March 10, 2000
TABLE OF CONTENTS
The principal office for the transaction of the business of this corporation (the "Corporation") will be in the County of Los Angeles, State of California, United States of America. The Corporation may also have an additional office or offices within or outside the United States of America as the Board of Directors (the "Board") may from time to time establish.
The Board may adopt a corporate seal and use the same by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
The Corporation shall not have members as defined in the CNPBCL (as defined herein), notwithstanding the use of the term "Member" in these bylaws. Instead, the Corporation shall allow individuals (described in these bylaws as "Members") to participate in the activities of the Corporation through the selection of an advisory body known as the At Large Council. Such individuals ("Members") will have the rights, and only the rights, set forth in these Bylaws, and shall not be members as defined in the CNPBCL.
The Corporation shall develop and maintain a registration system whereby individuals can register to participate in the selection of the At Large Council. An individual so registered in compliance with the terms of these Bylaws shall be, during the effectiveness of such registration, referred to as a Member. The Board shall establish (i) criteria for such registration, including, but not limited to, requiring registrations to be filed within certain dates, the payment of a fee or dues, if any (subject to Section 3(b) of Article III), the provision by the individual of a valid electronic mail and/or physical address and proof of citizenship and/or residency and (ii) expiration dates or times for such registration. If registration fees or dues are established, the Board may establish different fees or dues for different persons and may waive or reduce the fees or dues for specific persons or groups of persons for reasonable purposes.
The Corporation shall, pursuant to policies adopted by the Board and consistent with other policies of the Corporation, provide a method for Members to communicate with other Members in such ways and under such circumstances as the Board determines are appropriate and desirable.
A Member's registration shall terminate on the occurrence of any of the following:
(g) A finding by the At Large Council or the Board (or the designee of either of them), after notice (by electronic mail at the electronic mail address provided by the Member) and a reasonable opportunity for the Member to respond, that the Member has engaged in conduct prejudicial to the Corporation's purposes; and
No Member may transfer (including by a proxy) his or her registration or permit another person, other than the Secretary or an Assistant Secretary of the Corporation, to exercise any rights with respect to the registration or the person's status as a Member, provided that a Member may, in writing or by electronic mail (subject to reasonable verification procedures), grant to the Secretary or an Assistant Secretary of the Corporation a right to exercise any voting rights associated with the registration or the person's status as a Member.
As soon as is reasonably practicable following the first date on which the Corporation has in existence not less than 5,000 Members, the Members shall select, pursuant to a process (which may include a quorum or participation requirement) established by a two-thirds vote of all the members of the Board, six individuals to serve on the At Large Council. One of the six individuals shall be selected by the Members who are resident in countries located in the Africa Geographic Region, one shall be selected by the Members who are residents in the Latin America/Caribbean islands Geographic Region and four shall be selected by the Members as a whole. Following this selection, the Board will examine the selection process and results to determine whether the process and results were reasonably fair and furthered the proper purposes of the Corporation. If, by a two-thirds vote of all the members of the Board, the process is determined to have been fair and effective, then (i) the individuals selected shall become members of the At Large Council and it shall be deemed to have come into existence, (ii) the At Large Council will select three persons to be At Large Directors of the Corporation to replace three Initial At Large Directors of the Corporation so designated by the Initial At Large Directors, and (iii) the Corporation shall, as soon as is reasonably practicable, permit the Members to select the remaining members of the At Large Council pursuant to the process used to select the first six members of the At Large Council, with such modifications as may be approved by two-thirds of all the members of the Board, following which the full At Large Council shall select the remaining six At Large Directors. If two-thirds of all the members of the Board do not determine that the selection process for the first six members of the At Large Council was fair and effective, the selection shall process shall be deemed void, and the Board shall promptly establish a new method to select the first six members of the At Large Council.
The At Large Council shall consist of 18 Members, two each selected by the residents of each of the five Geographic Regions and eight selected by the Members as a whole; provided, however, that the two members of the At Large Council directly selected by the Members that are resident in any specified Geographic Region (a) must be citizens of countries in that region and (b) may not be citizens of the same country. The process used to select the members of the At Large Council shall be that used pursuant to Section 6 of this Article II to select the members of the At Large Council after the valid selection of the first six members of the At Large Council, except for such changes thereto as may be approved by a two-thirds vote of all members of the Board.
The At Large Council shall be responsible for selecting, from among those persons nominated by Members, its selection(s) for the At Large Directors to fill open At Large Director positions. The At Large Council shall, from time to time, establish reasonable procedures by which Members may make such nominations, including but not limited to a threshold showing of support that must be met to qualify for nomination. Such procedures shall be published on the Web Site. The first three At Large Directors selected shall each have a term ending on September 30, 2001. Of the next six selected, three (as designated by the At Large Council) shall have terms ending on September 30, 2002, and three (as designated by the At Large Council) shall have terms ending on September 30, 2003. Any selection of At Large Directors by the At Large Council must (i) satisfy the geographic diversity requirements of these Bylaws and (ii) have the affirmative support of at least one half of all the members of the At Large Council.
(a) The term of office of each member of the At Large Council shall be three years, except that the term of the first six persons selected to the At Large Council shall expire on June 30, 2001 and, of the remaining twelve members, the terms of six (as designated by the Board prior to their selection) shall expire on June 30, 2002, and the remaining six (as designated by the Board prior to their selection) shall expire on June 30, 2003, no matter when they actually take office. No person shall serve as a member of the At Large Council for more than two consecutive terms.
