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| '''Old Page'''
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This page was used during the drafting process for the bylaws and could contain outdated information. The official version of the bylaws is kept at the Foundation website: http://www.openstack.org/legal/bylaws-of-the-openstack-foundation/
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Last updated on {{REVISIONYEAR}}-{{REVISIONMONTH}}-{{REVISIONDAY2}}
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= BYLAWS OF THE OPENSTACK FOUNDATION =
 
= BYLAWS OF THE OPENSTACK FOUNDATION =
a Delaware Nonstock, Nonprofit Corporation
 
  
== ARTICLE I. PREAMBLE ==
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== ARTICLE I. PURPOSES ==
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The OpenStack Foundation is a nonprofit non-stock Foundation (“Foundation”) whose purpose is to develop, support, protect, and promote the open source cloud computing project which is known as the OpenStack Project as defined in these Bylaws.  The Foundation is formed exclusively as a nonprofit trade association within the meaning of Section 501(c)(6) of the Internal Revenue Code of 1986, as amended (the “Code”).  The Foundation shall have and may exercise all the rights and powers given to nonprofit non-stock corporations under General Corporation Law of Delaware (“Delaware Corporate Law”).
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== ARTICLE II. MEMBERSHIP ==
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2.1 <u>Members</u>.  The Foundation shall have three (3) classes of members (“Members”) as defined in more detail below:  (i) Individual (ii) Gold and (iii) Platinum.  The Board of Directors shall have the authority to create a new class of members for government and academic members provided that such class shall not have a vote for the Board of Directors or a vote on any other matter unless these Bylaws are amended.
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2.2 <u>Individual Members</u>.
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;  : (a) Individual Members must be natural persons.  Individual Members may be any natural person who has an interest in the purpose of the Foundation and may be employed by Platinum Members or Gold Members.
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;  : (b) The application, admission, withdrawal and termination of persons as Individual Members are set forth in the membership policy attached as <u>[[#appendix1|Appendix 1]]</u> (“Individual Member Policy”).
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;  : (c) There shall be no limit on the number of Individual Members.
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2.3 <u>Platinum Members</u>.
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;  : (a) Platinum Members may be natural persons, business entities, academic institutions, government agencies, or any other legal person.
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;  : (b) The application, admission, withdrawal and termination of Platinum Members set forth in the membership policy attached as <u>[[#appendix2|Appendix 2]]</u> (“Platinum Member Policy”).
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;  : (c) The number of Platinum Members shall not exceed eight.
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2.4 <u>Gold Members</u>.
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;  : (a) Gold Members may be natural persons, business entities, academic institutions, government agencies, or any other legal person.
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;  : (b) The application, admission, withdrawal and termination of Gold Members set forth in the membership policy attached as <u>[[#appendix3|Appendix 3]]</u> (“Gold Member Policy”).
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;  : (c) The number of Gold Members shall not exceed twenty-four.
  
'''Article I, Section 1. The Foundation.''' The OpenStack Foundation shall protect and promote the OpenStack Project.
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2.5 <u>Affiliation Limits</u>Gold Members and Platinum Members may not belong to an Affiliated Group. An Affiliated Group means that for Members that are business entities, one entity is "Controlled" by the other entity. "Controlled" or "Control" means one entity owns, directly or indirectly, more than 50% of the voting securities of the Controlled entity which vote for the election of the board of directors or other managing body of an entity, or which is under common control with the Controlled entity. An Affiliated Group does not apply to government agencies, academic institutions or individuals.  
  
'''Article I, Section 2. Governance Framework.'''  A Technical Committee shall oversee the development of the OpenStack Project and admit new projects to incubationA Board of Directors shall manage the business and community affairs of the Foundation in support of the Technical Committee and the OpenStack community, and admit new projects into core OpenStack after incubation.  The Technical Committee shall be the successor to the OpenStack Project Policy Board.<<[[FootNote]](See [[Governance/Foundation/TechnicalCommittee]]. This page is not final;  Jonathan Bryce is working with the Committee to finalize;  once this is final, we can decide if and how to incorporate this process into these Bylaws.)>> 
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== ARTICLE III. MEMBERSHIP MEETINGS ==
The Board of Directors shall be selected by the Membership, and shall be comprised in equal parts of Platinum Member Directors, Gold Member Directors, and Individual Member Directors.  Each Platinum member shall appoint one (1) Director.  Each of the Individual Members and Gold Members as a class shall elect Directors equal in number to the Platinum Directors. The Technical Committee and the Board shall jointly appoint a User Committee that shall provide recommendations on the development of the Project.
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3.1 <u>Location of Meetings</u>All meetings of the Members shall be held at such place (if any) within or without the State of Delaware as may be determined from time to time by the Board of Directors or, if not determined by the Board of Directors, by the Chairman of the Board, or the Executive Director; provided that the Board of Directors may, in its sole discretion, determine that any meeting of Members shall not be held at any place but shall be held solely by means of remote communication in accordance with Section 3.13.
  
'''Article I, Section 3.  Officers.'''  The Board shall appoint an Executive Director who shall have discretion to manage the day-to-day business and community affairs of the Foundation with the policy parameters set by the Board.   The Board shall appoint as Secretary an individual elected by the Individual Member class. The Board may appoint other officers as necessary for the efficient management of the Foundation. 
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3.2 <u>Meeting to Elect Individual Directors</u>.  The annual meeting of Individual Members for the election of Individual Directors shall be held on a date in the first two weeks of January of each calendar year to be fixed by the Board of Directors and stated in the notice of the meeting. The annual meeting will held by remote communication.
  
== ARTICLE IIMEMBERSHIP ==
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3.3 <u>Meeting To Elect Gold Directors</u>The annual meeting of Gold Members for the election of Gold Directors shall be held on a date in the first two weeks of January of each calendar year to be fixed by the Board of Directors and stated in the notice of the meeting.
  
'''Article II, Section 1. Membership Classes.''' The Foundation shall have three (3) classes of Members: (i) Individual, (ii) Gold, and (iii) Platinum.  Platinum and Gold Members may be natural persons, business entities, academic institutions, government agencies, or any other legal person.  Individual Members must be natural persons.  Individual personnel of Platinum and Gold Members may be Individual Members.  The Board may establish a membership class for government, academic and non-profit entities, and establish rights and obligations for such class, provided that such class shall not elect Directors unless these Bylaws are amended as provided in Article X.
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3.4 <u>Special Meetings</u>Special meetings of (a) all of the classes of Members may be called at any time by (i) four members of the Board of Directors, (ii) the Chairman of the Board, (iii) the Executive Director, (iii) the holders of record of not less than 10% of the Individual Members, (iv) three or more Gold Directors (v) two or more Platinum Directors, or (b) for a class of Members, (i) four members of the Board of Directors, (ii) the Chairman of the Board, (iii) the Executive Director, (iv) for the Individual Member class, the holders of record of not less than 10% of the Individual Members, (v) for the Gold Member class, three or more of the Gold Directors, or (v) for the Platinum Member class, two or more Platinum Directors. Special meetings may be called to conduct business for any purpose or purposes prescribed in the notice of the meeting and shall be held on such date and at such time as the Board may fix.  Business transacted at any special meeting of all of the Members or a particular class of Member shall be confined to the purpose or purposes stated in the notice of meeting.
  
'''Article II, Section 2. Individual Members.''' The initial Individual Members shall be those individuals listed on the initial Individual Member Registry published by OpenStack, LLC on the date of formation of the Foundation.<<[[FootNote]](OpenStack, LLC will admit initial Individual Members during the ratification period using the process defined by these Bylaws, including execution of the OpenStack Individual Member Agreement attached as <u>[[#appendix1|Appendix 1]]</u>.)>>  The Secretary shall maintain the Individual Member Registry, and shall admit and remove Individual Members from the Individual Member Registry in accordance with these Bylaws and the reasonable procedures approved by the Board that are consistent with these Bylaws and necessary for the efficient management of the Individual Member RegistryAs a condition to Individual Membership, the Secretary shall require each individual to sign the Individual Member Agreement attached to these Bylaws as <u>[[#appendix1|Appendix 1]]</u>, and provide their name, organizational affiliation, if any, a statement describing their interest in OpenStack, and contact information to be used by the Member for voting purposes.  The Secretary shall promptly admit new Individual Members who satisfy the membership conditionsThere shall be no limit on the size of the Individual Membership.   The Secretary shall publish the Individual Member Registry, but shall not include the contact information of the Individual Members.  If the Secretary makes available to the Individual Members a reasonable electronic means for Members to self-update their contact and affiliation information, then Individual Members shall be responsible for updating their contact and affiliation information using such means.
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3.5 <u>Notice of Meetings</u>.
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; : (a) Written notice of the annual meeting of Individual Members shall be given not less than 30 nor more than 60 days before the date on which the meeting is to be held, to each Individual Member entitled to vote at such meeting as of the record date fixed by the Board of Directors, except as otherwise provided herein or as required by law (meaning here and hereafter, as required from time to time by the Delaware Corporate Law).  The notice of any meeting shall state the date and hour of the meeting, and the means of remote communication, if any, by which Individual Members and proxy holders may be deemed to be present in person and vote at such meeting.
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;  : (b) Written notice of the annual meeting of Gold Members shall be given not less than 10 nor more than 60 days before the date on which the meeting is to be held, to each Gold Member entitled to vote at such meeting as of the record date fixed by the Board of Directors, except as otherwise provided herein or as required by law (meaning here and hereafter, as required from time to time by the Delaware Corporate Law). The notice of any meeting shall state the place, if any, date and hour of the meeting, and the means of remote communication, if any, by which Gold Members and proxy holders may be deemed to be present in person and vote at such meeting.
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; : (c) Written notice of a special meeting of Members shall be given not less than 10 nor more than 60 days before the date on which the meeting is to be held, to each Gold Member, Platinum Member and Individual Member entitled to vote at such meeting as of the record date fixed by the Board of Directors, except as otherwise provided herein or as required by law (meaning here and hereafter, as required from time to time by the Delaware Corporate Law).  The notice of any meeting shall state the place, if any, date and hour of the meeting, and the means of remote communication, if any, by which Members and proxy holders may be deemed to be present in person and vote at such meeting.  The notice of a special meeting shall state, in addition, the purpose or purposes for which the meeting is called.
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; : (d) Notice to Members may be given by personal delivery, mail, or, with the consent of the Member entitled to receive notice, by facsimile or other means of electronic transmission as provided in Section 6.8. An affidavit of the secretary or an assistant secretary of the Foundation that the notice has been given by personal delivery, by mail, or by a form of electronic transmission shall, in the absence of fraud, be ''prima facie'' evidence of the facts stated therein.
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;  : (e) Notice of any meeting of Members need not be given to any Member if waived by such Member either in a writing signed by such Member or by electronic transmission, whether such waiver is given before or after such meeting is held.  If such a waiver is given by electronic transmission, the electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the Member.
  
'''Article II, Section 3. Individual Membership Term.'''  The term of each Individual Membership shall begin on the date that the Individual is added to the Individual Member Registry by the Secretary and shall continue indefinitely, provided that the Secretary shall remove from the Individual Member Registry any individual who submits a written withdrawal of membership, or who violates the Individual Member Agreement, in the Secretary’s reasonable discretionIn addition, the Secretary shall review the Individual Member registry annually, and shall remove any Individual Member who has not voted in an election for a period of twenty four (24) months or longer, unless such member affirms their membership in writing within thirty (30) days of the Secretary’s written request for written affirmation.   
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3.6 <u>Voting List</u>.
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;  : (a) The Secretary of the Foundation shall prepare at least (i) 30 days before each annual meeting of the Individual Members or Gold Members, or (ii) within two (2) days of the notice of the annual meeting of the Individual Members or Gold Members as provided in Section 3.5 (whichever is shorter), a complete list of the Members of the relevant class entitled to vote at the meeting arranged in alphabetical order for each class of Member, and showing the mailing address of each Member of the relevant class solely for the purposes permitted under Delaware Corporate Law. Such list shall be treated as confidential. The list shall only include active Members of the class and shall not include any Members who have resigned or been terminated.  The Board of Directors shall develop a process for determining the right of Members to appeal their inclusion on any such list.  Such list shall be open to the examination of any Member of the class, for any purpose germane to the meeting, during ordinary business hours, for a period of at least 30 days prior to the meeting or the shorter period provided above in the manner provided by lawIf the meeting is held at a place, the list shall be produced and kept at the time and place of the meeting during the whole time of the meeting, and may be examined by any Member of the class who is present.  If the meeting is to be held solely by means of remote communication, such list shall also be open to the examination of any Member of the class during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.  The list shall be the only evidence as to the Members of the class who are entitled to examine the list required by this Section 3.6(a) or to vote in person or by proxy at the relevant annual meeting.
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;  : (b) The Secretary shall prepare, at least two days after providing notice of a special meeting of the Members, a complete list of the Members entitled to vote at the meeting, arranged in alphabetical order for each class of Member, and showing the mailing address of each MemberSuch list shall be open to the examination of any Member, for any purpose germane to the meeting, during ordinary business hours, for the period between the notice but prior to the meeting, in the manner provided by law.  If the meeting is held at a place, the list shall be produced and kept at the time and place of the meeting during the whole time of the meeting, and may be examined by any Member who is present.  If the meeting is to be held solely by means of remote communication, such list shall also be open to the examination of any Member during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.  The list shall be the only evidence as to the Members who are entitled to examine the list required by this Section 3.6(b) or to vote in person or by proxy at the relevant meeting.
  
'''Article II, Section 4.  Gold Members.'''  The initial Gold Members shall be those persons listed on the initial Gold Member Registry published by OpenStack, LLC on the date of formation of the Foundation.<<[[FootNote]](OpenStack, LLC will admit initial Gold Members during the ratification period using the process defined by these Bylaws, including execution of the OpenStack Gold Member Agreement attached as <u>[[#appendix2|Appendix 2]]</u>.  Initial Gold Membership shall be opened first to the initial eleven Gold Committers; if any of the initial eleven Gold Committers declines Gold Membership, then OpenStack, LLC may admit other persons such that the initial Gold Membership is eleven.)>>  The Secretary shall maintain the Gold Member Registry, and shall admit and remove Gold Members from the Gold Member Registry in accordance with these Bylaws and the reasonable procedures approved by the Board that are consistent with these Bylaws and necessary for the efficient management of the Gold Member RegistryAs a condition to Gold Membership, the Secretary shall require each Gold Member to sign the Gold Member Agreement attached to these Bylaws as <u>[[#appendix2|Appendix 2]]</u>.   The Secretary shall publish the Gold Member Registry, but shall not include the contact information of the Gold Members. The size of the Gold Membership shall not exceed twenty four (24) members. 
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3.7 <u>Quorum</u>.  Except as otherwise provided by law or these Bylaws, the holders of a majority of the Members of the relevant class entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum for the transaction of businessWhere a separate vote by a class or classes is required, a majority of the Members of such class or classes present in person or represented by proxy shall constitute a quorum entitled to take action with respect to that vote on that matter except as provided below. The quorum for an annual or special meeting of the Individual Members shall be 10% of the Individual Members.
  
'''Article II, Section 5. Voting on Gold Directors.''' Only the initial Gold Members may vote in the initial election of Gold Directors to be held in [January 2013]Sixteen (16) Gold Members may vote in the election of Gold Directors to be held in [January 2014], and all Gold Members may vote in subsequent elections for Gold Directors. If the Gold Membership exceeds sixteen (16) at the time of the January 2014 election, then the right to vote shall be held by each renewing initial Gold Member, and by those additional Gold Members having the earliest date of nomination as identified by the Secretary, up to a total of sixteen (16) members.  
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3.8 <u>Adjournments</u>Any meeting of the Members or any class of Members may be adjourned to any other time and to any other place at which a meeting of the Members or such class of Members may be held under these Bylaws by the chairman of the meeting or, in the absence of such person, by any officer entitled to preside at or to act as secretary of such meeting, or by a majority of the Members or class of Members present or represented at the meeting and entitled to vote, although less than a quorumWhen a meeting is adjourned to another place, date or time, written notice need not be given of the adjourned meeting if the date, time and place, if any, thereof, and the means of remote communication, if any, by which the relevant Members may be deemed to be present in person and vote at such adjourned meeting,  are announced at the meeting at which the adjournment is taken; provided, however, that if the date of any adjourned meeting is more than 30 days after the date for which the meeting was originally noticed, or if the Board of Directors fixes a new record date for the adjourned meeting in accordance with Section 3.8, written notice of the place, if any, date and time of the adjourned meeting and the means of remote communication, if any, by which Members and proxy holders may be deemed to be present in person and vote at such adjourned meeting, shall be given in conformity herewith.  At the adjourned meeting, the Members may transact any business which might have been transacted at the original meeting.
  
