This page contains the Bylaws of The XFree86 Project, Inc. For convience, the section headings are listed below which can be used to link to the named section.
1.1 Pursuant to the adoption of these Bylaws for purposes of the organization and operation of the not for profit Corporation, The XFree86 Project, Inc., The XFree86 Project shall be referred to herein as the "Corporation."
1.2 The primary purpose of the Corporation is to participate in the scientific research, development and implementation of the "X Window System" and to facilitate the delivery of source code and executable programs, ideas, information, and technology for public use, research and development of the X Window System.
1.3 The registered office of the Corporation is located at 250 Eldorado Blvd. #303, Webster, Texas 77598.
1.4 The name of the registered agent and address of the Corporation for purposes of service of process is Richard Murphey, 250 Eldorado Blvd. #303, Webster, Texas 77598.
1.5 The Corporation shall have such principal offices at such place or places within or without the State of Texas, where the Corporation is qualified to do business, as the Board of Directors may from time to time designate, or the business of the Corporation may require. The Board of Directors is hereby granted full power and authority to change the principal office from one location to another both within and without said state. For purposes of initial formation and operation of the Corporation, the Principal Office of the Corporation shall be 250 Eldorado Blvd. #303, Webster, Texas 77598.
1.6 (a) The Corporation is organized and shall be operated as a non-stock, not for profit membership Corporation organized under the Texas Non-Profit Corporation Act.
(b) The Board of Directors may, in its sole discretion, elect
to seek exemption from Federal taxation for the Corporation
pursuant to Section 501(a) of the Internal Revenue Code of
1986, as amended (hereinafter, the "Code"). In the event that
such exemption is sought and until such time, if ever, as such
exemption is denied or lost, the Corporation shall not be
empowered to engage directly or indirectly in any activity
that it believes would be likely to invalidate its status as
an organization exempt from federal income taxation under
Section 501(a) of the Code as an organization described in
Section 501(c) of the Code. All references to the Code
contained herein are deemed to include corresponding
provisions of any future United States Internal Revenue Law.
ARTICLE II - MEMBERS
2.1 The Corporation shall have two classes of membership: Full Members and Associate Members. Additional classes of voting and non-voting members may be created in the future, and the rights of existing classes of members may be amended, pursuant to Section 2.5 of these Bylaws. Only Full Members and any future classes of members which are entitled to voting rights shall be collectively referred to Voting Members. Full Members are the only class of membership in the Corporation which shall have voting rights, subject to future grants of voting rights pursuant to these Bylaws. All Voting and non-voting memberships in the Corporation are collectively referred to in these Bylaws as "Memberships"; and a person or entity holding Membership is referred to in these Bylaws as a "Member".
2.2 A Full Member shall be admitted to Membership by (a) acceptance of such persons or entity's written application for such Membership by the affirmative majority vote of the Board of Directors of the Corporation on such form as may be from time to time required by the Corporation (which acceptance shall be administered in a non-discriminatory fashion), and (b) payment of such initiation fees (if any), annual dues or other fees for such class of Membership as may from time to time be established by the Board of Directors. A Full Member shall remain in good standing as a Full Member provided all initiation fees, subsequent dues, assessments, and other fees, together with such penalties for late payment as may be determined by the Board of Directors, have been paid within the period set by the Board of Directors and the Full Member continues to meet all of the other requirements of Full Membership, as from time to time determined by the Board of Directors.
There shall not be fewer than one or more than twelve Full Memberships in the Corporation at any time. Each of the original members of the first Board of Directors of the Corporation who sign these Bylaws shall be Full Members in the Corporation, subject to their compliance with any other requirements of Full Membership established by the Board of Directors pursuant to the provisions of these Bylaws. Any Full Memberships in the Corporation other than those of original members of the first Board of Directors of the Corporation may be granted only upon the affirmative vote of a majority of the members of the then existing Board of Directors and upon compliance with any other requirements of Full Membership established by the Board of Directors pursuant to the provisions of these Bylaws.
The Full Membership granted to the original members of the Board of Directors of the Corporation is in consideration for their previous contributions of services and work to the Corporation. The Full Membership granted to each of the original members of the Board of Directors shall be a life Full Membership in the Corporation, subject to expiration only upon dissolution of the Corporation, the death or resignation by such Full Member of such persons Membership, or upon failure to pay any fee for renewal of the Full Membership which is established by the Board of Directors as applicable to all Full Members, and as allowed by these Bylaws. Upon the resignation, expiration of term or removal of any of the original Directors of the Corporation, such former original member of the Board of Directors shall retain all rights and privileges associated with Full Membership, including all voting privileges, so long as such person maintains Full Membership in accordance with requirements established pursuant to these Bylaws. Full Memberships granted to the original Members of the Board of Directors of the Corporation shall not be subject to Deprivation or Suspension as provided in Section 2.6 of these Bylaws, except for failure to pay any initial fees, annual dues, or assessments or other fees applicable to all similar Memberships. All other Memberships in the Corporation, including any Full Memberships in the Corporation subsequently granted by majority vote of the members of the Board of Directors of the Corporation, shall be subject to the provisions of Section 2.6 of these Bylaws.
