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BYLAWS OF OPEN SOURCE ENDOWMENT FOUNDATION

ARTICLE I: OFFICES

Section 1.1 Registered Office. As a Delaware nonprofit nonstock corporation, this corporation shall maintain a registered office in the State of Delaware, at the location specified in the Certificate of Incorporation or designated by the Board of Directors of this corporation.

Section 1.2 Principal Place of Business. This corporation’s principal place of business is different from its registered office, and may be located at any place as may be designated by the Board of Directors of this corporation, including a place outside of the State of Delaware.

ARTICLE II: MEMBERS

Section 2.1 Members. Except as provided in Section 9.1 below, this corporation shall initially have one class of members for purposes of the Delaware General Corporation Law (“DGCL”), with rights and privileges set in these Bylaws and as further defined by the Board of Directors in a separate Membership Policy that may be adopted and amended by the Board from time to time. The Membership Policy will further define membership criteria, minimal donation, responsibilities, processes for engagement in this corporation and other related matters, provided that the members’ rights as “members” within the meaning of DGCL shall be limited to electing Member-Elected Directors as provided in Section 3.2(b) below. At such time as the number of Member-Elected Directors is set at a number greater than zero (0), this corporation shall amend these Bylaws to incorporate provisions addressing the process for exercising such voting rights in compliance with the DGCL and the corporation’s goal of conducting business through remote, asynchronous, and electronic communication to the fullest extent permissible.

Section 2.2 Criteria; Term; Transferability. The members shall consist of those individuals who have satisfied the criteria defined in the Membership Policy. Membership shall have no expiration, unless it is specified in the Membership Policy. No member of this corporation shall be personally liable for the debts, liabilities, or obligations of this corporation. Memberships in this corporation, or any right arising therefrom, may not be transferred or assigned.

Section 2.3 Advisory Role. The Board shall consult members on key strategic matters, including but not limited to the grantee selection model and other major organizational decisions. Member input shall be considered by the Board but shall not be binding.

ARTICLE III: BOARD OF DIRECTORS

Section 3.1 Powers. This corporation shall have powers to the full extent allowed by law. All powers and activities of this corporation shall be exercised and managed by the Board of Directors of this corporation directly or, if delegated, under the ultimate direction of the Board.

Section 3.2 Directors. The total number of directors shall be not less than three (3) nor more than eleven (11), with the exact authorized number of directors to be fixed from time to time by the Board of Directors. The Board shall be composed of three classes of directors:

  • (a) Founding Director. There shall be one (1) Founding Director seat, which Konstantin Vinogradov shall have an exclusive right to hold. This seat is automatically eliminated in fifteen (15) years since the incorporation or earlier at Mr. Vinogradov’s sole discretion.
  • (b) Member-Elected Directors. Directors elected by the Members as per these Bylaws. The Board shall have sole discretion to determine the number of such directors, provided that the number shall be between zero (0) and five (5).
  • (c) Board-Elected Directors. Directors elected by the Board as per these Bylaws. The number of Board-Elected Directors is equal to the total number of directors authorized by the Board, minus Founding Director and the number of Member-Elected Directors.

Section 3.3 Voting Rights. All directors, regardless of how they are elected, shall have equal voting rights on matters before the Board.

Section 3.4 Membership. All directors shall be Members of this corporation.

Section 3.5 Election and Terms. Except for the Founding Director and the other initial directors appointed by the incorporator, directors shall be elected as follows:

  • (a) Board-Elected Directors shall be selected from among the Members of the corporation and elected by a majority vote of the Board of Directors then in office. Each Board-Elected Director shall serve a term of three (3) years.
  • (b) Member-Elected Directors shall be selected from among the Members of the corporation and elected by a majority of the votes of the Members participating in a vote as to which quorum is satisfied. Each Member-Elected Director shall serve a term of two (2) years.

