The corporation shall have no fewer than three and no more than nine directors, and collectively they shall be known as the Board of Directors. The number of directors serving may be changed within this range from time to time by said Board of Directors without requiring an amendation to these bylaws.
Directors shall be individuals of the age of majority in this state and who have consistently acted to uphold, protect and defend the corporation as an independent, non-profit, non-commercial developer and implementer of the X Window System against hostile, biased, commercial, and vested interests.
Subject to the provisions of the laws of the Commonwealth of Pennsylvania and any limitations in the Articles of Incorporation and these Bylaws, the activities and affairs of this corporation shall be conducted and all corporate powers shall be exercised by or under the direction of the Board of Directors.
It shall be the duty of the directors to:
Each director shall hold office for a period of three years and until his or her successor is elected and qualifies.
Directors shall serve without compensation except that they shall be allowed reasonable advancement or reimbursement of expenses incurred in the performance of their duties.
Meetings shall be held at the principal office of the corporation unless otherwise provided by the board or at such other place as may be designated. Unless otherwise restricted by the Articles of Incorporation or these Bylaws, directors may participate in meetings by means of tele-conference, electronic conference, including video-conferencing, electronic mailing lists, or similar methods 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.
Regular meetings of Directors shall be held on the first Thursday of April of each year at 3:00 PM US Eastern Standard Time, unless such day falls on a legal holiday, in which event the regular meeting shall be held at the same hour and place on the next business day.
At the regular meeting of directors held on the first Thursday of April every third year, the directors shall be elected by the Board of Directors. Voting for the election of directors shall be by written ballot which must be either in facsimile or written form. Electronic mail balloting is explicitly forbidden.
Each director shall cast one vote per candidate, and may vote for as many candidates as the number of candidates to be elected to the board. The candidates receiving the highest number of votes up to the number of directors to be elected shall be elected to serve on the board.
Special meetings of the Board of Directors may be called by the Chairperson of the Board, the President, the Vice President, the Secretary, or by any two directors. Such meetings shall be held at the principal office of the corporation or, if different, at the place designated by the person or persons calling the special meeting.
Unless otherwise provided by the Articles of Incorporation, these Bylaws, or provisions of law, the following provisions shall govern the giving of notice for meetings of the Board of Directors:
A quorum consists of a majority (greater than 50%) of the members of the Board of Directors.
Except as otherwise provided under the Articles of Incorporation, these Bylaws or provisions of law, no business shall be considered by the board at any meeting at which the required quorum is not present, and the only motion which the Chair shall entertain at such meeting is a motion to adjourn.
Every act or decision done or made by a majority (greater than 50%) of the directors present at a meeting duly held at which a quorum is present is the act of the Board of Directors, unless the Articles of Incorporation, these Bylaws or provisions of law require a greater percentage or different voting rules for approval of a matter by the board.
Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, or if no such person has been so designated or, in his or her absence, the President of the corporation, or in his or her absence, by a Chairperson chosen by a majority of the directors present at the meeting. The Secretary of the corporation shall act as secretary of all meetings of the board of directors, provided that, in his or her absence, the presiding officer shall appoint another person to act as Secretary of the Meeting.
Meetings shall be governed by such procedures as may be approved from time to time by the board of directors, insofar as such rules are not inconsistent with or in conflict with the Articles of Incorporation, these Bylaws or with provisions of law.
Vacancies on the Board of Directors shall exist (1) on the death, resignation or removal of any director, and (2) whenever the number of authorised directors is increased.
Any director may resign effective upon giving written notice to the Chairperson of the Board, the President, the Secretary or the Board of Directors, unless the notice specifies a later time for the effectiveness of such resignation. No director may resign if the corporation would then be left without a duly elected director or directors in charge of its affairs, except upon notice to the Office of the Attorney General or other appropriate agency of the Commonwealth of Pennsylvania.
Directors may be removed from office, with or without cause, as permitted by and in accordance with the laws of the Commonwealth of Pennsylvania.
Unless otherwise prohibited by the Articles of Incorporation, these Bylaws or provisions of law, vacancies on the board may be filled by approval of the Board of Directors. If the number of directors then in office is less than a quorum, a vacancy on the board may be filled by approval of a majority of the directors then in office or by a sole remaining director. A person elected to fill a vacancy on the board shall hold office until the next election of the Board of Directors or until his or her death, resignation or removal from office.
The directors shall not be personally liable for the debts, liabilities or other obligations of the corporation.
The directors and officers of the corporation shall be indemnified by the corporation to the fullest extent permissible under the laws of the Commonwealth of Pennsylvania.