'''Article II, Section 6Nomination and Election of New and Renewing Gold Members.''' The Board shall vote to admit new and renewing Gold Members.  New Gold Members must be nominated by existing Gold Members comprising at least fifteen percent (15%) of the Gold Members.  Renewing Gold Members must be nominated by existing Gold Members comprising at least fifteen percent (15%) of the Gold Members excluding the nominated Gold Member, provided however, that each initial Gold Member may renew its membership for the 2013 calendar year at its option without nomination or approval of the Board.  Nominations for Gold Member must be made in writing and submitted to the Secretary no later than November 30 of each year.  No nomination for Gold Member shall be complete until the Gold Member has submitted to the Secretary a signed Gold Member Agreement (either a new agreement or a renewal of an existing agreement) in the form attached to these Bylaws as <u>[[#appendix2|Appendix 2]]</u>.   The new or renewed Gold Member Agreement shall become binding and effective upon the Board’s vote to admit the new or renewing Gold Member for the term.  
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3.9 <u>Voting and Proxies</u>.
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; : (a) Each Individual Member whose effective date of membership is earlier than thirty (30) days after the effective date of the filing of the Certificate of Incorporation of the Foundation (“COI Effective Date”) may vote immediately after he or she becomes an Individual Member. Each Individual Member whose effective date of membership is more than thirty (30) days after the COI Effective Date shall be eligible to vote 180 days after the effective date of his or her membershipEach Individual Member shall have one vote at any meeting of Individual Members and for election of the Individual Directors, the Individual Members shall have the option to vote for Individual Directors on a cumulative basis.
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; : (b) Each Gold Member shall have one vote at any meeting of the Gold Members.
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;  : (c) Each Platinum Member shall have one vote at any meeting of the Platinum Members.
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; : (d) Each Member entitled to vote at a meeting of Members may vote in person or may authorize any other person or persons to vote or act for such Member by a written proxy executed by the Member or by an electronic transmission permitted by law and delivered to the Secretary.  No Member may authorize more than one proxy for a particular meeting; the authorization of a new proxy for a meeting by a Member automatically revokes all prior proxies for the same meeting. Any copy, facsimile transmission or other reliable reproduction of the writing or electronic transmission created pursuant to this section may be substituted or used in lieu of the original writing or electronic transmission for any and all purposes for which the original writing or transmission could be used, provided that such copy, facsimile transmission or other reproduction shall be a complete reproduction of the entire original writing or electronic transmission.
  
'''Article II, Section 7Gold Membership Term.''' The Gold Member term shall be a calendar year, beginning on January 1 of each year, provided, however, that membership term for the initial Gold Members shall begin on the formation of the Foundation and end on December 31, 2012The Secretary shall remove from the Gold Member Registry any Gold Member who submits a written withdrawal of membership, or who is removed by the Board for breach of its Member Agreement.
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3.10 <u>Action at Meeting</u>.
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; : (a) Except as otherwise provided in these Bylaws, at any meeting of Members or class of Members for the election of one or more directors at which a quorum is present, the election shall be determined by a plurality of the votes cast by the Members or class of Members entitled to vote at the election.
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; : (b) All other matters shall be determined by a majority of votes of the class of Members or Members present in person or represented by proxy and entitled to vote on the matter (or if there are two or more classes of Members entitled to vote as separate classes, then in the case of each such class, a majority of the Members of each such class present in person or represented by proxy and entitled to vote on the matter shall decide such matter), provided that a quorum is present, except when a different vote is required by express provision of law or these Bylaws.
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;  : (c) All voting, including on the election of directors, but excepting where otherwise required by law, may be by a voice vote for in person meetings; provided, however, that upon demand therefor by a Member entitled to vote or the Member’s proxy, a vote by ballot shall be taken.  Each ballot shall state the name of the Member or proxy voting and such other information as may be required under the procedure established for the meeting.  The Foundation may, and to the extent required by law, shall, in advance of any meeting of Members or class of Members, appoint one or more inspectors to act at the meeting and make a written report thereofIn addition, at the written request to the Secretary within three (3) days of any Member meeting by at least (i) one third of the Gold Members (ii) one third of Platinum Members or (iii) five percent of the Individual Members, the Foundation shall designate one or more persons as an inspector.  If no inspector or alternate is able to act at a meeting of the Members or class of Members, the person presiding at the meeting may, and to the extent required by law, shall, appoint one or more inspectors to act at the meeting.  Each inspector, before entering upon the discharge of his duties, shall take and sign an oath to faithfully execute the duties of inspector with strict impartiality and according to the best of his ability.
  
'''Article II, Section 8. Platinum Members.''' The initial Platinum Members shall be those persons listed on the initial Platinum Member Registry published by OpenStack, LLC on the date of formation of the Foundation.<<[[FootNote]](OpenStack, LLC will admit initial Platinum Members during the ratification period using the process defined by these Bylaws, including execution of the OpenStack Platinum  Member Agreement attached as <u>[[#appendix3|Appendix 3]]</u>Initial Platinum Membership shall be opened first to the initial eight Platinum Committers; if any of the initial eight Platinum Committers declines Platinum Membership, then OpenStack, LLC may admit other persons such that the initial Platinum Membership is eight.)>>  The Secretary shall maintain the Platinum Member Registry, and shall admit and remove Platinum Members from the Platinum Member Registry in accordance with these Bylaws and the reasonable procedures approved by the Board that are consistent with these Bylaws and necessary for the efficient management of the Platinum Member Registry.  As a condition to Platinum Membership, the Secretary shall require each individual to sign the Platinum Member Agreement attached to these Bylaws as <u>[[#appendix3|Appendix 3]]</u>.  The size of the Platinum Membership shall not exceed eight (8) members.  
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3.11 <u>Conduct of Business</u>At every meeting of the class of Members or the Members, the Chairman of the Board, or, in his absence, such other person as may be appointed by the Board of Directors, shall act as chairman.  The Secretary of the Foundation or a person designated by the chairman of the meeting shall act as secretary of the meetingUnless otherwise approved by the chairman of the meeting, attendance at the annual meeting is restricted to the Members of the relevant class, persons authorized in accordance with Section 3.9 of these Bylaws to act by proxy, and officers of the Foundation.
  
'''Article II, Section 9.  Platinum Member Term.''' The initial Platinum Members’ term shall be three (3) years. [TBD -renewals and continuity for Platinum Members ] 
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The chairman of the meeting shall call the meeting to order, establish the agenda, and conduct the business of the meeting in accordance therewith or, at the chairman’s discretion, the business of the meeting may be conducted otherwise in accordance with the wishes of the Members in attendance.  The date and time of the opening and closing of the polls for each matter upon which the relevant Members will vote at the meeting shall be announced at the meeting.
  
'''Article II, Section 10. Removal of Members, Combination of Platinum Entity Members.''' On the motion of any member of the Board at any regular or special meeting, the Board shall vote on the termination of any Gold or Platinum Member on the grounds stated in the applicable Member Agreement.<<[[FootNote]](The Platinum and Gold membership agreements will include as grounds for termination misconduct, change in control, change in alignment, merger of two (2) members.)>> The Secretary may remove any Individual Member on the grounds stated in the Individual Member Agreement<<[[FootNote]](Misconduct will be the only grounds for termination under the Individual Membership Agreement.)>> on notice to the Individual Member and the BoardIn the event there is a merger between two Platinum Members or other event which results in two (2) Platinum Members being brought under common control, then those Members must relinquish one (1) Board seat at the next regular meeting of the Board, and the Board shall fill the vacancy for the remaining term of the vacant Platinum Membership.
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3.12 <u>Member Action Without Meeting</u>Any action which may be taken at any annual or special meeting of the Members may be taken without a meeting and without prior notice, if a consent in writing, setting forth the actions so taken, is signed by the Members having not less than the minimum number of votes of Members that would be necessary to authorize or take such action at a meeting at which all Members entitled to vote thereon were present and votedIn particular, the annual or special meeting of the Individual Members to elect Individual Directors may be conducted by a vote over a period of five calendar days, commencing on a Monday to solicit consent from the Individual MembersAll such consents shall be filed with the Secretary and shall be maintained in the corporate recordsPrompt notice of the taking of a corporate action without a meeting by less than unanimous written consent shall be given to those Members of the relevant class who have not consented in writing.
  
== ARTICLE III. TECHNICAL COMMITTEE ==
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An electronic transmission consenting to an action to be taken and transmitted by a Member, or by a proxy holder or other person authorized to act for a Member, shall be deemed to be written, signed and dated for the purpose of this Section 3.12, provided that such electronic transmission sets forth or is delivered with information from which the Foundation can determine (a) that the electronic transmission was transmitted by the Member or by a person authorized to act for the Member and (b) the date on which such Member or authorized person transmitted such electronic transmission.  The date on which such electronic transmission is transmitted shall be deemed to be the date on which such consent was signed. No consent given by electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form shall be delivered to the Foundation by delivery to its registered office in the State of Delaware, its principal place of business or the Secretary, an officer or agent of the Foundation having custody of the books in which proceedings of meetings of the Members are recorded.
  
The Technical Committee shall oversee the development of the Project as a technical meritocracy and shall admit new projects to incubation.  The Technical Committee shall be comprised of Individual Member representatives elected in the manner determined by the Technical Committee from time to time and published to the Foundation website.  Representatives to the Technical Committee must be Individual Members.  On the written request of at least three (3) representatives to the Technical Committee, the Board shall appoint a mediator to assist in the resolution of any dispute or deadlock in the Technical Committee.
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3.13 <u>Meetings by Remote Communication</u>.  If authorized by the Board of Directors, and subject to such guidelines and procedures as the Board may adopt, Members and proxy holders not physically present at a meeting of Members may, by means of remote communication, participate in the meeting and be deemed present in person and vote at the meeting, whether such meeting is to be held at a designated place or solely by means of remote communication, provided that (a) the Foundation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a Member or proxy holder, (b) the Foundation shall implement reasonable measures to provide such Members and proxy holders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the Members, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (c) if any Member or proxy holder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the Foundation.
  
 
== ARTICLE IV. BOARD OF DIRECTORS ==
 
== ARTICLE IV. BOARD OF DIRECTORS ==
  
'''Article IV, Section 1Authority of the Board.''' The Board shall manage the business and community affairs of the Foundation, and shall decide whether to add new technical projects to core OpenStackNew projects may be admitted to core OpenStack by a majority vote of the Board.  In addition, the Board shall determine whether to add or remove Gold Members or Platinum Members in accordance with these Bylaws.
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4.1 <u>General Powers</u>.
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;  : (a) The business and affairs of the Foundation shall be managed by or under the direction of a Board of Directors, who may exercise all of the powers of the Foundation except as otherwise provided by these Bylaws.
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;  : (b) The management of the technical matters relating to the OpenStack Project shall be managed by the Technical Committee.  The management of the technical matters for the OpenStack Project is designed to be a technical meritocracy.  The “OpenStack Project” shall consist of a “Core OpenStack Project,” library projects, gating projects and supporting projects.  .  The Core OpenStack Project means the software modules which are part of an integrated release and for which an OpenStack trademark may be used.  The other modules which are part of the OpenStack Project, but not the Core OpenStack Project may not be identified using the OpenStack trademark except when distributed with the Core OpenStack Project.  The role of the Board of Directors in the management of the OpenStack Project and the Core OpenStack Project are set forth in Section 4.13On formation of the Foundation, the Core OpenStack Project is the Block Storage, Compute, Dashboard, Identity Service, Image Service, Networking, and Object Storage modules. The Secretary shall maintain a list of the modules in the Core OpenStack Project which shall be posted on the Foundation’s website.
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4.2 <u>Number and Term of Office</u>.
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; : (a) The Board shall not exceed twenty-four members.
 +
;  : (b) Each Platinum Member may appoint and remove a single member of the Board of Directors (“Platinum Directors”) and shall make such initial designation in its Member Agreement.  The number of Platinum Members shall be defined as the Director Limit. The Director Limit shall change based on the number of Platinum Members.  The term of each Platinum Director shall continue until the death, resignation or removal of the Platinum Director or the termination of the membership of the Platinum Member appointing any such Platinum Director.
 +
;  : (c) The Gold Members shall elect the same number of Gold Director Selectors as the Director Limit.  At the annual meeting or special meeting relating to electing directors as provided in Article III, the Gold Members shall select certain Gold Members by majority vote to appoint directors to represent the Gold Members (“Gold Director Selector”).  Each Gold Director Selector shall then appoint a single member of the Board of Directors (“Gold Directors”). The vote for the initial Gold Director Selectors as provided in Section 4.2 (c) and in January, 2013 shall be limited to the Initial Gold Directors (as defined in the Gold Member Policy).  The vote for the Gold Director Selectors in January, 2014 shall be limited to sixteen (16) Gold Members with the earliest date of commencement of their terms.  For all elections after January 2014, all Gold Members may vote.  All Gold Directors shall hold office until the next annual meeting of the Gold Members and until their respective successors are elected, except in the case of the death, resignation or removal (including removal under Section 4.17) of any Gold Director or the Gold Director Selector for a particular Gold Director ceases to be a Gold Member. In the case of the death, resignation or removal of any Gold Director (except for removal under Section 4.17), the vacancy may be filled by the relevant Gold Director Selector.  If a Gold Director Selector ceases to be a Gold Member, the Gold Members shall select a new Gold Director Selector at a special meeting of the Gold Members.  If the Director Limit is reduced due to a reduction in the number of Platinum Members, the number of Gold Directors shall be reduced at the next annual meeting to the Director Limit effective on January 1 of such calendar year. Thus, during certain periods, the number of Gold Directors may exceed the number of Platinum Directors.
 +
;  : (d) At the annual meeting or special meeting relating to electing directors as provided in Article III, the Individual Members shall elect the same number of directors as the Director Limit. The Secretary shall receive written nominations for Individual Directors which shall have the following requirements: (i) the nomination must be signed by at least ten (10) Individual Members, (ii) the nominee is an Individual Member in good standing, (iii) the nominee must have completed an application for a director with information determined by the Board of Directors, and (iv) the nomination must be received at least thirty (30) days prior to the relevant annual or special meeting. For the initial special meeting to elect Individual Directors, nominations must be received by the Secretary at least fourteen (14) days prior to the meeting.  The Secretary shall publish the names of the nominees promptly on the website of the Foundation. All Individual Directors shall hold office until the next annual meeting of the Individual Members and until their respective successors are elected, except in the case of the death, resignation or removal (including removal under Section 4.17) of any Individual DirectorIn the case of the death, resignation or removal of any Individual Director (except for removal under Section 4.17), the vacancy may be filled by a majority vote of the remaining Individual Directors. If the Director Limit is reduced due to a reduction in the number of Platinum Members, the number of Individual Directors shall be reduced at the next annual meeting to the Director Limit effective on January 1 of such calendar year. Thus, during certain periods, the number of Individual Directors may exceed the number of Platinum Directors.
 +
 
 +
4.3 <u>Resignation</u>.  Any director may resign by delivering notice in writing or by electronic transmission to the Executive Director, Chairman of the Board or Secretary.  Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event.
 +
 
 +
4.4 <u>Removal</u>A Gold Director may be removed from office at any time, with or without cause, as provided by Section 4.17 or by the Gold Director Selector who appointed such Gold Director.  A Platinum Director may be removed from office at any time, with or without cause, by the Platinum Member who appointed such Platinum Director.  The Individual Directors, Platinum Directors or Gold Directors may be removed by the Board of Directors for Cause and as provided in Section 4.17. Cause shall be defined as follows: (i) failure to attend three consecutive Board meetings, (ii) failure to attend more than half of the Board meetings within any twenty-four month period, (iii) breach of the Code of Conduct, (iv) declaration of unsound mind by a final order of court or (v) conviction of a felony.
 +
 
 +
4.5 <u>Regular Meetings</u>.  Regular meetings of the Board of Directors may be held at such time and place, either within or without the State of Delaware, as shall be determined from time to time by the Board of Directors on the dates and times determined as set forth below. The meetings of the Board of Directors will be held no less often than quarterly. Any director who is absent when such a determination is made shall be given notice of the determination.  The Board shall act either by written consent or in a meeting within twenty five days of the end of the calendar year for the purpose of approving new Gold Members and new Platinum Members.  The Board shall, on an annual basis, establish the dates and times of the regular quarterly meetings and the Secretary shall give prompt written notice of the schedule to each director then in office.
 +
 
 +
4.6 <u>Special Meetings</u>.  Special meetings of the Board of Directors may be called by the Chairman of the Board, the Executive Director or two thirds of the directors currently in office and may be held at any time and place, within or without the State of Delaware.
 +
 
 +
4.7 <u>Notice of Special Meetings</u>.  Notice of any special meeting of directors shall be given to each director by whom it is not waived by the Secretary or by the officer or one of the directors calling the meeting.  Notice shall be duly given to each director by whom it is not waived by (a) giving notice to such director in person or by telephone, electronic transmission or voice message system at least 72 hours in advance of the meeting, (b) sending a facsimile to his last known facsimile number, or delivering written notice by hand to his last known business or home address, at least 72 hours in advance of the meeting, or (c) mailing written notice to his last known business or home address at least five days in advance of the meeting.  A notice or waiver of notice of a meeting of the Board of Directors need not specify the purposes of the meeting.  Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting.
 +
 
 +
4.8 <u>Participation in Meetings by Telephone Conference Calls or Other Methods of Communication</u>.  Directors or any members of any committee designated by the directors may participate in a meeting of the Board of Directors or such committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting.
 +
 
 +
4.9 <u>Quorum</u>.  A majority of the total number of directors in office shall constitute a quorum at any meeting of the Board of Directors.  In the absence of a quorum at any such meeting, a majority of the directors present may adjourn the meeting from time to time without further notice other than announcement at the meeting, until a quorum shall be present.  Interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or at a meeting of a committee which authorizes a particular contract or transaction.
 +
 
 +
4.10 <u>Action at Meeting</u>.  At any meeting of the Board of Directors at which a quorum is present, the vote of a majority of those present shall be sufficient to take any action, unless a different vote is specified by law or these Bylaws.
  
