member of at least one of the Foundation’s projects (each, a “Project”) to be a Member of the Foundation. Members will have the rights as set forth in these Foundation Bylaws (these “Bylaws”) and an obligation to act in accordance with the Foundation’s Charter.
  2. Admission of Members. The initial members of the Foundation (the “Initial Members”) were admitted by the Project Boards (defined below). Members may be admitted as Members of the Foundation in accordance with the following procedures:
    1. To be eligible to become a Member, a person must be an active member of a given Project or Project Team (as defined below).
    2. Next, the person must complete the written membership application form in the form adopted by the applicable Project Board (the “Application Form”).
    3. Next, the Project Board will review and either approve or disapprove the admission of the person as a Member by a majority vote of the Project Board in accordance with the criteria that the Project Board adopts from time to time.
  3. Voting. Each Member will have one vote on all matters presented to the Members for a vote. The presence of a majority of the then current Members, either in person, or by means of remote communication, will constitute a quorum for the transaction of business.
  4. Annual Meeting. An annual meeting of the Members will be held annually on such date and time as is designated by the Board. At the annual meeting, the Board Chair, Vice Board Chair and At-Large Directors will be elected by the Members, and such other matters will be discussed and/or put to a vote as determined by the Board. The Project Board Chairs and Project Board Vice Chairs will also be elected at the annual meeting. The President will preside over all annual meetings. The President will also designate a person to act as the secretary and vote counter at each annual meeting. The Board may adopt such rules and procedures for the annual meeting as it deems prudent.
  5. Special Meetings of Members. Special meetings of the Members may be called by the Board or the Board Chair. Notice of a special meeting of the Members must be given to the Members not less than 10 days nor more than 60 days before the date of such meeting. The location (online conference or physical location), date, and time of the meeting will be determined by the Board and set forth in the notice to the Members. The notice of the special meeting will include a description of the business to be addressed at the special meeting, and the business to be transacted at such special meeting will be limited to such matters as are set forth in the notice. The Board Chair will preside over all special meetings. The Board Chair will also designate a person to act as the secretary and vote counter at each special meeting. The Board may adopt such rules and procedures for the special meetings as it deems prudent.
  6. Action Without a Meeting. Any action required or permitted to be taken at any annual or special meeting of the Members, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, will be delivered to the Foundation signed by the Members representing 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.
  7. Rights and Obligations of Members. Members will have the right to (i) vote for the Board at the annual meeting; (ii) attend meetings of the Members and the Foundation; (iii) participate in Project Teams; (iv) receive communications from the Foundation regarding the Foundation and its activities; (v) receive a Foundation or Project Team email address at the discretion of the Foundation Board; and (vi) such other rights as the Board may determine from time to time. Members are expected to actively participate in their Project Team’s activities and be a community advocate for the Foundation and its projects. As a condition to being admitted as a Member of the Foundation or any Project Team, the person will be required to sign the Membership Agreement as adopted by the Foundation Board from time to time and assign any trademark rights related to the Foundation or its Projects to the Foundation, and license any required patents, artwork, or IP to the Foundation, but such person may retain any copyright rights in its work for the Foundation.
  8. List of Members. The Board will maintain a list of Members (the “Member List”). Only those Members who are included on the Member List will have the right to vote as Members (provided the Board acts in good faith and promptly fixes any errors in the Member List).
  9. Emeritus Members. An “Emeritus Member” of the Foundation is a former Member whose membership status has been converted to Emeritus Status. An Emeritus Member forfeits all membership rights, including the right to vote and the right to be counted for the purposes of quorum. An Emeritus Member retains the right to attend any meetings held by the Foundation and may elect to continue to receive communications from the Foundation. Any Member of the Foundation may choose at any time for any reason to elect Emeritus Status conversion with approval of the Foundation Board. An Emeritus Member can be reinstated as a full member only in accordance with Section 1.2 of these Bylaws.
  10. Termination of Membership. A Person’s status as a member of a Project Team may be terminated by the affirmative vote of 2/3rds of the applicable Project Team Members. A person’s status as a Member of the Foundation may be terminated by the Board for Cause. To be terminated for Cause, a majority of the Board must (i) determine Cause for termination exists, and (ii) vote to terminate such person’s status as a Member. “Cause” means: (a) a Member’s unauthorized misuse or disclosure of the Foundation’s trade secrets or proprietary information, (b) a Member’s conviction of or plea of nolo contendere to a felony or a crime involving moral turpitude, (c) a Member committing an act of fraud against the Foundation; (d) a Member’s gross negligence or willful misconduct in the performance of their duties that has had or will have a material adverse effect on the Foundation’s reputation or business; (e) a Member’s violation of the Foundation’s Charter or the Foundation Bylaws; or (f) a Member’s inactivity with the Project for a consecutive period of 6 months without the Project Board’s approval.

