Bylaws and Antitrust Policy

Prpl Foundation Bylaws and Antitrust Policy – Version April 1st, 2022

ARTICLE I

Section 1.1, Name

The name of the organization is “prpl Foundation”, referred to in these Bylaws as the “Foundation”. 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”).

Section 1.2, Mission

The prpl Foundation enables high-velocity, service-driven innovation on customer-premises equipment by harmonizing interfaces in open APIs and delivering open-source reference implementations of common infrastructure.

The mission of the Foundation may only be amended by a unanimous vote of all of Platinum Directors (as defined below).

Section 1.3, Nonprofit Status

The Foundation has secured exemption from Federal taxation pursuant to Section 501(a) of the Internal Revenue Code of 1986, as amended (hereinafter, the “Code”). The Foundation shall not knowingly engage directly or indirectly in any activity that would be likely to invalidate its status as an organization exempt from federal income taxation under Section 501(a) of the Code as an organization described in Section 501(c) of the Code. All references to the Code contained herein are deemed to include corresponding provisions of any future United States Internal Revenue Law.

ARTICLE II

Section 2.1, Classes of Membership

The Foundation shall initially have four classes of membership: Platinum Members, Gold Members, Silver Members, and Individual/Academia Members. The number of Platinum Members shall be limited to eight Members. The number of Gold Members, Silver Members and Individual/Academia Members are unlimited. Additional classes of voting and non-voting members may be created in the future, and the rights of existing classes of members may be amended, in each case pursuant to Section 2.10 of these Bylaws. Platinum Members, Gold Members, Silver Members, and any future classes of members that are entitled to voting rights shall be collectively referred to as “Voting Members.” Individual/Academia Members shall be non-voting Members; provided, however, if the representative of an Individual/Academia Member chairs a Working Group (as defined in Section 5.5 below), then such representative shall be entitled to vote on matters before the Technical Steering Committee as a member of the Technical Steering Committee (as defined in Section 5.5(b) below). All voting and non-voting memberships in the Foundation are collectively referred to in these Bylaws as “Memberships”, and a person or entity holding Membership is referred to in these Bylaws as a “Member”.

Section 2.2, Conditions of Membership

(a) Any association, partnership, organization, governmental agency, company, corporation, limited liability company, partnership, academic entity, non-profit or other entity (or individual) shall be admitted to a class of Membership for which it is eligible upon: (i) acceptance of its written Membership Application on such form as may be from time to time required by the Foundation (which acceptance shall be administered in a non-discriminatory fashion), (ii) certification in writing by the prospective member of the satisfaction of such other conditions, including without limitation requirements for in-kind contributions (e.g., assignment of dedicated developers and maintainers to projects), as may from time to time be established by the Board of Directors (“Board”) for such class of Membership, if any, and (iii) unless otherwise provided by the Board or these Bylaws, payment of such Membership Application fees, assessments, initiation fees, annual dues or other fees for such class of Membership as may from time to time be established by the Board, if any (collectively, “Fees”). The date on which these conditions of admission have been met for an applicant shall be defined as the “Admission Date.”

(b) A Member shall be in good standing as a Member provided that such Member is in compliance with: (i) these Bylaws, (ii) Membership Application, (iii) rules and policies (and the terms of any agreements required thereby) as the Board and/or any committees thereof (each a “Board Committee”) may from time to time adopt (iv) participation obligations, fulfilment of in-kind obligations, and contribution obligations, if any, and (v) payment of all Fees and penalties for late payment as may be required or determined by the Board (such Fees and penalties are collectively referred to in the Bylaws as “Financial Obligations”, and all of the foregoing good standing requirements are collectively referred to in these Bylaws as “Membership Obligations”). No person or entity may be accepted for Membership if that person or entity has pre-existing, unpaid Financial Obligations to the Foundation until such payments are made.

(c) The initial term of Membership for all Platinum Members shall be from the Admission Date of such Platinum Member for twenty-four months, the first renewal term shall be until June 30 of the following calendar year and all future renewal terms shall be twelve months commencing on July 1 unless the Member gives written notice to the Foundation not less than sixty (60) days prior to the last day of the current term of the termination of its Membership. The initial term of Membership for all other classes of Member shall be from the Admission Date of such Member for twelve months after such Admission Date, the first renewal term shall be until June 30 of the following calendar year and all future renewal terms shall be twelve months commencing on July 1 unless the Member gives written notice to the Foundation not less than sixty (60) days prior to the last day of the current term of the termination of its Membership. The Foundation shall provide notice to each Member of the commencement of each renewal term not less than one hundred and twenty days prior to the last day of the current term.

(d) The admission of new Platinum Members shall require a majority vote of the Board and a Platinum Director Vote. The admission of new Members in all other classes shall require a majority vote of the Board.

Section 2.3, Privileges of Platinum Membership

Each Platinum Member shall, in addition to all rights of a Member as provided by these Bylaws from time to time, be entitled to:

(a) appoint one member to serve as a Director on the Board, subject to Section 2.9 below and such individual shall be eligible to run for election as the Chairperson of the Board or President of the Foundation;

(b) appoint one voting representative to the Technical Steering Committee if such Platinum Member is otherwise not represented on the Technical Steering Committee, appoint one voting representative to each Member Committee other than the Technical Steering Committee (for example, a Marketing Committee, Finance Committee, etc.);

(d) all rights of the other classes of Voting Members set forth in Section 2.6.

Section 2.4, Privileges of Gold Membership

Each Gold Member shall, in addition to all other rights of a Member as provided by these Bylaws from time to time be entitled:

(a) to nominate an individual to run for election as a Director in accordance with Section 4.3(b) of these Bylaws and subject to Section 2.9 below;

(b) appoint one voting representative to the Technical Steering Committee if such Gold Member is otherwise not represented on the Technical Steering Committee, appoint one voting representative to each Member Committee other than the Technical Steering Committee (for example, a Marketing Committee, Finance Committee, etc.);

(d) all rights of the other classes of Voting Members set forth in Section 2.6.