(b) No more than one officer, director or employee of a corporation or other organization (including its subsidiaries and affiliates) shall serve on the At Large Council at any given time, and no person shall simultaneously serve on the At Large Council and the Council of any Supporting Organization.
(c) No person shall serve simultaneously as (i) a member of the At Large Council or other body that is directly responsible for the selection of At Large Directors and (ii) a Director. If a member of the At Large Council or such other body accepts a nomination to be considered to serve on the Board, such member shall not, following such acceptance, participate in any discussion of, or vote by, the At Large Council or such other body relating to the selection of Directors by such Council or other body.
(d) Meetings of the At Large Council may be held (i) in person or via teleconference, at the discretion of the At Large Council, so long as all members of the At Large Council participating can speak to and hear one another or (ii) via electronic video screen communication or other communication equipment; provided, that (a) all members of the At Large Council participating in such a meeting can speak to and hear one another, (b) all members of the At Large Council are provided the means of fully participating in all matters before the At Large Council and (c) the At Large Council adopts and implements means of verifying that (x) a person participating in such a meeting is a member of the At Large Council or other person entitled to participate in the meeting and (y) all actions of, or votes by, the At Large Council are taken or cast only by the members of the At Large Council and not persons who are not members of the At Large Council. A majority of the total number of At Large Council members then in office shall constitute a quorum for the transaction of business, and an act of the majority of the At Large Council members present at any meeting at which there is a quorum shall be the act of the At Large Council, unless otherwise provided herein. Advance notice of such meetings shall be posted on a web site that is available for public access and, if reasonably practicable, at least 14 days in advance of the meeting. Except where determined by a majority vote of members of the At Large Council present that a closed session is appropriate, meetings shall be open to physical or electronic attendance by all interested persons.
(f) Beginning in 2000, the Chairman of the At Large Council or his or her designee shall hold an open public meeting in connection with each Annual Meeting of the Corporation's Board. The purposes of the meeting shall be to address the effectiveness of the methods used to select members of the At Large Council and the processes for the nomination of At Large Directors and to allow Members to discuss issues of importance to the Members. Any Member desiring to do so shall be permitted to attend such public meeting.
(g) The At Large Council shall establish a record date for determining the Members entitled to participate in the selection of members of the At Large Council, which record date shall be not less than 30, nor more than 75, days prior to the selection date and which shall be, in the absence of any establishment by the At Large Council, 30 days prior to the selection date.
(h) If at any time the number of Members falls below 5000, then the provisions of Section 8 of this Article II shall be suspended, and the At Large Council shall not have the power to select Directors of the Corporation, until such time as the number of Members again reaches or exceeds 5000.
The Corporation and its subordinate entities shall operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness.
All minutes of meetings of the Board, the At Large Council, Supporting Organizations (and any councils thereof) and Committees shall be approved promptly by the originating body. No later than twenty-one (21) days after each meeting, draft minutes shall be made publicly available on a publicly-accessible Internet World Wide Web site maintained by the Corporation (the "Web Site"); provided, however, that any minutes relating to personnel or employment matters, legal matters (to the extent the Board determines is necessary or appropriate to protect the interests of the Corporation), matters that the Corporation is prohibited by law or contract from disclosing publicly and other matters that the Board determines, by a three-quarters (3/4) vote of Directors voting, are not appropriate for public distribution shall not be included in the minutes made publicly available. For any matters that the Board determines not to disclose, the Board shall describe in generic terms in the relevant minutes the reason for such nondisclosure.
(a) The Board shall post on the Web Site (i) periodically a calendar of scheduled meetings for the upcoming year, and (ii) in advance of each Board meeting, a notice of the fact and time that such meeting will be held and, to the extent known, an agenda for the meeting. If reasonably practicable, the Board shall post notices of special meetings of the Board at least fourteen (14) days prior to the meetings.
(b) With respect to any policies that are being considered by the Board for adoption that substantially affect the operation of the Internet or third parties, including the imposition of any fees or charges, the Board will:
(c) After voting on any policy subject to Section 3(b) of this Article, the Board will publish in the meeting minutes the reasons for any action taken, the vote of each Director voting on the action, and the separate statement of any Director desiring publication of such a statement.
(a) Any person affected by an action of the Corporation may request review or reconsideration of that action by the Board. The Board shall adopt policies and procedures governing such review or reconsideration, which may include threshold standards or other requirements to protect against frivolous or non-substantive use of the reconsideration process.
(b) The Initial Board shall, following solicitation of input from the Advisory Committee on Independent Review and other interested parties and consideration of all such suggestions, adopt policies and procedures for independent third-party review of Board actions alleged by an affected party to have violated the Corporation's articles of incorporation or bylaws.
(a) Except as otherwise provided in the Articles of Incorporation or these Bylaws (including Section 2(b) of Article VI which sets forth responsibilities of Supporting Organizations), the powers of the Corporation will be exercised, its property controlled and its business and affairs conducted by or under the direction of the Board. With respect to any matters that would fall within the requirements of Article III, Section 3 (b), the Board may act only by a majority vote of all members of the Board; in all other matters unless otherwise provided herein or by law, the Board may act by majority vote of those present at any official meeting. Any references herein to a vote of the Board shall mean the vote of only those members present at the meeting unless otherwise provided herein by reference to "all of the members of the Board."
(b) The Corporation shall not act as a Domain Name System Registry or Registrar or Internet Protocol Address Registry in competition with entities affected by the policies of the Corporation. Nothing in this Section 1(b) is intended to prevent the Corporation from taking whatever steps are necessary to protect the operational stability of the Internet in the event of financial failure of a Registry or Registrar or other emergency.