Notwithstanding the foregoing, a director’s initial term may be set by the Board for a greater or lesser number of years for the purpose of maintaining a staggered Board (i.e., a Board where a roughly equal number of director terms end each year), with such adjustment noted in the resolution or action electing such director. Each director shall hold office until such director’s successor is elected and qualified or until such director’s earlier death, resignation, or removal. A director who has served two (2) consecutive terms must remain off the Board for at least one year before becoming eligible for re-election.

Section 3.6 Resignation. Any director may resign at any time upon notice given in writing addressed to any director or officer of this corporation other than themselves or by electronic transmission addressed to any director or officer of this corporation other than themselves. A resignation is effective when the resignation is delivered unless the resignation specifies a later effective date. Unless otherwise specified in that notice, the acceptance of the resignation shall not be necessary to make it effective.

Section 3.7 Removal. Any Board-Elected Director may be removed at any time by the Board with or without cause. Any Member-Elected Director may be removed at any time by the Members with or without cause or by two-thirds of the Board. Any Board-Elected Director or Member-Elected Director that misses three (3) consecutive meetings shall be automatically removed from the Board without any action required by the Board or the Members.

Section 3.8 Vacancies. A vacancy shall be deemed to exist on the Board in the event that the actual number of directors is less than the authorized number for any reason. Vacancies with respect to the Board-Elected Directors and Member-Elected Directors may be filled by the Board of Directors for the unexpired portion of the term. A vacancy in the Founding Director position shall not be filled. No reduction in the number of directors shall have the effect of removing any director prior to the expiration of his or her term of office.

Section 3.9 Regular Meetings. Regular meetings of the Board of Directors shall be held at such times, places and dates as fixed by the Board. The Board shall hold a meeting at least four times per year. Regular meetings of the Board held pursuant to this Section may be held without notice.

Section 3.10 Online Participation. Directors may participate in a meeting through use of conference telephones, electronic video screen, or similar communications equipment so long as all directors participating in such meeting can hear one another. Such participation constitutes presence in person at such meeting.

Section 3.11 Action Without a Meeting. Any action required or permitted to be taken by the Board of Directors may be taken without a meeting if all directors individually or collectively consent in writing to such action. Such written consent or consents shall be filed with the minutes of the proceedings of the Board. Such action by written consent shall have the same force and effect as a unanimous vote of such directors.

Section 3.12 Special Meetings. Special meetings of the Board may be called by the Chair of the Board, the Secretary, or any three (3) directors.

Section 3.13 Place of Meetings. Meetings of the Board of Directors may be held at a location inside or outside of the state of Delaware, which is fixed by the Board of Directors or, in the case of a special meeting, by the person or persons calling the special meeting.

Section 3.14 Notice of Meetings. Notice of the annual meeting and any special meetings of the Board of Directors shall state the date, place, and time of the meeting and shall be given to each director at least one week before such meeting by mail or electronic transmission.

Section 3.15 Waiver of Notice. Whenever notice is required to be given under any provision of these Bylaws, a written waiver, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors or committee of the Board of Directors need be specified in any written waiver of notice or any waiver by electronic transmission. All waivers, consents, and approvals shall be filed with the corporate records or made a part of the minutes of the meeting. 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.

Section 3.16 Quorum; Required Vote. A majority of the total number of directors then in office shall constitute a quorum of the Board, provided that the Founding Director’s presence (or the Founding Director’s written waiver of this provision of the Bylaws with respect to a particular decision) is required for a quorum. Except as otherwise required by the Certificate of Incorporation, these Bylaws or the DGCL, the act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board. Each director shall be entitled to one vote. Notwithstanding the foregoing, in the first twelve (12) years since the incorporation, no act of the Board may be approved without the non-negative vote of the Founding Director, if his seat is held on the date of voting.

Section 3.17 Board Advisors. The Board may appoint members or non-members to serve as advisors at the pleasure of the Board and provide it with recommendations on specific topics. Advisors may not exercise the authority of the Board to make decisions on behalf of this corporation.

