Board Activities and Meetings
A meeting of the Transition Board of Directors of the Internet Corporation for Assigned Names and Numbers (ICANN) was held by teleconference on 18 March 2003. The following Directors of the Corporation were present by telephone: Vint Cerf (chairman), Amadeu Abril i Abril, Karl Auerbach, Ivan Moura Campos, Jonathan Cohen, Masanobu Katoh, Hans Kraaijenbrink, Sang-Hyon Kyong, Stuart Lynn, Andy Mueller-Maguhn, Jun Murai, Francisco da Silva, and Linda S. Wilson. Directors Alejandro Pisanty and Nii Quaynor joined the call while it was in progress. Also present on the teleconference was Louis Touton, ICANN's Vice-President, Secretary, and General Counsel.
The meeting was called to order by Vint Cerf at 12:09 UTC (4:09 am U.S. Pacific Standard Time).
Dr. Lynn and Mr. Touton reported on proposed agreements that had been negotiated to retain the services of Paul Twomey as President and CEO of ICANN, effective at the conclusion of the Board meeting in Rio de Janeiro on 27 March 2003. The agreements consist of a Managerial and Consulting Services Agreement and a Confidentiality, Works, and Invention Agreement.
Mr. Kraaijenbrink moved, with Mr. Cohen's second, that the Board adopt the following resolutions:
Whereas, M. Stuart Lynn, ICANN President and CEO, has announced his intention to resign as President and CEO of ICANN at the conclusion of the ICANN Board Meeting on 27 March 2003, appropriate notice by Dr. Lynn having been duly given;
Whereas, on 28 June 2002, the Board adopted resolution 02.86 establishing an Executive Search Committee as an Advisory Committee "responsible for overseeing the search for a Chief Executive Officer and other officers as appropriate," with membership consisting of Vint Cerf (Chair), Rob Blokzijl, Ivan Moura Campos, Masanobu Katoh, Nii Quaynor, and Linda Wilson;
Whereas, on 31 October 2002, the Board adopted resolution 02.120 expanding the membership of the Executive Search Committee to include Helmut Schink and Michael Roberts;
Whereas, on 31 October 2002, the Board adopted resolutions 02.121, 02.122, and 02.123 authorizing the President to negotiate a commitment with an executive search firm acting upon the recommendation of the Executive Search Committee;
Whereas, ICANN retained Christopher Mill & Partners for that purpose;
Whereas, under the direction of the Executive Search Committee, Christopher Mill & Partners conducted an extensive worldwide search for candidates for the position, involving extensive consultation with members of the Internet community with a large number of contacts (including fifty-two interviews) and identification of a diverse group of candidates requiring serious consideration;
Whereas, the Executive Search Committee reviewed the results of this search and recommended several qualified candidates to the Board for its consideration;
Whereas, after due consideration and interviews with each of the recommended candidates, on 4 February 2003 the Board authorized the Chairman of the Board to enter into negotiations to secure the services of Dr. Paul Twomey as ICANN’s President and CEO upon Dr. Lynn's retirement;
Whereas, the Board has been kept apprised of those negotiations and has provided guidance on the terms and conditions of an agreement;
Whereas, an agreement in principle, subject to Board approval, has been reached on the terms of Dr. Twomey's employment;
Whereas, the Board discussed the principal terms of Dr. Twomey's employment on 12 March 2003 and, based on that discussion, the language of a Managerial and Consulting Services Agreement and of a Confidentiality, Works, and Invention Agreement has been finalized;
Whereas, the terms of employment and the language of the Managerial and Consulting Agreement and the Confidentiality, Works, and Invention Agreement have been presented to the Board for its consideration;
Whereas, based on the various presentations it has received the Board is of the view that Dr. Twomey should succeed Dr. Lynn as President and Chief Executive Officer and that ICANN should enter into an Managerial and Consulting Agreement and a Confidentiality, Works, and Invention Agreement in substantially in the form presented;
Resolved [03.26] that Dr. Paul Twomey be, and hereby is, elected as President and Chief Executive Officer of the Corporation, to be effective upon M. Stuart Lynn's resignation from that position, and to serve at the pleasure of the Board and in accordance with the Bylaws of the Corporation, and shall hold his office until his resignation, removal, or other disqualification from service, or until his successor shall be elected and qualified;
Further resolved [03.27] that a salary for Dr. Twomey at the rate of US$260,000 per annum and the other terms and benefits to secure Dr. Twomey's services as President and Chief Executive Officer are approved;
Further resolved [03.28] that the current President and Chief Executive Officer is authorized to enter on behalf of the Corporation into an Managerial and Consulting Services Agreement and a Confidentiality, Works, and Invention Agreement in substantially the same form as presented to the Board;
Further resolved [03.29] that the Vice President and General Counsel may authorize disbursements of the Corporation's funds, and sign checks, to the order of Dr. Twomey, that fulfill the terms of the Managerial and Consulting Services Agreement once it is entered; and
Further resolved [03.30] that the Board expresses its thanks to Christopher Mill & Partners, to the members of the Executive Search Committee, and to the many others in the Internet community who contributed to the successful search for ICANN's third President and Chief Executive Officer.