2.21 The criteria for admission as an Associate Member and Membership fees and dues for any other membership shall be as determined from time to time by the Board of Directors.
2.3 Each Full Member, while in good standing, shall be entitled:
2.4 All intellectual property, specifications, Software and Documentation and any other technology or assets (collectively, "Technology") developed by the Corporation, whether developed by employees of the Corporation alone or with the assistance of volunteer staff or other employees of Members, shall be subject to such rules as the Board of Directors may adopt from time to time. Without limitation, such rules shall control all rights of publication relating to the Technology, the ownership of such Technology, the license rights which the Corporation of Members, as appropriate, may be entitled to therein, and the fees (if any) which the Corporation may charge Members for access to such Technology.
2.5 The conditions, privileges, powers, and voting rights (if any) of any class of Members may be changed, and one or more additional classes of Membership in the Corporation may be created, and the conditions, voting rights (if any), powers and privileges of each such class may be prescribed, by adoption of an amendment to these Bylaws pursuant to Article XIV of the Bylaws.
2.6 Any Member in good standing may be deprived of his, her or its Membership or be suspended as a Member for cause, and any Member not in good standing may be deprived of his, her or its Membership or can be suspended as a Member without cause, by a majority vote of the Board of Directors. Any initial fees, annual dues, assessments, other fees and/or penalties already paid shall not be refundable upon the Member's suspension or deprivation of Membership. No deprivation or suspension of Membership (other than for non- payment of dues, assessments or fees) shall be effective, however, unless:
Any Full Member of the Corporation, excepting Full Members who are or were original members of the first Board of Directors of the Corporation, who receives notification from the Board of Directors of deprivation or suspension of Membership pursuant to this Section shall not be entitled to vote on any matter presented for voting upon by Full Members, and shall have all voting privileges otherwise associated with Full Membership indefinitely suspended unless the action to terminate, deprive or suspend the Membership is withdrawn by majority vote of the Board of Directors of the Corporation.
Any deprivation or suspension of Membership for non-payment of dues, assessments or fees may be effected by written notice from the President of the Corporation pursuant to such rules as the Board of Directors may from time to time adopt.
No Membership in the Corporation may be assigned or transferred by any person or entity. Any attempt by any Member to transfer or assign such person or entities' Membership in the Corporation shall render such Membership made the subject of the purported assignment or transfer void, divesting any such assigning Member of any and all further rights or privileges with respect to the Corporation associated with Membership in the Corporation.
2.7 A Member may resign as a Member at any time. Any initial fees, annual dues, assessments, other fees and/or penalties already paid shall not be refundable in such event.
2.8 The name and address of each Member shall be contained in a Membership Book to be maintained at the principal office of the Corporation. Termination of any Membership shall be recorded in the book together with the date of such termination. Each Member shall be responsible for apprising the Corporation in writing of all changes to its name and address, and of the names and addresses of all representatives of such Member appointed to be members of committees or to receive notices or vote on behalf of such Member.
2.9 The Corporation may levy dues, assessments or fees upon its Members in such amount as may be approved from time to time by the Board of Directors, but a Member upon learning of any increase in dues, or of any levy of any assessments or fees, may avoid liability therefor by resigning from Membership prior to the date such dues, assessments or fees are due and payable, except where the Member is, by contract or otherwise, liable for such dues, assessments or fees. No provision of the Articles of Incorporation or Bylaws of the Corporation authorizing such dues, assessments or fees shall, of itself, create such liability.
2.10 Neither the Corporation nor any Member shall use the name
of the other in any form of publicity without the written
permission of the other, provided that any Member may disclose
and publicize such Member's membership in the Corporation,
and, unless requested to the contrary in writing by a Member
at the time of application to the Corporation for Membership,
the Corporation may publicize such Member's membership in the
Corporation.
ARTICLE III - MEETINGS OF MEMBERS
3.1 All meetings of the Members shall be held at such place within or without the State of Texas and at such time as may be fixed from time to time by the Board of Directors or President, or if not so designated, at the registered office of the Corporation. As provided in these Bylaws, meetings of the membership may take place by use of electronic mail or bulletin board.