ARTICLE II - FOUNDATION BOARD

  1. General Powers. The Foundation Board (the “Board” or the “Foundation Board”) will be responsible for managing the Foundation’s budget, general oversight of the Foundation and Project Boards, and Foundation project portfolio administration. The Board does not make technical decisions for the Foundation unless specifically requested to do so by the applicable Project Board.
  2. Eligibility. The Board will be made up of directors (each, a “Director”). To be a Director, a person must be at least 18 years of age and eligible to be a Foundation Director in accordance with these bylaws. Except for the initial Board Chair, to be eligible to be the Board Chair, a person must have previously served at least one full term on the Foundation Board. The Board Chair, Vice Board Chair, and all At-Large Directors may not be Project Board Chairs or Project Board Vice Chairs at the same time they hold the position of Board Chair, Vice Board Chair, or At-Large Director. Except as otherwise provided in these Bylaws, Directors will be elected at the annual meeting of the Members in accordance with Article I, section 1.4. Directors may be elected for any number of consecutive or non-consecutive terms.
  3. Nominating Directors. To be nominated for a seat on the Foundation Board, a person must: (a) be nominated to the Nomination Committee by a Member in accordance with the nomination procedures (including nomination deadlines) as are adopted by the Nomination Committee from time to time; (b) have a second for the nomination; and (c) be eligible for the position. Provided such nominee is eligible, a nominee may be nominated as the Board Chair, the Vice Board Chair, and as an At-Large Director at the same time, however, a nominee may only hold one seat on the Foundation Board at a time.
  4. Elections. The election of Foundation Directors will take place at the annual meeting. Each Member will have a number of votes equal to the number of Foundation Directors that are being elected. No cumulative voting will be allowed, and Members will be allowed to cast only one vote for a particular nominee. Directors for all positions will be elected by a plurality of the votes cast.
  5. Term of Office. Each Director will serve a two-year term beginning on January 1st of the applicable year. Each Director shall hold office until their successor has been duly elected and qualified.
  6. Board Size; Board Composition. The exact size of the Board will be set by the Board from time to time, but will not be less than three Directors. The Board will be composed of at least the following:
    1. The Board Chair;
    2. The Vice Board Chair;
    3. The President (or the Vice President, by proxy);
    4. At-Large Directors who are not Officers; and
    5. Each Project Board Chair (or the Project Board Vice Chair, by proxy).
    If the person appointed by the Board to be the President is already an elected member of the Board, then the Vice President will be a member of the Board. In such a case, the Secretary will be entitled to vote by proxy for the President, and the Treasurer will be entitled to vote by proxy for the Vice President in accordance with Section 2.9.
  7. Regular Meetings. The Board will have regular meetings at least four times per year. Regular meetings may be held without notice at such time, place, and manner as is determined from time to time by the Board; provided that any Director who is absent when such a determination is made will be given notice of the determination. A regular meeting of the Board may be held without notice immediately following the annual meeting of the Members.
  8. Special Meetings. Special meetings of the Board may be held as the work of the Foundation demands, and may be called by the Board Chair, or any other three members of the Board. Any Committee Chair of the applicable committee may call a special meeting of the committee. A special meeting must be called no less than forty-eight (48) hours prior to the actual meeting and must include the purpose of the meeting being called. Business transacted at any special meeting will be limited to matters relating to the purpose or purposes stated in the notice of special meeting.
  9. Quorum and Voting. A majority of the Directors then on the Foundation Board, will constitute a quorum for the transaction of business at any meeting of the Board. 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. If less than a quorum is present at a meeting, a majority of the Directors present may adjourn the meeting from time to time without further notice other than an announcement at the meeting, until a quorum shall be present. No Officer or Director may vote or act by proxy at any meeting of the Board, other than (a) the President, who may act by proxy through the Vice President, and (b) any Project Board Chair, who may act by proxy through the applicable Project Board Vice Chair. If there is a deadlock in a vote of the Foundation Board, the matter will be submitted for a vote to the Project Board to which the matter in question is most relevant.
