Amended and Restated Effective July 28, 2020
Article I: Name, Offices and Purpose
Section 1.1. The name of this corporation is the .NET Foundation (referred to in these Bylaws as the "Foundation").
Section 1.2. The principal office of the Foundation shall be located at its principal place of business or such other place as the Board of Directors (the "Board") may designate. The Foundation may have such other offices as the Board may designate.
Section 1.3. The Foundation is organized under the Washington Nonprofit Miscellaneous and Mutual Corporations Act (Chapter 24.06 of the Revised Code of Washington) (the "Act"). It was formed to advance the interests of the .NET programming community, including enterprises, partners, individual developers and open source communities, by fostering open development and collaboration of open source technologies for .NET programming and related technologies; and by serving as a forum for commercial and community developers to strengthen the future of the .NET ecosystem and wider developer community by promoting openness, community participation, and rapid innovation.
Article II: Membership
Section 2.1. The Board shall adopt a policy (a "Membership Policy"), consistent with the Foundation's Articles of Incorporation, that defines the rights, responsibilities, qualifications, fees and all other matters associated with membership. The term "Members" means all individuals and entities that qualify for membership under this policy and that execute a Membership Agreement in a form adopted by the Board.
Section 2.2. All intellectual property submitted to or owned, adopted or created by the Foundation ("Intellectual Property") shall be subject to such license agreements, contribution agreements, policies and procedures as adopted by the Board. Among other things, the Board will adopt a form of Assignment Agreement (for contribution of open source software projects to the Foundation) and a form of the Contribution Agreement (for contributions to open source software projects within the Foundation).
Section 2.3. Open source software projects within the Foundation will be subject to a governance process adopted by the Board (a "Project Governance Policy"). The governance process will specify (i) the rights of the original contributor of a project to the Foundation to manage the project as a "benevolent director," (ii) the rights of the Foundation as to the project and its name, and (iii) the rights of the broader community to use the project, including what open source licenses may be used for projects and the policies for accurate and referential use of project names.
Section 2.4. Microsoft Corporation is the "Founding Member." The Founding Member intends that the right to manage the affairs of the Foundation be vested exclusively in the Board, as described in these Bylaws, to the maximum extent permitted by applicable law. The Founding Member and eligible Members will elect the Board as described in Section 3.3.
Article III: Board of Directors
Section 3.1. The Board will direct all affairs of the Foundation and may exercise all powers available to a corporation under applicable law, including without limitation the power to authorize officers or agents to enter into contracts, execute financial instruments, and make other commitments on behalf of the Foundation. All corporate powers are exercised by or under authority of the Board.
Section 3.2. The Foundation will have no fewer than three and no more than seven directors.
(a) Board. The Board shall consist of one director appointed by the Founding Member and up to six directors elected by Members.
(b) Election Process. The Board shall adopt a policy (the "Director Election Policy") that defines eligibility criteria for candidate directors, establishes length of term of service for elected directors, identifies which Members are entitled to vote for directors, and defines a process for the election of directors by eligible Members.
(c) Director terms. The director appointed by the Founding Member will serve until that person is replaced by the Founding Member or otherwise vacates the position. The Founding Member may replace its appointed director at any time in its sole discretion. Elected directors will serve for the term established in the Director Election Policy.
(d) Resignation; Removal. A director may resign at any time in their sole discretion, unless such resignation would cause the Foundation to have no directors. A director may be removed from office for any good cause deemed sufficient by the Board, voting in accordance with Section 3.9 below. In the event of removal of the director appointed by the Founding Member, the Founding Member will retain its right to appoint a director, but must not re-appoint the removed director.
(e) Vacancies. If there are vacancies in elected director positions due to resignation or removal, the remaining directors shall appoint additional directors to serve for the remainder of the term, as set forth in the Director Election Policy. A vacancy in the director position appointed by the Founding Member must be filled by the Founding Member within 30 days.