At this point, Dr. Pisanty joined the meeting.
The Board discussed the resolutions and the proposed agreements. The sentiment of the Board was that the negotiated terms were satisfactory, except that clarifications should be made to the language in some respects. Most Board members felt that the proposed resolutions were appropriate, since the clarifications would not substantially change the form of the agreements.
During the above discussion, Dr. Quaynor joined the meeting.
A vote was taken on the above resolutions. They were adopted by a 13-0-2 vote, with Mr. Mueller-Maguhn and Dr. Kyong abstaining.
Mr. Touton noted that at the 25 February 2003 meeting the Board had considered various proposed clarifications and corrections to the bylaws, and had adopted most of the proposed provisions. With respect to one area – the ineligibility of Nominating Committee participants for selection to and service in ICANN positions – however, the Board concluded that the proposed provisions were not sufficiently stringent. At the 25 February 2003 meeting, the Board requested that Mr. Touton prepare revised language for consideration at a later Board meeting.
Mr. Touton noted that he had prepared and posted revised language on 3 March 2003. After the posting that proposal, however, another needed correction to the New Bylaws concerning ineligibility issues came to light. In September 1999, the Board added a provision to the Old Bylaws (Article VI, Section 4) that explicitly stated that members of the Supporting Organization Councils may not simultaneously serve on the Board. In adding this provision, the Board concluded that simultaneous service is inappropriate because the Board is responsible for reviewing the appropriateness of policy recommendations made by the Supporting Organization Councils. The section added in September 1999 also provided for recusal of those Supporting Organization Council members being considered by the Council for selection to the Board. These provisions avoided the conflicting position in which such a candidate would be placed if he or she participated in the selection process. Mr. Touton explained that the provisions of the Article VI, Section 4 of the Old Bylaws were not carried forward to the New Bylaws that became effective on 15 December 2002. On 8 March 2003, he posted "Proposed Additions to Bylaws Concerning Ineligibilities (Amended)" which corrected this omission.
Mr. Kraaijenbrink moved, with Dr. Campos' second, that the Board adopt the following resolution:
Whereas, on 25 February 2003, the Board adopted many of the proposed bylaws, but did not adopt proposed Article VII, Section 8, instead requesting the General Counsel to prepare a revised version of the language of that section;
Whereas, on 3 March 2003 the General Counsel posted a revised version of Article VII, Section 8 of the bylaws, concerning ineligibility of Nominating Committee members for selection to certain ICANN positions;
Whereas, based on comment from the community the General Counsel posted a revised proposal on 8 March 2003, which also proposed to amend Article VI, Section 4, concerning ineligibility of members of Supporting Organization Councils to serve on the Board;
Whereas, after considering the General Counsel's revised proposal, the Board concludes that adoption of the amendments to the bylaws as stated in that proposal would, with a revision, be in the best interest of ICANN;
Resolved [03.31] that the Board adopts the proposed amendments to the bylaws shown in Appendix A to these minutes (amending Article VI, Section 4 and adding Article VII, Section 8), to become effective on 25 March 2003;
Resolved further [03.32] that the prohibition on selection of Nominating Committee members to certain ICANN bodies embodied in new Article VII, Section 8, shall only apply to persons who serve on the Nominating Committee on or after the effective date of that provision.