  10. Participation by Conference Phone or Video Conference. Members of the Board or any Committee may participate in a meeting of the Board or Committee by means of conference telephone, video conference, or similar communications technology as long as all persons participating in the meeting can speak with and hear each other, and participation by a Director pursuant to this section will constitute presence in person at such meeting.
  11. Removal; Resignation. A Director may not be removed during his or her term except by the vote of 2/3rds of the Board or by a majority of the Board if the removal is for Cause. A Director may resign at any time by providing notice to the Board.
  12. Vacancies. Any vacancy occurring on the Board due to the removal or resignation of a Director may be filled by vote of a majority of the Directors then in office, although less than a quorum, or by a sole remaining Director. A Director elected to fill a vacancy shall be elected for the unexpired term of such Director’s predecessor in office until the next annual meeting of Members and until a successor is elected and qualified, or until such director’s earlier death, resignation or removal.
  13. Actions Without a Meeting. Any action required or permitted to be taken at any meeting of the Board, or of any committee thereof, may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, or by electronic transmission. After an action is taken, the consent or consents relating thereto shall be filed with the minutes of the proceedings of the Board, or the committee thereof, in the same paper or electronic form as the minutes are maintained.
  14. Committees. The Board may designate one or more committees, each committee to consist of one or more of the Directors with such powers and duties as the Board confers, to serve at the pleasure of the Board. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member at any meeting of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Foundation with respect to the matters delegated to the committee, but no committee shall have the power or authority in reference to adopting, amending or repealing these Bylaws, or any other matter which has not been expressly delegated to the committee. Each such committee shall keep minutes and make such reports as the Board may from time to time request. Except as the Foundation Board may otherwise determine, any committee may make rules for the conduct of its business, but unless otherwise provided by the directors or in such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these Bylaws for the Board, including the quorum rules. Except as otherwise provided in these Bylaws, or the resolution of the Board designating the committee, a committee may create one or more subcommittees, each subcommittee to consist of one or more members of the committee, and delegate to a subcommittee any or all of the powers and authority of the committee.
  15. Nomination Committee. The Board will have a Nomination Committee made up of Foundation Directors appointed by the Board. The Nomination Committee is tasked with developing procedures for nominating Foundation Directors, receiving nominations for Foundation Directors, and organizing the elections at the annual meeting of the Members.
  16. Advisory Boards; Community Input. The Board may create one or more advisory boards (each, an “**Advisory Board**”) who will advise the Board on various aspects related to the activities of the Foundation. Members of an Advisory Board do not need to be Members of the Foundation. An Advisory Board may bring matters to the Foundation Board for a vote without the need for a second for matters relating to the purpose of the specific Advisory Board. The Board may also seek community input via DAOs or other distributed means of decision making. Such input will be advisory only and not be binding on the Board or the Foundation.
  17. Compensation. Directors will not receive compensation for their services as Directors. However, Directors who provide services to the Foundation in capacities other than as Directors may be compensated for such other roles.
  18. Restrictions on Related Parties. No meeting of the Board will allow a quorum to be established or maintained if more than one third of the Board are employed by, consulting for, or have a substantial financial interest (5% ownership or more) in the same company, organization, or corporate structure. If a quorum cannot be established as a result of this restriction, the Directors in question will be required to select a Director or Directors to abstain from Board activities (voting, movements, seconds, etc.), but may still remain in attendance, for the remainder of the meeting. The abstaining member(s) will not count towards establishing or maintaining a quorum in any way. If, for whatever reason, a quorum still cannot be established or maintained, all members in question will be required to abstain from board activities (voting, movements, seconds, etc.), but may remain in attendance, for the remainder of the meeting.
  19. Confidentiality. Members of the Foundation Board and Project Boards will owe a duty of confidentiality to the Foundation with respect to matters addressed at meetings of the Foundation Board and Project Boards and other matters relating to the activities of the Foundation Board and Project Boards. Further, Members of the Foundation Board and Project Board will not disclose information that is designated confidential by the Foundation Board.