Section 3.7. Directors shall not receive compensation for their services as such, although the reasonable expenses of directors for attendance at Board meetings or otherwise directly incident to their duties as directors may be paid by the Foundation.
Section 3.8 No contract or transaction between the Foundation and one or more of its directors or officers, or between the Foundation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are directors or have a financial or other substantial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board or committee thereof which authorizes the contract or transaction or solely because his or their votes are counted for such purpose, if:
(a) the material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the Board, and the Board in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even if the disinterested directors are less than a quorum; or
(b) the contract or transaction is fair as to the Foundation as of the time it is authorized, approved or ratified, by the Board.
(a) Location; telephonic meetings. The Board and any Board committees may hold regular or special meetings at any location worldwide or by any electronic means. Participation by telephone, videoconference or any similar means is sufficient provided that all meeting participants can concurrently communicate with each other, and such participation will constitute presence for the purposes of these Bylaws and the Act.
(c) Regular and special meetings. Regular meetings of the Board may be held at times determined by the Board and communicated to all directors. Any officer of the Foundation may call a special meeting, or any one director may call a special meeting if that one director is the only director in office. The party calling a special meeting must use all reasonable efforts to effect actual notice of the special meeting upon all other directors no less than two business days prior to the special meeting. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting.
(d) Quorum and voting. Except as otherwise required herein, participation of a majority of the directors in office immediately before a meeting will constitute a quorum for the transaction of business at that meeting of the Board. Except as otherwise required by the Act or by these Bylaws, the act of the majority of the voting directors present at which a quorum is present will be an act of the Board. For the following actions, a vote by two-thirds of all directors then in office shall be required: (i) the dissolution or merger of the Foundation, or the transfer of all or substantially all of the Foundation's assets, (ii) changing the Foundation's purpose, (iii) amendment to the Articles of Incorporation or these Bylaws, (iv) changing the Foundation's Membership Agreements, the Membership Policy, the Director Election Policy, the Project Governance Policy, or any Intellectual Property-related agreements or policies, or (iv) removal of the Foundation's officers or directors. Each director will have one vote.
(e) Limited Special Right for Director Appointed by Founding Member. In connection with any vote to materially change the Foundation's Membership Policy, Director Election Policy, Project Governance Policy, or any Intellectual Property-related agreements or policies, (a) a "no" vote by the director appointed by the Founding Member will result in the disapproval of a proposed action, regardless of the number of votes for approval), and (b) such director must be present as part of any quorum (i.e. if that director is not present, the Board will not have a quorum for the matter, regardless of the number of other directors present).
(f) Member Review. Prior to voting on any amendments to the Foundation's Bylaws, Articles of Incorporation or the Foundation's Membership Policy, the Director Election Policy, the Project Governance Policy, or any of the Foundation's Intellectual Property-related agreements or policies, the Board shall use reasonable efforts to preview the proposed amendments with the Foundation's Members, using the following process:
(i) post the proposed amendments as "pull requests" within the Foundation's GitHub organization, or through such other methodology determined by the Board that is accessible to Members for review and feedback;
(ii) notify Members via a public announcement and solicit Member comments to the proposed changes over a designated Member review period (no less than a week from the date of notice), to be submitted by Members via GitHub or such other forum or methodology adopted by the Board;
(iii) upon conclusion of the Member review period, the Board will collect and consider all Member comments in good faith prior to voting on the amendments.
However, to the extent the Board reasonably determines that such a Member review process is not possible due to good faith considerations (such as time sensitivity, potential legal liability, confidentiality, etc.), it may vote on amendments in accordance with these Bylaws, but without engaging in the above review process. In the event the Board does adopt any such amendments without Member review, it will provide Members a description for the reasons for the amendments and for bypassing the review process.
(g) Notices. All notices required under this Article III will be given to all directors in office at the time of such notice and may be given by email at least 48 hours in advance of the meeting or by first class mail to such director's last known business address at least three business days in advance.
Section 3.10. Board actions may be taken without a meeting if all of the directors then in office communicate written consent to such actions. Communications may be via electronic means so long as the method used provides reasonable assurance of notice, security and authenticity.