Section 2.5, Privileges of Silver Membership

Each Silver Member shall be entitled, in addition to all other rights of a Member as provided by these Bylaws from time to time, to:

(a) such benefits, rights and privileges as the Board may from time to time designate for such class of Membership;

(b) to nominate an individual to run for election as a Director in accordance with Section 4.3(c) of these Bylaws and subject to Section 2.9 below and

Section 2.6, Privileges of Voting Members

Each Voting Member shall be entitled to:

(a) participate in all Working Groups;

(b) nominate its representative to participate in any Working Group in which it participates to be the chair of such Working Group;

(d) display the Foundation logo on such Member’s Web site and in other appropriate materials to indicate membership in the Foundation, subject to such guidelines relating to the Foundation’s trademarks as may from time to time be in force.

Section 2.7, Privileges of Individual/Academia/In-Kind Membership

The Board may from time to time approve written Membership Applications for Individual, Academia, or In-Kind Membership designated at the nominal level of Silver or Gold Membership but possibly with specified privileges added or restricted (e.g., designated as Gold Member but without privilege to run for election to the Gold Director seat, or Silver Member but without voting privileges). Such Membership Applications should also document in writing: (a) any contribution(s) being offered in-kind (e.g., reduced membership dues in exchange for equipment donated, services rendered, or assignment of dedicated developers and maintainers to projects); and (b) the terms for renewal, amendment and retirement of the membership.

Section 2.8, Participation

Participation in development projects under Working Groups sponsored by the Foundation shall not be limited to Members, but may be subject to such operating procedures and terms of participation and other rules as may from time to time be approved by the Board.

Section 2.9, Limitation on Participation by Related Entities

(a) Only the entity that has been accepted as a Voting Member of the Foundation and its Subsidiaries (as defined below) shall be entitled to enjoy the rights and privileges of such Membership; provided, however, that such Voting Member and its Subsidiaries shall be treated together as a single Voting Member except as otherwise provided in Section 2.9(b) below. For purposes of this Section, the term “Subsidiaries” shall mean all Related Companies (as defined in Section 2.9(c) below) that a Voting Member controls (as defined in Section 2.9(c) below).

(b) Only one entity which is part of a group of Related Companies (defined below) shall be entitled at one time to have a Director on the Board or vote on matters voted upon by the Voting Members; provided, however, that this limitation shall not apply to a Chair of a Working Group that is a representative of a Platinum Member who shall be entitled to serve as a member of the Technical Steering Committee, and the service of the Chair of the Technical Steering Committee on the Board of Directors (even though that the Platinum Member who has employed the TSC Chair is also represented on the Board by virtue of its right to appoint a Director under Sections 2.4(a) and 4.3(a)). If a Parent (as defined below) of a Voting Member applies to and becomes a Voting Member of the Foundation, then the Parent becomes the “Voting Member” for all purposes, and the Subsidiary of such Parent shall be entitled to enjoy the rights and privileges of such Parent’s Membership as provided in Section 2.9(a) above. Notwithstanding anything to the contrary contained herein, a Related Company of a Voting Member may join the Foundation as a Gold or Silver Member and be entitled to vote separately in elections of Gold or Silver Directors (respectively) in accordance with Section 4.3 below, but such Related Company shall not be entitled to nominate a representative to run for election to the Board. For avoidance of doubt, a Parent of a Member is not a “Related Company” and is not permitted to join as a separate Voting Member of the Foundation.

(c) For purposes of these Bylaws, the term “Subsidiary” shall mean any entity which is controlled by the Voting Member and the term “Related Company” shall mean any entity which is controlled by a Voting Member or which, together with a Voting Member, is under the common control by a third party. “Control” shall mean that one entity (the “Parent”) owns or controls, either directly or indirectly, more than fifty percent (50%) of the voting power of another entity (the Subsidiary), and each entity in which the Subsidiary owns, either directly or indirectly, more than fifty percent (50%) of the voting power of such subsidiary ad infinitum.

(d) Except with respect to Related Companies, if a Voting Member is a corporation, limited liability company, foundation, consortium, membership organization, user group or other entity that has stockholders, members or sponsors, then the rights and privileges granted to such Voting Member shall extend only to the employee-representatives of such Voting Member, and not to its stockholders, members, sponsors, etc., unless otherwise approved by the Board in a specific case from time to time.

(e) Memberships shall be non-transferable, non-saleable and non-assignable, except that any Voting Member may transfer its current Membership benefits and obligations to: (i) any entity within its same Control Group (as defined below) if the transferee qualifies for Membership in the transferring Voting Member’s class and the Board in its discretion permits such transfer, provided, however, that the transferor and transferee shall be and remain jointly and severally liable for any Financial Obligations of the transferring Voting Member; and (ii) an acquirer of all or substantially all of such Voting Member’s voting securities and/or assets, whether by merger, sale, operation of law or otherwise (such transferee (i) and/or (ii) shall be referred to as “Successor”). For the purpose of these Bylaws, the term “Control Group” shall mean all entities which are Controlled by a Voting Member, which Control a Voting Member, or which are also Controlled by this entity Controlling a Voting Member. The Successor shall be bound by the Membership Obligations of the acquired Voting Member and the Successor shall assume the rights, liabilities and obligations of the Voting Member which shall continue and be binding upon such Successor and shall inure to the benefit of the Foundation. In the event of a transfer within a Control Group where the Successor would be required to pay a higher dues amount than the transferor has already paid for the transferred class of Member, the Successor shall pay the difference on a pro-rated basis for the balance of the then current Membership term; however, under no circumstance shall a refund of any amounts already paid by the transferor to the Successor be due as a result of a transfer, and any amounts still owing by the transferor at the time of a transfer shall remain due and payable by the Successor. In the event of a transfer under (ii) above, if the Successor is also a Voting Member, then at the election of the Successor, either the Membership of the acquired Voting Member or the Membership of the Successor shall terminate effective upon closing of the acquisition; provided, however, the Membership Obligations of the acquired Voting Member shall continue and be binding upon such Successor and shall inure to the benefit of the Foundation.

