[PDB-gov] organizational documents

[Chris Caputo]

On Wed, 21 Oct 2015, Will Hargrave wrote:
> 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.””

To my knowledge a fixed date is not required.  My intent is to have the 
annual member meetings held online since this is a worldwide organization 
and not all stakeholders attend all conferences.  Finances and other 
reports would be made openly in advance.  Board elections would be done 
via emailed ballots, as we are doing for the Initial Board election.  In 
the future, voting may happen through the PeeringDB web site itself.  
Grizz has indicated that is plausible.  Realtime communication during an 
actual meeting, using a Hangout or equivalent may also happen, if needed.

By the way, I should mention there are auditors on secretary at peeringdb.com 
to keep the secretary (presently me) honest.  At present, I understand 
Richard Turkbergen and Patrick Gilmore get a copy of the emails, so when 
ballots are submitted for the election of the Initial Board, they will be 
able to ensure legitimacy.  (Downside is a decrease in anonymity of votes 
but hopefully that won't bother voters into not voting their heart, or 
maybe an option to email me directly will be available if desired.)

The U.S. IRS Form 990 ("Return of Organization Exempt From Income Tax") is 
due May 15th of each year.  In addition to finances, it requires a list of 
directors.  So as to have that submission be current, I recommend the 
annual meeting to be in April.

Finance-wise, I am the secretary/treasurer for the Seattle Internet 
Exchange, an IRS 501(c)(6) with multi-hundred-grand annual rev/exp, with a 
late April annual meeting date.  I have not found preparing the finances 
by April for the previous calendar year, to be difficult.

With the above in mind, what do you all think of changing section 2.4 to 
be:

   "The annual meeting of the members shall be held in April of each year 
   for the purpose of electing Directors and transacting such other 
   business as may properly come before the meeting. 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.

At present there are ~185 potential members subscribed to pdb-gov.  The 
number of actual members is likely lower due to multiples from the same 
organization or affiliates.

Given the above virtual meeting intention, the question is whether we 
think 10% of pdb-gov members will attend an online meeting.  One way to 
increase odds of reaching the quorum is to encourage proxy-ballot voting 
for the board election, in advance of the meeting.  Doing so also gives 
folks plenty of time to review candidate bios and make informed choices.

Keep in mind that since the Board can vote and change the quorum 
requirement, there is not a risk of getting trapped.

> 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. 
> ----

I like it.  So in total section 2.3 would be:

 - 2.3: Voting Rights.

 - 2.3.1: Subject to section 2.3.3 of these Bylaws, 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.

 - 2.3.2: Each member entitled to one vote at an election of Directors may 
   cast one vote for as many persons as there are Directors to be elected 
   and for whose election such member has a right to vote. Cumulative 
   voting will not be allowed.

 - 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.

Any one else support or oppose the revision?  (If we decide to change it, 
I'll run it by the lawyer.)

> >>> 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've now asked the attorney.

Thanks,
Chris