Article IV: Officers
Section 4.1. The officers of the Foundation shall consist of a President, one or more Vice Presidents, a Secretary, and a Treasurer, each of whom shall be elected by the Board. Other officers may be elected or appointed by the Board, such officers to hold office for such period, have such authority and perform such duties as are provided in these Bylaws or as may be provided by resolution of the Board. Any officer may be assigned by the Board any additional title that the Board deems appropriate. Any two or more offices may be held by the same person, except the offices of President and Secretary or Executive Director and Secretary.
(a) President. The President shall serve as chair of the Board and when present shall preside at meetings of the Board. The President shall sign deeds, mortgages, bonds, contracts, or other instruments, except when the signing and execution thereof have been expressly delegated by the Board or by these Bylaws to some other officer or agent of the Foundation or are required by law to be otherwise signed or executed by some other officer or in some other manner.
(b) Executive Director. The Board may appoint an Executive Director who shall be the chief executive officer of the Foundation and, subject to the direction and control of the Board, shall have general supervision of the business and affairs of the Foundation. The Executive Director may sign deeds, mortgages, bonds, contracts, or other instruments, except when the signing and execution thereof have been expressly delegated by the Board or by these Bylaws to some other officer or agent of the Foundation or are required by law to be otherwise signed or executed by some other officer or in some other manner. The Executive Director may delegate general administrative and management responsibility for the operations of the Foundation to such staff, hired or contracted by the Executive Director, as is necessary to fulfill the purposes of the Foundation, and the Executive Director will supervise such staff and perform such other duties as are assigned by the Board. The Executive Director may receive reasonable compensation for the performance of services, as determined by the Board.
(c) Vice Presidents. The Board may elect one or more Vice Presidents who, if so elected, shall assist the President and Executive Director in carrying out the programs of the Foundation. Vice Presidents shall have, to the extent authorized by the President, Executive Director, or the Board, the same powers as the President and Executive Director to sign deeds, mortgages, bonds, contracts or other instruments. Vice Presidents shall perform such other duties as from time to time may be assigned to them by the President, Executive Director, or the Board.
(d) Secretary. The Secretary shall be responsible for ensuring that minutes of meetings of the Board and committees of the Board are recorded and maintained; see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; be custodian of the corporate records of the Foundation or appoint such person or entity as is appropriate to act as such custodian; ensure that records are kept of the name and address of each Member, director and officer; sign with the President, Executive Director, or other officer authorized by the President, Executive Director, or the Board, deeds, mortgages, bonds, contracts, or other instruments; and in general perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to him or her by the President, Executive Director, or the Board.
(e) Treasurer. The Treasurer shall have charge of and be responsible for all funds and securities of the Foundation; ensure that monies due and payable to the Foundation from any source whatsoever are properly received and that receipts are given for said monies; ensure that all such monies are deposited in the name of the Foundation in banks, trust companies or other depositories selected in accordance with the provisions of these Bylaws; and in general perform all of the duties incident to the office of Treasurer and such other duties as may be assigned to him or her by the President, Executive Director, or the Board.
Section 4.2. Election and Term of Office. The officers of the Foundation shall be elected each year by the Board. Unless an officer dies, resigns, or is removed from office, he or she shall hold office until his or her successor is elected. A vacancy in any office may be filled by the Board for the unexpired portion of the term or for a new term established by the Board. Any officer or agent elected or appointed by the Board may be removed from office, with or without cause, by the Board whenever in its judgment the best interests of the Foundation would be served thereby.
Section 4.3. Compensation; Contract Rights. The salaries, if any, of the officers shall be limited to reasonable compensation for services, as fixed from time to time by the Board or by any person or persons to whom the Board has delegated such authority. No officer shall be prevented from receiving a salary as an officer by reason of the fact that he or she is a director of the Foundation. Officers may also receive reimbursement for reasonable expenditures incurred on behalf of the Foundation. Election or appointment of an officer shall not of itself create contract rights.