Section 2.10, Additional Classes of Members

The conditions, privileges, powers, and voting rights (if any) of any class of Members may be changed, and one or more additional classes of Membership may be created, and the conditions, voting rights (if any), powers and privileges of each such class may be prescribed, by amendment to these Bylaws in accordance with Article XIV.

Section 2.11, Termination or Suspension of Membership

Any Member may be suspended from Membership or have its Membership terminated by the Board for failure to satisfy its Membership Obligations or for engaging, either within or without the Foundation, in any (1) wilful misconduct or otherwise acting to the material detriment of the best interests of the Foundation, or (2) conduct that is contrary to the Purposes of the Foundation or to the advancement of the Foundation’s business or industry goals, as reasonably determined by the Board. Financial Obligations already paid shall not be refundable upon any such termination or suspension, and all Financial Obligations of such Member which may be accrued and unpaid as of the date of such termination shall remain due and payable. Except as provided in the last paragraph of this Section 2.11, no termination or suspension of Membership for any other purpose shall be effective unless:

(a) The Member is given notice of the proposed termination or suspension of Membership and of the reasons therefor;

(b) Such notice is delivered personally or by certified mail, return receipt requested, or by a national or international overnight courier service, sent to the last address of the Member shown on the Foundation’s records;

(c) Such notice is given at least thirty days prior to the effective date of the proposed termination or suspension of Membership;

(d) Such notice sets forth a procedure determined by the Board (or other body authorized by the Board) to decide whether or not the proposed termination or suspension shall take place, whereby the Member is given the opportunity to be heard by such body, either orally (and represented by counsel if the Member so desires, at its sole cost and expense) or in writing, not less than five days before the effective date of the proposed termination or suspension; and

(e) Such termination or suspension of Membership is approved by Super Majority Vote (as defined in Section 4.10(b) below) of the Board.

Notwithstanding the foregoing, in the event that the Board reasonably believes in good faith that a Member is engaging, either within or without the Foundation, in any (1) wilful misconduct or otherwise acting to the material detriment of the best interests of the Foundation, or (2) conduct that is contrary to the Purposes of the Foundation or to the advancement of the Foundation’s business or industry goals, the Board, acting by Super Majority Vote, may suspend such Member’s Membership immediately, provided that such Member is otherwise afforded the protections provided for in subsections (a), (b) and (d) of this Section 2.11. Terminations or suspensions of Membership for failure to pay its Financial Obligations within 60 days of invoice may be imposed with notice and without right of formal appeal under the procedures set forth in Section 2.11 (d).

Section 2.12, Resignation by Member

A Member may resign as a Member at any time. Any Financial Obligations already paid by such Member shall not be refundable upon any resignation, including any resignation pursuant to Section 2.13 or 2.15 below, and all such Financial Obligations of such Member which may be accrued and unpaid as of such date shall remain due and payable.

Section 2.13, Levy of Dues, Assessments or Fees

The Foundation may levy dues, assessments or fees upon its Members in such amounts as may be approved from time to time by the Board, but shall provide at least thirty (30) days’ notice of such levy. For the avoidance of doubt, no such levy shall be effective until at least thirty (30) days have passed since the provision of notice. A Member upon learning of any increase in dues, or of any levy of any assessments or fees, may avoid liability therefor by resigning from Membership prior to the date such dues, assessments or fees are due and payable, except where the Member is, by contract with the Foundation or otherwise, independently and explicitly liable for such dues, assessments or fees. No provision of these Bylaws authorizing such dues, assessments or fees shall, of itself, create such liability. In no event shall the failure of a Member to pay any dues or assessments give rise to any claim in favor of the Foundation for indirect or consequential damages.

Section 2.14, Use of Names

Unless otherwise provided herein, neither the Foundation nor any Member shall use the name, logo, trademark, service mark or other mark of another Member in any form of publicity without the written permission of the other Member, provided that the Foundation and any Member may each disclose and publicize such Member’s Membership in the Foundation.

Section 2.15 Rights in Intellectual Property

The Voting Members and Board shall neither adopt, nor make any material change to any intellectual property rights policy of the Foundation or any other material policy or procedure of the Foundation governing intellectual property (individually and collectively, as the context requires, an “IP Policy”) without a Super Majority Vote, including a Platinum Director Vote as defined below. A “Platinum Director Vote” shall mean the following: (a) when the Foundation has one or two Platinum Directors, a vote of all Platinum Directors (b) when the Foundation has three Platinum Directors, a vote of two out of three Platinum Directors and (c) when the Foundation has four or more Platinum Directors, the vote of at least three quarters of all of the Platinum Directors. Such change may only become effective upon not less than sixty (60) days’ prior written notice to all Members of the effective date of such adoption or change, such that any Member may resign its Membership prior to the effective date of such amendment. The amendment of this provision shall also require a Super Majority Vote, including a Platinum Director Vote.

ARTICLE III

Section 3.1, Nomination and Election Procedures

Subject to the provisions of Section 4.3, the Board shall establish reasonable nomination and election procedures for the Directors elected by any class of Members, given the nature, size, and operations of the Foundation, including a reasonable means for Members of appropriate classes to nominate a person for election as a Director, a reasonable opportunity for a nominee to communicate to the Members the nominee’s qualifications and the reasons for the nominee’s candidacy (if requested by such nominee), a reasonable opportunity for all nominees to solicit votes (if requested by any such nominee), and a reasonable opportunity for all Members entitled to vote thereon to choose among the nominees.

Section 3.2, 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 or, if not determined by the Board, by the Chairperson of the Board, or the Executive Director; provided that the Board 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.