Section 3.18 Board Committees. The Board may establish committees from among board directors, officers, advisors and members of this corporation, each consisting of three or more people for any activities carried out for the benefit of the corporation. Each such committee will serve at the pleasure of the Board. The Board determines if a committee may or may not exercise the authority of the Board to make decisions on behalf of this corporation. In decision-making committees, only committee members who are also directors of this corporation shall have voting rights.

Section 3.19 Compensation. Directors of the Board are not entitled to any compensation for their service. The Board may only authorize the reimbursement of actual reasonable expenses incurred by a director in carrying out his or her duties as a director.

Section 3.20 Inspection. Every director shall have the right to examine this corporation’s list of members and its other books and records for a purpose reasonably related to the director’s position as a director.

ARTICLE IV: OFFICERS

Section 4.1 Officers. This corporation shall have a Chair of the Board, an Executive Director, a Secretary, a Treasurer and such other officers with such titles and duties as the Board of Directors may determine. Any two or more offices may be held by the same person, except that the Chair of the Board may not serve concurrently as the Secretary. Other than the Chair of the Board, which is required to be selected from among the directors, an officer may but is not required to be selected from among the directors.

Section 4.2 Membership. All officers shall be Members of this corporation.

Section 4.3 Election and Terms. The officers of this corporation shall be elected by the Board of Directors for the term not exceeding three (3) years, and each shall serve at the pleasure of the Board, subject to the rights, if any, of an officer under any contract of employment. Each officer shall hold office until his or her successor is elected and qualified or until his or her earlier resignation or removal.

Section 4.4 Removal. Subject to the rights, if any, of an officer under any contract of employment, any officer may be removed, with or without cause, by the Board of Directors or by an officer on whom such power of removal may be conferred by the Board of Directors.

Section 4.5 Resignation. Any officer may resign at any time by giving written notice to any director or officer of this corporation other than themselves or by electronic transmission addressed to any director or officer of this corporation other than themselves. A resignation is effective when delivered unless the resignation specifies a later effective date or an effective date determined upon the happening of an event or events, and unless otherwise specified in that notice, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of this corporation under any contract to which the officer is a party.

Section 4.6 Vacancies. A vacancy in any office for any reason shall be filled in the same manner as these Bylaws provide for election to that office.

Section 4.7 Chair of the Board. The Chair of the Board shall preside at all meetings of the Board of Directors and have such other powers and duties as may be prescribed by the Board or these Bylaws.

Section 4.8 Executive Director. The Executive Director shall be the chief executive officer of this corporation and shall, subject to the control of the Board, generally supervise, direct, and control the business and operations of this corporation.

Section 4.9 Secretary. The Secretary shall supervise the keeping of a full and complete record of the proceedings of the Board of Directors, its committees and the membership of this corporation, shall supervise the giving of such notices as may be proper or necessary, shall supervise the keeping of the minute books of this corporation, and shall have such other powers and duties as may be prescribed by the Board or these Bylaws.

Section 4.10 Treasurer. The Treasurer shall supervise the charge and custody of all funds of this corporation, the deposit of such funds in the manner prescribed by the Board of Directors, and the keeping and maintaining of adequate and correct accounts of this corporation’s properties and business transactions, shall render reports and accountings as required, and shall have such other powers and duties as may be prescribed by the Board or these Bylaws.

Section 4.11 Compensation. The compensation of the officers is determined by the Board of Directors, and no officer shall be prevented from receiving such compensation by reason of the fact that such officer is also a board director of this corporation.

ARTICLE V: INTERESTED DIRECTOR OR OFFICER TRANSACTIONS

Section 5.1 Voidability of Transactions. No contract or transaction between this corporation and any of its directors or officers, any organization in which one or more of this corporation’s directors or officers has or have a financial interest, or any organization for which a director or officer of this corporation also serves as a director or officer, shall be void or voidable solely for that reason, or solely because the director or officer is present at or participates in the meeting of the Board or Board Committee which authorizes the contract or transaction, or solely because any such director’s or officer’s vote was counted for such purpose, if:

  • (a) The material facts as to the director’s or officer’s relationship or interest, and as to the contract or transaction, are disclosed or are known to the Board or the Board Committee, and the Board or Board Committee in good faith authorizes the contract or transaction by an affirmative vote of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or
  • (b) The contract or transaction is fair to this corporation as of the time it is authorized, approved, or ratified by the Board or Board Committee.