3.2 Annual meetings of Members shall be held on the fourth Monday in February each year, if not a legal holiday, and if a legal holiday, then on the second secular day following, at 10:00 a.m., or at such other date and time as shall be designated from time to time by the Board of Directors or the President, at which meeting Voting Members shall elect in accordance with Section 4.3, a Board of Directors and at which meeting the Members shall transact such other business as may properly be brought before the meeting. If no annual meeting is held in accordance with the foregoing provision, the Board of Directors shall cause the meeting to be held as soon thereafter as convenient, which meeting shall be designated a special meeting in lieu of annual meeting.
3.3 Special meetings of the Members, for any purpose or purposes, may, unless otherwise prescribed by statute or by the Articles of Incorporation, be called by the Board of Directors or the President or Secretary at the request in writing of a majority of the Board of Directors, or at the request in writing of Voting Members constituting at least sixty percent (60%) of all Voting Members. Such request shall state the purpose or purposes of the proposed meeting. Business transacted at any special meeting shall be limited to matters relating to the purpose or purposes stated in the notice of meeting.
3.4 Except as otherwise provided bylaw, written notice of each meeting of the Members, annual or special, stating the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each Member entitled to attend such meeting.
3.5 The officer who has charge of the Membership Book of the Corporation shall prepare and make, at least ten days before every meeting of the Members, a complete list of the Voting Members entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each such Member. Such list shall be open to the examination of any Voting Member for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city or town where the 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 the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any Voting Member who is present.
3.6 Except as otherwise provided by statute, the Articles of Incorporation or these Bylaws, sixty-seven percent (67%) of the Voting Members, present in person or represented by proxy, shall constitute a quorum at all meetings of the Members for the transaction of business as allowed by these Bylaws.
3.7 Any meeting of Members may be adjourned from time to time to any other time and to any other place at which a meeting of Members may be held under these Bylaws, which time and place shall be announced at the meeting, by a majority of the Voting Members present in person or represented by proxy at the meeting and entitled to vote, though less than a quorum, or, if no Voting Member is present or represented by proxy, by any officer entitled to preside at or to act as Secretary of such meeting, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each Member.
3.8 Unless otherwise provided by these Bylaws or by the Law governing Corporations organized and existing under the laws of the State of Texas, when a quorum is present at any meeting, the vote of a majority of the Voting Members present in person or represented by proxy and entitled to vote on the question shall decide any question brought before such meeting; provided, that the Articles of Incorporation may specify the relative voting rights of the Members with respect to the election of Directors to the Board of Directors.
3.9 Except as otherwise provided in the Articles of Incorporation, each Voting Member shall at every meeting of the Members be entitled to one vote. Each Member entitled to vote at a meeting of Members, or to express consent or dissent to corporate action in writing without a meeting, may authorize another person or persons to act for him or her by proxy, but no such proxy shall be voted or acted upon after one year from its date, unless the proxy provides for a longer period.
3.10 Any action required to be taken at any annual or special meeting of Members, or any action which may be taken at any annual or special meeting of such Members, may be taken without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by Voting Members making up not less than that percentage of all Voting Members as would be necessary to authorize or take such action at a meeting at which all Voting Members entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those otherwise entitled to vote thereon who have not consented in writing. For purposes of this Section 3.10, the word "writing" shall be deemed to include a document manually executed and transmitted by telecopy or other electronic facsimile delivery method. Accordingly, any consent evidenced in the minute books of the Corporation by telecopy consents, electronic mail, or any combination of telecopy, electronic mail and original signed copies of such consent, shall be deemed to have been duly adopted under this Section.
3.11 Subject to the provisions of Section 4.3, the Board of Directors shall establish reasonable nomination and election procedures given the nature, size, and operations of the Corporation, including a reasonable means for Members to nominate a person for election as a Director, a reasonable opportunity for a nominee to communicate to the Members the nominee's qualifications and the reasons for the nominee's candidacy (if requested by such nominee), a reasonable opportunity for all nominees to solicit votes (if requested by any such nominee), and a reasonable opportunity for all Voting Members entitled to vote thereon to choose among the nominees.
3.12 The order of business at all meetings of Members shall be
as determined by the presiding officer, but the order of
business to be followed at any meeting at which a quorum is
present may be changed by a majority vote of the Voting
Members.
ARTICLE IV - DIRECTORS
4.1 The business and affairs of the Corporation shall be managed by its Board of Directors, which shall be, and shall possess all of the powers of, the "Governing Body" of the Corporation as a not-for-profit Corporation under the Texas Non-Profit Corporation Act. The Board of Directors may exercise all powers of the Corporation and do all such lawful acts and things as are not by statute or by the Articles of Incorporation or by these Bylaws directed or required to be exercised or done by the Members.
4.2 The total number of Directors shall be at least three and not more than nine (except as modified below), constituting all of the Director(s) elected by the Voting Full Members, and the President, who shall be a Director by virtue of his or her office as President.