'''Article IV, Section 2. Directors.''' Each Platinum Member shall appoint a Director, and may remove and replace its appointed Director at any time in the Platinum Member’s sole discretion.  The Individual Directors and Gold Directors shall be elected by the Individual Member Class  and Gold Member Class, respectively, on an annual basis as provided in these Bylaws.  The Board may designate up to three (3) Individual Director seats for the representation of specific community interests, such as government, academic, user, or technical interests.
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4.11 <u>Action by Written Consent</u>Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee of the Board of Directors may be taken without a meeting if all members of the Board or committee, as the case may be, consent to the action in writing or by electronic transmission, and the writings or electronic transmissions are filed with the minutes of proceedings of the Board or committee.  Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
  
'''Article IV, Section 3. Board Size.''' The initial Board shall be comprised of twenty four (24) Directors. The size of the Board shall not exceed twenty four (24) Directors. [TBD – adjustments down in to Board size if there are fewer than 8 companies willing to be Platinum or Gold members]
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4.12 <u>Committees</u>.  The Board of Directors may designate one or more committees, including, without limitation a compensation committee, each committee to consist of one or more of the directors of the Foundation (except for the Technical Committee, User Committee and Legal Affairs Committee), with such lawfully delegated powers and duties as it therefor confers, to serve at the pleasure of the Board of Directors. The Board of Directors may also appoint advisory committees which may be composed of members of the Board of Directors, non-members of the Board of Directors or a combination of both types of individuals; provided that the advisory committees shall provide advice to the Board of Directors and the Board of Directors may not delegate its authority to such an advisory committee. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the Board of Directors and subject to the provisions of the Delaware Corporate Law, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Foundation and may authorize the seal of the Foundation to be affixed to all papers which may require it.  Each such committee shall keep minutes and make such reports as the Board of Directors may from time to time request.  Except as the Board of Directors may otherwise determine, any committee may make rules for the conduct of its business, but unless otherwise provided by such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these Bylaws for the Board of Directors.
  
'''Article IV, Section 4.  Chair.''' The Board shall elect a Chair from among the Directors to serve for a term of one (1) yearThe Chair may be elected to multiple one (1) year terms.   The Chair shall preside over the meetings of the Board, and shall have other powers and responsibilities defined in these BylawsEach Chair shall serve until his or her resignation or removal, or until his or her successor is elected.
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4.13 <u>Technical Committee</u>.
 +
;  : (a) The Technical Committee shall be selected as provided in the Technical Committee Member Policy in <u>[[#appendix4|Appendix 4]]</u>.
 +
;  : (b) The Technical Committee shall have the authority to determine the modules for addition, combination, split or deletion from the OpenStack Project except for modules of the Core OpenStack Project (as defined in Section 4.1(b) above) which shall be managed as provided belowFor modules of the Core OpenStack Project, the Technical Committee may recommend to the Board of Directors the modules for addition, combination, split or deletion from the Core OpenStack ProjectExcept as provided below, the Board of Directors shall consider only those additions, combinations, splits or deletions that are recommended by the Technical Committee, but shall have the sole authority to approve or reject such additions, combinations, splits and deletions from the Core OpenStack Project. If any software in the Core OpenStack Project is (i) subject to an injunction or other court order which would subject the distributors or users of such software to liability for intellectual property infringement or misappropriation or (ii) the majority of the Board of Directors believes that such an order is reasonably likely, the Board of Directors shall give notice to the chair of the Technical Committee of the issue. If the Technical Committee does not take reasonable steps to mitigate the risk (such as ceasing distribution of such software or modifying such software to make it non-infringing) as determined by the Board of Directors within thirty (30) days of the receipt of such notice, the Board of Directors may waive the requirement in the Trademark Policy or otherwise to include such software in a distribution in order to use the OpenStack trademarks.
 +
;  : (c) On the written request of at least three (3) members of the Technical Committee, the Board of Directors shall appoint a mediator to assist in the resolution of any dispute or deadlock in the Technical Committee.
 +
;  : (d) The Technical Committee shall determine the procedures for nominating a member to become the chair of the Technical Committee.  The Board of Directors shall have the authority to approve the Technical Committee chair, as nominated by the Technical Committee, and shall approve the chair proposed by the Technical Committee absent Cause.
 +
;  : (e) The term of the chair of the Technical Committee shall terminate upon the death, resignation, removal or failure to be re-elected to the Technical Committee. The chair of the Technical Committee may be removed by the majority of the other members of the Technical Committee (not including such chair) for Cause as defined below.  The procedures for such removal shall be determined by the Technical CommitteeCause shall include (i) failure to attend more than half of the Technical Committee meetings within any twenty-four month period, (ii) breach of the Code of Conduct, (iii) declaration of unsound mind by a final order of court, or (iv) conviction of a felony.  If the Technical Committee does not remove the chair of the Technical Committee for Cause, the Board of Directors may request that the Technical Committee reconsider this decision.  If the Technical Committee does not remove the Technical Committee chair within thirty (30) days of notice from the Board of Directors, the Board of Directors may vote to remove the Technical Committee chair for Cause. Notwithstanding removal of the Technical Committee Chair by the Board under this Section, the individual may continue to be a member of the Technical Committee unless the Technical Committee removes the individual from the Technical Committee.
  
'''Article IV, Section 5. Regular Meetings.''' The first Meeting of the Board shall be held [date]<<[[FootNote]](Anticipate fall of 2012 to coincide with October Design Summit and Conference.)>>Subsequent regular meetings shall be held quarterly, to coincide with community wide events to the extent practicable.  If there is no regular quarterly meeting held in December, then the Board shall also hold a meeting in December of each year for the purpose of approving new Gold Members.  The Board shall, on an annual basis, establish the dates and times of the regular quarterly meetings and the additional December meeting, if applicable, and the Secretary shall give prompt written notice of the schedule to each Director then in office.
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4.14 <u>User Committee</u>.  The User Committee shall be an advisory committee to the Board of Directors and shall be comprised of at least three (3) Individual Members, one (1) appointed by the Technical Committee, one (1) appointed by the Board of Directors, and one (1) appointed by the appointees of the Technical Committee and Board of DirectorsThe User Committee shall organize its meetings and may, on approval of the Board of Directors, create elected seats to be filled by a vote of the Individual Members.  On request of the User Committee, the Board of Directors shall invite the User Committee to attend each regular quarterly meeting and shall allocate at least one (1) hour during the regular quarterly meeting following the annual election to hear the report and recommendations of the User Committee. On request of the User Committee, the Technical Committee shall invite the User Committee to attend a regular meeting and shall allocate at least one (1) hour during such meeting up to four times each calendar year to hear the report and recommendations of the User Committee.
  
'''Article IV, Section 6. Special Meetings.''' A special meeting of the Board shall be called by the Chair for any purpose. A special meeting shall be called by the Secretary: (i) for the purpose of filling a vacancy on the Board, or a vacancy in the office of the Chair, or (ii)  on the written request signed by two thirds(2/3) of the then serving members of the Board to address a matter identified in such written request.  Notice of a special meeting must be given in writing at least ten (10) days prior to the meeting date to each Director then in office.
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4.15 <u>Legal Affairs Committee</u>The Legal Affairs Committee shall be an advisory committee to the Board of Directors and shall be comprised of no more than five (5) members. The Board of Directors shall appoint the members of Legal Affairs Committee. The Legal Affairs Committee shall advise the Board of Directors on the management of: (i) compliance with and enforcement of the Trademark Policy, (ii) strategies to promote the efficient intellectual property protection of the OpenStack Project, including without limitation, the resolution of patent and other intellectual property issues and disputes related to the Members’ use of the OpenStack Project, and (iii) all programs that the Board of Directors is considering relating to intellectual property management and protection.
  
'''Article IV, Section 7. Notices, Quorum and Voting.''' The Secretary shall give reasonable advance notice of regular and special Board meetings to the Membership.  A majority of the total number of Directors shall constitute a quorum for the transaction of business.  For any matter requiring or permitting a vote of the Board, the vote shall be decided by a majority of the Directors present at the meeting unless a different percentage is required by these Bylaws.  If there is a tie, the matter shall be decided by the Chair.  
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4.16 <u>Open Meetings and Records</u>Except as necessary to protect attorney-client privilege and sensitive personnel information, the Board of Directors shall:  (i) permit observation of its meetings by Members via remote teleconference or other electronic means, and (ii) publish the Board of Directors minutes and make available to any Member on request other information and records of the Foundation as required by Delaware Corporate Law.
  
'''Article IV, Section 8Unanimous Written Consent.''' On any matter on which a vote of the Board is required or permitted, the Board may instead act by a written consent signed by each Director.
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4.17 <u>Director Diversity</u>. 
 +
;  : (a) One of the methods which the Members have chosen to ensure the technical meritocracy of the OpenStack Project is to ensure diversity in managing the OpenStack Project. This diversity shall be implemented by limiting the relationships between the Members, the Board of Directors and the Technical Committee. No more than two directors shall be Affiliated (the “Director Diversity Requirement”).
 +
;  : (b) For the purposes of the Director Diversity Requirement, the term “Affiliated” or “Affiliation” in the Bylaws is defined as follows:
 +
;  : (i) relationships between Members who are business entities and Members who are individuals (whether Individual Members, Gold Members or Platinum Members), the individual is a (i) board member, officer or employee of the business entity or its Affiliated Group (as defined in Section 2.5) or (ii) an independent contractor to the business entity or its Affiliated Group who has earned more than $60,000 in the most recent twelve month period; or
 +
;  : (ii) relationship between Members who are all individuals, the individuals are (a) independent contractors who have earned more than $60,000 in the most recent twelve month period from the Affiliated Group (b) board members of one or more entities in the Affiliated Group (c) officers of one or more entities in the Affiliated Group or (d) employees of one or more entities in the Affiliated Group.
 +
; : The final determination of Affiliation shall be made by the Board of Directors without the vote of the directors who are alleged to have been Affiliated.
 +
;  : (c) No director may take office if the addition of the director would cause a violation of the Director Diversity Requirement. If the new director is a Platinum Director, the Platinum Member making such appointment shall make the determination of which other director shall resign from the Board of Directors. If the designated director does not resign, the Executive Director shall call a special meeting of the relevant class of Members. If the new director is a Gold  Director, the Gold Director Selector making such appointment shall make the determination of which other director shall resign from the Board of Directors. If the designated director does not resign, the Executive Director shall call a special meeting of the relevant class of Members. If the new director is elected by the Individual Members, then the individual having the next highest number of votes whose admission would not cause a violation of the Director Diversity Requirement shall be become the new director instead of the individual whose election would cause a violation of the Director Diversity Requirement.
 +
;  : (d) If a director who is an individual becomes Affiliated during his or her term and such Affiliation violates the Director Diversity Requirement, such individual shall resign as a director.
 +
;  : (e) A violation of the Director Diversity Requirement may be waived by a vote of two thirds of the Board of Directors (not including the directors who are Affiliated).
  
'''Article IV, Section 9. Committees of Board.''' The Board shall appoint a Legal Affairs Committee.    The Board may, in its discretion, appoint one (1) or more additional committees of Directors, such as Budget & Finance and Membership.  
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4.18 <u>Compensation of Directors</u>Directors shall not be entitled to compensation or reimbursement of expenses, except that on the request of an Individual Director, the Executive Director may advance the reasonable travel expenses associated with in-person attendance for at least one regular quarterly Board of Directors meeting each calendar year, including airfare, lodging, and meals.  No such payment shall preclude any director from serving the Foundation in any other capacity and receiving compensation for such service except as limited by the Code of Conduct.
  
'''Article IV, Section 10. Legal Affairs Committee.'''  The Legal Affairs Committee shall: (i) manage compliance with and enforcement of the Trademark Policy, (ii) design and implement, with the approval of the full Board, indemnification, defense, and other strategies to promote the efficient resolution of patent and other intellectual property issues and disputes related the Members’ use of the Project, and (iii) manage all programs approved and funded by the Board related to intellectual property management and protection. Specifically, but without limitation, the Legal Affairs Committee may propose policies and agreements by which Members license intellectual property in the Project generally.
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4.19 <u>Nomination of Individual Director Candidates</u>Nominations for Individual Directors must be submitted to the Secretary in writing, signed by a minimum of ten (10) Individual Members no later than thirty (30) days prior to the date of the annual meeting or special meeting  for election of the Individual Directors. For the initial special meeting to elect Individual Directors, nominations must be received by the Secretary at least fourteen (14) days prior to the meeting. The Secretary shall promptly publish the names of all properly nominated persons to the Foundation website.
  
'''Article IV, Section 11. Vacancies.''' An Individual or Gold Director may resign on written notice to the Secretary.  A Platinum Member may remove and replace a Platinum Director on written notice to the Secretary. Vacancies on the Board created by the removal or resignation of an Individual or Gold Director, shall be filled by the majority vote of all Directors then serving of the same class (Individual or Gold) as the vacant seat.
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4.20 <u>Code of Conduct</u>The directors, officers, employees, members of the Technical Committee and contractors shall comply with the Code of Conduct attached as <u>[[#appendix5|Appendix 5]]</u>. The Members shall comply with the Community Code of Conduct attached as <u>[[#appendix6|Appendix 6]]</u>.
  
'''Article IV, Section 12. Open Meetings and Records.''' Except as necessary to protect attorney client privilege and sensitive personal information, the Board shall: (i) permit observation of its meetings by Members via remote teleconference or other electronic means, and (ii) publish material financial and other reports, and make available to any Member on request other information and records of the Foundation.
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4.21 <u>Initial Board of Directors</u>Within 24 hours of the COI Effective Date, the incorporator shall appoint the following individuals as members of the initial Board of Directors: Jonathan Bryce, Mark Collier, and Alice King (“Initial Board”).  Notwithstanding the other provisions of the Bylaws, the Initial Board shall give fifteen (15) days prior written notice to the Individual Members, Gold Members and Platinum Members for a special meeting of such class of Members to elect, respectively, the Individual Directors or Gold Directors or appoint the Platinum Directors in the manner provided in Article III. These Bylaws may not be altered, amended or repealed or new bylaws adopted by the Initial Board.
  
'''Article IV, Section 13Compensation, Expenses.''' Directors shall not be entitled to compensation or reimbursement of expenses, except that on the request of an Individual Director, the Foundation shall advance the reasonable travel expenses associated with in-person attendance at the each regular quarterly Board meeting held in the Fall, including airfare, lodging, and meals.
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== ARTICLE VOFFICERS ==
 +
5.1 <u>Enumeration</u>The officers of the Foundation shall consist of an Executive Director who shall act as Chief Executive Officer and a Secretary as well as such other officers with such other titles as the Board of Directors shall determine, including, at the discretion of the Board of Directors, a Chairman of the Board and one or more Vice Presidents and Assistant Secretaries.  The Board of Directors may appoint such other officers as it may deem appropriate.
  
'''Article IV, Section 14Indemnification, Insurance.'''  [TBD]  
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5.2 <u>Election</u>Officers shall be appointed annually by the Board of Directors at its first meetingOfficers may be appointed by the Board of Directors at any other meeting.
  