Section 5.2 Quorum. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board or of a Board Committee which authorizes a contract or transaction described in this Article.

Section 5.3 Conflict of Interest Policy. Each director and officer of this corporation shall comply with any policies of this corporation regarding conflicts of interest.

ARTICLE VI: GRANTS ADMINISTRATION

Section 6.1 Purpose of Grants. This corporation shall have the power to make grants and contributions and to render other financial assistance for the purposes expressed in this corporation’s Certificate. For avoidance of doubt, as long as grants are restricted to the purposes of this corporation, grants may be made to both nonprofit organizations and other organizations.

Section 6.2 Board of Directors Oversight. The Board, or any person or persons on whom such power may be conferred by the Board, shall make policy with regard to grants. The Board shall retain ultimate control over all grants, contributions, and other financial assistance given by this corporation.

Section 6.3 Refusal. The Board, in its absolute discretion, shall have the right to refuse to make any grants or contributions, or to render other financial assistance, for any or all the purposes for which the funds are requested.

Section 6.4 Withdrawal. The Board, in its absolute discretion, shall have the right to withdraw its approval of any grant at any time and use the funds for other purposes within the scope of the purposes expressed in the Certificate, subject to any charitable trust imposed on such funds and any rights of third parties under any contract relating to such grant.

Section 6.5 Accounting. The Board shall determine under what circumstances to require that grantees furnish a periodic accounting to show that the funds granted by this corporation were expended for the purposes that were approved by the Board.

Section 6.6 Restrictions on Contributions. Unless otherwise determined by resolution of the Board in particular cases, this corporation shall retain complete control and discretion over the use of all contributions it receives, and all contributions received by this corporation from solicitations for specific grants shall be regarded as for the use of this corporation and not for any particular organization or individual mentioned in the solicitation. This corporation may accept contributions designated by the donor to be used for one or more foreign projects only if the Board of Directors of this corporation has approved in advance the charitable activity for which the donation is being made and retains discretion and control over such funds.

ARTICLE VII: INDEMNIFICATION

Section 7.1 Definitions. As used in this Article, the following terms will have the following meanings:

  • “Action” means any threatened, pending, or completed action, suit, proceeding or inquiry (brought in the right of this corporation or otherwise), whether civil, criminal, administrative, or investigative, and whether formal or informal, including appeals arising from or in connection with the acts or omissions of this corporation or any member acting within the scope of his or her role with this corporation.
  • “Eligible Person” means: (1) any individual who is a former or current director or officer of this corporation; (2) any former or current director or officer of this corporation, who while a director or officer of this corporation, is or was serving at the request of this corporation as a director, officer, partner, trustee, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, which includes, without limitation, employee benefit plans; and (3) the foregoing persons’ heirs, executors, guardians, administrators, assigns, and any other legal representatives.
  • “Fines” includes, without limitation, any excise taxes assessed on a person with respect to an employee benefit plan.
  • “Indemnified Person” means: any Eligible Person who was, or is, a party, or is threatened to be made a party to, or is involved in (including as a witness), any Action by reason of the fact that the person is an Eligible Person.

Section 7.2 Indemnification for Indemnified Persons. This corporation shall indemnify any Indemnified Person, for and against all expenses (including attorneys’ fees), judgments, Fines and amounts paid in settlement actually and reasonably incurred by that Indemnified Person in connection with an Action. Notwithstanding the foregoing, this corporation shall indemnify any Indemnified Person seeking indemnification in connection with an Action (or part of an Action) initiated by that person only if that Action (or part of that Action) was authorized by the Board.

Section 7.3 Advancement of Expenses. This corporation may pay expenses as incurred by any Indemnified Person in connection with any Action; provided, that, if these expenses are to be paid in advance of the final disposition of an Action, then the payment of expenses will be made only upon delivery to this corporation of an undertaking, by or on behalf of the person, to repay all amounts so advanced if it is ultimately determined that the person is not entitled to be an Indemnified Person or otherwise.