ARTICLE III - OFFICERS

  1. Officers Generally. The officers of the Foundation (“Officers”) will consist of a Board Chair and Vice Board Chair (“Elected Officers”), and President, Vice President, Secretary, Assistant Secretary (optional), Treasurer, and Assistant Treasurer (optional) (“Appointed Officers”).

  2. Election, Appointment and Term of Office. Elected Officers will be elected by a majority vote of the Members at the annual meeting in accordance with Section 1.4. The Appointed Officers will be appointed at the first meeting of the Board following their election. Each Appointed Officer will serve a one year term beginning on January 1st of each year and shall hold office until his or her successor has been duly appointed and qualified. An Officer may be appointed for any number of consecutive or non-consecutive terms. A person may hold only one officer position at a time. In the case of a vacancy in an Appointed Officer position due to resignation or removal, the Board will appoint a new person to the vacant position and such person will hold the office until the end of the current term.

  3. Duties. The Officers will have the following duties:

  4. Board Chair. The Board Chair will preside at all meetings of the Board and at all meetings of the Members. The Board Chair will have all the powers of the President in the event of the President’s absence or inability to act, or in the event of a vacancy in the office of the President and will have such other duties as may be conferred upon the Board Chair by the Board.

  5. Vice Board Chair. The Vice Board Chair will, in the absence or disability of the Board Chair, perform the duties and exercise the powers of the Board Chair, and will have such other duties as may be conferred upon the Vice Board Chair by the Board.

  6. President. The President (also known as Director) will be the Executive Director of the Foundation and will have general and active management of the business and affairs of the Foundation (other than the management of projects managed by a Project Board), subject to the direction of the Board. If a Board Chair is not elected, the President will preside at all meetings of the Board and at all meetings of the Members.

  7. Vice President. The Vice President will, in the absence or disability of the President, perform the duties and exercise the powers of the President, and will have such other duties as may be conferred upon the Vice President by the Board.

  8. Secretary and Assistant Secretary. The Secretary will keep or cause to be kept a record of all of the proceedings all meetings of the Board and at all meetings of the Members; cause all notices to be duly given in accordance with the provisions of these Bylaws; be the custodian of the books and records of the Foundation and perform in general all duties incident to the office of Secretary and such other duties as are given by these Bylaws or as from time to time may be assigned by the Board or the President. All minutes of the Board must be approved by the Board at the following meeting of the Board to be inserted in the minute book. The Board may appoint an Assistant Secretary, who will, if one is appointed, render assistance to the Secretary in all the responsibilities described above.

  9. Treasurer and Assistant Treasurer. The Treasurer will have custody of all Foundation funds and financial records, will 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 Board, the Board Chair, or the President.

  10. Delegation of Authority. To the extent required to carry out the duties ascribed to the Officers by these Bylaws, the Officers are authorized to bind the Foundation and enter contracts on behalf of the Foundation, provided that the Board may limit the scope of such authority. The Board may, from time to time, delegate the powers or duties of any Officer to any other officer or agent, notwithstanding any provision hereof.

  11. Limitations on Authority. No Officer or other agent of the Foundation may do any of the following without the prior approval of the Board: (a) enter into any contract or agreement in an amount greater than $5,000; (b) incur indebtedness on behalf of the Foundation in excess of $1,000; (c) waive or discharge any material obligations owed to the Foundation by a third party; (d) license or sell any assets of the Foundation in the ordinary course of the Foundation’s activities and consistent with past practices; (e) such other acts as are determined by the Board from time to time.

