[PDB-gov] organizational documents

[Chris Caputo]

On Wed, 21 Oct 2015, Chris Caputo wrote:
> On Tue, 20 Oct 2015, Patrick Gilmore wrote:
> > On Oct 20, 2015, at 10:42 PM, Steve Feldman <steven.feldman at cbsinteractive.com> wrote:
> > > Having dabbled a bit in nonprofit governance in the past, here are 
> > > my comments on the proposed Bylaws:
> > >
> > > 2.3.1: Can the definition and purpose of "Affiliate" be made more 
> > > clear?  I think the purpose is to limit the number of votes to one 
> > > per member organization, and to avoid conflicts of interest in 
> > > section 6.3.  But it took me a few readings to get that far.  And 
> > > it's not clear who exactly gets to vote on behalf of a member 
> > > organization.
> > 
> > This is my fault, so I’ll try to answer it.
> > 
> > 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.

The draft has the following current language:

 - "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 asked the attorney if that could be made more clear.  He responded:

 - 'the definition I provided for Affiliate is universally understood by 
   corporate lawyers.  Thus any attempt to clarify that definition will 
   inevitably muddy the waters legally.  Nevertheless, here is my attempt 
   at another definition:  "Affiliate" shall mean any corporation, 
   partnership, limited liability company, joint venture, association, 
   trust, or other business organization where either the Member or the 
   parent of the Member owns at least 50% of the outstanding voting 
   interest."'

I recommend we leave the current definition as is, lest risk muddying 
waters legally.

What do you all think?

> > > > 7: As written, the Board could amend Article 7 to allow themselves 
> > > > to amend Article 6.  At minimum, require member voting to amend 
> > > > articles 6 and 7.  You might also want to consider whether or not 
> > > > to include other sections, as it's possible to invent other 
> > > > doomsday scenarios where a rogue Board majority could redefine the 
> > > > organization in ways the intended constituency might not 
> > > > appreciate.

The attorney says:

 - "It isn’t necessary to include Article 7 for purposes of limiting 
   amendments, but it doesn’t hurt since someone was worried about it."

So I'll leave the revised form:

 - "ARTICLE 7. AMENDMENTS" Except for the terms of Articles 6 and 7, these 
   Bylaws may be altered, amended or repealed and new Bylaws may be 
   adopted by the vote of a majority of the number of Directors in office. 
   The terms of Articles 6 and 7 may be altered, amended or repealed and 
   new terms thereof may be adopted by the vote of a 2/3 majority of the 
   members."

Thanks,
Chris