Article V: Indemnification
Section 5.1. As used in this Article:
(a) "Foundation" means this Foundation, and any domestic or foreign successor entity.
(b) "Director" means an individual who is, or was, a director of the Foundation.
(c) "Employee" means an individual who is, or was, an employee of the Foundation.
(d) "Expenses" means all fees and expenses incurred in any Proceeding, including without limitation, the fees and expenses of counsel.
(e) "Indemnitee" means an individual made a Party to a Proceeding because the individual is, or was, a Director, Officer, or Employee, and who possesses indemnification rights pursuant to the Articles of Incorporation, the Foundation's Bylaws, or other corporate action. "Indemnitee" shall also include the heirs, executors, and other successors in interest of such individuals.
(f) "Liability" means the obligation to pay a judgment, settlement, penalty, or fine, including an excise tax assessed with respect to an employee benefit plan, or reasonable Expenses incurred with respect to a Proceeding.
(g) "Officer" means an individual who is, or was, an officer of the Foundation.
(h) "Party" includes an individual who was, is, or is threatened to be, named a defendant or a respondent in a Proceeding.
(i) "Proceeding" means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, and whether formal or informal.
(a) The indemnification rights and the right to advancement of expenses of the Foundation's directors shall be as set forth in the Articles of Incorporation. The procedures of Section 5.3 shall apply to such indemnification rights and advancement of expenses unless the Board of Directors adopts or approves further indemnification and expense advancement arrangements as may be permitted by law.
(b) The indemnification rights of the Foundation's Officers and Employees shall be as set forth in these Bylaws. The Foundation shall indemnify its Officers and Employees to the full extent permitted by law, subject to RCW 23B.08.510 through RCW 23B.08.550, against Liability arising out of a Proceeding to which such individual was made a Party because the individual is or was an Officer or Employee of the Foundation. The Foundation shall advance Expenses incurred by such Officer or Employee who is a Party to a Proceeding in advance of final disposition of the Proceeding, as provided herein.
(a) Notification and Defense of Claim. Indemnitee shall promptly notify the Foundation, in the form of a record, of any Proceeding for which indemnification could be sought under this Article or the Articles of Incorporation. In addition, Indemnitee shall give the Foundation such information and cooperation as it may reasonably require and as shall be within Indemnitee's power. With respect to any such Proceeding as to which Indemnitee has notified the Foundation:
(i) The Foundation shall be entitled to participate therein at its own expense; or
(ii) Except as otherwise provided below, to the extent that it may wish, the Foundation, jointly with any other indemnifying Party similarly notified, will be entitled to assume the defense thereof, with counsel satisfactory to Indemnitee. Indemnitee's consent to such counsel may not be unreasonably withheld. After notice from the Foundation to Indemnitee of its election to assume the defense, the Foundation will not be liable to Indemnitee under this Article for any Expenses subsequently incurred by Indemnitee in connection with such defense. Indemnitee shall, however, continue to have the right to employ its counsel in such Proceeding, at Indemnitee's expense.
The Foundation shall not be entitled to assume the defense of any Proceeding brought by, or on behalf of, the Foundation or as to which Indemnitee shall reasonably have made the conclusion that a conflict of interest may exist between the Foundation and the Indemnitee in the conduct of the defense. In such case, the Foundation will be responsible for reimbursing Indemnitee for the fees and expenses of Indemnitee's counsel in defense of such Proceeding.