Except as may otherwise be provided under provisions of law, the Board of Directors may adopt a resolution authorising the purchase and maintenance of insurance on behalf of any agent of the corporation (including a director, officer, employee or other agent of the corporation) against liabilities asserted against or incurred by the agent in such capacity or arising out of the agent's status as such, whether or not the corporation would have the power to indemnify the agent against such liability under the Articles of Incorporation, these Bylaws or provisions of law.
The officers of the corporation shall be a President, a Vice President, a Secretary and a Treasurer. The corporation may also have a Chairperson of the Board, one of more Vice Presidents, Assistant Secretaries, Assistant Treasurers and other such officers with such titles as may be determined from time to time by the Board of Directors.
Any person qualified to serve as director of this corporation may serve as an officer of this corporation.
Officers shall be elected by the Board of Directors, at any time, and each officer shall hold office until his or her death, or until he or she resigns or is removed or is otherwise disqualified to serve, or until his or her successor shall be elected and qualified, whichever occurs first.
Any officer may be removed, either with or without cause, by the Board of Directors, at any time. Any officer may resign at any time by giving written notice to the Board of Directors or to the President or Secretary of the corporation. Any such resignation shall take effect at the date of receipt of such notice or at any later date specified therein, and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. The above provisions of this section shall be superseded by any conflicting terms of a contract which has been approved or ratified by the Board of Directors relating to the employment of any officer of the corporation.
Any vacancy caused by the death, resignation, removal, disqualification or otherwise, of any officer shall be filled by the Board of Directors. In the event of a vacancy in any office other than that of President, such vacancy may be filled temporarily by appointment by the President until such time as the Board shall fill the vacancy. Vacancies occurring in offices of officers appointed at the discretion of the board may or may not be filled as the board shall determine.
The President shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, supervise and control the affairs of the corporation and the activities of the officers. He or she shall perform all duties incident to his or her office and such other duties as may be required by law, by the Articles of Incorporation or by these Bylaws or which may be prescribed from time to time by the Board of Directors. Unless another person is specifically appointed as Chairperson of the Board of Directors, the President shall preside at all meetings of the Board of Directors. Except as otherwise expressly provided by law, by the Articles of Incorporation or by these Bylaws, he or she shall, in the name of the corporation, execute such deeds, mortgages, bonds, contracts, checks or other instruments which may from time to time be authorised by the Board of Directors.
In the absence of the President, or in the event of his or her inability or refusal to act, the Vice President shall perform all duties of the President, and when so acting shall have all the power of, and be subject to all the restrictions on, the President. The Vice President shall have other powers and perform such other duties as may be prescribed by law, by the Articles of Incorporation or by these Bylaws or as may be prescribed by the Board of Directors.
The Secretary shall:
The Treasurer shall:
The officers of the corporation shall serve without compensation except that they shall be allowed reasonable advancement or reimbursement of expenses incurred in the performance of their duties.
The Board of Directors may, by majority vote of its members, designate an Executive Committee consisting of two (2) or more board members and may delegate to such committee the powers and authority of the board in the management of the business and affairs of the corporation, to the extent permitted, and except as may otherwise be provided, by provisions of law.
By a majority vote of its members, the board may at any time revoke or modify any or all of the Executive Committee authority so delegated, increase or decrease but not below two (2) the number of the members of the Executive Committee and fill vacancies on the Executive Committee from the members of the board. The Executive Committee shall keep regular minutes of its proceedings, cause them to be filed with the corporate records and report the same to the board from time to time as the board may require.
The corporation shall have such other committees as may from time to time be designated by resolution of the Board of Directors. These committees may consist of persons who are also not members of the board and shall act in an advisory capacity to the board.
Meetings and actions of committees shall be governed by, noticed, held and taken in accordance with the provisions of these Bylaws concerning meetings of the Board of Directors, with such changes in the context of such Bylaw provisions as are necessary to substitute the committee and its members for the Board of Directors and its members, except that the time for regular and special meetings of committees may be fixed by resolution of the Board of Directors or by the committee. The Board of Directors may also adopt rules and regulations pertaining to the conduct of meetings of committees to the extent that such rules and regulations are not inconsistent with the provisions of these Bylaws.
The Board of Directors, except as otherwise provided by these Bylaws, may by resolution authorise any officer or agent of the corporation to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances. Unless so authorised, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable monetarily for any purpose or for any amount.
Except as otherwise specifically determined by resolution of the Board of Directors, or as otherwise required by law, checks, drafts, promissory notes, orders for the payment of money and other evidence of indebtedness of the corporation shall be signed by the Treasurer or the President unless it is in the amount greater than $10,000 (ten thousand) US dollars, in which case it must be signed by the Treasurer, countersigned by the President and approved by at least one other officer of the corporation. Furthermore, checks, drafts, promissory notes, orders for payment of money and other evidence of indebtedness of the corporation to an officer of the corporation shall be signed by a second officer and approved by a third officer.