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

Section 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, (ii) the Chairperson, (iii) the Executive Director, (iii) two or more Gold Directors (v) two or more Platinum Directors, or (b) for a class of Members, (i) four members of the Board, (ii) the Chairperson, (iii) the Executive Director, (iv) for the Gold Member class, two or more of the Gold Directors, (v) for the Silver Member class, one or more of the Silver Directors, or (vi) 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.

Section 3.5, Notice of Meetings

(a) 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, 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.

(b) Written notice of the annual meeting of Silver 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 Silver Member entitled to vote at such meeting as of the record date fixed by the Board, 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 Silver 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 or a class 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 Member entitled to vote at such meeting as of the record date fixed by the Board, 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 electronic transmission. 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.

Section 3.6, Voting List

(a) The Secretary of the Foundation shall prepare at least thirty (30) days before each annual meeting of any class of Members a complete list of the Members of the relevant class entitled to vote at the meeting arranged in alphabetical order for the 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 Members who are currently Members and shall not include any Members who have resigned or been terminated. The Board 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.

Section 3.7, Quorum

Except as otherwise provided by law or these Bylaws, 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.

Section 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 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.

Section 3.9, Voting and Proxies

(a) Each Gold Member shall have one vote at any meeting of the Gold Members.

(b) 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.

Section 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. 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.

Section 3.11, Conduct of Business

At every meeting of the class of Members or the Members, the Chairperson, or, in his absence, such other person as may be appointed by the Board, 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.

Section 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. 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.

Section 3.13, Meetings by Remote Communication

If authorized by the Board, 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

Section 4.1 Powers, Voting

The business and affairs of the Foundation shall be managed by its Board.

Section 4.2 Number of Directors

Subject to Section 4.4, the total number of Directors shall be as follows: (a) up to eight Directors appointed by Platinum Members (“Platinum Director”) (b) up to five Directors elected by the Gold Members (when there are less than three Gold Members, up to two Gold Directors are appointed: the first Gold Director shall be appointed by the first Gold Member; and the second Gold Director shall be appointed by the second Gold Member) (c) up to three Silver Directors elected by the Silver Members, (d) up to two non-voting Community Directors appointed by the Board at its discretion, (e) one non-voting Director from the Technical Steering Committee, the TSC Director, and (f) one non-voting Director from the Product Steering Committee, the PSC Director. The Board shall comprise the Directors described in Section 4.3 below.

Section 4.3 Nomination, Election and Term of Office of Directors

(a) Each Platinum Member shall be entitled to appoint one Platinum Director.

(b) When the number of Gold Members is three or more, the Gold Directors shall be elected as follows. On the last day of May of each calendar year, the number of Gold Directors shall be determined by dividing the number of Gold Members by five and rounding down; provided that the number of Gold Directors shall never be less than two. The number of Gold Directors shall never be more than the total number of Platinum Directors less two (e.g., if the Foundation has five Platinum Directors, the number of Gold Directors cannot exceed three). Each Gold Member shall have the right to vote, together with the other Gold Members as a class, to elect the Gold Directors from the individuals nominated by the Gold Members. In the event of a tie vote, the Gold Director(s) shall be the nominee(s) from the Gold Member(s) with the earliest join date for their membership at the Gold tier. Each Gold Director shall serve until the earlier of June 30 of the calendar year following his election or until his or her successor shall be duly elected or until his or her earlier resignation or removal as provided in Section 4.3(i).

(c) On the last day of May of each calendar year commencing in 2015, the number of Silver Directors shall be determined by dividing the number of Silver Members by twenty and rounding down provided that the number of Silver Directors shall never be less than one. Each Silver Member shall have the right to vote, together with the other Silver Members as a class, to elect the Silver Directors from the individuals nominated by the Silver Members. In the event of a tie vote, the Silver Director(s) shall be the nominee(s) from the Silver Member(s) with the earliest join date for their membership. Each Silver Director shall serve until the earlier of June 30 of the calendar year following his election or until his or her successor shall be duly elected or until his or her earlier resignation or removal as provided in Section 4.3(i).

(d) If the Board chooses to appoint a Community Director, such non-voting Community Director may be appointed by the Board at any time. Each Community Director shall serve until the earlier of June 30 of the calendar year following his appointment or until his or her successor shall be duly appointed or until his or her earlier resignation or removal as provided in Section 4.3(d) and 4.3(i). The Board may choose to develop a procedure for receiving nominations of potential directors by the Individual/Academia Members.

(e) The Chair of the Technical Steering Committee (“TSC Chair”) shall automatically be a non-voting member of the Board for so long as he or she shall hold such position (“TSC Director”).

(f) The Chair of the Product Steering Committee (“PSC Chair”) shall automatically be a non-voting member of the Board for so long as he or she shall hold such position (“PSC Director”).

(g) Any Director nominated, appointed or elected by any class of Members, or by any Member, may, but shall not automatically, be re-nominated, re-appointed and/or re-elected for additional terms.

(h) Each Director shall hold office until the earliest to occur of the expiration of the term for which such Director was appointed or elected and such Director’s successor is appointed or elected, or until his or her earlier death, resignation or removal by the appointing Voting Member (or for the Community Director, the Board) or class of electing Voting Members. The Director’s term will also terminate as follows: (i) in the case of a Platinum Director, until the earlier of (A) expiration or termination of Membership of the Voting Member that appointed such Director or (B) the combination, by merger, acquisition or otherwise, of two Voting Members that each have members on the Board (disregarding for such purpose the TSC Director and PSC Director), upon which event the acquiring Member shall select which member of the Board shall resign, or (ii) in the case of Gold Directors and Silver Directors, until the earlier of (A) the vote by the class of Voting Members to replace such member (B) expiration or termination of Membership of the Voting Member that nominated such Director or (C) the combination, by merger, acquisition or otherwise, of two Voting Members that each have members on the Board (disregarding for such purpose the TSC Director and PSC Director), upon which event the acquiring Member shall select which member of the Board shall resign (iii) in the case of the TSC Director (A) his termination or resignation as TSC Chair or (B) expiration or termination of Membership of the Voting Member which employs the TSC Director (iv) in the case of the PSC Director (A) his termination or resignation as PSC Chair or (B) expiration or termination of Membership of the Voting Member which employs the PSC Director or (v) (A) if the number of Community Directors is two and the number of Platinum Directors is less than six, but more than three, the term of the most recently appointed Community Director shall terminate immediately without further action and (B) if the number of Platinum Directors is less than three, then the terms of all Community Directors shall terminate immediately without further action.