(b) Information to be Submitted and Method of Determination and Authorization of Indemnification. For the purpose of pursuing rights to indemnification under the Articles of Incorporation and/or this Article, Indemnitee shall submit to the Board of Directors a sworn statement requesting indemnification and reasonable evidence of all amounts for which such indemnification is requested (together, the sworn statement and the evidence constitute an "Indemnification Statement"). Submission of an Indemnification Statement to the Board of Directors shall create a presumption that the Indemnitee is entitled to indemnification hereunder, and the Foundation shall, within sixty (60) calendar days thereafter, make the payments requested in the Indemnification Statement to, or for the benefit of, the Indemnitee, unless: (a) within such sixty (60) calendar day period it shall be determined by the Foundation that the Indemnitee is not entitled to indemnification under the Articles of Incorporation; (b) such vote shall be based upon clear and convincing evidence (sufficient to rebut the foregoing presumption); and (c) the Indemnitee shall receive notice of such determination in the form of a record, which shall disclose with particularity the evidence upon which the determination is based. The foregoing determination shall be made (a) by the Board of Directors by majority vote of a quorum consisting of Directors not at the time parties to the Proceeding; (b) if a quorum cannot be obtained under (a) in this paragraph, by majority vote of a committee duly designated by the Board of Directors, in which designation Directors who are Parties may participate, consisting solely of two or more Directors not at the time Parties to the Proceeding; or (c) by special legal counsel as provided by RCW 23B.08.550. Any determination that the Indemnitee is not entitled to indemnification, and any failure to make the payments requested in the Indemnification Statement, shall be subject to judicial review by any court of competent jurisdiction.
(c) Special Procedure Regarding Advance for Expenses. An Indemnitee seeking payment of Expenses in advance of a final disposition of the Proceeding must furnish the Foundation, as part of the Indemnification Statement:
(i) a written affirmation, given in the form of a record, of the Indemnitee's good faith belief that the Indemnitee has met the standard of conduct required to be eligible for indemnification; and
(ii) a written undertaking, in the form of a record constituting an unlimited general obligation of the Indemnitee, to repay the advance if it is ultimately determined by the final disposition of a court of competent jurisdiction that the Indemnitee did not meet the required standard of conduct. If the Foundation determines that indemnification is authorized, the Indemnitee's request for advance of Expenses shall be granted.
(d) Settlement. The Foundation is not liable to indemnify Indemnitee for any amounts paid in settlement of any Proceeding without the Foundation's consent, given in the form of a record. The Foundation shall not settle any Proceeding in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee's consent, given in the form of a record. Neither the Foundation nor Indemnitee may unreasonably withhold its consent to a proposed settlement.
(a) Contract Rights. The right of an Indemnitee to indemnification and advancement of Expenses is a contract right upon which the Indemnitee shall be presumed to have relied in determining to serve, or to continue to serve, in his or her capacity with the Foundation. Such right shall continue as long as the Indemnitee shall be subject to any possible Proceeding. Any amendment to, or repeal of, this Article shall not adversely affect any right or protection of an Indemnitee with respect to any acts or omissions of such Indemnitee occurring prior to such amendment or repeal.
(b) Optional Insurance, Contracts, and Funding. The Foundation may:
(i) Maintain insurance, at its expense, to protect itself and any Indemnitee against any Liability;
(ii) Enter into contracts with any Indemnitee in furtherance of this Article and consistent with the Act; and
(iii) Create a trust fund, grant a security interest, or use other means (including, without limitation, a letter of credit) to ensure the payment of such amounts as may be necessary to effect indemnification as provided in this Article.
(c) Severability. If any provision or application of this Article shall be invalid or unenforceable, the remainder of this Article and its remaining applications shall not be affected thereby, and shall continue in full force and effect.
(d) Right of Indemnitee to Bring Suit. If (a) a claim under the Articles of Incorporation and/or this Article for indemnification is not paid in full by the Foundation within sixty (60) days after notice of a claim has been received by the Foundation; or (b) a claim under this Article for advancement of Expenses is not paid in full by the Foundation within twenty (20) days after notice of a claim, then the Indemnitee may, but need not, at any time thereafter bring suit against the Foundation to recover the unpaid amount of the claim. To the extent successful in whole or in part, the Indemnitee shall be entitled to also be paid the expense (to be proportionately prorated if the Indemnitee is only partially successful) of prosecuting such claim. Neither (a) the failure of the Foundation (including its Board of Directors or independent legal counsel) to have made a determination prior to the commencement of such Proceeding that indemnification or reimbursement or advancement of Expenses to the Indemnitee is proper in the circumstances, nor (b) an actual determination by the Foundation (including its Board of Directors or its independent legal counsel) that the Indemnitee is not entitled to indemnification or to the reimbursement or advancement of Expenses, shall be a defense to the Proceeding or create a presumption that the Indemnitee is not so entitled.
