[PDB-gov] organizational documents

Wed Oct 21 09:52:52 PDT 2015

As to Will's comment - I would not fix an exact date for an annual meeting.
It will just cause problems down the line. I also agree on Quorum, but
maybe 50 present both physically and electronically? As Will said, don't
tie it to membership or you could get trapped. I've seen Homeowners
Associations unable to do business for years because of absentee landlords
making a quorum impossible.

I've put anti-capture provisions in other organization's bylaws, and every
time the concern has been unwarranted. NANOG was never captured by Cisco
and Open-IX was never captured by Equinix. "Affiliated" is tricky and I'm
not sure how a court would read that. Borrowing the Open-IX clause is an
idea - it has let multiple folks from organizations become members while
avoiding capture.

"I’m actually used to an environment where the board can’t change the
bylaws/articles at all, and requires a majority vote of members in general
meeting to change them. " - this will work, but only after a certain point
in time. A board needs the ability to tweak, at least for the first 12
months or you can get really unexpected results.

Dan

On Wed, Oct 21, 2015 at 11:59 AM, Will Hargrave <will at harg.net> wrote:

> Hello All,
>
> This is great work, thank you!
>
> My experience is mainly with UK companies and the odd NL association, so
> if I might make a few comments from that perspective:
>
>
> ————
> 2.4 - annual meeting date to be ‘first Thursday in April’  - is fixing it
> in this way legally required?
>
>  *  If accounts are to be presented to members, there is probably not
> enough time from the Dec-31 year-end to prepare them before April.
>  *  Personally, I object to more meetings to the calendar; the board
> should be able to schedule the annual meeting alongside a peering forum or
> operator meeting at their discretion. This actually encourages members to
> attend the meeting and participate in the business of the company.
>
> Lifted from LONAP’s articles:
> “"The Company shall hold a general meeting in each year as its Annual
> Meeting, in addition to any other meetings in that year, and shall specify
> the meeting as such in the notice calling it. Not more than fifteen months
> shall elapse between the date of one Annual General Meeting of the Company
> and the date of the next. The Annual Meeting shall be held at such time and
> place as the Board shall appoint.””
>
> ————
> 2.9 Quorum
>
> I have some concerns about the 10% quorum. Whilst there are 8000 peering
> networks present in pdb, the requirement to participate in this pdb-gov
> list reduces the number considerably. I would be concerned about a sudden
> influx of mailing list subscriptions meaning the company could not
> effectively conduct business in its general meetings.
>
> LINX: 10 members personally present
> LONAP: 10 members or 25% of membership, whichever lower. Proxy or
> physically present.
> Nominet: 6 members present in person
> RIPE NCC: could not immediately find this
> ARIN: 5% of eligible voters
>
> I propose we set this to ten members physically present at the meeting.
> ————
>
> > On Tue, 20 Oct 2015, Patrick Gilmore wrote:
> >>
> >> The wording was suggested by our lawyer, based on some language from the
> >> LINX foundational documents. It is intentionally slightly vague, but
> >> legally defensible.
> >> The idea here is we do not want a company that owns 100 ASNs to have 100
> >> votes. Most big companies have multiple ASes these days, and we are
> >> trying to be a “one company, one vote” kinda membership org.
> >> However, nothing is set in stone. If the assembled membership disagrees,
> >> we can change it. We just don’t want to change it based on one company
> >> with 5K ASes outvoting everyone else combined. Hopefully the reasons for
> >> this are obvious.
> > Not sure about this being intentionally slightly vague.  :-)  If anyone
> > has some clarifying language, please suggest it.  I'll also ask the
> lawyer
> > for suggestions.
>
> Wanting to prevent capture of the company in this way is quite reasonable.
>
> I looked at Nominet UK which has some history here ("Not more than one
> member of any group of companies (as defined in Section 53 of the Companies
> Act 1989) may be a Member.”). So this prevents affiliated (or ‘group’)
> companies exercising more than one membership - as opposed to this approach
> of preventing them exercising a vote at election time.
>
> The proposed language seems to mirror the definition of Affiliate within
> US securities law. Good.
>
> How’s this for size:
> ----
> 2.3.1 Subject to 2.3.3, each member entitled to vote with respect to the
> subject matter of an issue
> submitted to the members shall be entitled to one vote upon each such
> issue.
>
> 2.3.3 Members who are affiliated with each other are entitled to a total
> of one vote upon each issue.  "Affiliate"
> means, with respect to a particular person, any entity that directly or
> indirectly controls, is
> controlled by, or is under common control with such person.
> ----
>
> Steve Feldman wrote:
>
> >>> 2.14: This is described in more detail in section 6.3.  Perhaps add a
> >>> reference here?
> > -Members of the Corporation may be removed by a vote of the Board.
> > +Members of the Corporation may be removed by a vote of the Board in
> > +accordance with the ‘Termination of Membership’ section of Article 6 of
> these Bylaws.
>
> I would be inclined to omit 2.14 altogether. It adds little to the
> document as a whole - why make it longer?
>
> >> I have a feeling a court would look very poorly upon a board which voted
> >> to change Article 7 and then subsequently changed Article 6.
> >> However, no need to risk such things. And Steve Scores Again! :)
>
> I’m actually used to an environment where the board can’t change the
> bylaws/articles at all, and requires a majority vote of members in general
> meeting to change them. I don’t feel strongly on this, but i’m not averse
> to requiring any change to the bylaws to require a simple majority vote of
> members, which would avoid these sorts of lacunae.
>
>
> Will
>
>
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-- 
Dan Golding | Network Infrastructure Engineering | dgolding at google.com |  +1
202-370-5916
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