All funds of the corporation shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositories as the Board of Directors may select.
The Board of Directors may accept on behalf of the corporation any contribution, gift, bequest or device for the nonprofit purposes of this corporation.
No fundraising plan has been developed or implemented as it is assumed that all donations, either monetary or outright gifts, will come from users and beneficiaries of The XFree86 Project Inc.'s sole and eponymously named product, XFree86, which will to be used to pay for, but not limited to, the operating expenses of the corporation, funding the continued research and development of the "X Window System" as implemented by the corporation, and membership fees for other organisations when such membership provides benefit to the research, development, and advancement of the "X Window System" also as implemented by the corporation.
Except as otherwise specifically determined by resolution of the Board of Directors, or as otherwise required by law, expenses incurred by officers or directors of the corporation must be approved by the Treasurer and President before reimbursement. Expenses incurred by the President must be approved by the Treasurer and at least one additional officer. Expenses incurred by the Treasurer must be approved by the President and a least one additional officer.
The corporation shall keep at its principal office:
The Board of Directors may adopt, use and at will alter, a corporate seal. Such seal shall be kept at the principal office of the corporation. Failure to affix the seal to corporate instruments, however, shall not affect the validity of any such instrument.
Every director shall have the absolute right at any reasonable time to inspect and copy all books, records and documents of every kind and to inspect the physical properties of the corporation and shall have such other rights to inspect the books, records and properties of this corporation as may be required under the Articles of Incorporation, other provisions of these Bylaws and provisions of law.
Any inspection under the provisions of this Article may be made in person or by agent or attorney and the right to inspection shall include the right to copy and make extracts.
The board shall cause any annual or periodic report required under law to be prepared and delivered to an office of the Commonwealth of Pennsylvania to be so prepared and delivered within the time limits set by law.
No substantial part of the activities of this corporation shall be carrying on of propaganda, or otherwise attempting to influence legislation (except as otherwise provided by Section 501(h) of the Internal Revenue Code), and this corporation shall not participate in, or intervene in (including the publishing or distribution of statements), any political campaign on behalf of, or in opposition to, any candidate for public office.
Notwithstanding any other provisions of these Bylaws, this corporation shall not carry on any activities not permitted to be carried on (a) by a corporation exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code, or (b) by a corporation, contributions to which are deductible under Section 170(c)(2) of the Internal Revenue Code.
No part of the net earnings of this corporation shall inure to the benefit of, or be distributable to, its members, directors or trustees, officers or other private persons, except that the corporation shall be authorised and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of the purposes of this corporation.
Upon the dissolution of this corporation, its assets remaining after payment, or provision for payment, of all debts and liabilities of this corporation shall be distributed for one or more exempt purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code or shall be distributed to the federal government, or to a state or local government, for a public purpose. Such distribution shall be made in accordance with all applicable provisions of the laws of the Commonwealth of Pennsylvania.
In any taxable year in which this corporation is a private foundation as described in Section 509(a) of the Internal Revenue Code, the corporation 1) shall distribute its income for said period at such time and manner as not to subject it to tax under Section 4942 of the Internal Revenue Code; 2) shall not engage in any act of self-dealing as defined in Section 4941(d) of the Internal Revenue Code; 3) shall not retain any excess business holdings as defined in Section 4943(c) of the Internal Revenue Code; 4) shall not make any investments in such manner as to subject the corporation to tax under Section 4944 of the Internal Revenue Code; and 5) shall not make any taxable expenditures as defined in Section 4945(d) of the Internal Revenue Code.
Except as may otherwise be specified under provision of law, these Bylaws, or any of them, may be altered, amended or repealed and new Bylaws adopted by approval of the Board of Directors.
If there is any conflict between the provisions of these Bylaws and the Articles of Incorporation of this corporation, the provisions of the Articles of Incorporation shall govern.
Should any of the provisions or portions of these Bylaws be held unenforceable or invalid for any reason, the remaining provisions and portions of these Bylaws shall be unaffected by such holding.
All references in these Bylaws to the Articles of Incorporation shall be to the Articles of Incorporation for this corporation filed with the Pennsylvania Department of State and used to establish the legal existence of this corporation.
All references in these Bylaws to a section or sections of the Internal Revenue Code shall be to such sections of the Internal Revenue Code of 1986 as amended from time to time, or to corresponding provisions of any future tax code.
Copyright © 2003-2005 by The XFree86 Project, Inc. All rights reserved.
Copyright © 1990-2002 by Anthony Mancuso. All rights reserved.
XFree86® is a registered trademark of The XFree86 Project, Inc.
Last Modified: 9 June 2004