The text of Appendix A as proposed by Mr. Kraaijenbrink's motion was as follows (added text is underlined and in magenta) :
ARTICLE VI: BOARD OF DIRECTORS, Section 4. ADDITIONAL QUALIFICATIONS
1. Notwithstanding anything herein to the contrary, no official of a national government or a multinational entity established by treaty or other agreement between national governments may serve as a Director. As used herein, the term "official" means a person (i) who holds an elective governmental office or (ii) who is employed by such government or multinational entity and whose primary function with such government or entity is to develop or influence governmental or public policies.
2. No person who serves in any capacity (including as a liaison) on any Supporting Organization Council shall simultaneously serve as a Director. If such a person accepts a nomination to be considered for selection by the Supporting Organization Council to be a Director, the person shall not, following such nomination, participate in any discussion of, or vote by, the Supporting Organization Council relating to the selection of Directors by the Council, until the Council has selected the full complement of Directors it is responsible for selecting. In the event that a person serving in any capacity on a Supporting Organization Council accepts a nomination to be considered for selection as a Director, the constituency group or other entity that selected the person may select a replacement for purposes of the Council's selection process.
3. Persons serving in any capacity on the Nominating Committee shall be ineligible for selection to positions on the Board as provided by Article VII, Section 8.
ARTICLE VII: NOMINATING COMMITTEE, Section 8. INELIGIBILITY FOR SELECTION.
No person who serves on the Nominating Committee in any capacity shall be eligible for selection by any means to any position on the Board or any other ICANN body having one or more membership positions that the Nominating Committee is responsible for filling, until the conclusion of an ICANN annual meeting that coincides with, or is after, the conclusion of that person's service on the Nominating Committee.
Mr. Abril i Abril proposed that the text of proposed Article VI, Section 4(2) be revised by adding the phrase "or liaison to the Board" at the end of the first sentence. This revision was accepted as a friendly amendment, resulting in the text of the bylaws amendment to be as reflected in the official Appendix A to these minutes.
A vote was taken on the resolution as amended. It was adopted by a 15-0-0 vote.
Mr. Touton noted that the language of a ccTLD Sponsorship Agreement had been negotiated with the Taiwan Network Information Center (TWNIC), the current sponsoring organization for the .tw country-code top-level domain. The agreement would have the effect (among others) of formally making TWNIC, rather than the individuals currently listed as the administrative and technical contacts, as the delegee for the .tw ccTLD. The negotiated language is quite similar to that in the model ccTLD Sponsorship Agreement for triangular situations posted on the web site. Mr. Touton reviewed the changes that had been made to the model agreement to tailor it to the .tw circumstances.
Mr. Mueller-Maguhn noted his objection, discussed in detail at the Board's 18 November 2002 meeting, to including Attachment B, clause 7, in the agreement between ICANN and TWNIC.
Dr. Lynn moved, with Mr. Katoh's second, that the Board adopt the following resolutions:
Whereas, on 10 March 2000, in resolution 00.13, the Board authorized the President and staff to work with the ccTLD managers, Governmental Advisory Committee, and other interested parties to prepare draft language for ccTLD contracts, policy statements, and/or communications, including appropriate funding arrangements, to be presented to the Board and posted for public comment as soon as practicable;
Whereas, on 13 March 2001, in resolution 01.37, the Board directed ICANN management to press forward with continued vigor toward the completion of draft legacy agreements, and to pursue, as needed, acceptable ccTLD agreements in triangular situations;
Whereas, negotiators for the Taiwan Network Information Center (TWNIC) and ICANN have reached agreement, subject to the ICANN Board's approval, on the terms of a ccTLD Sponsorship Agreement for the .tw top-level domain;
Whereas, the President recommends that authorization be given to enter into this agreement;
Resolved [03.33] that the President is authorized to enter on behalf of ICANN the ccTLD Sponsorship Agreement for .tw in the form provided to the Board, with any minor corrections or adjustments as appropriate;
The resolutions were adopted by a 14-0-1 vote, with Mr. Mueller-Maguhn abstaining.
It was agreed to postpone discussion of the other items on the agenda until the Rio de Janeiro meeting.
There being no further business, the meeting was adjourned at 13:27 UTC (5:27 am U.S. Pacific Standard Time).