4.3 Elected Directors shall be elected at the time of the Annual Meeting for one year terms in the manner provided by these Bylaws and the Articles of Incorporation. An elected Director shall hold office until the earliest to occur of (i) the expiration of the term for which such Director was elected and such Director's successor is elected and qualified, and (ii) the death, resignation or removal of the Director. In addition, any elected Director may be removed from office without cause by a majority vote of the other Directors.
4.4 The President, by virtue of his or her office, shall automatically be a Director (an "Appointed Director"). The President shall hold office as a Director until the earliest to occur of (i) his or her death or resignation as a director, and (ii) his or her resignation or termination as President.
4.5 The number of Directors, the persons eligible to become Directors and the classes of Members eligible to elect Directors may be amended at any time by a vote of the Board of Directors or by a vote of the Voting Members made in accordance with the requirements for Amendment of these Bylaws as provided in Article XIV.
4.6 Any Director may resign at any time upon written notice to the Corporation at its principal place of business or to the President or Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event. Any Director may be removed, with or without cause, by a majority of the Voting Full Members then entitled to vote at an election of such Director, unless otherwise specified bylaw or the Articles of Incorporation, and with cause by a majority of the other Directors.
4.7 (a) A vacancy on the Board of Directors caused by the death, resignation or removal of any elected Director, or by an increase in the number of authorized elected Directors, may be filled by a majority of the elected Directors then in office or by a sole remaining elected Director. The term of a Director so elected shall be the unexpired portion of the term of the Director, if any, whom the Director or elected is replacing, or until the next general election of Directors, in the case of an expansion of the Board.
(b) In the event of a vacancy in the Board of Directors, the remaining Directors, except as otherwise provided bylaw or these Bylaws, may exercise the powers of the full Board until the vacancy is filled.
4.8 In addition to the elected and appointed Directors provided for in Section 4.1, the Board of Directors may elect such Director emeritus as it may find appropriate. Directors emeritus shall be entitled to attend all meetings of the Board of Directors or of committees to which they may be appointed by the Board of Directors. However, Directors emeritus shall serve in an advisory capacity only, and shall not be eligible to act as chairmen of committees, nor shall they be entitled to vote at meetings of the Board of Directors or of any committee thereof. The Board of Directors shall elect Directors emeritus by a unanimous vote of the Board of Directors of the Corporation. Directors emeritus shall serve for a term of one (1) year, unless they resign or are sooner removed, and may be reelected for additional one-year terms. A Director emeritus shall be subject to removal in the same manner and upon the same conditions as all members of the Board of Directors of the Corporation.
4.9 The Board of Directors may hold meetings, both regular and special, either within or without the State of Texas, or at any place and in any manner, so long as notice of such meeting, and such meeting, is carried out in accordance with the provisions of these Bylaws.
4.10 Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the Board; provided that any Director who is absent when such a determination is made shall be given prompt notice of such determination. A regular meeting of the Board of Directors may be held without notice immediately after and at the same place as the annual meeting of Members.
4.11 Special meetings of the Board may be called by the President, Secretary, or on the written request of two or more Directors, or by one Director in the event that there is only one Director in office. Two business days' notice to each Director, either personally or by electronic mail, telegram, cable, telecopy, commercial delivery service, telex or similar means sent to his or her business or home address, or three business days' notice by written notice deposited in the mail, shall be given to each Director by the Secretary or by the officer or one of the Directors calling the meeting. A notice or waiver of notice of a meeting of the Board of Directors need not specify the purposes of the meeting.
4.12 At all meetings of the Board a majority of Directors then in office, but in no event less than one third of the entire Board, shall constitute a quorum for the transaction of business and the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided bylaw or by the Articles of Incorporation. For purposes of this section the term "entire board" shall mean the number of directors last fixed by the Voting Members or Directors, as the case may be, in accordance with law and these Bylaws; provided, however, that if less than all the number so fixed of Directors were elected, the "entire board" shall mean the greatest number of Directors so elected to hold office at any one time pursuant to such authorization. If a quorum shall not be present at any meeting of the Board of Directors, a majority of the Directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. In the event that one or more of the Directors shall be disqualified from voting at any meeting upon any matter, then the required quorum as it relates to the consideration of such matter shall be reduced by one for each such Director so disqualified.
4.13 (a) Unless otherwise restricted by the Articles of Incorporation or these Bylaws, any action required or permitted to be taken by the Board of Directors may be taken without a meeting and without prior notice if a majority of Directors then in office (or such greater number of Directors as may be required bylaw or the Bylaws of the Corporation for the taking of any such action at a meeting) consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors, provided that:
Unless otherwise restricted by the Articles of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of any committee of the Board of Directors may be taken in the manner set forth in the preceding clause.