(c) The Corporation shall not apply its standards, policies, procedures or practices inequitably or single out any particular party for disparate treatment unless justified by substantial and reasonable cause, such as the promotion of effective competition.
The initial Board of Directors of the Corporation ("Initial Board") shall be the Board that exists prior to the time of the seating of Directors that have been selected in accordance with these bylaws by any Supporting Organization(s) that exists under Section 3(a) of Article VI, and shall consist of nine At Large members and the President. The At Large members of the Initial Board shall serve until September 30, 2000, or until their successors have been selected, whichever is earlier. No At Large member of the Initial Board shall be eligible for additional service on the Board until two years have elapsed following the end of his or her term on the Board.
As soon as feasible after formation of a Supporting Organization pursuant to Section 3(a) of Article VI, the Supporting Organization shall select three persons to be the Original Directors selected by that Supporting Organization and shall designate which of these persons shall serve each of the staggered terms for such Original Directors specified in Section 9(c) of this Article. The Supporting Organization shall notify the Board and Secretary of the Corporation in writing of the selections and designations. The selected persons shall take office seven days after the notification is received by the Secretary. The Supporting Organization Council may by a two-thirds vote revise its designation of which of the selected persons shall serve which of the staggered terms; such revision shall become effective upon the Secretary's receipt, within 180 days of the original notification, of the written consents of each Original Director whose term is affected by the revision.
Each Board after the Initial Board shall be comprised as follows:
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 (a) who holds an elective governmental office or (b) 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.
In order to ensure broad international representation on the Board: (1) at least one citizen of a country located in each of the geographic regions listed in this Section 6 shall serve as an At Large Director on the Board (other than the Initial Board) at all times; and (2) no more than one-half (1/2) of the total number of At Large Directors serving at any given time shall be citizens of countries located in any one Geographic Region. The selection of Directors by each Supporting Organization and the At Large Council shall comply with all applicable geographic diversity provisions of these Bylaws or of any Memorandum of Understanding referred to in these Bylaws concerning the Supporting Organization. As used herein, each of the following shall be a "Geographic Region": Europe; Asia/Australia/Pacific; Latin America/Caribbean islands; Africa; North America. The specific countries included in each Geographic Region shall be determined by the Board, and this Section shall be reviewed by the Board from time to time (but at least every three years) to determine whether any change is appropriate, taking account of the evolution of the Internet.
The Board, through a committee designated for that purpose, shall require a statement from each Director not less frequently than once a year setting forth all business and other affiliations which relate in any way to the business and other affiliations of the Corporation. Each Director shall be responsible for disclosing to the Corporation any matter that could reasonably be considered to make such Director an "interested director" within the meaning of Section 5233 of the California Nonprofit Public Benefit Corporation Law ("CNPBCL"). In addition, each Director shall disclose to the Corporation any relationship or other factor that could reasonably be considered to cause the Director to be considered to be an "interested person" within the meaning of Section 5227 of the CNPBCL. The Board shall adopt policies specifically addressing Director, Officer and Supporting Organization conflicts of interest. No Director shall vote on any matter in which he or she has a material and direct interest that will be affected by the outcome of the vote.
Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of the Corporation and not as representatives of the subordinate entity that selected them, their employers, or any other organizations or constituencies.
(a) At Large Directors (other than the Initial Directors) shall be selected by the At Large Council in accordance with the procedures specified by Article II. The At Large Council shall give the Secretary of the Corporation fifteen days written notice of the selection. The term of such At Large Director shall commence on the October 1 immediately following the Secretary's receipt of such written notice.
(b) Prior to October 1 of each year beginning in the year 2000, each Supporting Organization entitled to select a Director (other than an Original Director selected by the Supporting Organization under Section 2 of this Article) shall (i) make its selection according to the procedures specified by Article VI (including Articles VI-A, VI-B, and VI-C), and (ii) give the Board and the Secretary of the Corporation at least fifteen days written notice of that selection. The term of such a Director shall commence on the October 1 after the Secretary's receipt of such written notice.
4. The terms of the Original Directors selected by any Supporting Organization shall be one (1) year, two (2) years, and three (3) years, respectively, with each term considered to have begun on October 1, 1999 regardless of when those Original Directors actually take office.
Each Director, including a member of the Initial Board and a Director selected to fill a vacancy or selected at a special meeting, shall hold office until expiration of the term for which selected and qualified and until a successor has been selected and qualified or until that Director resigns or is removed in accordance with these bylaws, provided that if the term of an At Large Director expires during the time when Section 8 of Article II is suspended, that Director shall not continue to hold office after the expiration of his or her term even if a successor has not been selected and qualified. No Director may serve more than two (2) terms.
Subject to Section 5226 of the CNPBCL, any Director may resign at any time, either by oral tender of resignation at any meeting of the Board (followed by prompt written notice to the Secretary of the Corporation) or by giving written notice thereof to the President or the Secretary of the Corporation. Such resignation shall take effect at the time specified, and, unless otherwise specified, the acceptance of such resignation shall not be necessary to make it effective. The successor shall be selected pursuant to Section 12 of this Article.
Any Director may be removed following notice and a three-fourths (3/4) majority vote of all members of the Board; provided, however, that the Director who is the subject of the removal action shall not be entitled to vote on such an action or be counted as a member of the Board when calculating the required three-fourths (3/4) vote; and provided further, that each vote to remove a Director shall be a separate vote on the sole question of the removal of that particular Director. A Director selected by a Supporting Organization can be recommended for removal by that Supporting Organization through procedures adopted by that Supporting Organization and ratified by the Board. An At Large Director selected by the At Large Council may be recommended for removal by the At Large Council through procedures adopted by the At Large Council and ratified by the Board. Upon such recommendation for removal, the Board shall vote to remove such Director. If the Board, without a recommendation by the Supporting Organization or At Large Council, seeks to remove more than one Director selected by a Supporting Organization or more than one At Large Director within a four-month period, the Board must show reasonable cause for its action.