== ARTICLE V. USER COMMITTEE ==
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5.3 <u>Qualification</u>.  No officer need be a Member.  Any two or more offices may be held by the same person.
  
The User Committee shall be comprised of at least three (3) Individual Members, one (1) appointed by the Technical Committee, one (1) appointed by the Board, and one (1) appointed by the Technical Committee and Board appointees.  The User Committee shall organize its meetings according to a reasonable process that they select, and may, on approval of the Board, create elected seats to be filled by a vote of the Individual Members.  On request of the User Committee, the Technical Committee and the Board shall invite the User Committee to attend each regular quarterly meeting and shall allocate at least one (1) hour during the regular quarterly meeting following the annual election to hear the report and recommendations of the User Committee.  
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5.4 <u>Tenure</u>.  Except as otherwise provided by law, by the Certificate of Incorporation or by these Bylaws, each officer shall hold office until his successor is elected and qualified, unless a different term is specified in the vote appointing the officer, or until his earlier death, resignation or removal.
  
== ARTICLE VI. OFFICERS ==
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5.5 <u>Resignation and Removal</u>.  Any officer may resign by delivering his written resignation to the Foundation at its principal office or to the Executive Director or Secretary.  Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event.  Any officer elected by the Board of Directors may be removed at any time, with or without cause, by the Board of Directors.
  
'''Article VI, Section 1Officers.'''  Officers must be Individual Members of the Foundation.
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5.6 <u>Chairman of the Board</u>.  The Board of Directors may elect a Chairman of the Board from among the directors.  If the Board of Directors elects a Chairman of the Board, he shall perform such duties and possess such powers as are assigned to the Chairman by the Board of Directors and these BylawsUnless otherwise provided by the Board of Directors, he shall preside at all meetings of the Board of Directors. The term of the Chairman of the Board shall not exceed two years. An individual may be elected Chairman of the Board for consecutive or non-consecutive, multiple terms.
  
'''Article VI, Section 2. Executive Director.''' The Executive Director shall be appointed by the Board and shall serve at the discretion of the Board, provided that the Board may approve a reasonable employment agreement not to exceed one (1) yearThe Executive Director shall manage the business and community affairs of the Foundation within the policy and budget parameters set by the Board.  The Executive Director may employ full and part-time staff and set reasonable compensation for the staff within the policy and budget parameters set by the Board.
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5.7 <u>Executive Director</u>.  The Executive Director who shall be the Chief Executive Officer of the Foundation shall, subject to the direction of the Board of Directors, have general supervision, direction and control of the business and the officers of the Foundation.  He shall preside at all meetings of the Members and, in the absence or nonexistence of a Chairman of the Board, at all meetings of the Board of DirectorsHe shall have the general powers and duties of management usually vested in the chief executive officer of a corporation, including general supervision, direction and control of the business and supervision of other officers of the Foundation, and shall have such other powers and duties as may be prescribed by the Board of Directors or these Bylaws.
  
'''Article VI, Section 3.  Secretary.'''  The initial Secretary shall be <u></u><u></u><u></u><u></u>_<<[[FootNote]](This individual will be named in the Bylaws since he or she will need to take actions prior to the first annual election and Board meeting;  the Bylaws will not be adopted by the Board until the first Board meeting, but the Secretary will have power to conduct elections prior to this since each Member will be required to sign a Membership Agreement that incorporates the Bylaws.)>>.  The initial Secretary shall serve until a new Secretary is elected by the Individual Members as described in Article VII and appointed by the Board, or until he or she withdraws or resigns.  The Board may remove the Secretary for failure to perform the duties required by these Bylaws.  In the event of a vacancy in the office of Secretary, the Board shall appoint an acting Secretary to serve until a new Secretary elect is chosen at the next annual election of the Individual Members and appointed to the position by the Board.  The Board shall set reasonable compensation for the services of the Secretary.  In addition to the other duties established by these Bylaws, the Secretary shall attend each regular and special meeting of the Board, and shall take and publish minutes of the meetings.
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5.8 <u>Vice Presidents</u>.  Any Vice President shall perform such duties and possess such powers as the Board of Directors or the Executive Director may from time to time prescribe.  In the event of the absence, inability or refusal to act of the Executive Director, the Vice President (or if there shall be more than one, the Vice Presidents in the order determined by the Board of Directors) shall perform the duties of the Executive Director and when so performing shall have all the powers of and be subject to all the restrictions upon the Executive Director.
  
'''Article VI, Section 4. Other Officers.''' The Board may establish additional offices and set the compensation for such offices at its discretion, such as Treasurer and Assistant Treasurer and Assistant Secretary.
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5.9 <u>Secretary and Assistant Secretaries</u>.  The Secretary shall perform such duties and shall have such powers as the Board of Directors or the Executive Director may from time to time prescribe.  In addition, the Secretary shall perform such duties and have such powers as are set forth in these Bylaws and as are incident to the office of the Secretary, including, without limitation, the duty and power to give notices of all meetings of Members and special meetings of the Board of Directors, to keep a record of the proceedings of all meetings of Members and the Board of Directors and prepare lists of Members and their addresses as required, to be custodian of corporate records and the corporate seal and to affix and attest to the same on documents.
  
== ARTICLE VII. ELECTIONS, VOTING ==
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Any Assistant Secretary shall perform such duties and possess such powers as the Board of Directors, the Executive Director or the Secretary may from time to time prescribe. In the event of the absence, inability or refusal to act of the Secretary, the Assistant Secretary (or if there shall be more than one, the Assistant Secretaries in the order determined by the Board of Directors) shall perform the duties and exercise the powers of the Secretary.
  
'''Article VII, Section 1.  Annual Elections.'''  The Board shall set the dates for the annual elections of the Individual and Gold Directors, and the Secretary.  The first annual election for Gold Directors shall be held in January of 2013.  The first annual election for Individual Directors and Secretary shall be held in March of 2013.  The Board shall set the date for each subsequent annual election within two (2) weeks (before or after) of the anniversary of the prior annual election.  At each annual election of the Gold Members, the Gold Members shall elect the Gold Directors.  At each annual election of the Individual Members, the Individual Members shall elect Individual Directors and the Secretary elect.
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In the absence of the Secretary or any Assistant Secretary at any meeting of the Members or directors, the person presiding at the meeting shall designate a temporary secretary to keep a record of the meeting.
  
'''Article VII, Section 2. Interim Elections.''' On formation of the Foundation, the Secretary may hold elections for interim Gold and Individual Directors to serve until the first annual elections described in Article VII, Section 1 above.  The Secretary shall hold elections for interim Director using the voting and other processes described in these Bylaws.
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5.10 <u>Salaries</u>Officers of the Foundation shall be entitled to such salaries, compensation or reimbursement as shall be fixed or allowed from time to time by the Board of Directors.
  
'''Article VII, Section 3. Notice of Voting Windows.''' The Secretary shall give the Members written notice of the voting window for each annual election and each other matter for which a vote of the Members is to be taken no later than forty five (45) days prior to the first day of the voting window in the manner provided in Article X below.  The Secretary shall also publish the notice on the Foundation website.
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5.11 <u>Delegation of Authority</u>.  The Board of Directors may from time to time delegate the powers or duties of any officer to any other officers or agents, notwithstanding any provision hereof.
  
'''Article VII, Section 4Nominations.''' Nominations for Individual Director, Gold Director, and Secretary must be submitted to the Secretary in writing, signed by the nominating Member(s) no later than ten (10) days prior to the first day of the election window.  Nominations for Individual Director must be made by at least ten (10) Individual Members.  Nominations for Gold Director must be made by at least three (3) Gold Members.  The Secretary shall promptly publish the names of all properly nominated persons to the Foundation website.
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== ARTICLE VI. GENERAL PROVISIONS ==
 +
6.1 <u>Fiscal Year</u>The fiscal year of the Foundation shall be as fixed by the Board of Directors.
  
'''Article VII, Section 5. Meetings.''' On request of any nominee for Director, the Chair shall schedule and announce a live forum at which all of the nominees may address the Membership.  Such forum shall allow for remote electronic attendance by some reasonable and customary means, and may also allow for in person attendance.
+
6.2 <u>Corporate Seal</u>The corporate seal shall be in such form as shall be approved by the Board of Directors.
  
'''Article VII, Section 6. Voting Process.'''  The outcome of elections shall be determined on a Condorcet basis with proportional representationOutcomes for votes that are not elections shall be determined by a simple majority vote.  The Secretary shall use an online voting service approved by the Board. The voting window for each election and each other matter for which a vote of the Members or any class of Members is to be taken shall be three (3) business days.  The Secretary shall open the voting at 9:00 a.m. central time on the Monday of the voting window, and close the voting at 5:00 p.m. central time on WednesdayThe Secretary shall publish the results of the election no later than 5:00 p.m. on ThursdayThe Secretary shall publish the results of the election, including the number of votes for each candidate, but shall not publish the content of any Member ballot.  
+
6.3 <u>Waiver of Notice</u>Whenever any notice whatsoever is required to be given by law, by the Certificate of Incorporation or by these Bylaws, a waiver of such notice either in writing signed by the person entitled to such notice or such person’s duly authorized attorney, or by electronic transmission or any other method permitted under the Delaware Corporate Law, whether before, at or after the time stated in such waiver, or the appearance of such person or persons at such meeting in person or by proxy, shall be deemed equivalent to such noticeNeither the business nor the purpose of any meeting need be specified in such a waiverAttendance at any meeting shall constitute waiver of notice except attendance for the sole purpose of objecting to the timeliness or manner of notice.
  
'''Article VII, Section 7. Quorum.''' No election or other matter on which a vote of the Members is taken shall be effective unless ten percent (10%) of the members of the class entitled to vote participate in the vote.
+
6.4 <u>Evidence of Authority</u>A certificate by the Secretary, or an Assistant Secretary, or a temporary Secretary, as to any action taken by the Members, directors, a committee or any officer or representative of the Foundation shall as to all persons who rely on the certificate in good faith be conclusive evidence of such action.
  
'''Article VII, Section 8. Inspector of Elections.''' On the request of one third (1/3) of the Platinum or Gold Members, or five percent (5%) of the entire Individual Membership, made prior to the voting or within three (3) days of the closing of the voting window, the Secretary shall appoint a neutral inspector to certify the results of the voting.  
+
6.5 <u>Certificate of Incorporation</u>All references in these Bylaws to the Certificate of Incorporation shall be deemed to refer to the Certificate of Incorporation of the Foundation, as amended and in effect from time to time.
  
== ARTICLE VIII. INTELLECTUAL PROPERTY POLICY ==
+
6.6 <u>Severability</u>.  Any determination that any provision of these Bylaws is for any reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision of these Bylaws.
  
'''Article VIII, Section 1.  Apache License and CLA.'''  The Project shall not accept contributions of software code unless such contribution is made on the terms of the Apache 2.0 license, and the contributor has executed the applicable Contributor License Agreement attached as <u>[[#appendix4|Appendix 4]]</u>.  The Board may adopt additional contributor license agreements as may be appropriate to secure a license on the same terms as stated in the Contributor License Agreements attached on <u>[[#appendix4|Appendix 4]]</u> from entities other than those covered by those Contributor License Agreements, or by contributors in non -United States jurisdictions.  
+
6.7 <u>Pronouns</u>.  All pronouns used in these Bylaws shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require.
  
'''Article VIII, Section 2Creative Commons.''' The Project may accept contributions of documentation and other copyrighted work that is not software code under the terms of a [Creative Commons license specified by the Board from time to time].
+
6.8 <u>Notices</u>.  Except as otherwise specifically provided herein or required by law, all notices required to be given to any Member, director, officer, employee or agent of the Foundation shall be in writing and may in every instance be effectively given by hand delivery to the recipient thereof, by depositing such notice in the mails, postage paid, or by sending such notice by commercial courier service, or by facsimile or other electronic transmission as provided belowAny such notice shall be addressed to such Member, director, officer, employee or agent at his last known address as the same appears on the books of the Foundation.  The time when such notice shall be deemed to be given shall be the time such notice is received by such Member, director, officer, employee or agent, or by any person accepting such notice on behalf of such person, if delivered by hand, facsimile, other electronic transmission or commercial courier service, or the time such notice is dispatched, if delivered through the mails.  Without limiting the manner by which notice otherwise may be given effectively, notice to any Member shall be deemed given: (a) if by facsimile, when directed to a number at which the Member has consented to receive notice, (b) if by electronic mail, when directed to an electronic mail address at which the Member has consented to receive notice, (c) if by a posting on an electronic network together with separate notice to the Member of such specific posting, upon the later of (i) such posting and (ii) the giving of such separate notice, (d) if by any other form of electronic transmission, when directed to the Member, and (e) if by mail, when deposited in the mail, postage prepaid, directed to the Member at such Member’s address as it appears on the records of the Foundation.
  
'''Article VIII, Section 3. Trademark Policy.'''  The Trademark Policy attached as <u>[[#appendix5|Appendix 5]]</u> shall be the policy of the FoundationThe Trademark Policy may be amended without amendment to these Bylaws by vote of two thirds (2/3) of each class of Directors then in office (Individual, Gold, Platinum), provided that no change to the Trademark Policy may be made prior to the first annual election.  The Board shall publish the revised Trademark Policy on the Foundation website promptly following the vote of the Board.  Changes to the Trademark Policy shall not be effective until ninety (90) days following the date of publication, or a later time established by the Board.  Any use of the a Foundation trademark that was permitted by the policy prior to a change shall be continue to be permitted for one (1) year from the date of the publication of the change, or a later time established by the  Board.
+
6.9 <u>Reliance Upon Books, Reports and Records</u>.  Each director, each member of any committee designated by the Board of Directors, and each officer of the Foundation shall, in the performance of his duties, be fully protected in relying in good faith upon the books of account or other records of the Foundation, as provided by law, including reports made to the Foundation by any of its officers, by an independent certified public accountant, or by an appraiser selected with reasonable care.
  
== ARTICLE IX. ANTITRUST COMPLIANCE ==
+
6.10 <u>Time Periods</u>.  In applying any provision of these Bylaws which require that an act be done or not done a specified number of days prior to an event or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the performance of the act shall be excluded, and the day of the event shall be included.
  
The Antitrust Policy attached as <u>[[#appendix6|Appendix 6]]</u> shall be the Policy of the Foundation.
+
6.11 <u>Facsimile Signatures</u>.  In addition to the provisions for use of facsimile signatures elsewhere specifically authorized in these Bylaws, facsimile signatures of any officer or officers of the Foundation may be used whenever and as authorized by the Board of Directors or a committee thereof.
 
== ARTICLE X. MISCELLANEOUS ==
 
  
'''Article X, Section 1Amendment of Bylaws.'''  These Bylaws, including the Membership Agreements, may be amended only as provided in this Section.  A motion to amend these Bylaws may be made only by one (1) of the following means:  (i)  a resolution of the Technical Committee approved by at least two-thirds (2/3) of individuals serving on the Technical Committee,  (ii) a resolution of the Board approved by at least two-thirds (2/3) of the Directors;  (iii) a motion of the Individual Member class that is approved by at least ten percent (10%) of the Individual Members listed in the Individual Member Registry, (iv)  a resolution of the Gold Member class that is approved by at least two-thirds (2/3) of the Gold Members listed in the Gold Member Registry, or (iv) a resolution of the Platinum Members that is approved by at least two-thirds (2/3) of the Platinum Members.  The motion must be in writing, must specifically state the proposed language of the Bylaws Section(s) as amended, and must be signed by each approving Technical Committee member, Director, Individual Member, Gold Member or Platinum Member, as applicable.  On receipt of a motion that meets the requirements stated above,  the Secretary shall conduct a vote of the Individual MembershipThe Secretary shall open the voting window within thirty (30) days of receipt of the motion.    The Bylaws shall be amended effective upon a “yes” vote by a majority vote of a the Individual Members, but only if at least twenty five percent (25%) of the Individual Members then listed on the Individual Member registry participate in the vote. Notwithstanding the foregoing:
+
6.12 <u>Limitation on Activities</u>.
 +
; : (a) Notwithstanding any other provisions of these Bylaws, the Foundation shall not carry on any activities not permitted to be carried on by a corporation exempt from federal income tax under Section 501(c)(6) of the Code.
 +
: (b) No part of the net earnings of the Foundation shall inure to the benefit of, or be distributable to, its Members, directors, officers, or other private persons, except that the Foundation shall be authorized and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of the exempt purposes of the Foundation.
 +
; : (c) In the event the Foundation engages in lobbying activities, the Foundation shall comply with the requirements of Section 6033(e) of the Code.
  