(b) For purposes of this Section 4.13, the word "writing" shall be deemed to include a document manually executed and transmitted by telecopy or other electronic facsimile delivery method. Accordingly, any consent evidenced in the minute books of the Corporation by telecopy consents, or any combination of telecopy and original signed copies of such consent, shall be deemed to have been duly adopted under this Section.
4.14 Unless otherwise restricted by the Articles of Incorporation or these Bylaws, members of the Board of Directors or of any committee thereof may participate in a meeting of the Board of Directors or of any committee, as the case may be, by means of conference telephone, electronic conference, electronic mailing lists, video conference equipment, or similar communications equipment by means of which all persons participating in the meeting can address the entire group, and such participation in a meeting shall constitute presence in person at the meeting.
4.15 Every Director shall have the absolute right at any time to inspect, copy and make extracts of, in person or by agent or attorney, all books, records and documents of every kind and to inspect the physical properties of the Corporation.
4.16 Directors shall not receive any stated salary for their
services as Directors, but, by resolution of the Board of
Directors, a fixed fee may be allowed for attendance at each
meeting. Directors may be reimbursed in such amounts as may
be determined from time to time by the Board of Directors for
expenses incurred while acting on behalf of the Corporation
and/or expenses incurred in attending meetings of the Board of
Directors. Nothing herein contained shall be construed to
preclude any Director from serving the Corporation in any
other capacity as an officer, agent, employee, or otherwise,
and receiving compensation therefor. The Directors may also
allow compensation for members of committees for service on
such committees.
ARTICLE V - EXECUTIVE COMMITTEE AND OTHER COMMITTEES
5.1 The Board of Directors may (but shall not be required) by resolution adopted by a majority of the Directors then in office (provided a quorum is present), create an Executive Committee, consisting of two or more Directors, including the President, should said office then be filled. The Board of Directors may designate one or more Directors as alternate members of such committee, who may replace any absent member at any meeting of such committee. The Executive Committee, subject to any limitations imposed by the Articles of Incorporation, by these Bylaws, by statute, and/or by the Board of Directors, shall have and may exercise all of the powers of the Board of Directors which are delegated to the Executive Committee from time to time by the Board of Directors; provided, however, that the Executive Committee shall have no authority with respect to:
5.2 The Board of Directors may, by resolution adopted by a majority of the Directors then in office (provided a quorum is present), create such other audit, compensation and other committees, each consisting of two (2) or more Directors appointed by the Board, as it may from time to time deem advisable to perform such general or special duties as may from time to time be delegated to any such committee by the Board of Directors, subject to the limitations imposed by the Articles of Incorporation or by these Bylaws. No such committee shall have the power or authority to take any action prohibited by Section 5.1 above to be taken by the Executive Committee. The Board of Directors may designate one or more Directors as alternate members of any committee, who may replace any absent member at any meeting of the committee. Any committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. Each committee shall keep regular minutes of its meetings and make such reports to the Board of Directors as the Board of Directors may request.
5.3 Except as otherwise provided in these Bylaws or by resolution of the Board of Directors, each committee of the Board of Directors may adopt its own rules governing the time and place of holding and the method of calling its meetings and the conduct of its proceedings and shall meet as provided by such rules, but unless otherwise provided by resolution of the Board of Directors or in such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these Bylaws for the conduct of the business the Board of Directors.
5.4 Each member of a committee of the Board of Directors shall serve at the pleasure of the Board of Directors.
5.5 From time to time, the Board of Directors may establish
additional committees and sub-committees whose members need
not be Directors. If so required by the Board, only persons
representing Voting Members shall be eligible to be voting,
participating members on any such committee or subcommittee.
ARTICLE VI - OFFICERS
6.1 The officers of the Corporation shall be a President, a Vice President, a Treasurer and a Secretary. The Corporation may also have, at the discretion of the Board of Directors, more than one Vice President, one or more Assistant Secretaries and/or Assistant Treasurers, and such other officers with such titles, terms of office and duties as may be elected in accordance with the provisions of Section 6.3. One person may hold two or more offices unless the Articles of Incorporation otherwise provides.
6.2 A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in these Bylaws for regular elections to such office.
6.3 The Board of Directors at its organizational meeting and the first meeting after each annual meeting of Members shall choose by affirmative majority vote a President, Vice President, a Secretary and a Treasurer. Other officers may be elected by the Board of Directors at such meeting, and all officers may be replaced, at any other meeting, or by written consent.
6.4 Each officer of the Corporation shall hold office until his or her successor is chosen and qualifies, unless a different term is specified in the vote choosing or electing him, or until his or her earlier death, resignation or removal. Any officer elected by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors or a committee duly authorized to do so. Any vacancy occurring in any office of the Corporation may be filled by the Board of Directors, at its discretion. Any officer may resign by delivering his or her written resignation to the Corporation at its principal place of business or to the Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event.