(i) The Board may approve from time to time such reasonable attendance and other requirements as it shall deem to be advisable to ensure that seats on the Board are held by active, contributing individuals. Such rules may provide that the Board may remove such Director by a majority of the Board at a regular or special meeting. For Platinum Directors, the Platinum Member appointing such Director must appoint a new individual to serve as a Director, for elected Directors, the class electing such Director shall elect a new individual and for Community Directors, the Board may appoint a new individual as a Community Director.

Section 4.4 Enlargement or Reduction

Subject to Section 2.10 above and Section 4.10 below, the number of Directors, the persons eligible to become Directors and the classes of Members eligible to appoint, elect and/or nominate Directors may be amended at any time by a Super Majority Vote and the Platinum Director Vote.

Section 4.5 Resignation and Removal

A Director may resign at any time by providing notice to the President 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 Director who is a Platinum Director may be removed by that Platinum Member at any time, and for any reason, or for no reason. Any or all of the Directors who were elected by a class of Members voting as a class or by the Board may be removed by a majority vote of such class of Members or the Board, respectively. Any Director may be removed by a Super Majority Vote of the other Directors then in office for engaging, either within or without the Foundation, in any (1) wilful misconduct or otherwise acting to the material detriment of the best interests of the Foundation, or (2) conduct that is contrary to the Purposes of the Foundation or to the advancement of the Foundation’s business or industry goals, as reasonably determined in good faith by such other Directors.

Section 4.6 Vacancies

(a) Vacancies on the Board occurring as a result of the death, resignation or removal of a Director who was (i) appointed by a Platinum Member shall be filled by an individual appointed by such Platinum Member (ii) elected by a class of Members shall be filled by an individual elected by a vote of such class of Members or (iii) appointed by the Board shall be filled by the Board. The term of a Director so appointed or elected shall be the unexpired portion of the term of the Director, if any, whom the Director so appointed or elected is replacing.

(b) In the event of a vacancy in the Board, the remaining Directors, except as otherwise provided by these Bylaws, may exercise the powers of the full Board until the vacancy is filled.

Section 4.7 Place of Meetings; Telephonic Meetings

The Board may hold meetings, both regular and special, either within or without the State of Delaware. Unless otherwise restricted by these Bylaws, members of the Board or of any Board Committee may participate in a meeting of the Board or of any Board Committee, as the case may be, by means of conference telephone, video conference equipment, or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.

Section 4.8 Regular Meetings

Regular meetings of the Board may be held on a scheduled basis at such time and at such place as shall from time to time be determined by the Board and communicated to the Directors; provided that any Director who is absent when such a determination is made shall be given prompt notice of such determination.

Section 4.9 Special Meetings

Special meetings of the Board may be called by the Chairperson, President, Secretary or on the written request of two or more Directors, or by one Director in the event that there is only one Director in office. Two business days’ notice to each Director, either personally or by telecopy, commercial delivery service, electronic transmission, or similar means sent to his or her business or home address, or three business days’ notice by written notice deposited in the mail, shall be given to each Director by the Secretary or by the Officer or one of the Directors calling the meeting. A notice or waiver of notice or any waiver by electronic transmission of a meeting of the Board need not specify the purposes of the meeting.

Section 4.10 Quorum, Action at Meeting, Adjournments

(a) At all meetings of the Board a majority of Directors then in office, shall constitute a quorum for the transaction of business and the act of a majority of such Directors present at any meeting at which there is a quorum shall be the act of the Board, except as may be otherwise specifically provided these Bylaws. Notwithstanding any other provision of these Bylaws (including, without limitation, Article XIV), until the number of Platinum Directors exceeds the number of Gold Directors by one (e.g., three Platinum Directors and two Gold Directors) or this provision is waived by a Platinum Director Vote, all actions by the Board will require a Platinum Director Vote.

(b) In order to pass a “Super Majority Vote”, a resolution must be taken at a meeting of the Board at which a quorum is present and in support of which two-thirds of the Directors present and participating (whether in person, by proxy or otherwise) have voted affirmatively. A Super Majority Vote of the Board and the Platinum Director Vote shall be required with respect to the following matters:

(i) Adopting or recommending to the Voting Members an agreement of merger or consolidation;

(ii) Approving or recommending to the Voting Members the sale, lease or exchange of all or substantially all of the Foundation’s property and assets;

(iii) Approving or recommending to the Voting Members the dissolution, liquidation or winding up of the Foundation or a revocation of any such dissolution, liquidation or winding up;

(iv) Enlarging or reducing the size of the Board;

(v) Amending or modifying the eligibility requirements for membership on the Board or the classes of Members eligible to appoint and/or elect Directors; and

(vi) Modification or elimination of any of the rights of the Platinum Member set forth in Section 2.3.

(c) Any amendment to the Bylaws that modifies Section 2.15 shall require a Super Majority Vote, including a Platinum Member Vote.

(d) If a quorum shall not be present at any meeting of the Board, a majority of the Directors present thereat may recess the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. In the event that one or more of the Directors shall be disqualified from voting at any meeting upon any matter, then the required quorum as it relates to the consideration of such matter shall be reduced by one for each such Director so disqualified.

(e) Meeting procedure and rules for deciding action shall be guided by the latest revision of Robert’s Rules of Order Newly Revised.

(f) Most prpl committee meetings are conducted by online video conferencing tools. From time-to-time, committees might deem it beneficial to record the audio and video from some of those meetings. Before starting any such recording, the Chair of the meeting must confirm by unanimous consent of the participants that the meeting can be recorded. The recording shall be made available to the participants as soon as practicable after the meeting.