;  : (i) A motion to amend Article VIII (''Intellectual Property Policy'') shall be adopted only if approved by each of the following:  (A) a two-thirds (2/3)vote of the Platinum Membership, (B) a two-thirds (2/3) vote of the Gold Membership, and (C) a majority vote of the Individual Membership in which at least twenty five percent (25%) of the Individual Membership participatesA change in Article VIII (''Intellectual Property Policy'') shall be effective beginning thirty (30) days following the completion of all votes approving the motion, and shall apply only to Project contributions made after the effective time of the change; and
+
== ARTICLE VII. INTELLECTUAL PROPERTY POLICY ==
 +
7.1 <u>Licenses and Contribution Agreements for Software</u>.
 +
;  : (a) The Foundation shall generally accept contributions of software made pursuant to the terms of the Contributor License Agreements attached as <u>[[#appendix7|Appendix 7]]</u>. The Board of Directors may adopt additional contributor license agreements as may be appropriate for certain organizations or contributions to secure a license on terms which will permit distribution under the Apache License 2.0, and may require inclusion of the Apache License 2.0 license header in code contributions.  The Board of Directors may delegate the authority to make non material amendments to the Contributor License Agreement to the Executive Director so long as such modifications permit distribution of the software under Apache License 2.0.
 +
; : (b) The Foundation shall distribute the software in the OpenStack Project under the Apache License 2.0 unless changed as provided in Section 9.1
  
;  : (ii) A motion that changes the voting rights of the Gold or Platinum Members must be approved by at least <u></u>% of the affected member class.  
+
7.2 <u>Licenses and Contribution Agreements for Documentation</u>.  The Foundation shall only accept contributions of documentation under a contribution agreement approved by the Board of Directors.
  
The Board may, without amendment to these Bylaws modify the following documents attached as Appendices: (i) the Antitrust Policy and the Member Agreements as necessary to comply with applicable law, and (ii) the Member Agreements as necessary for the efficient administration of the Foundation provided that such changes do not have the effect of materially changing the substance of the Member Agreements.
+
7.3 <u>Trademark Policy</u>.  The Trademark Policy of the Foundation is attached as <u>[[#appendix8|Appendix 8]]</u>.
  
'''Article X, Section 2Removal of Project from Core OpenStack.''' [TBD;  same process as for amendment to Bylaws?]
+
7.4 <u>Standards Policy</u>. The Foundation shall not establish any functional specifications or requirements for interoperability (a “Standard”) between third party technologies and the OpenStack Project, or any part of the OpenStack Project, provided that this restriction does not prohibit (a) the development, establishment or publication (or modification) of application programming interface and other technical means for third party technologies to interact with the OpenStack Project or (b) the development and publication (or modification) of a technical roadmap for the OpenStack ProjectThe creation of a Standard requires an amendment of the Bylaws, and such amendment shall determine the method of creation of such Standard. As a condition to and prior to implementation of such Standard, the Foundation (either acting via its Board of Directors or other method approved in the Bylaws amendment) shall establish intellectual property policies that require contributors to such Standard to license their intellectual property implemented by the Standard.
  
'''Article X, Section 3. Registered Office.'''  The registered agent and office of the Foundation shall be shall be fixed in the Foundation’s certificate of incorporation.
+
== ARTICLE VIII. ANTITRUST POLICY ==
 +
The Antitrust Policy of the Foundation is attached as <u>[[#appendix9|Appendix 9]]</u>.
  
'''Article X, Section 3Notices to Members.'''  Where these Bylaws require notice to the Members, the Secretary shall give notice via publication to the Foundation website and electronic mail to the Members of each class to whom notice is to be given.  In the event electronic mail ceases to be a widely used for of communication, the Board may by resolution establish an alternative means of communication without amendment to these Bylaws.  
+
== ARTICLE IX. AMENDMENT ==
 +
9.1 <u>By the Board of Directors</u>Except as provided in Sections 4.21 and 9.2, these Bylaws may be altered, amended or repealed or new bylaws which may be adopted by the affirmative vote of two-thirds of the directors present at any regular or special meeting of the Board of Directors at which a quorum is also present.  In addition to an amendment proposed and approved by the Board of Directors, a proposal to amend these Bylaws may be made by one of the following means:  (i)  a proposal of the Technical Committee approved by at least two-thirds (2/3) of individuals serving on the Technical Committee, (ii) a proposal of the Individual Members that is approved by at least ten percent (10%) of the Individual Members listed in the Individual Member Registry, (iii) a proposal of the Gold Members that is approved by at least two-thirds (2/3) of the Gold Members, or (iv) a proposal of the Platinum Members that is approved by at least two-thirds (2/3) of the Platinum Members.  The proposal must be in writing, must specifically state the proposed language of the Bylaws Section(s) or Appendix as amended, and must be signed by each approving Technical Committee member, Individual Member, Gold Member or Platinum Member, as applicable.
  
'''Article X, Section 4. Writings, Documents to be Signed.''' Where these Bylaws require or permit a resolution or other document to be in writing, the requirement may be satisfied by an electronic means of communicationThe Secretary shall establish procedures for transmission of written materials required by these Bylaws.   Where these Bylaws require or permit a resolution or other document to be signed, the signature may be made by manually, or by any reasonable electronic means designated by the Secretary.   Documents may be signed in counterpartsSigned documents may be transmitted by electronic mail, facsimile, and other customary electronic means authorized by the Secretary.
+
9.2 <u>Special Votes</u>.
 +
;  : (a) In addition to the vote of the Board of Directors as provided in Section 9.1, the amendment of the following Sections or Appendices requires an affirmative vote of a majority of the Individual Members voting as provided in Article III, but only if at least 25% of the Individual Members vote: Sections 3.2, 3.5(a), 3.6 (as it relates to Individual Members), 3.9(a), 4.2(d), 4.4 (as it relates to Individual Members), 9.2(a) and the Individual Member Policy.
 +
; : (b) In addition to the vote of the Board of Directors as provided in Section 9.1, the amendment of the following Sections or Appendices requires an affirmative vote of a majority of the Gold Members voting as provided in Article III: Sections 3.3, 3.5(b), 3.6 (as it relates to Gold Members), 3.9(b), 4.2(c), 4.4 (as it relates to Gold Members), 9.2(b) and the Gold Member Policy.
 +
;  : (c) In addition to the vote of the Board of Directors as provided in Section 9.1, the amendment of the following Sections or Appendices requires an affirmative vote of a majority of the Platinum Members as provided in Article III:  Sections 3.6 (as it relates to Platinum Members), 3.9(c), 4.2(b), 4.4 (as it relates to Platinum Members), 9.2(c) and the Platinum Member Policy.
 +
; : (d) In addition to the vote of the Board of Directors as provided in Section 9.1, the amendment of the following Sections requires an affirmative vote of (i) two-thirds of the Gold Members, (ii) two-thirds of the Platinum Members, and (iii) a majority of the Individual Members voting (but only if at least 25% of the Individual Members vote at an annual or special meeting): Article II (not including the Appendices referenced in Article II), Sections 4.1, 4.2(a), 4.9, 4.10, 4.11, 4.13, 4.17, 4.20, 7.1, 7.2, 7.3, 7.4 (except that approval of an amendment to Section 7.4 requires a two thirds vote of the Board of Directors instead of the vote provided in Section 9.1), 9.2(d), and the Technical Committee Member Policy. However, the Board of Directors may by majority vote, amend the Trademark Policy prior to January 31, 2013 to establish testing and certification requirements for the use of the trademarks owned by the Foundation in connection with the use of the Core OpenStack Project. The amendment of Sections 3.4, 3.5(c), 3.7, and 3.10, as they apply to a particular class, requires an affirmative vote as follows for a particular class (i) two-thirds of the Gold Members, (ii) two-thirds of the Platinum Members, or (iii) a majority of the Individual Members voting (but only if at least 25% of the Individual Members vote at an annual or special meeting).
 +
;  : Notwithstanding the special votes in Section 9.2, the Board may modify the following documents attached as Appendices: (i) the Antitrust Policy and the Member Policies as necessary to comply with applicable law, and (ii) the Member Policies as necessary for the efficient administration of the Foundation provided that such changes do not have the effect of materially changing the substance of the Member Policies.
  
'''Article X, Section 5. Dispute Resolution.''' The Membership Agreements shall include a clause requiring the members to participate in dispute resolution efforts as a pre-condition to the filing of any legal action in connection with the interpretation of these Bylaws or the documents incorporated by reference in these Bylaws.  The dispute resolution clause may be modified by the Board from time to time.
+
== ARTICLE X. INDEMNIFICATION OF DIRECTORS AND OFFICERS ==
 +
10.1 <u>Right to Indemnification</u>Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (“proceeding”), by reason of the fact that he or a person of whom he is the legal representative, is or was a director or officer of the Foundation or is or was serving at the request of the Foundation as a director or officer of another entity, or as a controlling person of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director or officer, or in any other capacity while serving as a director or officer, shall be indemnified and held harmless by the Foundation to the fullest extent authorized by Delaware Corporate Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Foundation to provide broader indemnification rights than such law permitted the Foundation to provide prior to such amendment) against all expenses, liability and loss reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of his heirs, executors and administrators; provided, however, that except as provided in Section 10.1, the Foundation shall indemnify any such person seeking indemnity in connection with a proceeding (or part thereof) initiated by such person only if (a) such indemnification is expressly required to be made by law, (b) the proceeding (or part thereof) was authorized by the Board of Directors, (c) such indemnification is provided by the Foundation, in its sole discretion, pursuant to the powers vested in the Foundation under Delaware Corporate Law, or (d) the proceeding (or part thereof) is brought to establish or enforce a right to indemnification or advancement under an indemnity agreement or any other statute or law or otherwise as required under Section 145 of Delaware Corporate Law.  The rights hereunder shall be contract rights and shall include the right to be paid expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that the payment of such expenses incurred by a director or officer of the Foundation in his capacity as a director or officer (and not in any other capacity in which service was or is tendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of such proceeding, shall be made only upon delivery to the Foundation of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it should be determined ultimately by final judicial decision from which there is no further right to appeal that such director or officer is not entitled to be indemnified under this section or otherwise.
  
'''Article X, Section 6Defined Terms.'''
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10.2 <u>Right of Claimant to Bring Suit</u>.  If a claim under Section 10.1 is not paid in full by the Foundation within 60 days after a written claim has been received by the Foundation, or 20 days in the case of a claim for advancement of expenses, the claimant may at any time thereafter bring suit against the Foundation to recover the unpaid amount of the claim and, if such suit is not frivolous or brought in bad faith, the claimant shall be entitled to be paid also the expense of prosecuting such claim.  It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to this Foundation) that the claimant has not met the standards of conduct which make it permissible under the Delaware Corporate Law to indemnify the claimant for the amount claimed.  Neither the failure of the Foundation (including its Board of Directors, independent legal counsel, or its Members) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct set forth in the Delaware Corporate Law, nor an actual determination by the Foundation (including its Board of Directors, independent legal counsel or its Members) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that claimant has not met the applicable standard of conduct.  In any suit brought by the Foundation to recover an advancement of expenses pursuant to the terms of an undertaking, the Foundation shall be entitled to recover such expenses upon a final judicial decision from which there is no further right to appeal that the indemnitee has not met any applicable standard for indemnification set forth in the Delaware Corporate LawIn any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Foundation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, shall be on the Foundation.
  
'''“Board”'''' or '''“Board of Directors”''' means the Board of Directors established by these Bylaws and described in Article  
+
10.3 <u>Indemnification of Employees and Agents</u>.  The Foundation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification, and to the advancement of related expenses, to any employee or agent of the Foundation to the fullest extent of the provisions of this Article X with respect to the indemnification of and advancement of expenses to directors and officers of the Foundation.
IV.
 
  
'''“Director”''' means a member of the Board of Directors.  '''“Individual Director,”''' '''“Gold Director,”''' and '''“Platinum Director”''' refer to the Directors elected or appointed by the Individual, Gold or Platinum Member classes, respectively.
+
10.4 <u>Non-Exclusivity of Rights</u>.  The rights conferred on any person in this Article X shall not be exclusive of any other right which such persons may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, Bylaws, agreement, vote of Members or disinterested directors or otherwise.
  
'''“Foundation”''' means the OpenStack Foundation.
+
10.5 <u>Indemnification Contracts</u>.  The Board of Directors is authorized to enter into a contract with any director, officer, employee or agent of the Foundation, or any person serving at the request of the Foundation as a director, officer, employee or agent of another Foundation, partnership, joint venture, trust or other enterprise, including employee benefit plans, providing for indemnification rights equivalent to or, if the Board of Directors so determines, greater than, those provided for in this Article X.
  
'''“Member”''' means a person who has qualified as a member pursuant to these Bylaws and who has not resigned or been removed as provided in these Bylaws.
+
10.6 <u>Insurance</u>.  The Foundation shall maintain insurance to the extent reasonably available, at its expense, to protect itself and any such director, officer, employee or agent of the Foundation or another Foundation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Foundation would have the power to indemnify such person against such expense, liability or loss under the Delaware Corporate Law.
  
'''“OpenStack Project”''' or '''“Project”''' means the open source software project known as OpenStack. The lower case term '''“project”''' refers to a project component of the OpenStack ProjectThe term  '''“core OpenStack”''' refers to those projects that are part of an integrated release and for which an OpenStack trademark may be used.  On formation of the Foundation, core OpenStack includes Compute, Dashboard, Identity Service, Image Service, Network, and Object storage.
+
10.7 <u>Effect of Amendment</u>Any amendment, repeal or modification of any provision of this Article X shall not adversely affect any right or protection of an indemnitee or his successor in respect of any act or omission occurring prior to such amendment, repeal or modification.
  
 
== APPENDICES ==
 
== APPENDICES ==
<span id="appendix1"></span>'''Appendix 1''' Individual Membership Agreement<<BR>>
+
<span id="appendix1"></span>'''Appendix 1''' [[http://www.openstack.org/legal/individual-member-policy/ Individual Member Policy]]<BR>
<span id="appendix2"></span>'''Appendix 2''' Gold Membership Agreement<<BR>>
+
<span id="appendix2"></span>'''Appendix 2''' [[http://www.openstack.org/legal/platinum-member-policy/ Platinum Member Policy]]<BR>
<span id="appendix3"></span>'''Appendix 3''' Platinum Membership Agreement<<BR>>
+
<span id="appendix3"></span>'''Appendix 3''' [[http://www.openstack.org/legal/gold-member-policy/ Gold Member Policy]]<BR>
<span id="appendix4"></span>'''Appendix 4''' Contributor License Agreements (Individual, Corporate, US Government Agency)<<BR>>
+
<span id="appendix4"></span>'''Appendix 4''' [[http://www.openstack.org/legal/technical-committee-member-policy/ Technical Committee Member Policy]]<BR>
<span id="appendix5"></span>'''Appendix 5''' Trademark Policy<<BR>>
+
<span id="appendix5"></span>'''Appendix 5''' [[http://www.openstack.org/legal/code-of-conduct/ Code of Conduct]]<BR>
<span id="appendix6"></span>'''Appendix 6''' Antitrust Policy<<BR>>
+
<span id="appendix6"></span>'''Appendix 6''' [[http://www.openstack.org/legal/community-code-of-conduct/ Community Code of Conduct]]<BR>
 
+
<span id="appendix7"></span>'''Appendix 7''' Contributor License Agreements ([[CLA|Individual]], [[CLA|Corporate]], [[GovernmentCLA|US Government Agency]])<BR>
----
+
<span id="appendix8"></span>'''Appendix 8''' [http://www.openstack.org/brand/openstack-trademark-policy/ Trademark Policy]<BR>
 +
<span id="appendix9"></span>'''Appendix 9''' [[http://www.openstack.org/legal/antitrust-compliance-policy/ Antitrust Policy]]<BR>

Latest revision as of 15:40, 12 June 2014

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This page was used during the drafting process for the bylaws and could contain outdated information. The official version of the bylaws is kept at the Foundation website: http://www.openstack.org/legal/bylaws-of-the-openstack-foundation/

Last updated on 2014-06-12

BYLAWS OF THE OPENSTACK FOUNDATION

ARTICLE I. PURPOSES

The OpenStack Foundation is a nonprofit non-stock Foundation (“Foundation”) whose purpose is to develop, support, protect, and promote the open source cloud computing project which is known as the OpenStack Project as defined in these Bylaws. The Foundation is formed exclusively as a nonprofit trade association within the meaning of Section 501(c)(6) of the Internal Revenue Code of 1986, as amended (the “Code”). The Foundation shall have and may exercise all the rights and powers given to nonprofit non-stock corporations under General Corporation Law of Delaware (“Delaware Corporate Law”).