6.5 The President shall be the chief executive and the chief operating officer of the Corporation. The President shall, unless the Board of Directors provides otherwise in a specific instance or generally, preside at all meetings of the Members and the Board of Directors, have general and active management of the business of the Corporation and see that all orders and resolutions of the Board of Directors are carried into effect. Without limiting the foregoing, the President shall:
6.6 In the absence of the President or in the event of his or her inability or refusal to act, a Vice-President, or if there be more than one Vice-President, the Vice-Presidents in the order designated by the Board of Directors (or in the absence of any designation, then in the order determined by their tenure in office) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice-Presidents shall perform such other duties and have such other powers as the Board of Directors or the President may from time to time prescribe.
6.7 The Secretary shall have such powers and perform such duties as are incident to the office of Secretary, and shall:
6.8 The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board of Directors, the President or the Secretary (or if there be no such determination, then in the order determined by their tenure in office), shall, in the absence of the Secretary or in the event of his or her inability or refusal to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board of Directors, the President or the Secretary may from time to time prescribe. In the absence of the Secretary or any Assistant Secretary at any meeting of Members or Directors, the person presiding at the meeting shall designate a temporary or acting Secretary to keep a record of the meeting.
6.9 The Treasurer shall perform such duties and shall have such powers as may be assigned to him or her by the Board of Directors or the President. In addition, the Treasurer shall perform such duties and have such powers as are incident to the office of Treasurer. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors, when the President or Board of Directors so requires, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation.
6.10 The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors, the President or the Treasurer (or if there be no such determination, then in the order determined by their tenure in office), shall, in the absence of the Treasurer or in the event of his or her inability or refusal to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board of Directors, the President or the Treasurer may from time to time prescribe.
6.11 If required by the Board of Directors, any officer shall give the Corporation a bond in such sum and with such surety or sureties and upon such terms and conditions as shall be satisfactory to the Board of Directors, including without limitation a bond for the faithful performance of the duties of his or her office and for the restoration to the Corporation of all books, papers, vouchers, money and other property of whatever kind in his or her possession or under his or her control and belonging to the Corporation.
6.12 The compensation, if any, of the officers shall be fixed
from time to time by the Board of Directors, and no officer
shall be prevented from receiving such compensation by reason
of the fact that the officer is also a Director of the
Corporation. The President, although a member of the Board of
Directors, shall not vote on matters relating to his or her
compensation or duration in office.
ARTICLE VII - NOTICES
7.1 (a) If written notice is required to be given to any Director or Member, such notice may be given by mail, addressed to such Director or Member, at his, her or its address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Unless written notice by mail is required bylaw, written notice may also be given by electronic mail, telegram, cable, telecopy, commercial delivery service, telex or similar means, addressed to such Director or Member at his, her or its address as it appears on the records of the Corporation, in which case such notice shall be deemed to be given when delivered into the control of the persons charged with effecting such transmission, the transmission charge to be paid by the Corporation or the person sending such notice and not by the addressee. Oral notice or other in-hand delivery (in person or by telephone) shall be deemed given at the time it is actually given.
(b) Without limiting the foregoing, the Corporation adopts electronic mail as its principal source of communication with its Members. Each Member acknowledges and agrees that the Corporation shall not be under any obligation (except as required bylaw or these Bylaws) to send any notice to any Member by any means other than electronic mail, and it is therefore the responsibility of each Member to make such arrangements as may be necessary to receive notice in such fashion. To the extent that any Member fails to take such action, such Member shall be deemed to have waived his, her or its right to receive written notice from the Corporation.
7.2 Whenever any notice is required to be given under the
provisions of law or of the Articles of Incorporation or of
these Bylaws, a waiver thereof (i) in writing, signed by the
person or persons entitled to said notice, whether before or
after the time stated therein, or (ii) a waiver under Section
7.1(b) above (except to the extent limited by applicable law),
shall be deemed equivalent thereto.
ARTICLE VIII - INDEMNIFICATION
8.1 The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation ) by reason of the fact that he is or was a Director, officer, 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 expenses (including attorneys' fees); judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation , and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.
8.2 The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a Director, officer, 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 expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation provided however, that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Corporation except to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.
8.3 The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in manner which he reasonably believed to be in or not opposed to the best interests of the Corporation , and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
8.4 Expenses incurred in defending a civil or criminal action, suit or proceeding may 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 the Director, officer, employee or agent to repay such amount unless it shall ultimately be determined that such person is entitled to be indemnified by the Corporation as authorized in this section.
8.5 Indemnification hereunder shall be made only upon a determination in the specific case that indemnification is proper under the substantive standards established hereunder. Such determination shall be made (a) by the Board of Directors by a majority vote of a quorum consisting of Directors who are not parties to such action, suit or proceeding, or (b) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested Directors so directs, through independent legal counsel in a written opinion, or (c) by a majority vote of the members of the Corporation.