  12. Resignation and Removal. An Officer may not be removed during his or her term except by the vote of 2/3rds of the Board or by a majority of the Board if the removal is for Cause. An Officer may resign at any time by providing notice to the Board.

  13. Compensation. Officers may receive compensation for their services as Officer’s in amounts determined by the Board.**

ARTICLE IV - BOARD AND OFFICER EXPECTATIONS

  1. Attendance at Board Meetings. Directors and Officers are required to attend at least 75% of the regular meetings of the Board per year. Officers are also responsible for responding to communications of the Board in a timely manner and meeting the appropriate deadlines and responsibilities associated with their Officer position. If an Officer or Director cannot meet the requirements noted above, the person should reach out to the Board Chair to discuss.

  2. Board Duties. Directors, Officers, and Members each Project Board must act in a manner that they reasonably believe to be in the best interests of the Foundation and to the benefit of the public community supported by the Foundation.

ARTICLE V - PROJECT BOARDS AND PROJECT TEAMS

  1. Project Boards Generally. The Foundation’s initiatives will be carried out by Project Boards (each, a “Project Board”) made up of Members. The number and duties of the Project Boards will be determined by the Foundation Board. Subject to oversight by the Foundation Board and the general purposes of the applicable Project Board as determined by the Foundation Board, each Project Board will create and oversee Project Teams that will act on behalf of the Project Board to carry out the specific projects and work of the Foundation. It is anticipated that each Project Board will create and oversee multiple Project Teams that will work on projects related to the applicable Project Board’s areas of responsibility.
  2. Project Board Size; Composition. Each Project Board will consist of as many directors (“Project Directors”) as is determined by the Foundation Board. Project Directors must be Members of the Foundation. A person may be a member of more than one Project Board at the same time. A person may only hold the role of Project Board Chair / Project Board Vice Chair on one Project Board at any given time. A person may not hold more than one seat on the Foundation Board at a time.
  3. Project Director Eligibility. To be a Project Director, a person must (a) be at least 18 years of age, (b) have been a Member of the Foundation for at least one year, (c) demonstrated exemplary dedication to the project and/or community, and (d) have mentored (and/or invited) at least one Member within the last 12 months. To be eligible to be the Project Board Chair, a person must have previously served at least one full term on a Project Board.
  4. Election of Project Directors. Following the election of Foundation Directors at the annual meeting, Members of the respective Project Teams will elect Project Directors to the respective Project Board. Each Team Member will have one vote on all matters presented to the Team Members for a vote. Following election of the Project Boards, each Project Board will appoint a Project Board Chair and Project Board Vice Chair. An eligible person may be nominated to a Project Board in accordance with the Project Board’s bylaws. If the Project Board does not have an explicit nomination process, Project Board nominees will be nominated in accordance with the process set forth in Section 2.3 of these Bylaws.
  5. Rules Governing Project Boards. Each Project Board shall keep minutes of each meeting of the Project Board, and the initial act of each meeting will be to appoint a secretary of the meeting. Further, each Project Board will make such reports to the Foundation Board as the Foundation Board may from time to time request. Except as the Foundation Board may otherwise determine, any Project Board may make rules for the conduct of its business, but unless otherwise provided by the Project Directors or in such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these Bylaws for the Foundation Board, including the quorum rules. Projects will be encouraged to develop written trademark policies to encourage a level playing field for commercial use of the Project by others.
  6. Project Team Leadership. Each Project Team will have the following leadership structure:
    • Team Lead: Primary leader of the Project Team.
    • Team Deputy: Support and second level leader for the Project Team.
    • Team Members: Individual Members who are part of and contributing to the Project Team.
  7. Election of Project Team Leadership. Subject to the applicable Project Board Bylaws, each team will have, at a minimum, one Team Lead and one Team Deputy who will be selected in accordance with the applicable Project Board Bylaws.