ARTICLE II. MEMBERSHIP

2.1 Members. The Foundation shall have three (3) classes of members (“Members”) as defined in more detail below: (i) Individual (ii) Gold and (iii) Platinum. The Board of Directors shall have the authority to create a new class of members for government and academic members provided that such class shall not have a vote for the Board of Directors or a vote on any other matter unless these Bylaws are amended.

2.2 Individual Members.

 
(a) Individual Members must be natural persons. Individual Members may be any natural person who has an interest in the purpose of the Foundation and may be employed by Platinum Members or Gold Members.
 
(b) The application, admission, withdrawal and termination of persons as Individual Members are set forth in the membership policy attached as Appendix 1 (“Individual Member Policy”).
 
(c) There shall be no limit on the number of Individual Members.

2.3 Platinum Members.

 
(a) Platinum Members may be natural persons, business entities, academic institutions, government agencies, or any other legal person.
 
(b) The application, admission, withdrawal and termination of Platinum Members set forth in the membership policy attached as Appendix 2 (“Platinum Member Policy”).
 
(c) The number of Platinum Members shall not exceed eight.

2.4 Gold Members.

 
(a) Gold Members may be natural persons, business entities, academic institutions, government agencies, or any other legal person.
 
(b) The application, admission, withdrawal and termination of Gold Members set forth in the membership policy attached as Appendix 3 (“Gold Member Policy”).
 
(c) The number of Gold Members shall not exceed twenty-four.

2.5 Affiliation Limits. Gold Members and Platinum Members may not belong to an Affiliated Group. An Affiliated Group means that for Members that are business entities, one entity is "Controlled" by the other entity. "Controlled" or "Control" means one entity owns, directly or indirectly, more than 50% of the voting securities of the Controlled entity which vote for the election of the board of directors or other managing body of an entity, or which is under common control with the Controlled entity. An Affiliated Group does not apply to government agencies, academic institutions or individuals.

ARTICLE III. MEMBERSHIP MEETINGS

3.1 Location of Meetings. All meetings of the Members shall be held at such place (if any) within or without the State of Delaware as may be determined from time to time by the Board of Directors or, if not determined by the Board of Directors, by the Chairman of the Board, or the Executive Director; provided that the Board of Directors may, in its sole discretion, determine that any meeting of Members shall not be held at any place but shall be held solely by means of remote communication in accordance with Section 3.13.

3.2 Meeting to Elect Individual Directors. The annual meeting of Individual Members for the election of Individual Directors shall be held on a date in the first two weeks of January of each calendar year to be fixed by the Board of Directors and stated in the notice of the meeting. The annual meeting will held by remote communication.

3.3 Meeting To Elect Gold Directors. The annual meeting of Gold Members for the election of Gold Directors shall be held on a date in the first two weeks of January of each calendar year to be fixed by the Board of Directors and stated in the notice of the meeting.

3.4 Special Meetings. Special meetings of (a) all of the classes of Members may be called at any time by (i) four members of the Board of Directors, (ii) the Chairman of the Board, (iii) the Executive Director, (iii) the holders of record of not less than 10% of the Individual Members, (iv) three or more Gold Directors (v) two or more Platinum Directors, or (b) for a class of Members, (i) four members of the Board of Directors, (ii) the Chairman of the Board, (iii) the Executive Director, (iv) for the Individual Member class, the holders of record of not less than 10% of the Individual Members, (v) for the Gold Member class, three or more of the Gold Directors, or (v) for the Platinum Member class, two or more Platinum Directors. Special meetings may be called to conduct business for any purpose or purposes prescribed in the notice of the meeting and shall be held on such date and at such time as the Board may fix. Business transacted at any special meeting of all of the Members or a particular class of Member shall be confined to the purpose or purposes stated in the notice of meeting.

3.5 Notice of Meetings.

 
(a) Written notice of the annual meeting of Individual Members shall be given not less than 30 nor more than 60 days before the date on which the meeting is to be held, to each Individual Member entitled to vote at such meeting as of the record date fixed by the Board of Directors, except as otherwise provided herein or as required by law (meaning here and hereafter, as required from time to time by the Delaware Corporate Law). The notice of any meeting shall state the date and hour of the meeting, and the means of remote communication, if any, by which Individual Members and proxy holders may be deemed to be present in person and vote at such meeting.
 
(b) Written notice of the annual meeting of Gold Members shall be given not less than 10 nor more than 60 days before the date on which the meeting is to be held, to each Gold Member entitled to vote at such meeting as of the record date fixed by the Board of Directors, except as otherwise provided herein or as required by law (meaning here and hereafter, as required from time to time by the Delaware Corporate Law). The notice of any meeting shall state the place, if any, date and hour of the meeting, and the means of remote communication, if any, by which Gold Members and proxy holders may be deemed to be present in person and vote at such meeting.
 
(c) Written notice of a special meeting of Members shall be given not less than 10 nor more than 60 days before the date on which the meeting is to be held, to each Gold Member, Platinum Member and Individual Member entitled to vote at such meeting as of the record date fixed by the Board of Directors, except as otherwise provided herein or as required by law (meaning here and hereafter, as required from time to time by the Delaware Corporate Law). The notice of any meeting shall state the place, if any, date and hour of the meeting, and the means of remote communication, if any, by which Members and proxy holders may be deemed to be present in person and vote at such meeting. The notice of a special meeting shall state, in addition, the purpose or purposes for which the meeting is called.
 
(d) Notice to Members may be given by personal delivery, mail, or, with the consent of the Member entitled to receive notice, by facsimile or other means of electronic transmission as provided in Section 6.8. An affidavit of the secretary or an assistant secretary of the Foundation that the notice has been given by personal delivery, by mail, or by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
 
(e) Notice of any meeting of Members need not be given to any Member if waived by such Member either in a writing signed by such Member or by electronic transmission, whether such waiver is given before or after such meeting is held. If such a waiver is given by electronic transmission, the electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the Member.

3.6 Voting List.

 
(a) The Secretary of the Foundation shall prepare at least (i) 30 days before each annual meeting of the Individual Members or Gold Members, or (ii) within two (2) days of the notice of the annual meeting of the Individual Members or Gold Members as provided in Section 3.5 (whichever is shorter), a complete list of the Members of the relevant class entitled to vote at the meeting arranged in alphabetical order for each class of Member, and showing the mailing address of each Member of the relevant class solely for the purposes permitted under Delaware Corporate Law. Such list shall be treated as confidential. The list shall only include active Members of the class and shall not include any Members who have resigned or been terminated. The Board of Directors shall develop a process for determining the right of Members to appeal their inclusion on any such list. Such list shall be open to the examination of any Member of the class, for any purpose germane to the meeting, during ordinary business hours, for a period of at least 30 days prior to the meeting or the shorter period provided above in the manner provided by law. If the meeting is held at a place, the list shall be produced and kept at the time and place of the meeting during the whole time of the meeting, and may be examined by any Member of the class who is present. If the meeting is to be held solely by means of remote communication, such list shall also be open to the examination of any Member of the class during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. The list shall be the only evidence as to the Members of the class who are entitled to examine the list required by this Section 3.6(a) or to vote in person or by proxy at the relevant annual meeting.
 
(b) The Secretary shall prepare, at least two days after providing notice of a special meeting of the Members, a complete list of the Members entitled to vote at the meeting, arranged in alphabetical order for each class of Member, and showing the mailing address of each Member. Such list shall be open to the examination of any Member, for any purpose germane to the meeting, during ordinary business hours, for the period between the notice but prior to the meeting, in the manner provided by law. If the meeting is held at a place, the list shall be produced and kept at the time and place of the meeting during the whole time of the meeting, and may be examined by any Member who is present. If the meeting is to be held solely by means of remote communication, such list shall also be open to the examination of any Member during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. The list shall be the only evidence as to the Members who are entitled to examine the list required by this Section 3.6(b) or to vote in person or by proxy at the relevant meeting.

3.7 Quorum. Except as otherwise provided by law or these Bylaws, the holders of a majority of the Members of the relevant class entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum for the transaction of business. Where a separate vote by a class or classes is required, a majority of the Members of such class or classes present in person or represented by proxy shall constitute a quorum entitled to take action with respect to that vote on that matter except as provided below. The quorum for an annual or special meeting of the Individual Members shall be 10% of the Individual Members.

3.8 Adjournments. Any meeting of the Members or any class of Members may be adjourned to any other time and to any other place at which a meeting of the Members or such class of Members may be held under these Bylaws by the chairman of the meeting or, in the absence of such person, by any officer entitled to preside at or to act as secretary of such meeting, or by a majority of the Members or class of Members present or represented at the meeting and entitled to vote, although less than a quorum. When a meeting is adjourned to another place, date or time, written notice need not be given of the adjourned meeting if the date, time and place, if any, thereof, and the means of remote communication, if any, by which the relevant Members may be deemed to be present in person and vote at such adjourned meeting, are announced at the meeting at which the adjournment is taken; provided, however, that if the date of any adjourned meeting is more than 30 days after the date for which the meeting was originally noticed, or if the Board of Directors fixes a new record date for the adjourned meeting in accordance with Section 3.8, written notice of the place, if any, date and time of the adjourned meeting and the means of remote communication, if any, by which Members and proxy holders may be deemed to be present in person and vote at such adjourned meeting, shall be given in conformity herewith. At the adjourned meeting, the Members may transact any business which might have been transacted at the original meeting.

3.9 Voting and Proxies.

 
(a) Each Individual Member whose effective date of membership is earlier than thirty (30) days after the effective date of the filing of the Certificate of Incorporation of the Foundation (“COI Effective Date”) may vote immediately after he or she becomes an Individual Member. Each Individual Member whose effective date of membership is more than thirty (30) days after the COI Effective Date shall be eligible to vote 180 days after the effective date of his or her membership. Each Individual Member shall have one vote at any meeting of Individual Members and for election of the Individual Directors, the Individual Members shall have the option to vote for Individual Directors on a cumulative basis.
 
(b) Each Gold Member shall have one vote at any meeting of the Gold Members.
 
(c) Each Platinum Member shall have one vote at any meeting of the Platinum Members.
 
(d) Each Member entitled to vote at a meeting of Members may vote in person or may authorize any other person or persons to vote or act for such Member by a written proxy executed by the Member or by an electronic transmission permitted by law and delivered to the Secretary. No Member may authorize more than one proxy for a particular meeting; the authorization of a new proxy for a meeting by a Member automatically revokes all prior proxies for the same meeting. Any copy, facsimile transmission or other reliable reproduction of the writing or electronic transmission created pursuant to this section may be substituted or used in lieu of the original writing or electronic transmission for any and all purposes for which the original writing or transmission could be used, provided that such copy, facsimile transmission or other reproduction shall be a complete reproduction of the entire original writing or electronic transmission.

3.10 Action at Meeting.

 
(a) Except as otherwise provided in these Bylaws, at any meeting of Members or class of Members for the election of one or more directors at which a quorum is present, the election shall be determined by a plurality of the votes cast by the Members or class of Members entitled to vote at the election.
 
(b) All other matters shall be determined by a majority of votes of the class of Members or Members present in person or represented by proxy and entitled to vote on the matter (or if there are two or more classes of Members entitled to vote as separate classes, then in the case of each such class, a majority of the Members of each such class present in person or represented by proxy and entitled to vote on the matter shall decide such matter), provided that a quorum is present, except when a different vote is required by express provision of law or these Bylaws.
 
(c) All voting, including on the election of directors, but excepting where otherwise required by law, may be by a voice vote for in person meetings; provided, however, that upon demand therefor by a Member entitled to vote or the Member’s proxy, a vote by ballot shall be taken. Each ballot shall state the name of the Member or proxy voting and such other information as may be required under the procedure established for the meeting. The Foundation may, and to the extent required by law, shall, in advance of any meeting of Members or class of Members, appoint one or more inspectors to act at the meeting and make a written report thereof. In addition, at the written request to the Secretary within three (3) days of any Member meeting by at least (i) one third of the Gold Members (ii) one third of Platinum Members or (iii) five percent of the Individual Members, the Foundation shall designate one or more persons as an inspector. If no inspector or alternate is able to act at a meeting of the Members or class of Members, the person presiding at the meeting may, and to the extent required by law, shall, appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his duties, shall take and sign an oath to faithfully execute the duties of inspector with strict impartiality and according to the best of his ability.

3.11 Conduct of Business. At every meeting of the class of Members or the Members, the Chairman of the Board, or, in his absence, such other person as may be appointed by the Board of Directors, shall act as chairman. The Secretary of the Foundation or a person designated by the chairman of the meeting shall act as secretary of the meeting. Unless otherwise approved by the chairman of the meeting, attendance at the annual meeting is restricted to the Members of the relevant class, persons authorized in accordance with Section 3.9 of these Bylaws to act by proxy, and officers of the Foundation.

The chairman of the meeting shall call the meeting to order, establish the agenda, and conduct the business of the meeting in accordance therewith or, at the chairman’s discretion, the business of the meeting may be conducted otherwise in accordance with the wishes of the Members in attendance. The date and time of the opening and closing of the polls for each matter upon which the relevant Members will vote at the meeting shall be announced at the meeting.

3.12 Member Action Without Meeting. Any action which may be taken at any annual or special meeting of the Members may be taken without a meeting and without prior notice, if a consent in writing, setting forth the actions so taken, is signed by the Members having not less than the minimum number of votes of Members that would be necessary to authorize or take such action at a meeting at which all Members entitled to vote thereon were present and voted. In particular, the annual or special meeting of the Individual Members to elect Individual Directors may be conducted by a vote over a period of five calendar days, commencing on a Monday to solicit consent from the Individual Members. All such consents shall be filed with the Secretary and shall be maintained in the corporate records. Prompt notice of the taking of a corporate action without a meeting by less than unanimous written consent shall be given to those Members of the relevant class who have not consented in writing.

An electronic transmission consenting to an action to be taken and transmitted by a Member, or by a proxy holder or other person authorized to act for a Member, shall be deemed to be written, signed and dated for the purpose of this Section 3.12, provided that such electronic transmission sets forth or is delivered with information from which the Foundation can determine (a) that the electronic transmission was transmitted by the Member or by a person authorized to act for the Member and (b) the date on which such Member or authorized person transmitted such electronic transmission. The date on which such electronic transmission is transmitted shall be deemed to be the date on which such consent was signed. No consent given by electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form shall be delivered to the Foundation by delivery to its registered office in the State of Delaware, its principal place of business or the Secretary, an officer or agent of the Foundation having custody of the books in which proceedings of meetings of the Members are recorded.

3.13 Meetings by Remote Communication. If authorized by the Board of Directors, and subject to such guidelines and procedures as the Board may adopt, Members and proxy holders not physically present at a meeting of Members may, by means of remote communication, participate in the meeting and be deemed present in person and vote at the meeting, whether such meeting is to be held at a designated place or solely by means of remote communication, provided that (a) the Foundation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a Member or proxy holder, (b) the Foundation shall implement reasonable measures to provide such Members and proxy holders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the Members, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (c) if any Member or proxy holder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the Foundation.

ARTICLE IV. BOARD OF DIRECTORS

4.1 General Powers.

 
(a) The business and affairs of the Foundation shall be managed by or under the direction of a Board of Directors, who may exercise all of the powers of the Foundation except as otherwise provided by these Bylaws.
 
(b) The management of the technical matters relating to the OpenStack Project shall be managed by the Technical Committee. The management of the technical matters for the OpenStack Project is designed to be a technical meritocracy. The “OpenStack Project” shall consist of a “Core OpenStack Project,” library projects, gating projects and supporting projects. . The Core OpenStack Project means the software modules which are part of an integrated release and for which an OpenStack trademark may be used. The other modules which are part of the OpenStack Project, but not the Core OpenStack Project may not be identified using the OpenStack trademark except when distributed with the Core OpenStack Project. The role of the Board of Directors in the management of the OpenStack Project and the Core OpenStack Project are set forth in Section 4.13. On formation of the Foundation, the Core OpenStack Project is the Block Storage, Compute, Dashboard, Identity Service, Image Service, Networking, and Object Storage modules. The Secretary shall maintain a list of the modules in the Core OpenStack Project which shall be posted on the Foundation’s website.

4.2 Number and Term of Office.

 
(a) The Board shall not exceed twenty-four members.
 
(b) Each Platinum Member may appoint and remove a single member of the Board of Directors (“Platinum Directors”) and shall make such initial designation in its Member Agreement. The number of Platinum Members shall be defined as the Director Limit. The Director Limit shall change based on the number of Platinum Members. The term of each Platinum Director shall continue until the death, resignation or removal of the Platinum Director or the termination of the membership of the Platinum Member appointing any such Platinum Director.
 