8.6 The Corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a Director, officer, 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 and incurred by him in any such capacity or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this section.
8.7 Any indemnification under Section 8.1 or 8.2 of this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in each specific case upon a determination that indemnification of any person described in said Sections is proper in the circumstances because he or she has met the applicable standard of conduct set forth in said Sections. Such determination shall be made (1) by the Board of Directors by a majority vote of a quorum consisting of Directors who were not parties to such action, suit or proceeding, or (2) in the event that a majority of the Directors of the Corporation are parties to such proceeding, then by an affirmative majority vote by the Members of the Corporation.
8.9 If any word, clause or provision of this Article VIII or any award made hereunder shall for any reason be determined to be invalid, the provisions hereof shall not otherwise be affected thereby but shall remain in full force and effect.
8.10 The intent of this Article VIII is to provide for
indemnification and advancement of expenses to the fullest
extent permitted by the Texas Non-Profit Corporation Act. To
the extent that such Section or any successor section may be
amended or supplemented from time to time, this Article VIII
shall be amended automatically and construed so as to permit
indemnification and advancement of expenses to the fullest
extent from time to time permitted bylaw.
ARTICLE IX - BOOKS AND RECORDS
9.1 The Corporation shall keep adequate and correct books and records of account, minutes of the proceedings of the Members, the Board of Directors and committees of the Board of Directors, and a record of the Members giving their names and addresses and the class of Membership held by each.
9.2 Minutes shall be kept in written form. Other books and records shall be kept either in written form or in any other form capable of being converted into written form.
9.3 The Board of Directors shall cause such reports to be prepared, filed and/or distributed as may be required by the Board of Directors.
9.4 In order that the Corporation may determine the Members entitled to notice of or Voting Members entitled to vote at any meeting of Members or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty days nor fewer than ten days before the date of such meeting, nor more than sixty days prior to any other action to which such record date relates. A determination of Members of record entitled to notice of or Voting Members entitled to vote at a meeting of Members shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. If no record date is fixed, the record date for determining Members entitled to notice of or Voting Members entitled to vote at a meeting of Members shall be at the close of business on the day before the day on which notice is given, or, if notice is waived, at the close of business on the day before the day on which the meeting is held. The record date for determining Members for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating to such purpose.
9.5 The Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as a Full
Member to vote, if such records indicate that such person is a
Voting Full Member or a representative of a Voting Full
Member, and to hold liable for fees, penalties and assessments
a person or entity registered on its books as a Full Member,
and shall not be bound to recognize any equitable or other
claim to or interest in Full Membership on the part of any
other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the Texas
Non-Profit Corporation Act.
ARTICLE X - CERTAIN TRANSACTIONS
10.1 No contract or transaction between the Corporation and one or more of its Directors or officers, or between the Corporation and any other Corporation, partnership, association, or other organization in which one or more of its Directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the Director or officer is present at or participates in the meeting of the Board or committee thereof which authorizes the contract or transaction or solely because his, her or their votes are counted for such purpose, if:
11.1 The making of grants and contributions, and otherwise rendering financial assistance for the purposes of the Corporation, may be authorized by the Board of Directors. The Board of Directors may authorize any officer or officers, agent or agents, in the name of and on behalf of the Corporation to make any such grants, contributions or assistance. In addition, the Board of Directors may authorize the Corporation to obtain, or seek to obtain, financial assistance consistent with the development of the Corporation's purpose and objectives from time to time, whether such grants or financial assistance are ultimately to be procured through public or private sources.
11.2 The Board of Directors may authorize any officer, employee or agent, in the name and on behalf of the Corporation, to enter into any contract or execute and satisfy any instrument, and any such authority may be general or confined to specific instances, or otherwise limited. In the absence of any action by the Board of Directors to the contrary, the President shall be authorized to execute such contracts and instruments on behalf of the Corporation.
11.3 No loans shall be contracted on behalf of the Corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the Board of Directors. The President or any other officer, employee or agent authorized by the Board of Directors may effect loans and advances at any time for the Corporation from any bank, trust company or other institutions or from any firm, association or individual, and for such loans and advances may make, execute and deliver promissory notes, bonds or other certificates or evidences of indebtedness of the Corporation, and when authorized by the Board of Directors so to do, may pledge and hypothecate or transfer assets of the Corporation as security for any such loans or advances. Such authority conferred by the Board of Directors may be general or confined to specific instances or otherwise limited.
11.4 All checks, drafts and other orders for the payment of money out of the funds of the Corporation, and all notes or other evidences of indebtedness 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 on behalf of the Corporation in such manner as shall from time to time be determined by resolution of the Board of Directors.