A vacancy or vacancies in the Board of Directors shall be deemed to exist in the case of the death, resignation or removal of any Director, if the authorized number of Directors is increased, or if a Director has been declared of unsound mind by a final order of court or convicted of a felony or incarcerated for more than 90 days as a result of a criminal conviction or has been found by final order or judgment of any court to have breached a duty under Sections 5230 et seq. of the CNPBCL. Any vacancy occurring on the Initial Board shall be filled at any meeting of the Board occurring after such vacancy by a vote of the Initial Board. Any vacancy occurring on the Board of Directors involving an At Large Director selected by the At Large Council shall be filled by the At Large Council following the procedures specified by Article II. Any vacancy occurring on the Board of Directors involving a Director selected by a Supporting Organization shall be filled by the Supporting Organization selecting that Director according to the procedures specified by Article VI (including Articles VI-A, VI-B, and VI-C). A Director selected to fill a vacancy on the Board shall serve for the unexpired term of his or her predecessor in office and until a successor has been selected and qualified. The replacement need not hold the office, if any, of the removed Director. No reduction of the authorized number of Directors shall have the effect of removing a Director prior to the expiration of the Director's term of office.
Annual meetings of the Corporation will be held for the purpose of electing Officers and for the transaction of such other business as may come before the meeting. The first annual meeting will be held the last week of September 1999 or on such other date as may be set by the Board. Subsequent annual meetings shall be held as set by the Board not less than ten (10) nor more than thirteen (13) months after the annual meeting held the prior year. In the absence of designation, the annual meeting will be held at the principal office of the Corporation. The annual meeting will be open to the public. If the Board determines that it is practical, the annual meeting should be distributed in real-time and archived video and audio formats on the Internet.
Regular meetings of the Board will be held on dates to be determined by the Board. To the extent practicable, regular meetings should be held in different locations around the world on a regular basis. In the absence of other designation, regular meetings will be held at the principal office of the Corporation.
Special meetings of the Board may be called by or at the request of one-quarter (1/4) of the members of the Board or by the Chairman of the Board or the President. A call for a special meeting will be made by the Secretary of the Corporation. In the absence of designation, special meetings will be held at the principal office of the Corporation.
Notice of time and place of all meetings will be delivered personally or by telephone or by electronic mail to each Director, or sent by first-class mail (air mail for addresses outside the United States) or facsimile, charges prepaid, addressed to each Director at the Director's address as it is shown on the records of the Corporation. In case the notice is mailed, it will be deposited in the United States mail at least fourteen (14) days before the time of the holding of the meeting. In case the notice is delivered personally or by telephone or facsimile or electronic mail it will be delivered personally or by telephone or facsimile or electronic mail at least forty-eight (48) hours before the time of the holding of the meeting. Notwithstanding anything in this Section 16 to the contrary, notice of a meeting need not be given to any Director who signed a waiver of notice or a written consent to holding the meeting or an approval of the minutes thereof, whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to such Director. All such waivers, consents and approvals shall be filed with the corporate records or made a part of the minutes of the meetings.
At all annual, regular and special meetings of the Board, a majority of the total number of Directors then in office 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, unless otherwise provided herein or by law. If a quorum shall not be present at any meeting of the Board, the Directors present thereat may adjourn the meeting from time to time to another place, time or date. If the meeting is adjourned for more than twenty-four (24) hours, notice shall be given to those Directors not at the meeting at the time of the adjournment.
Members of the Board or any Committee of the Board may participate in a meeting of the Board or Committee of the Board through use of (i) conference telephone or similar communications equipment, provided that all Directors participating in such a meeting can speak to and hear one another or (ii) electronic video screen communication or other communication equipment; provided, that (a) all Directors participating in such a meeting can speak to and hear one another, (b) all Directors are provided the means of fully participating in all matters before the Board and (c) the Corporation adopts and implements means of verifying that (x) a person participating in such a meeting is a Director or other person entitled to participate in the meeting and (y) all actions of, or votes by, the Board are taken or cast only by the Directors and not persons who are not Directors. Participation in a meeting pursuant to this Section constitutes presence in person at such meeting. The Corporation shall be required to make available at the place of any meeting of the Board the telecommunications equipment necessary to permit members of the Board to participate by telephone.
Any action required or permitted to be taken by the Board or a Committee of the Board may be taken without a meeting if all of the Directors entitled to vote thereat shall individually or collectively consent in writing to such action. Such written consent shall have the same force and effect as the unanimous vote of such Directors. Such written consent or consents shall be filed with the minutes of the proceedings of the Board.
If permitted under applicable law, communication by electronic mail shall be considered equivalent to any communication otherwise required to be in writing. The Corporation shall take such steps as it deems appropriate under the circumstances to assure itself that communications by electronic mail are authentic.
Every Director shall have the 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. The Corporation shall establish reasonable procedures to protect against the inappropriate disclosure of confidential information.
The Directors shall receive no compensation for their services as Directors. The Board may, however, authorize the reimbursement of actual and necessary reasonable expenses incurred by Directors performing duties as Directors.