(c) The Gold Members shall elect the same number of Gold Director Selectors as the Director Limit. At the annual meeting or special meeting relating to electing directors as provided in Article III, the Gold Members shall select certain Gold Members by majority vote to appoint directors to represent the Gold Members (“Gold Director Selector”). Each Gold Director Selector shall then appoint a single member of the Board of Directors (“Gold Directors”). The vote for the initial Gold Director Selectors as provided in Section 4.2 (c) and in January, 2013 shall be limited to the Initial Gold Directors (as defined in the Gold Member Policy). The vote for the Gold Director Selectors in January, 2014 shall be limited to sixteen (16) Gold Members with the earliest date of commencement of their terms. For all elections after January 2014, all Gold Members may vote. All Gold Directors shall hold office until the next annual meeting of the Gold Members and until their respective successors are elected, except in the case of the death, resignation or removal (including removal under Section 4.17) of any Gold Director or the Gold Director Selector for a particular Gold Director ceases to be a Gold Member. In the case of the death, resignation or removal of any Gold Director (except for removal under Section 4.17), the vacancy may be filled by the relevant Gold Director Selector. If a Gold Director Selector ceases to be a Gold Member, the Gold Members shall select a new Gold Director Selector at a special meeting of the Gold Members. If the Director Limit is reduced due to a reduction in the number of Platinum Members, the number of Gold Directors shall be reduced at the next annual meeting to the Director Limit effective on January 1 of such calendar year. Thus, during certain periods, the number of Gold Directors may exceed the number of Platinum Directors.
 
(d) At the annual meeting or special meeting relating to electing directors as provided in Article III, the Individual Members shall elect the same number of directors as the Director Limit. The Secretary shall receive written nominations for Individual Directors which shall have the following requirements: (i) the nomination must be signed by at least ten (10) Individual Members, (ii) the nominee is an Individual Member in good standing, (iii) the nominee must have completed an application for a director with information determined by the Board of Directors, and (iv) the nomination must be received at least thirty (30) days prior to the relevant annual or special meeting. For the initial special meeting to elect Individual Directors, nominations must be received by the Secretary at least fourteen (14) days prior to the meeting. The Secretary shall publish the names of the nominees promptly on the website of the Foundation. All Individual Directors shall hold office until the next annual meeting of the Individual Members and until their respective successors are elected, except in the case of the death, resignation or removal (including removal under Section 4.17) of any Individual Director. In the case of the death, resignation or removal of any Individual Director (except for removal under Section 4.17), the vacancy may be filled by a majority vote of the remaining Individual Directors. If the Director Limit is reduced due to a reduction in the number of Platinum Members, the number of Individual Directors shall be reduced at the next annual meeting to the Director Limit effective on January 1 of such calendar year. Thus, during certain periods, the number of Individual Directors may exceed the number of Platinum Directors.

4.3 Resignation. Any director may resign by delivering notice in writing or by electronic transmission to the Executive Director, Chairman of the Board or Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event.

4.4 Removal. A Gold Director may be removed from office at any time, with or without cause, as provided by Section 4.17 or by the Gold Director Selector who appointed such Gold Director. A Platinum Director may be removed from office at any time, with or without cause, by the Platinum Member who appointed such Platinum Director. The Individual Directors, Platinum Directors or Gold Directors may be removed by the Board of Directors for Cause and as provided in Section 4.17. Cause shall be defined as follows: (i) failure to attend three consecutive Board meetings, (ii) failure to attend more than half of the Board meetings within any twenty-four month period, (iii) breach of the Code of Conduct, (iv) declaration of unsound mind by a final order of court or (v) conviction of a felony.

4.5 Regular Meetings. Regular meetings of the Board of Directors may be held at such time and place, either within or without the State of Delaware, as shall be determined from time to time by the Board of Directors on the dates and times determined as set forth below. The meetings of the Board of Directors will be held no less often than quarterly. Any director who is absent when such a determination is made shall be given notice of the determination. The Board shall act either by written consent or in a meeting within twenty five days of the end of the calendar year for the purpose of approving new Gold Members and new Platinum Members. The Board shall, on an annual basis, establish the dates and times of the regular quarterly meetings and the Secretary shall give prompt written notice of the schedule to each director then in office.

4.6 Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Executive Director or two thirds of the directors currently in office and may be held at any time and place, within or without the State of Delaware.

4.7 Notice of Special Meetings. Notice of any special meeting of directors shall be given to each director by whom it is not waived by the Secretary or by the officer or one of the directors calling the meeting. Notice shall be duly given to each director by whom it is not waived by (a) giving notice to such director in person or by telephone, electronic transmission or voice message system at least 72 hours in advance of the meeting, (b) sending a facsimile to his last known facsimile number, or delivering written notice by hand to his last known business or home address, at least 72 hours in advance of the meeting, or (c) mailing written notice to his last known business or home address at least five days in advance of the meeting. A notice or waiver of notice of a meeting of the Board of Directors need not specify the purposes of the meeting. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting.

4.8 Participation in Meetings by Telephone Conference Calls or Other Methods of Communication. Directors or any members of any committee designated by the directors may participate in a meeting of the Board of Directors or such committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting.

4.9 Quorum. A majority of the total number of directors in office shall constitute a quorum at any meeting of the Board of Directors. In the absence of a quorum at any such meeting, a majority of the directors present may adjourn the meeting from time to time without further notice other than announcement at the meeting, until a quorum shall be present. Interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or at a meeting of a committee which authorizes a particular contract or transaction.

4.10 Action at Meeting. At any meeting of the Board of Directors at which a quorum is present, the vote of a majority of those present shall be sufficient to take any action, unless a different vote is specified by law or these Bylaws.

4.11 Action by Written Consent. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee of the Board of Directors may be taken without a meeting if all members of the Board or committee, as the case may be, consent to the action in writing or by electronic transmission, and the writings or electronic transmissions are filed with the minutes of proceedings of the Board or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

4.12 Committees. The Board of Directors may designate one or more committees, including, without limitation a compensation committee, each committee to consist of one or more of the directors of the Foundation (except for the Technical Committee, User Committee and Legal Affairs Committee), with such lawfully delegated powers and duties as it therefor confers, to serve at the pleasure of the Board of Directors. The Board of Directors may also appoint advisory committees which may be composed of members of the Board of Directors, non-members of the Board of Directors or a combination of both types of individuals; provided that the advisory committees shall provide advice to the Board of Directors and the Board of Directors may not delegate its authority to such an advisory committee. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the Board of Directors and subject to the provisions of the Delaware Corporate Law, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Foundation and may authorize the seal of the Foundation to be affixed to all papers which may require it. Each such committee shall keep minutes and make such reports as the Board of Directors may from time to time request. Except as the Board of Directors may otherwise determine, any committee may make rules for the conduct of its business, but unless otherwise provided by such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these Bylaws for the Board of Directors.

4.13 Technical Committee.

 
(a) The Technical Committee shall be selected as provided in the Technical Committee Member Policy in Appendix 4.
 
(b) The Technical Committee shall have the authority to determine the modules for addition, combination, split or deletion from the OpenStack Project except for modules of the Core OpenStack Project (as defined in Section 4.1(b) above) which shall be managed as provided below. For modules of the Core OpenStack Project, the Technical Committee may recommend to the Board of Directors the modules for addition, combination, split or deletion from the Core OpenStack Project. Except as provided below, the Board of Directors shall consider only those additions, combinations, splits or deletions that are recommended by the Technical Committee, but shall have the sole authority to approve or reject such additions, combinations, splits and deletions from the Core OpenStack Project. If any software in the Core OpenStack Project is (i) subject to an injunction or other court order which would subject the distributors or users of such software to liability for intellectual property infringement or misappropriation or (ii) the majority of the Board of Directors believes that such an order is reasonably likely, the Board of Directors shall give notice to the chair of the Technical Committee of the issue. If the Technical Committee does not take reasonable steps to mitigate the risk (such as ceasing distribution of such software or modifying such software to make it non-infringing) as determined by the Board of Directors within thirty (30) days of the receipt of such notice, the Board of Directors may waive the requirement in the Trademark Policy or otherwise to include such software in a distribution in order to use the OpenStack trademarks.
 
(c) On the written request of at least three (3) members of the Technical Committee, the Board of Directors shall appoint a mediator to assist in the resolution of any dispute or deadlock in the Technical Committee.
 
(d) The Technical Committee shall determine the procedures for nominating a member to become the chair of the Technical Committee. The Board of Directors shall have the authority to approve the Technical Committee chair, as nominated by the Technical Committee, and shall approve the chair proposed by the Technical Committee absent Cause.
 
(e) The term of the chair of the Technical Committee shall terminate upon the death, resignation, removal or failure to be re-elected to the Technical Committee. The chair of the Technical Committee may be removed by the majority of the other members of the Technical Committee (not including such chair) for Cause as defined below. The procedures for such removal shall be determined by the Technical Committee. Cause shall include (i) failure to attend more than half of the Technical Committee meetings within any twenty-four month period, (ii) breach of the Code of Conduct, (iii) declaration of unsound mind by a final order of court, or (iv) conviction of a felony. If the Technical Committee does not remove the chair of the Technical Committee for Cause, the Board of Directors may request that the Technical Committee reconsider this decision. If the Technical Committee does not remove the Technical Committee chair within thirty (30) days of notice from the Board of Directors, the Board of Directors may vote to remove the Technical Committee chair for Cause. Notwithstanding removal of the Technical Committee Chair by the Board under this Section, the individual may continue to be a member of the Technical Committee unless the Technical Committee removes the individual from the Technical Committee.

4.14 User Committee. The User Committee shall be an advisory committee to the Board of Directors and shall be comprised of at least three (3) Individual Members, one (1) appointed by the Technical Committee, one (1) appointed by the Board of Directors, and one (1) appointed by the appointees of the Technical Committee and Board of Directors. The User Committee shall organize its meetings and may, on approval of the Board of Directors, create elected seats to be filled by a vote of the Individual Members. On request of the User Committee, the Board of Directors shall invite the User Committee to attend each regular quarterly meeting and shall allocate at least one (1) hour during the regular quarterly meeting following the annual election to hear the report and recommendations of the User Committee. On request of the User Committee, the Technical Committee shall invite the User Committee to attend a regular meeting and shall allocate at least one (1) hour during such meeting up to four times each calendar year to hear the report and recommendations of the User Committee.

4.15 Legal Affairs Committee. The Legal Affairs Committee shall be an advisory committee to the Board of Directors and shall be comprised of no more than five (5) members. The Board of Directors shall appoint the members of Legal Affairs Committee. The Legal Affairs Committee shall advise the Board of Directors on the management of: (i) compliance with and enforcement of the Trademark Policy, (ii) strategies to promote the efficient intellectual property protection of the OpenStack Project, including without limitation, the resolution of patent and other intellectual property issues and disputes related to the Members’ use of the OpenStack Project, and (iii) all programs that the Board of Directors is considering relating to intellectual property management and protection.

4.16 Open Meetings and Records. Except as necessary to protect attorney-client privilege and sensitive personnel information, the Board of Directors shall: (i) permit observation of its meetings by Members via remote teleconference or other electronic means, and (ii) publish the Board of Directors minutes and make available to any Member on request other information and records of the Foundation as required by Delaware Corporate Law.

4.17 Director Diversity.

 
(a) One of the methods which the Members have chosen to ensure the technical meritocracy of the OpenStack Project is to ensure diversity in managing the OpenStack Project. This diversity shall be implemented by limiting the relationships between the Members, the Board of Directors and the Technical Committee. No more than two directors shall be Affiliated (the “Director Diversity Requirement”).
 
(b) For the purposes of the Director Diversity Requirement, the term “Affiliated” or “Affiliation” in the Bylaws is defined as follows:
 
(i) relationships between Members who are business entities and Members who are individuals (whether Individual Members, Gold Members or Platinum Members), the individual is a (i) board member, officer or employee of the business entity or its Affiliated Group (as defined in Section 2.5) or (ii) an independent contractor to the business entity or its Affiliated Group who has earned more than $60,000 in the most recent twelve month period; or
 
(ii) relationship between Members who are all individuals, the individuals are (a) independent contractors who have earned more than $60,000 in the most recent twelve month period from the Affiliated Group (b) board members of one or more entities in the Affiliated Group (c) officers of one or more entities in the Affiliated Group or (d) employees of one or more entities in the Affiliated Group.
 
The final determination of Affiliation shall be made by the Board of Directors without the vote of the directors who are alleged to have been Affiliated.
 
(c) No director may take office if the addition of the director would cause a violation of the Director Diversity Requirement. If the new director is a Platinum Director, the Platinum Member making such appointment shall make the determination of which other director shall resign from the Board of Directors. If the designated director does not resign, the Executive Director shall call a special meeting of the relevant class of Members. If the new director is a Gold Director, the Gold Director Selector making such appointment shall make the determination of which other director shall resign from the Board of Directors. If the designated director does not resign, the Executive Director shall call a special meeting of the relevant class of Members. If the new director is elected by the Individual Members, then the individual having the next highest number of votes whose admission would not cause a violation of the Director Diversity Requirement shall be become the new director instead of the individual whose election would cause a violation of the Director Diversity Requirement.
 
(d) If a director who is an individual becomes Affiliated during his or her term and such Affiliation violates the Director Diversity Requirement, such individual shall resign as a director.
 
(e) A violation of the Director Diversity Requirement may be waived by a vote of two thirds of the Board of Directors (not including the directors who are Affiliated).

4.18 Compensation of Directors. Directors shall not be entitled to compensation or reimbursement of expenses, except that on the request of an Individual Director, the Executive Director may advance the reasonable travel expenses associated with in-person attendance for at least one regular quarterly Board of Directors meeting each calendar year, including airfare, lodging, and meals. No such payment shall preclude any director from serving the Foundation in any other capacity and receiving compensation for such service except as limited by the Code of Conduct.

4.19 Nomination of Individual Director Candidates. Nominations for Individual Directors must be submitted to the Secretary in writing, signed by a minimum of ten (10) Individual Members no later than thirty (30) days prior to the date of the annual meeting or special meeting for election of the Individual Directors. For the initial special meeting to elect Individual Directors, nominations must be received by the Secretary at least fourteen (14) days prior to the meeting. The Secretary shall promptly publish the names of all properly nominated persons to the Foundation website.

4.20 Code of Conduct. The directors, officers, employees, members of the Technical Committee and contractors shall comply with the Code of Conduct attached as Appendix 5. The Members shall comply with the Community Code of Conduct attached as Appendix 6.

4.21 Initial Board of Directors. Within 24 hours of the COI Effective Date, the incorporator shall appoint the following individuals as members of the initial Board of Directors: Jonathan Bryce, Mark Collier, and Alice King (“Initial Board”). Notwithstanding the other provisions of the Bylaws, the Initial Board shall give fifteen (15) days prior written notice to the Individual Members, Gold Members and Platinum Members for a special meeting of such class of Members to elect, respectively, the Individual Directors or Gold Directors or appoint the Platinum Directors in the manner provided in Article III. These Bylaws may not be altered, amended or repealed or new bylaws adopted by the Initial Board.

ARTICLE V. OFFICERS

5.1 Enumeration. The officers of the Foundation shall consist of an Executive Director who shall act as Chief Executive Officer and a Secretary as well as such other officers with such other titles as the Board of Directors shall determine, including, at the discretion of the Board of Directors, a Chairman of the Board and one or more Vice Presidents and Assistant Secretaries. The Board of Directors may appoint such other officers as it may deem appropriate.

5.2 Election. Officers shall be appointed annually by the Board of Directors at its first meeting. Officers may be appointed by the Board of Directors at any other meeting.

5.3 Qualification. No officer need be a Member. Any two or more offices may be held by the same person.

5.4 Tenure. Except as otherwise provided by law, by the Certificate of Incorporation or by these Bylaws, each officer shall hold office until his successor is elected and qualified, unless a different term is specified in the vote appointing the officer, or until his earlier death, resignation or removal.

5.5 Resignation and Removal. Any officer may resign by delivering his written resignation to the Foundation at its principal office or to the Executive Director or Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event. Any officer elected by the Board of Directors may be removed at any time, with or without cause, by the Board of Directors.

5.6 Chairman of the Board. The Board of Directors may elect a Chairman of the Board from among the directors. If the Board of Directors elects a Chairman of the Board, he shall perform such duties and possess such powers as are assigned to the Chairman by the Board of Directors and these Bylaws. Unless otherwise provided by the Board of Directors, he shall preside at all meetings of the Board of Directors. The term of the Chairman of the Board shall not exceed two years. An individual may be elected Chairman of the Board for consecutive or non-consecutive, multiple terms.