11.5 The funds of the Corporation not otherwise employed shall be deposited from time to time to the order of the Corporation in such banks, trust companies, or other depositories, or shall be otherwise invested, as the Board of Directors may select or direct, or as may be selected or directed by an officer, employee or agent of the Corporation to whom such power may from time to time be specifically delegated by the Board of Directors.
11.6 In the ordinary course, but subject to the judgment of
the President in any given case, all material contracts and
commitments shall be reviewed by legal counsel.
ARTICLE XII - GENERAL PROVISIONS
12.1 The fiscal year of the Corporation shall be determined, and may be changed, by resolution of the Board of Directors.
12.2 There may be created by resolution of the Board of Directors out of the earned surplus of the Corporation such reserve or reserves as the Directors from time to time, in their discretion, think proper to provide for contingencies, or to repair or maintain any property of the Corporation , or for such other purpose as the Directors shall think beneficial to the Corporation , and the Directors may modify or abolish any such reserve in the manner in which it was created.
12.3 The Board of Directors shall provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the Corporation. The seal may be altered from time to time by the Board of Directors.
12.4 (a) All information disclosed by any participant during any official meeting or activity of the Corporation, including but not limited to Member meetings, Board meetings, Committee meetings, Sub-committee meetings, electronic mail or the like, shall be deemed to have been disclosed on a non-confidential basis, and, subject to rights and restrictions represented by valid patents, patent applications, and Federal and international statutory copyrights (no waiver of any rights pertaining to which shall be implied from such disclosure or the terms of this Section 12.4.), may be used by anyone without restriction.
(b) No Member shall at any time be required to exchange proprietary information with any other Member solely by reason of its being a Member of the Corporation.
(c) No express or implied right, whether by implication, estoppel, or otherwise, to any patent, copyright, trademark, trade secret, or other intellectual property right of any Member is or shall be deemed to be granted to the Corporation or to any other Member by reason of membership in the Corporation, except as provided in paragraph 12.4 (d), below.
(d) All original ideas, designs and developments of Members of
the Corporation utilized by any such Member in the business of
the Corporation or in the developments of any product of the
Corporation, and contributed by such Member to the Corporation
for the utilization of the Corporation in the conduct of its
business and in the fulfillment of its purposes as set out in
the Corporation's Articles of Incorporation and these Bylaws,
including all such intellectual property, shall be and become
the property of the Corporation. To the extent intellectual
property is contributed by a member, materials included in The
XFree86 Project, Inc. releases shall be copyrighted in the
name of the Corporation, with the names of the developing
Member or Member left intact in the coding of such release.
ARTICLE XIII - ANTITRUST COMPLIANCE
13.1 The Corporation will conduct all of its activities in conformance with the federal and state antitrust laws, including the Sherman Act, the Clayton Act, the Robinson-Patman Act and the Federal Trade Commission Act. The Board of Directors and the President of the Corporation shall consult legal counsel and seek legal review whenever necessary to insure that the activities of the Corporation are conducted in conformance with such laws.
13.2 No Member shall, by reason of membership or participation
in the Corporation or otherwise, be obligated to license, use
or endorse any Technology developed or endorsed by the
Corporation, or to conform any products to any standards or
specifications developed or adopted by the Corporation.
ARTICLE XIV - AMENDMENT OF BYLAWS
These Bylaws may be altered, amended or repealed or new Bylaws may be adopted by (i) the affirmative vote of at least two-thirds (2/3) of the Voting Members of the Corporation, or (ii) by the affirmative vote of at least two-thirds (2/3) of the members of the Board of Directors, except where such power is expressly limited bylaw or the Articles of Incorporation, at any annual meeting of the Voting Members or regular meeting of the Board of Directors or at any special meeting of the Voting Members or of the Board of Directors, provided, however, that in the case of a regular or special meeting of Voting Members, notice of such alteration, amendment, repeal or adoption of new Bylaws shall be contained in the notice of such meeting.
Adopted by the Board of Directors of the Corporation on the 27th day of May, 1994.
Attest:
David Wexeblat
President and Director
AIB Software Corporation
46030 Manekin Plaza Suite 160
Dulles, Virginia 20166
Dirk Hohndel David Dawes
Vice President and Director Secretary and Director
AIB Software Corporation School of Physics #A29
46030 Manekin Plaza Suite 160 University of Sydney
Dulles, Virginia 20166 Sydney, Australia 2006
Dr. Richard Murphey Dr. Jon Tombs
Treasurer and Director Director
250 Eldorado Blvd. #303 C-PEO DOSI0-43 Portal 6 1-A
Webster, Texas 77598 Sevilla, Spain 41002
Glenn G. Lai James Tsillas
Director Director
P.O. Box 4314 Proteon, Inc.
Austin, Texas 78765 9 Technology Dr.
West Boro, Massachusetts 01581