A Director present at a Board meeting at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his or her dissent or abstention is entered in the minutes of the meeting, or unless such Director files a written dissent or abstention to such action with the person acting as the secretary of the meeting before the adjournment thereof, or forwards such dissent or abstention by registered mail to the Secretary of the Corporation immediately after the adjournment of the meeting. Such right to dissent or abstain shall not apply to a Director who voted in favor of such action.
(a) There shall be advisory bodies known as Supporting Organizations. The Supporting Organizations shall be those specified in Article VI, Section 1(b), as it may be amended from time to time according to Article XII.
(a) Each Supporting Organization shall select Directors to those seats on the Board designated, pursuant to Section 4 of Article V, to be filled by that Supporting Organization. The selection of Directors by each Supporting Organization shall comply with all applicable geographic diversity provisions of these Bylaws.
(b) The Supporting Organizations shall serve as advisory bodies to the Board, with the primary responsibility for developing and recommending substantive policies regarding those matters falling within their specific responsibilities, as described in this Article VI (including VI-A, VI-B and VI-C).
(c) The Board shall refer proposals for substantive policies not received from a Supporting Organization to the Supporting Organization, if any, with primary responsibility for the area to which the proposal relates for initial consideration and recommendation to the Board.
(d) Any recommendation forwarded to the Board by a Supporting Organization shall be transmitted to all other Supporting Organizations so that each Supporting Organization may comment to the Board regarding the implications of such a recommendation on activities within their individual scope of primary responsibility.
(e) Subject to the provisions of Article III, Section 3, the Board shall accept the recommendations of a Supporting Organization if the Board finds that the recommended policy (1) furthers the purposes of, and is in the best interest of, the Corporation; (2) is consistent with the Articles and Bylaws; (3) was arrived at through fair and open processes (including participation by representatives of other Supporting Organizations if requested); and (4) is not reasonably opposed by any other Supporting Organization. No recommendation of a Supporting Organization shall be adopted unless the votes in favor of adoption would be sufficient for adoption by the Board without taking account of either the Directors selected by the Supporting Organization or their votes.
(f) If the Board declines to accept any recommendation of a Supporting Organization, it shall return the recommendation to the Supporting Organization for further consideration, along with a statement of the reasons it declines to accept the recommendation. If, after reasonable efforts, the Board does not receive a recommendation from the Supporting Organization that it finds meets the standards of Section 2(e) of this Article VI or, after attempting to mediate any disputes or disagreements between Supporting Organizations, receives conflicting recommendations from Supporting Organizations, and the Board finds there is a justification for prompt action, the Board may initiate, amend or modify and then approve a specific policy recommendation.
(g) Nothing in this Section 2 is intended to limit the powers of the Board or the Corporation to act on matters not within the scope of primary responsibility of a Supporting Organization or to take actions that the Board finds are necessary or appropriate to further the purposes of the Corporation.
(a) The initial Supporting Organizations contemplated by Section 1(b) of this Article VI shall be formed through community consensus, as reflected in applications or similar proposals to create an initial Supporting Organization. Provision for specific supporting organizations shall be set forth in Articles added after this Article VI and before Article VII by Bylaw amendments that shall, in the Board's judgment, (1) be consistent with these Bylaws; (2) ensure that the full range of views of all interested parties will be fairly and adequately reflected in the decisions of the Supporting Organization; and (3) serve the purposes of the Corporation. Upon the adoption of such Bylaw amendments, the Supporting Organization shall be deemed to exist for purposes of these Bylaws. Once accepted by the Board through the amendment of these Bylaws and the failure of the Board to disapprove any subsequent decisions by the Supporting Organizations or their constituent bodies, the procedures of the Supporting Organizations shall prevail in the case of any inconsistency with any other provisions of these Bylaws.
(b) The Board may amend the Bylaws to create additional Supporting Organizations if it determines, by a two-thirds (2/3) vote of all members of the Board, that it would serve the purposes of the Corporation. In the event of a staff recommendation that an additional Supporting Organization should be created, the Board will post the staff recommendation on the Web Site, including a detailed explanation of why such action is necessary or desirable, set a reasonable time for the receipt of public comments, and not make a final decision to seek the consensus development of such additional Supporting Organization until it has taken into account all such comments.
No person shall serve simultaneously as (i) a member of any Supporting Organization Council or other body that is directly responsible for the selection of Directors by that Supporting Organization and (ii) a Director or a member of any other Supporting Organization Council. If a member of any such Supporting Organization Council or such other body accepts a nomination to be considered to serve on the Board, such member shall not, following such acceptance, participate in any discussion of, or vote by, such Supporting Organization Council or other body relating to the selection of Directors by such Council or other body.
(a) The ASO shall have a Address Council, consisting of representatives of the RIRs that are signatories to the Memorandum of Understanding. The Address Council shall, at least annually, host a meeting (the "General Assembly"), open to participation by all interested individuals.
(b) The DNSO shall consist of (i) a Names Council ("NC"), consisting of representatives of constituencies as described in Section 3 of this Article VI-B ("Constituencies") elected by those Constituencies and (ii) a General Assembly ("GA"), consisting of all interested individuals and entities.
(a) The NC shall consist of representatives, selected in accordance with Section 3(c) of this Article, from each Constituency recognized by the Board pursuant to the criteria set forth in Section 3 of this Article.