Section 7.4 Insurance. This corporation may purchase and maintain insurance on behalf of any Indemnified Person against any liability asserted against that person, whether or not this corporation would have the power to indemnify the person against that liability under the provisions of this Article or otherwise.

Section 7.5 Scope of this Article. The provisions of this Article will be applicable to all Actions made or commenced after the adoption of this Article, whether arising from acts or omissions occurring before or after its adoption. The provisions of this Article will be deemed to be a contract between this corporation and each director or officer who serves in that capacity at any time while this Article and the relevant provisions of the laws of the State of Delaware and other applicable law, if any, are in effect, and any repeal or modification of this Article will not adversely affect any right or protection of any Indemnified Person in respect of any act or omission occurring prior to the time of the repeal or modification. The provisions of this Article shall apply to the fullest extent permitted by law.

Section 7.6 Severability. If any provision of this Article will be found to be invalid or limited in application by reason of any law or regulation, that finding will not affect the validity of the remaining provisions of this Article. The rights of indemnification provided in this Article will neither be exclusive of, nor be deemed in limitation of, any rights to which any Eligible Person may otherwise be entitled or permitted by contract, the Certificate of Incorporation, vote of the Board, or otherwise, or as a matter of law, both as to actions in the person’s official capacity and actions in any other capacity while holding that office, it being the policy of this corporation that indemnification of any Indemnified Person will be made to the fullest extent permitted by law.

Section 7.7 Indemnification of Employees and Agents. This corporation may, by vote of the Board, provide indemnification and advancement of expenses to employees and agents of this corporation with the same scope and effect as the foregoing indemnification of and advancement of expenses to directors and officers.

ARTICLE VIII: FINANCIAL MATTERS AND CONTRACTS

Section 8.1 Fiscal Year. The fiscal year of the Foundation shall begin on the first day of January and end on the last day of December, and may be changed, by resolution of the Board of Directors.

Section 8.2 Endowment. The Board shall establish an endowment fund to accumulate the majority of donations received by the corporation, which shall be held, managed, and spent as an endowed fund within the meaning of Delaware’s Uniform Prudent Management of Institutional Funds Act. The proceeds from the endowment shall be used exclusively for charitable purposes in accordance with the corporation’s Bylaws and Certificate. In addition, the Board may establish other unrestricted funds or funds with different restrictions.

Section 8.3 Contracts, Notes, and Checks. All contracts entered into on behalf of this corporation must be authorized by the Board of Directors or any person or persons on whom such power may be conferred by the Board, and, except as otherwise provided by law, every check, draft, promissory note, money order, or other evidence of indebtedness of this corporation shall be signed by any person or persons on whom such power may be conferred by the Board.

ARTICLE IX: MISCELLANEOUS

Section 9.1 Certificate and Bylaws Amendments. As provided in the Certificate of Incorporation, (A) the Certificate of Incorporation may not be amended without the approval of the members, and (B) only the members of this corporation may adopt, amend, or repeal the Bylaws of this corporation. For purposes of this Section, the Board of Directors shall be deemed to be a separate class of members, and all voting rights of the members under this Section shall be exercised by such class voting alone, without a vote of the members described in Article II.

Section 9.2 Governing Law. These Bylaws shall be construed and interpreted in accordance with the laws of the State of Delaware as amended from time to time, so as to give full effect and validity to the intent and meaning of these Bylaws.

Section 9.3 Electronic Transmission. Directors, officers, and members may demonstrate their consent to actions or provide written notice through an electronic transmission (e.g. emails) to the Secretary or as otherwise approved by the Board, provided that the electronic transmission is delivered with information from which this corporation can determine: (A) that the electronic transmission was transmitted by the director, officer, or member (or by a person or persons authorized to act for the director, officer, or member); and (B) the date on which such director, officer, or member or authorized person or persons transmitted such electronic transmission.