Section 4.11 Action by Written Consent

Any action required or permitted to be taken at any meeting of the Board or of any Board Committee 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.

Section 4.12 Inspection Rights

Every Director shall have the absolute right at any time to inspect, copy and make extracts of, in person or by agent or attorney, all books, records and documents of every kind, and to inspect the physical properties of the Foundation.

Section 4.13 Fees and Compensation

Directors shall not receive any stated salary or reimbursements for their services as Directors; provided that, by resolution of a majority of the Board, the Foundation may reimburse Directors for expenses incurred while acting on behalf of the Foundation and/or expenses incurred in attending meetings of the Board, in such amounts as the Board may determine to be appropriate. Nothing herein contained shall be construed to preclude any Director from serving the Foundation in any other capacity as an Officer, agent, employee or otherwise, and receiving compensation therefor. The Directors may also approve reimbursement of expenses for members of Board Committees in connection with their service on such Board Committees.

ARTICLE V

Section 5.1 Executive Committee

The Board may create an Executive Committee, consisting of one or more Directors. The Board may designate one or more Directors as alternate members of such Executive Committee, who may replace any absent member at any meeting of such Executive Committee. The Executive Committee, subject to any limitations imposed by these Bylaws, statute and/or resolution adopted by the Board, shall have and may exercise all of the powers of the Board which are delegated to the Executive Committee from time to time by the Board; provided, however, that the Executive Committee shall have no authority with respect to:

(a) Approving any action which requires approval of the Voting Members;

(b) Filling vacancies on the Board;

(c) Fixing compensation of the Directors, Executive Director, and other employees for serving on the Board or on any Board Committee;

(d) Amending or repealing the Bylaws or adopting new Bylaws;

(e) Adopting a policy or amending or repealing any policy adopted by the Board;

(f) Amending or repealing any resolution of the Board which by its express terms requires action by the Board;

(g) Adopting an agreement of merger or consolidation;

(h) Recommend to the Voting Members the sale, lease or exchange of all or substantially all of the Foundation’s property and assets;

(i) Recommending to the Voting Members a dissolution of the Foundation or a revocation of a dissolution; and

(j) Taking any other action for which a vote of more than a simple majority of the Board is required by these Bylaws.

Section 5.2 Other Committees of the Board

The Board may create such nominating, audit, compensation and other Board Committees, each consisting of one or more Directors appointed by the Board, as the Board may from time to time deem advisable, to perform such general or special duties as may from time to time be delegated to any such Board Committees by the Board, subject to the limitations imposed by these Bylaws. No Committee shall have the power or authority to take any action which is prohibited to the Executive Committee by Section 5.1. Unless a Director objects, the Board may designate one or more Directors as alternate members of any Board Committees, who may replace any absent member at any meeting of such Board Committees, unless the Platinum Member objects in writing to a replacement of the Director appointed by such Platinum Member. Any such Board Committee or Board Committees shall have such powers, duties and name or names as may be determined from time to time by resolution adopted by the Board. Each Board Committee shall keep regular minutes of its meetings and make such reports to the Board as the Board may request.

Section 5.3 Meetings of Committees of the Board

Except as otherwise provided in these Bylaws or by resolution of the Board, each Board Committee may adopt its own rules governing the time and place of holding and the method of calling its meetings and the conduct of its proceedings and shall meet as provided by such rules, but unless otherwise provided by resolution of the Board or in such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these Bylaws for the conduct of the business of the Board.

Section 5.4 Term of Members of Committees of the Board

Each member of a Board Committee shall serve for such term as shall be established by the Board.

Section 5.5 Committees of the Members

(a) From time to time, the Board may establish Member Committees in addition to the Technical Steering Committee (as described in paragraph (b) below). Unless otherwise specified in these Bylaws or by the Board, each Member Committee may have such Working Groups as from time to time may be approved by such Member Committee, within the strategic direction established by the Board.

(b) A Technical Steering Committee (TSC) of the Foundation shall be established consisting of (i) the Chair and Vice Chair of each Working Group; (ii) a representative of each Platinum Member who does not otherwise have a representative from such Platinum Member; (iii) a representative of each Gold Member who does not otherwise have a representative from such Gold Member; and (iv) the chairperson of the TSC Chair. The TSC Chair must be an employee of a Platinum Member that is not a Service Provider. His term shall terminate if his employer ceases to be a Platinum Member. The Technical Steering Committee shall have authority to create Working Groups, to amend the charters of Working Groups, to oversee the activities of Working Groups, and to retire Working Groups. The operations of the Technical Steering Committee shall be governed by the rules of process of the Technical Steering Committee as from time to time approved by the Board. The TSC Chair shall initially be appointed by the Board. The initial term of the TSC Chair shall be two (2) years. After the initial term, the TSC Chair shall be elected annually by a majority vote of the TSC members. The TSC Chair may be re-elected for additional terms without limit. The Technical Steering Committee shall be under the leadership of the TSC Chair.

(c) A Product Steering Committee (PSC) of the Foundation shall be established. The Board may allow the PSC to approve Working Groups, within the strategic direction established by the Board. To maintain focus on the needs of Service Providers, the PSC Chair shall rotate between all Service Providers at the Gold or Platinum membership level, with rotation increments at least annually, and the subsequent PSC Chair, decided by vote among them. The PSC is to meet at least every three months to produce non-technical Requirements documents that advise the direction for the foundation’s products and roadmap. Approval of such non-technical Requirements requires at least 80% majority vote before submission to the Board with a carbon copy to the TSC Chair. Any member may join and attend, but voting is restricted as follows. Gold members have one vote, while Platinum members have two votes. Other members may attend as non-speakers, unless speaking rights are granted by simple majority approval of voting members. Notification shall be provided to all eligible members, so that they may join and attend from the outset. Non-member “Liaisons” may be invited to attend for a limited period up to 6 or 12 months, upon simple majority vote. Liaisons may speak, upon simple majority vote. Liaisons, upon unanimous approval, may vote in non-procedural motions. Liaisons can be relieved at any time by a simple majority vote.