(b) The NC is responsible for the management of the consensus building process of the DNSO. It shall adopt such procedures and policies as it sees fit to carry out that responsibility, including the designation of such research or drafting committees, working groups and other bodies of the GA as it determines are appropriate to carry out the substantive work of the DNSO. Each recognized Constituency shall be invited to participate in each of such bodies. Each of such bodies shall provide appropriate means, as determined by the NC, for input and such participation as is practicable under the circumstances by other interested parties. Any reports or recommendations presented to the NC by such bodies shall be posted on a web site accessible by the public for public review and comment; absent clear justification, which shall be publicly stated at the time of any action, the NC shall not act on any report or recommendation until a reasonable time for public comment has passed and the NC has reviewed and evaluated all public comments received. The NC is responsible for ensuring that all responsible views have been heard and considered prior to a decision by the NC.
(c) Constituencies or GA participants may propose that the NC consider domain name policies or recommendations. If the NC undertakes consideration of a domain name topic, or if a Constituency so requests, the NC shall designate one or more research or drafting committees, or working groups of the GA, as appropriate to evaluate the topic, and shall set a time frame for the report of such committee or working group. Following the receipt of a report or recommendation from such a body, the NC may accept the report or recommendation for submission to the Constituencies for comment and consultation, or return the report or recommendation to the body from which it originated for further work. After the report or recommendation is submitted to the Constituencies and the comment period for the Constituencies has expired, the NC shall evaluate the comments to determine whether there is a basis for a consensus recommendation to the Board.
(d) If two-thirds (2/3) of the members of the NC determine that the DNSO process has produced a community consensus, that consensus position shall be forwarded to the Board as a consensus recommendation, along with all materials or other information that could reasonably be relevant to the Board's review of that determination, including (but not limited to) the dissenting statement(s) of any member(s) of the NC. If more than one-half (1/2) but less than two-thirds (2/3) of the members of the NC determine that the DNSO process has produced a community consensus, that position may be forwarded to the Board as a NC recommendation, along with statements of majority and minority views, and any separate or dissenting statement(s) of any member(s) of the NC. Any proposed recommendation that is not supported by an affirmative vote of one-half (1/2) of the members of the NC may be returned to the body from which it originated, or may be assigned to a new body, for further work. In such a case, the NC may report to the board the lack of a consensus and the steps, if any, it plans to take from this point forward with respect to this particular recommendation. The NC is responsible for ensuring that the Board is informed of any significant implementation or operational concerns expressed by any responsible party.
(e) The NC shall forward to the Board, from among those persons nominated by the GA, its selection(s) for the Director(s) to fill any open Board position(s) reserved for the DNSO. Any such selection(s) must have the affirmative votes of at least one-half (1/2) of all the members of the NC. At any given time, no two Directors serving on the Board selected by the NC shall be citizens of the same country or of countries located in the same Geographic Region.
(h) Meetings of the NC may be held (i) in person or via teleconference, at the discretion of the NC, so long as all members of the NC participating can speak to and hear one another or (ii) via electronic video screen communication or other communication equipment; provided, that (a) all members of the NC participating in such a meeting can speak to and hear one another, (b) all members of the NC are provided the means of fully participating in all matters before the NC and (c) the NC adopts and implements means of verifying that (x) a person participating in such a meeting is a member of the NC or other person entitled to participate in the meeting and (y) all actions of, or votes by, the NC are taken or cast only by the members of the NC or other persons entitled to cast votes. A majority of the total number of NC members then in office shall constitute a quorum for the transaction of business, and the act of a majority of the NC members present at any meeting at which there is a quorum shall be the act of the NC, unless otherwise provided herein. Advance notice of such meetings shall be posted on a web site that is available for public access and, if reasonably practicable, at least 14 days in advance of the meeting. Except where determined by a majority vote of members of the NC present that a closed session is appropriate, meetings shall be open to physical or electronic attendance by all interested persons. The NC shall post minutes of its meetings to a web site that is available for public access as soon as practicable following the meeting, and no later than 21 days following the meeting.
(a) Each Constituency shall self-organize, and shall determine its own criteria for participation, except that no individual or entity shall be excluded from participation in a Constituency merely because of participation in another Constituency, and constituencies shall operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness. The Board shall recognize a Constituency (including the initial Constituencies described in (b) below) by a majority vote, whereby the Constituency shall be deemed to exist for purposes of these Bylaws.
(c) Each Constituency shall select up to three individuals to represent that Constituency on the NC, no two of whom may be citizens of the same Geographic Region, as defined in Article V, Section 6, except that, with the consent of the Board, this latter requirement may be suspended for the term of a particular individual upon a showing that it is impracticable for the Constituency to obtain such geographic diversity. Any such waiver shall be granted only upon a commitment by the constituency to a substantive plan to diversify its membership, thereby minimizing the likelihood of the need for future waivers from the Board. Notwithstanding the foregoing, no Constituency may have more representatives on the NC than there are members of the Constituency.
(d) Any group of individuals or entities may petition the Board for recognition as a new or separate Constituency. Any such petition will be posted for public comment pursuant to Article III, Section 3. The Board may create new Constituencies in response to such a petition, or on its own motion, if it determines that such action would serve the purposes of the Corporation. In the event the Board is considering acting on its own motion it shall post a detailed explanation of why such action is necessary or desirable, set a reasonable time for public comment, and not make a final decision on whether to create such new Constituency until after reviewing all comments received. Whenever the Board posts a petition or recommendation for a new Constituency for public comment, it will notify the names council and will consider any response to that notification prior to taking action.
(a) The GA shall be an open forum for participation in the work of the DNSO, and open to all who are willing to contribute effort to the work of the DNSO. The participants in the GA should be individuals who have a knowledge of and an interest in issues pertaining to the areas for which the DNSO has primary responsibility, and who are willing to contribute time, effort and expertise to the work of the DNSO, including work item proposal and development, discussion of work items, draft document preparation, and participation in research and drafting committees and working groups.