ARTICLE VI - INDEMNIFICATION

  1. Right to Indemnification of Directors and Officers. The Foundation will indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (an “Indemnified Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that such person, or a person for whom such person is the legal representative, is or was a director or officer of the Foundation or, while a director or officer of the Foundation, is or was serving at the request of the Foundation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, limited liability company, trust, enterprise or nonprofit entity, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Indemnified Person in such Proceeding. The Foundation shall be required to indemnify an Indemnified Person in connection with a Proceeding (or part thereof) commenced by such Indemnified Person only if the commencement of such Proceeding (or part thereof) by the Indemnified Person was authorized in advance by the Board.

  2. Prepayment of Expenses. The Foundation shall pay the expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any Proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by the Indemnified Person to repay all amounts advanced if it should be ultimately determined that the Indemnified Person is not entitled to be indemnified under this Article VI or otherwise.

  3. Claims by Directors and Officers. If a claim for indemnification or advancement of expenses under this Article VI is not paid in full within 30 days after a written claim therefor by the Indemnified Person has been received by the Foundation, the Indemnified Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Foundation shall have the burden of proving that the Indemnified Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

  4. Non-Exclusivity of Rights. The rights conferred on any person by this Article VI shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the Company’s Certificate of Incorporation, these Bylaws, agreement, vote of the Board or otherwise.

  5. Insurance. The Board may, to the full extent permitted by applicable law as it presently exists, or may hereafter be amended from time to time, authorize an appropriate officer or officers to purchase and maintain at the Foundation’s expense insurance: (a) to indemnify the Foundation for any obligation which it incurs as a result of the indemnification of directors, officers and employees under the provisions of this Article VI; and (b) to indemnify or insure Directors, and Officers against liability in instances in which they may not otherwise be indemnified by the Foundation under the provisions of this Article VI.

  6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification.

ARTICLE VII - AMENDMENTS TO BYLAWS AND CHARTER

  1. Amendment to Bylaws. These Bylaws may be altered, amended, or restated by the vote of 2/3rds of the Directors then serving on the Board or by the Board of Directors of the Company.

  2. Amendment to Charter. The Foundation Charter may be altered, amended, or restated by the vote of 2/3rds of the Directors then serving on the Board or by the Board of Directors of the Company.

  3. Amendment to Project Board Bylaws. As part of its role of overseeing the Project Boards, the Foundation Board may alter, amend, or restate any Project Board Bylaws by the vote of 2/3rds of the Directors then serving on the Foundation Board.

ARTICLE VIII - MISCELLANEOUS

  1. Accounts Books; Minutes; Etc. The Foundation Board and each Project Board shall keep correct and complete books and records of account and shall also keep minutes of the proceedings of the Foundation Board and Project Boards. Books shall be kept in accordance with sound accounting principles. All books and records of the Foundation may be inspected by any Director for any proper purpose upon reasonable notice to the Foundation.

  2. Fiscal Year. The fiscal year of the Foundation shall end on December 31st of each year.

  3. Conflicts of Interest. If any person who is a Director or a Project Director is aware that the Foundation is about to enter into any business transaction directly or indirectly with himself or herself, any member of his or her immediate family, or any entity in which he or she has any legal, equitable or fiduciary interest or position, including without limitation as a director, officer, shareholder, partner or beneficiary, such person shall (a) immediately inform those charged with approving the transaction on behalf of the Foundation of his or her interest or position, (b) aid the persons charged with making the decision by disclosing any material facts within his or her knowledge that bear on the advisability of such transaction from the standpoint of the Foundation, and (c) not be entitled to vote on the decision to enter into such transaction.

  4. Loans to Directors and Officers Prohibited. No loans shall be made by the Foundation to any of its Directors, Project Director, or Officers.


[1]: This means the Foundation is a Delaware Public Benefit Corporation, with the objectives set forth in this Charter and the Foundation Bylaws. We do not have an objective to make money for shareholders. As of the time of this writing, the Foundation is NOT a 501(c)\* US tax-exempt organization.