ARTICLE VI

Section 6.1 Officers

The Foundation shall have a Chairperson or a President, and may have both (each of which shall be a Platinum Director, unless no Platinum Director is willing to be nominated to such position), a Treasurer and/or a Secretary (each of whom shall also be a Director, unless no Director is willing to be nominated for such position). The Foundation may also have, at the discretion of the Board, an Executive Director, one or more Vice-Presidents, one or more Assistant Secretaries and/or Assistant Treasurers, and such other Officers with such titles, terms of office and duties as may be elected in accordance with the provisions of Section 6.3. If elected, the Chairperson shall preside over meetings of the Board.

Section 6.2 Vacancies

A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in these Bylaws for regular elections to such office and may be filled by the Board, at its discretion.

Section 6.3 Election

The Board shall elect officers at its initial meeting as it shall deem appropriate. Other Officers may be elected by the Board at any such meeting, and any or all Officers may be replaced, at any other meeting of, or by written consent of, the Board.

Section 6.4 Tenure

Each Officer of the Foundation shall hold office until his or her successor is elected, unless a different term is specified in the vote choosing or electing him, or until his or her earlier death, resignation or removal. Any Officer elected by the Board may be removed at any time by the Board or a Board Committee duly authorized to do so. Any Officer may resign by delivering his or her written resignation to the Secretary at its principal place of business. 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.

Section 6.5 President and Executive Director

(a) A President shall have all of the powers normally associated with the role of chief executive officer and preside at all meetings of the Board in the absence of a Chairperson and the Members. The President shall oversee the management of the business of the Foundation and see that all orders and resolutions of the Board are carried into effect.

(b) The Executive Director (if any) shall preside over the day-to-day affairs of the Foundation under the direction of the Board and the President and perform such other duties and have such other powers as the Board or the President may from time to time prescribe.

Section 6.6 Compensation

The compensation, if any, of the Officers shall be budgeted and fixed from time to time by the Board, and no Officer shall be prevented from receiving such compensation by reason of the fact that the Officer is also a Director of the Foundation.

ARTICLE VII

Section 7.1 Delivery

(a) Whenever these Bylaws require that written notice shall be given to any Director or Member, such notice may be given by email or other electronic means approved by the Board for that purpose, addressed to such Director or Member at his, her or its address as it appears on the records of the Foundation. Notice given pursuant to this Section shall be deemed given upon transmission to such address.

(b) Without limiting the foregoing, the Foundation adopts electronic mail as its principal source of communication with its Members. Each Member acknowledges and agrees that the Foundation shall not be under any obligation (except as required by these Bylaws) to send any notice to any Member by any means other than electronic mail, and it is therefore the responsibility of each Member to avail itself of and make such arrangements as may be necessary to receive notice in such fashion.

Section 7.2 Waiver of Notice

Whenever any notice is required to be given under the provisions of these Bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, or a waiver by electronic transmission by the person entitled to notice, shall be deemed equivalent thereto.

ARTICLE VIII

Section 8.1 Indemnity for Actions on Behalf of the Foundation

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 this Section 8.1, 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.

Section 8.2 Right of Claimant to Bring Suit.

If a claim under Section 8.1 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 defence 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, 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, independent legal counsel or its Members) that the claimant has not met such applicable standard of conduct, shall be a defence 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.

Section 8.3 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 Section 8.3 with respect to the indemnification of and advancement of expenses to directors and officers of the Foundation.

Section 8.4 Non-Exclusivity of Rights.

The rights conferred on any person in this Section 8.4 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.

Section 8.5 Indemnification Contracts.

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

Section 8.6 Advance Payment

Expenses incurred in defending a civil or criminal action, suit or proceeding shall be paid by the Foundation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of any person described in said Section to repay such amount if it shall ultimately be determined that he or she is not entitled to indemnification by the Foundation as authorized in this Article VIII.

Section 8.7 Non-Exclusivity

The indemnification and advancement of expenses provided by, or granted pursuant to, the other Sections of this Article VIII shall not be deemed exclusive of any other rights to which those provided indemnification or advancement of expenses may be entitled under any Bylaw, agreement, vote of disinterested Directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office.

Section 8.8 Insurance

The Board may purchase and maintain insurance on behalf of any person who is or was a Director, Officer, employee or agent of the Foundation, or is or was serving at the request of the Foundation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Foundation would have the power to indemnify him or her against such liability under the provisions of this Article VIII.

Section 8.9 Continuation of Indemnification and Advancement of Expenses

The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall continue as to a person who has ceased to be a Director, Officer, employee or agent of the Foundation and shall inure to the benefit of the heirs, executors and administrators of such a person.

Section 8.10 Severability

If any word, clause or provision of this Article VIII or any award made hereunder shall for any reason be determined to be invalid, the provisions hereof shall not otherwise be affected thereby but shall remain in full force and effect.

Section 8.11 Intent of Article

The intent of this Article VIII is to provide for indemnification and advancement of expenses to the fullest extent permitted under the laws of the State of Delaware. To the extent that such Section or any successor section may be amended or supplemented from time to time, this Article VIII shall be amended automatically and construed so as to permit indemnification and advancement of expenses to the fullest extent from time to time permitted by law.

ARTICLE IX

Section 9.1 Books and Records

The Foundation shall keep adequate and correct books and records of account, minutes of the proceedings of the Members, the Board and Board Committees, and a record of the Members giving their names and addresses and the class of Membership held by each.

Section 9.2 Record Date

In order that the Foundation may determine the Members entitled to express consent to corporate action in writing without a meeting, or the Members entitled to receive payment of any distribution, if any, permitted by the Foundation’s then current federal and state tax status, or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of Membership or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which shall not be (i) more than sixty (60) days prior to the adoption of the resolution by the Board and (in the case of consent to corporate action in writing without a meeting) the date upon which such written consent is delivered to the Members, nor (ii) later than the date upon which the Board adopts the resolution proposing the taking of such action. In the absence of such a determination, the record date shall be at the close of business on the day on which the Board adopts the resolution proposing the taking of such action.