(b) The GA shall meet at least once a year, if possible in conjunction with regularly scheduled meetings of the Board. To the maximum extent practicable, all meetings should be available for online attendance as well as physical attendance.
(c) The costs of GA meetings shall be the responsibility of the DNSO, which may levy an equitable, cost-based fee on GA attendees to recoup those costs. There shall be no other fees required to participate in the GA.
(a) The PSO shall have a Protocol Council, consisting of representatives of the SDOs that are signatories to the Memorandum of Understanding. The Protocol Council shall, at least annually, host a meeting (the "General Assembly"), open to participation by all interested individuals.
(a) The Board may establish one or more committees in addition to those set forth in Section 3 of this Article VII. Committees are of two kinds: those having legal authority to act for the Corporation, known as Committees of the Board, and those that do not have that authority, known as Advisory Committees. Except where otherwise stated in these Bylaws, committee members shall be appointed by the Board. Committee members may be removed from a committee at any time by a two-thirds (2/3) majority vote of all members of the Board; provided, however, that if a Director or Directors are the subject of the removal action, such Director or Directors shall not be entitled to vote on such an action or be counted as a member of the Board when calculating the required two-thirds (2/3) vote; and, provided further, however, that in no event shall a Director be removed from a committee unless such removal is approved by not less than a majority of all members of the Board. The Board may delegate to Committees of the Board all legal authority of the Board except with respect to:
(b) The Board shall have the power to prescribe the manner in which proceedings of any committee shall be conducted. In the absence of any such prescription, such committee shall have the power to prescribe the manner in which its proceedings shall be conducted. Unless these Bylaws, the Board or such committee shall otherwise provide, the regular and special meetings shall be governed by the provisions of Article V applicable to meetings and actions of the Board. Each committee shall keep regular minutes of its proceedings and shall report the same to the Board from time to time, as the Board may require.
Only Directors may be appointed to a Committee of the Board. If a person appointed to a Committee of the Board ceases to be a Director, such person shall also cease to be a member of any Committee of the Board. Each Committee of the Board shall consist of two or more Directors. The Board may designate one or more Directors as alternate members of any such committee, who may replace any absent member at any meeting of the committee. The Board may terminate any Committee of the Board.
The Board may create one or more Advisory Committees in addition to those set forth in the next paragraph. Advisory Committee membership may consist of Directors only, Directors and nondirectors, or nondirectors only, and may also include nonvoting members and alternate members. Advisory Committees shall have no legal authority to act for the Corporation, but shall report their findings and recommendations to the Board.
There shall be at least the following Advisory Committees:
(a) There shall be a Governmental Advisory Committee. The initial chairman of the Governmental Advisory Committee shall be appointed by the Board and shall hold that position until the election of his or her successor; subsequent chairs shall be elected by the members of the Governmental Advisory Committee pursuant to procedures adopted by such members. Membership of the Governmental Advisory Committee shall be open to all national governments. Membership shall also be open to Distinct Economies as recognized in international fora, and multinational governmental organizations and treaty organizations, on the invitation of the Governmental Advisory Committee through its Chair, or on invitation of the ICANN Board. Members of the Governmental Advisory Committee shall appoint one accredited representative to the Committee. The accredited representative of a member must hold a formal official position with the member's public administration. The term "official" includes a holder of an elected governmental office, or a person who is employed by such government, public authority or multinational governmental or treaty organization and whose primary function with such government, public authority or organization is to develop or influence governmental or public policies. The Governmental Advisory Committee should consider and provide advice on the activities of the Corporation as they relate to concerns of governments, particularly matters where there may be an interaction between the Corporation's policies and various laws, and international agreements. The Board will notify the chairman of the Governmental Advisory Committee of any proposal for which it seeks comments under Article III, Section 3(b) and will consider any response to that notification prior to taking action.
(b) There shall be a DNS Root Server System Advisory Committee. The initial chairman of the DNS Root Server System Advisory Committee shall be appointed by the Board; subsequent chairs shall be elected by the members of the DNS Root Server System Advisory Committee pursuant to procedures adopted by the members. The responsibility of the Root Server System Advisory Committee shall be to advise the Board about the operation of the root name servers of the domain name system. The Root Server System Advisory Committee should consider and provide advice on the operational requirements of root name servers, including host hardware capacities, operating systems and name server software versions, network connectivity and physical environment. The Root Server System Advisory Committee should examine and advise on the security aspects of the root name server system. Further, the Root Server System Advisory Committee should review the number, location, and distribution of root name servers considering the total system performance, robustness, and reliability.
The chairman and each member of a committee shall serve until his or her successor is appointed, or until such committee is sooner terminated, or until he or she is removed, resigns, or otherwise ceases to qualify as a member of the committee.
A majority of the members of the committee shall constitute a quorum at any meeting of that committee. Each committee shall meet as often as is necessary to perform its duties.
Committee members shall receive no compensation for their services as a member of a committee. The Board may, however, authorize the reimbursement of actual and necessary expenses incurred by committee members, including Directors, performing their duties as committee members.
The officers of the Corporation will be a President (who will serve as Chief Executive Officer), a Secretary, a Chief Financial Officer and a Chief Technical Officer. The Corporation may also have, at the discretion of the Board, any additional officers that it deems appropriate. Any person, other than the President, may hold more than one office, except that no member of the Board (other than the President) shall simultaneously serve as an officer of the Corporation.
The officers of the Corporation will be elected annually by the Board, pursuant to the recommendation of the President. Each such officer shall hold his or her office until he or she resigns, is removed, is otherwise disqualified to serve, or his or her successor is elected.