(e) Exceptions. Notwithstanding any other provision herein or in the Foundation's Articles of Incorporation to the contrary, the Foundation shall not be obligated pursuant to the terms of this Article to indemnify or advance Expenses to Indemnitee with respect to any Proceeding:
(i) Initiated or brought voluntarily by Indemnitee and not by way of defense, except with respect to Proceedings brought to establish or enforce a right to indemnification under the Bylaws, or any other statute or law or as otherwise required under the statute; but such indemnification or advancement of Expenses may be provided by the Foundation in specific cases if the Board of Directors finds it to be appropriate.
(ii) Instituted by Indemnitee to enforce or interpret rights under the Bylaws, if a court of competent jurisdiction determines that each of the material assertions made by Indemnitee in such Proceeding was not made in good faith or was frivolous.
(iii) For which any of the Expenses or Liabilities for indemnification being sought have been paid directly to Indemnitee by an insurance carrier under an insurance policy maintained by the Foundation.
(iv) If the Foundation is prohibited by its Articles of Incorporation, the Act or other applicable law as then in effect from paying such indemnification and/or advancement of Expenses.
Article VI: Financial Administration and Recordkeeping
Section 6.1. The accounting year of the Foundation shall be the twelve months ending June 30.
Section 6.2. Except as otherwise resolved by the Board or as required by law, any checks, notes or other manifestation of a financial obligation by the Foundation must be signed or otherwise expressly authorized by either the President, Treasurer or the Executive Director.
Section 6.3. The Foundation shall keep the following records at its registered office or its principal office:
(a) Current copies of its Articles of Incorporation and Bylaws, as amended;
(b) Correct and adequate records of accounts and finances;
(c) A record of Members' names and addresses;
(d) A record of officers' and directors' names and addresses;
(e) Minutes of the proceedings of the Board of Directors, and any minutes that may be maintained by committees having any of the authority of the Board of Directors;
(f) Copies of its application for recognition of tax-exempt status on Form 1024 and copies of its Form 990; and
(g) Such other records as may be necessary or advisable. Such records may be made available in any manner and by any means permitted under the Act and the Code. All books and records of the Foundation shall be open at any reasonable time to inspection by any director.
Article VII: Advisors
Section 7.1 The Board of Directors may have a Board of Advisors. The members of the Board of Advisors shall have such qualifications, serve for such terms and be elected or appointed in such manner as the Board of Directors may prescribe by resolution or amendment to these Bylaws.
Section 7.2 The Board of Directors may have a Technical Advisory Board comprising managers of projects and committers to those projects. The members of the Technical Advisory Board shall have such qualifications, serve for such terms and be elected or appointed in such manner as the Board of Directors may prescribe by resolution or amendment to these Bylaws.
Section 7.3 The Board of Directors may, in carrying out its duties and exercising the powers vested in it by these Bylaws, consult the Board of Advisors and Technical Advisory Board at any time and from time to time; provided that (i) neither such body shall possess the rights, powers or duties conferred on directors of the Foundation under the provisions of the Foundation's Articles of Incorporation, these Bylaws, or the Act; and (ii) neither such body shall be vested with authority to direct the actions of the Board of Directors regarding the business and affairs of the Foundation.
Article IX: Amendments
Any amendment of the Articles of Incorporation or these Bylaws must be approved by vote of two-thirds (2/3) of the directors then in office. Any such amendment that materially alters, reduces or eliminates the rights, responsibilities and privileges of the Founding Member must be agreed to in writing by an authorized representative of the Founding Member who is not serving as a director of the Foundation.