5.7 Executive Director. The Executive Director who shall be the Chief Executive Officer of the Foundation shall, subject to the direction of the Board of Directors, have general supervision, direction and control of the business and the officers of the Foundation. He shall preside at all meetings of the Members and, in the absence or nonexistence of a Chairman of the Board, at all meetings of the Board of Directors. He shall have the general powers and duties of management usually vested in the chief executive officer of a corporation, including general supervision, direction and control of the business and supervision of other officers of the Foundation, and shall have such other powers and duties as may be prescribed by the Board of Directors or these Bylaws.

5.8 Vice Presidents. Any Vice President shall perform such duties and possess such powers as the Board of Directors or the Executive Director may from time to time prescribe. In the event of the absence, inability or refusal to act of the Executive Director, the Vice President (or if there shall be more than one, the Vice Presidents in the order determined by the Board of Directors) shall perform the duties of the Executive Director and when so performing shall have all the powers of and be subject to all the restrictions upon the Executive Director.

5.9 Secretary and Assistant Secretaries. The Secretary shall perform such duties and shall have such powers as the Board of Directors or the Executive Director may from time to time prescribe. In addition, the Secretary shall perform such duties and have such powers as are set forth in these Bylaws and as are incident to the office of the Secretary, including, without limitation, the duty and power to give notices of all meetings of Members and special meetings of the Board of Directors, to keep a record of the proceedings of all meetings of Members and the Board of Directors and prepare lists of Members and their addresses as required, to be custodian of corporate records and the corporate seal and to affix and attest to the same on documents.

Any Assistant Secretary shall perform such duties and possess such powers as the Board of Directors, the Executive Director or the Secretary may from time to time prescribe. In the event of the absence, inability or refusal to act of the Secretary, the Assistant Secretary (or if there shall be more than one, the Assistant Secretaries in the order determined by the Board of Directors) shall perform the duties and exercise the powers of the Secretary.

In the absence of the Secretary or any Assistant Secretary at any meeting of the Members or directors, the person presiding at the meeting shall designate a temporary secretary to keep a record of the meeting.

5.10 Salaries. Officers of the Foundation shall be entitled to such salaries, compensation or reimbursement as shall be fixed or allowed from time to time by the Board of Directors.

5.11 Delegation of Authority. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officers or agents, notwithstanding any provision hereof.

ARTICLE VI. GENERAL PROVISIONS

6.1 Fiscal Year. The fiscal year of the Foundation shall be as fixed by the Board of Directors.

6.2 Corporate Seal. The corporate seal shall be in such form as shall be approved by the Board of Directors.

6.3 Waiver of Notice. Whenever any notice whatsoever is required to be given by law, by the Certificate of Incorporation or by these Bylaws, a waiver of such notice either in writing signed by the person entitled to such notice or such person’s duly authorized attorney, or by electronic transmission or any other method permitted under the Delaware Corporate Law, whether before, at or after the time stated in such waiver, or the appearance of such person or persons at such meeting in person or by proxy, shall be deemed equivalent to such notice. Neither the business nor the purpose of any meeting need be specified in such a waiver. Attendance at any meeting shall constitute waiver of notice except attendance for the sole purpose of objecting to the timeliness or manner of notice.

6.4 Evidence of Authority. A certificate by the Secretary, or an Assistant Secretary, or a temporary Secretary, as to any action taken by the Members, directors, a committee or any officer or representative of the Foundation shall as to all persons who rely on the certificate in good faith be conclusive evidence of such action.

6.5 Certificate of Incorporation. All references in these Bylaws to the Certificate of Incorporation shall be deemed to refer to the Certificate of Incorporation of the Foundation, as amended and in effect from time to time.

6.6 Severability. Any determination that any provision of these Bylaws is for any reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision of these Bylaws.

6.7 Pronouns. All pronouns used in these Bylaws shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require.

6.8 Notices. Except as otherwise specifically provided herein or required by law, all notices required to be given to any Member, director, officer, employee or agent of the Foundation shall be in writing and may in every instance be effectively given by hand delivery to the recipient thereof, by depositing such notice in the mails, postage paid, or by sending such notice by commercial courier service, or by facsimile or other electronic transmission as provided below. Any such notice shall be addressed to such Member, director, officer, employee or agent at his last known address as the same appears on the books of the Foundation. The time when such notice shall be deemed to be given shall be the time such notice is received by such Member, director, officer, employee or agent, or by any person accepting such notice on behalf of such person, if delivered by hand, facsimile, other electronic transmission or commercial courier service, or the time such notice is dispatched, if delivered through the mails. Without limiting the manner by which notice otherwise may be given effectively, notice to any Member shall be deemed given: (a) if by facsimile, when directed to a number at which the Member has consented to receive notice, (b) if by electronic mail, when directed to an electronic mail address at which the Member has consented to receive notice, (c) if by a posting on an electronic network together with separate notice to the Member of such specific posting, upon the later of (i) such posting and (ii) the giving of such separate notice, (d) if by any other form of electronic transmission, when directed to the Member, and (e) if by mail, when deposited in the mail, postage prepaid, directed to the Member at such Member’s address as it appears on the records of the Foundation.

6.9 Reliance Upon Books, Reports and Records. Each director, each member of any committee designated by the Board of Directors, and each officer of the Foundation shall, in the performance of his duties, be fully protected in relying in good faith upon the books of account or other records of the Foundation, as provided by law, including reports made to the Foundation by any of its officers, by an independent certified public accountant, or by an appraiser selected with reasonable care.

6.10 Time Periods. In applying any provision of these Bylaws which require that an act be done or not done a specified number of days prior to an event or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the performance of the act shall be excluded, and the day of the event shall be included.

6.11 Facsimile Signatures. In addition to the provisions for use of facsimile signatures elsewhere specifically authorized in these Bylaws, facsimile signatures of any officer or officers of the Foundation may be used whenever and as authorized by the Board of Directors or a committee thereof.

6.12 Limitation on Activities.

 
(a) Notwithstanding any other provisions of these Bylaws, the Foundation shall not carry on any activities not permitted to be carried on by a corporation exempt from federal income tax under Section 501(c)(6) of the Code.
 
(b) No part of the net earnings of the Foundation shall inure to the benefit of, or be distributable to, its Members, directors, officers, or other private persons, except that the Foundation shall be authorized and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of the exempt purposes of the Foundation.
 
(c) In the event the Foundation engages in lobbying activities, the Foundation shall comply with the requirements of Section 6033(e) of the Code.

ARTICLE VII. INTELLECTUAL PROPERTY POLICY

7.1 Licenses and Contribution Agreements for Software.

 
(a) The Foundation shall generally accept contributions of software made pursuant to the terms of the Contributor License Agreements attached as Appendix 7. The Board of Directors may adopt additional contributor license agreements as may be appropriate for certain organizations or contributions to secure a license on terms which will permit distribution under the Apache License 2.0, and may require inclusion of the Apache License 2.0 license header in code contributions. The Board of Directors may delegate the authority to make non material amendments to the Contributor License Agreement to the Executive Director so long as such modifications permit distribution of the software under Apache License 2.0.
 
(b) The Foundation shall distribute the software in the OpenStack Project under the Apache License 2.0 unless changed as provided in Section 9.1

7.2 Licenses and Contribution Agreements for Documentation. The Foundation shall only accept contributions of documentation under a contribution agreement approved by the Board of Directors.

7.3 Trademark Policy. The Trademark Policy of the Foundation is attached as Appendix 8.

7.4 Standards Policy. The Foundation shall not establish any functional specifications or requirements for interoperability (a “Standard”) between third party technologies and the OpenStack Project, or any part of the OpenStack Project, provided that this restriction does not prohibit (a) the development, establishment or publication (or modification) of application programming interface and other technical means for third party technologies to interact with the OpenStack Project or (b) the development and publication (or modification) of a technical roadmap for the OpenStack Project. The creation of a Standard requires an amendment of the Bylaws, and such amendment shall determine the method of creation of such Standard. As a condition to and prior to implementation of such Standard, the Foundation (either acting via its Board of Directors or other method approved in the Bylaws amendment) shall establish intellectual property policies that require contributors to such Standard to license their intellectual property implemented by the Standard.

ARTICLE VIII. ANTITRUST POLICY

The Antitrust Policy of the Foundation is attached as Appendix 9.

ARTICLE IX. AMENDMENT

9.1 By the Board of Directors. Except as provided in Sections 4.21 and 9.2, these Bylaws may be altered, amended or repealed or new bylaws which may be adopted by the affirmative vote of two-thirds of the directors present at any regular or special meeting of the Board of Directors at which a quorum is also present. In addition to an amendment proposed and approved by the Board of Directors, a proposal to amend these Bylaws may be made by one of the following means: (i) a proposal of the Technical Committee approved by at least two-thirds (2/3) of individuals serving on the Technical Committee, (ii) a proposal of the Individual Members that is approved by at least ten percent (10%) of the Individual Members listed in the Individual Member Registry, (iii) a proposal of the Gold Members that is approved by at least two-thirds (2/3) of the Gold Members, or (iv) a proposal of the Platinum Members that is approved by at least two-thirds (2/3) of the Platinum Members. The proposal must be in writing, must specifically state the proposed language of the Bylaws Section(s) or Appendix as amended, and must be signed by each approving Technical Committee member, Individual Member, Gold Member or Platinum Member, as applicable.

9.2 Special Votes.

 
(a) In addition to the vote of the Board of Directors as provided in Section 9.1, the amendment of the following Sections or Appendices requires an affirmative vote of a majority of the Individual Members voting as provided in Article III, but only if at least 25% of the Individual Members vote: Sections 3.2, 3.5(a), 3.6 (as it relates to Individual Members), 3.9(a), 4.2(d), 4.4 (as it relates to Individual Members), 9.2(a) and the Individual Member Policy.
 
(b) In addition to the vote of the Board of Directors as provided in Section 9.1, the amendment of the following Sections or Appendices requires an affirmative vote of a majority of the Gold Members voting as provided in Article III: Sections 3.3, 3.5(b), 3.6 (as it relates to Gold Members), 3.9(b), 4.2(c), 4.4 (as it relates to Gold Members), 9.2(b) and the Gold Member Policy.
 
(c) In addition to the vote of the Board of Directors as provided in Section 9.1, the amendment of the following Sections or Appendices requires an affirmative vote of a majority of the Platinum Members as provided in Article III: Sections 3.6 (as it relates to Platinum Members), 3.9(c), 4.2(b), 4.4 (as it relates to Platinum Members), 9.2(c) and the Platinum Member Policy.
 
(d) In addition to the vote of the Board of Directors as provided in Section 9.1, the amendment of the following Sections requires an affirmative vote of (i) two-thirds of the Gold Members, (ii) two-thirds of the Platinum Members, and (iii) a majority of the Individual Members voting (but only if at least 25% of the Individual Members vote at an annual or special meeting): Article II (not including the Appendices referenced in Article II), Sections 4.1, 4.2(a), 4.9, 4.10, 4.11, 4.13, 4.17, 4.20, 7.1, 7.2, 7.3, 7.4 (except that approval of an amendment to Section 7.4 requires a two thirds vote of the Board of Directors instead of the vote provided in Section 9.1), 9.2(d), and the Technical Committee Member Policy. However, the Board of Directors may by majority vote, amend the Trademark Policy prior to January 31, 2013 to establish testing and certification requirements for the use of the trademarks owned by the Foundation in connection with the use of the Core OpenStack Project. The amendment of Sections 3.4, 3.5(c), 3.7, and 3.10, as they apply to a particular class, requires an affirmative vote as follows for a particular class (i) two-thirds of the Gold Members, (ii) two-thirds of the Platinum Members, or (iii) a majority of the Individual Members voting (but only if at least 25% of the Individual Members vote at an annual or special meeting).
 
Notwithstanding the special votes in Section 9.2, the Board may modify the following documents attached as Appendices: (i) the Antitrust Policy and the Member Policies as necessary to comply with applicable law, and (ii) the Member Policies as necessary for the efficient administration of the Foundation provided that such changes do not have the effect of materially changing the substance of the Member Policies.

ARTICLE X. INDEMNIFICATION OF DIRECTORS AND OFFICERS

10.1 Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (“proceeding”), by reason of the fact that he or a person of whom he is the legal representative, is or was a director or officer of the Foundation or is or was serving at the request of the Foundation as a director or officer of another entity, or as a controlling person of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director or officer, or in any other capacity while serving as a director or officer, shall be indemnified and held harmless by the Foundation to the fullest extent authorized by Delaware Corporate Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Foundation to provide broader indemnification rights than such law permitted the Foundation to provide prior to such amendment) against all expenses, liability and loss reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of his heirs, executors and administrators; provided, however, that except as provided in Section 10.1, the Foundation shall indemnify any such person seeking indemnity in connection with a proceeding (or part thereof) initiated by such person only if (a) such indemnification is expressly required to be made by law, (b) the proceeding (or part thereof) was authorized by the Board of Directors, (c) such indemnification is provided by the Foundation, in its sole discretion, pursuant to the powers vested in the Foundation under Delaware Corporate Law, or (d) the proceeding (or part thereof) is brought to establish or enforce a right to indemnification or advancement under an indemnity agreement or any other statute or law or otherwise as required under Section 145 of Delaware Corporate Law. The rights hereunder shall be contract rights and shall include the right to be paid expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that the payment of such expenses incurred by a director or officer of the Foundation in his capacity as a director or officer (and not in any other capacity in which service was or is tendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of such proceeding, shall be made only upon delivery to the Foundation of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it should be determined ultimately by final judicial decision from which there is no further right to appeal that such director or officer is not entitled to be indemnified under this section or otherwise.

10.2 Right of Claimant to Bring Suit. If a claim under Section 10.1 is not paid in full by the Foundation within 60 days after a written claim has been received by the Foundation, or 20 days in the case of a claim for advancement of expenses, the claimant may at any time thereafter bring suit against the Foundation to recover the unpaid amount of the claim and, if such suit is not frivolous or brought in bad faith, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to this Foundation) that the claimant has not met the standards of conduct which make it permissible under the Delaware Corporate Law to indemnify the claimant for the amount claimed. Neither the failure of the Foundation (including its Board of Directors, independent legal counsel, or its Members) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct set forth in the Delaware Corporate Law, nor an actual determination by the Foundation (including its Board of Directors, independent legal counsel or its Members) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that claimant has not met the applicable standard of conduct. In any suit brought by the Foundation to recover an advancement of expenses pursuant to the terms of an undertaking, the Foundation shall be entitled to recover such expenses upon a final judicial decision from which there is no further right to appeal that the indemnitee has not met any applicable standard for indemnification set forth in the Delaware Corporate Law. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Foundation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, shall be on the Foundation.

10.3 Indemnification of Employees and Agents. The Foundation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification, and to the advancement of related expenses, to any employee or agent of the Foundation to the fullest extent of the provisions of this Article X with respect to the indemnification of and advancement of expenses to directors and officers of the Foundation.

10.4 Non-Exclusivity of Rights. The rights conferred on any person in this Article X shall not be exclusive of any other right which such persons may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, Bylaws, agreement, vote of Members or disinterested directors or otherwise.

10.5 Indemnification Contracts. The Board of Directors is authorized to enter into a contract with any director, officer, employee or agent of the Foundation, or any person serving at the request of the Foundation as a director, officer, employee or agent of another Foundation, partnership, joint venture, trust or other enterprise, including employee benefit plans, providing for indemnification rights equivalent to or, if the Board of Directors so determines, greater than, those provided for in this Article X.

10.6 Insurance. The Foundation shall maintain insurance to the extent reasonably available, at its expense, to protect itself and any such director, officer, employee or agent of the Foundation or another Foundation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Foundation would have the power to indemnify such person against such expense, liability or loss under the Delaware Corporate Law.

10.7 Effect of Amendment. Any amendment, repeal or modification of any provision of this Article X shall not adversely affect any right or protection of an indemnitee or his successor in respect of any act or omission occurring prior to such amendment, repeal or modification.

APPENDICES

Appendix 1 [Individual Member Policy]
Appendix 2 [Platinum Member Policy]
Appendix 3 [Gold Member Policy]
Appendix 4 [Technical Committee Member Policy]
Appendix 5 [Code of Conduct]
Appendix 6 [Community Code of Conduct]
Appendix 7 Contributor License Agreements (Individual, Corporate, US Government Agency)
Appendix 8 Trademark Policy
Appendix 9 [Antitrust Policy]