Any Officer may be removed, either with or without cause, by a two-thirds (2/3) majority vote of all the members of the Board. Should any vacancy occur in any office as a result of death, resignation, removal, disqualification or any other cause, the Board may delegate the powers and duties of such office to any Officer or to any Director until such time as a successor for the office has been elected.
The President will be the Chief Executive Officer (CEO) of the Corporation in charge of all of its activities and business. All other officers and staff shall report to the President or his or her delegate. The President shall serve as a member of the Board, and shall be entitled to attend any meeting of any committee. The President will be empowered to call special meetings of the Board as set forth herein, and shall discharge all other duties as may be required by these Bylaws and from time to time may be assigned by the Board.
The Secretary shall keep or cause to be kept the minutes of the Board in one or more books provided for that purpose, will see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law, and in general perform all duties as from time to time may be prescribed by the President or the Board.
The Chief Financial Officer ("CFO") shall be the chief financial officer of the Corporation. If required by the Board, the CFO shall give a bond for the faithful discharge of his or her duties in such form and with such surety or sureties as the Board shall determine. The CFO shall have charge and custody of all the funds of the Corporation and shall keep or cause to be kept, in books belonging to the Corporation, full and accurate amounts of all receipts and disbursements, and shall deposit all money and other valuable effects in the name of the Corporation in such depositories as may be designated for that purpose by the Board. The CFO shall disburse the funds of the Corporation as may be ordered by the Board or the President and, whenever requested by them, shall deliver to the Board and the President an account of all his or her transactions as CFO and of the financial condition of the Corporation. The CFO shall be responsible for the Corporation's financial planning and forecasting and shall assist the President in the preparation of the Corporation's annual budget. The CFO shall coordinate and oversee the Corporation's funding, including any audits or other reviews of the Corporation or its Supporting Organizations. The CFO shall be responsible for all other matters relating to the financial operation of the Corporation.
The Chief Technical Officer shall advise the Board and the President on engineering and other technical issues related to the matters which they consider.
In addition to the officers described above, any additional or assistant officers who are elected or appointed by the Board shall perform such duties as will be assigned to them by the President or the Board.
The compensation of any Officer of the Corporation shall be approved by the Board. Expenses incurred in connection with performance of their officer duties may be reimbursed to Officers upon approval of the President (in the case of Officers other than the President) or the Board.
The Corporation shall, to maximum extent permitted by the CNPBCL, indemnify each of its agents against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any proceeding arising by reason of the fact that any such person is or was an agent of the Corporation. For purposes of this Article, an "agent" of the Corporation includes any person who is or was a Director, Officer, employee or any other agent of the Corporation, including members of any Supporting Organization or At Large Council acting within the scope of his or her responsibility and on behalf of the best interests 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. The Board may adopt a resolution authorizing the purchase and maintenance of insurance on behalf of any agent of the Corporation against any liability asserted against or incurred by the agent in such capacity or arising out of the agent's status as such, whether or not this Corporation would have the power to indemnify the agent against that liability under the provisions of this Article.
The Board may authorize any Officer or Officers, agent or agents, to enter into any contract or execute or deliver any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances. In the absence of a contrary Board authorization, contracts and instruments may only be executed by the following Officers: President, any Vice President, or the CFO. Unless authorized or ratified by the Board, no other Officer, agent or employee shall have any power or authority to bind the Corporation or to render it liable for any debts or obligations.
All funds of the Corporation not otherwise employed will be deposited from time to time to the credit of the Corporation in such banks, trust companies or other depositories as the Board may select.
All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation will be signed by such Officer or Officers, agent or agents, of the Corporation and in such a manner as shall from time to time be determined by resolution of the Board.
No loans will be made by or to this Corporation and no evidences of indebtedness will be issued in its name unless authorized by a resolution of the Board. Such authority may be general or confined to specific instances; provided, however, that no loans will be made by the Corporation to its Directors or Officers.
The fiscal year end of the Corporation shall be determined by the Board.
At the end of the fiscal year, the books of the Corporation will be closed and audited by certified public accountants. The appointment of the fiscal auditors will be the responsibility of the Board.
The Board shall publish, at least annually, a report describing its activities, including an audited financial statement and a description of any payments made by the Corporation to Directors (including reimbursements of expenses). The Corporation shall cause the annual report and the annual statement of certain transactions as required by the CNPBCL to be prepared and sent to each member of the Board and to such other persons as the Board may designate, no later than one hundred twenty (120) days after the close of the Corporation's fiscal year.
The President shall prepare and, at least forty-five (45) days prior to the commencement of each fiscal year, submit to the Board, a proposed annual budget of the Corporation for the next fiscal year. The proposed budget shall identify anticipated revenue sources and levels and shall, to the extent practical, identify anticipated material expense items by line item. The Board shall adopt an annual budget and shall publish the adopted Budget on the Web Site.
The Board may, subject to the procedures set forth in Article III, Section 3, set fees and charges for the services and benefits provided by the Corporation, with the goal of fully recovering the reasonable costs of the operation of the Corporation and establishing reasonable reserves for future expenses and contingencies reasonably related to the legitimate activities of the Corporation. Such fees and charges shall be fair and equitable, and once adopted shall be published on the Web Site in a sufficiently detailed manner so as to be readily accessible.
Except as otherwise provided in the Articles of Incorporation or these Bylaws, the Articles of Incorporation or Bylaws of the Corporation may be altered, amended, or repealed and new Bylaws adopted only upon action by a two-thirds (2/3) vote of all members of the Board.