Section 9.3 Registered Members

The Foundation shall be entitled to recognize the exclusive right of a person registered on its books as a Member or a representative of a Member to receive distributions, if any, and to vote, if such records indicate that such person is a Voting Member or a representative of a Voting Member, and to hold liable for Financial Obligations each Member registered on its books, and shall not be bound to recognize any equitable or other claim to or interest in Membership on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the Delaware General Corporation Law.

ARTICLE X

Section 10.1 Transactions with Interested Parties

No contract or transaction entered into on behalf of the Foundation with one or more of its Directors or Officers, or on behalf of the Foundation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers of the Foundation, or have a financial interest, shall be void or voidable solely for this reason, or solely because such Director or Officer (or other 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 his, her or their votes are counted for such purpose, if:

(a) The material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the Board or such Board Committee, and the Board or such Board Committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested Directors, even though the disinterested Directors be less than a quorum; or

(b) The material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the Voting Members entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the Voting Members; or

(c) The contract or transaction is fair as to the Foundation as of the time it is authorized, approved or ratified, by the Board, a Board Committee, or the Voting Members.

Common or interested Directors may be counted in determining the presence of a quorum at a meeting of the Board or Board Committee that authorizes the contract or transaction.

ARTICLE XI

Section 11.1 Grants

The making of grants and contributions, and otherwise rendering financial assistance for the Purposes of the Foundation, may be authorized by the Board. The Board may authorize any Officer or Officers, agent or agents, in the name of and on behalf of the Foundation to make any such grants, contributions or assistance.

Section 11.2 Execution of Contracts

The Board may authorize any Officer, employee or agent of the Foundation, in the name and on behalf of the Foundation, to enter into any contract or execute and satisfy any instrument, and any such authority may be general or confined to specific instances, or otherwise limited. In the absence of any action by the Board to the contrary, the President shall be authorized to execute such contracts and instruments on behalf of the Foundation, but must inform the Board of any such actions.

ARTICLE XII

Section 12.1 Fiscal Year

The fiscal year of the Foundation shall initially end on June 30, subject to change at any time by resolution of the Board.

Section 12.2 Reserves

The Directors may set apart out of any funds of the Foundation a reserve or reserves for any proper purpose and may abolish any such reserve.

Section 12.3 Proprietary Rights

(a) Except as specifically provided to the contrary in such policies and procedures as may from time to time be approved by the Board, all information disclosed by any participant during any official meeting or activity of the Foundation, including but not limited to Member meetings, Member Committee Meetings, Board meetings, and meetings of Board Committees, electronic mail or the like, shall be deemed to have been disclosed on a non-confidential basis, but without waiver of any rights represented by valid patents and copyrights.

(b) No express or implied right, whether by implication, estoppel, or otherwise, to any patent, copyright, trademark, trade secret, or other intellectual property right of any Member is or shall be deemed to be granted to the Foundation, or to any other Member by reason of its Membership in or participation in the activities of the Foundation, except as may be provided in a separate written agreement.

(c) No Member shall at any time be required to exchange proprietary information with any other Member solely by reason of its being a Member of the Foundation.

ARTICLE XIII

Section 13.1 General

The Foundation desires its activities to conform to all international, U.S. federal and state antitrust laws and competition laws. The Board and the President shall consult legal counsel and seek legal review whenever necessary to ensure that the activities of the Foundation are conducted in conformance with such laws.

Each of the Members of the Foundation is committed to fostering competition in the development of new products and services, and the activities of the Foundation are intended to promote such competition. Each Member acknowledges that it may compete with other Members in various lines of business and that it is therefore imperative that they and their representatives act in a manner that does not violate any applicable antitrust laws or regulations. Without limiting the generality of the foregoing, Members that are competitors shall not discuss with one another issues relating to their product and marketing costs, product pricing, methods or channels of product distribution, any division of markets, territories or customers.

Each Member shall assume responsibility to provide appropriate legal counsel to its representatives acting under these Bylaws regarding activities and discussions of the Foundation or members thereof in furtherance of the Foundation’s purposes.

Section 13.2 No Obligation to Endorse

No Member shall, by reason of its Membership or participation in the Foundation or otherwise, be obligated to license from the Foundation, use or endorse any intellectual property developed or endorsed by the Foundation, or to conform any of its products to any architectures developed or adopted by the Foundation, nor shall any such Member be precluded from independently licensing, using or endorsing similar intellectual property, platform, software, specifications or documentation developed by it or by others. No provision of these Bylaws or the Membership Agreement shall be interpreted to prevent any Member from using any technology or platform other than the Platform technology, or from engaging in other activities or business ventures, independently or with others, whether or not competitive with the activities contemplated herein or those of any Member.

ARTICLE XIV

Except where such power is expressly limited by these Bylaws as to any specific action, including without limitation, provisions of these Bylaws requiring a special vote for amending or repealing, these Bylaws may be altered, amended or repealed, and new Bylaws may be adopted by an affirmative vote of a Super Majority Vote. In addition to any other approval, the amendment or repeal of the following provisions shall require a vote of the majority of the Platinum Members: Sections 2.3, 2.15, 4.2, 4.3(a) and Article XIV. In addition to any other approval, the amendment or repeal of the following provisions shall require a vote of the majority of the Gold Members: Sections 2.4 and 4.3(b). In addition to any other approval, the amendment or repeal on the following provisions shall require a vote of the majority of the Silver Members: Sections 2.5, and 4.3(c). In addition to any other approval, the amendment or repeal of the following provisions shall require a vote of the majority of (a) the Platinum Members (b) Gold Members and (c) the Silver Members: Sections 2.6, 2.9, 2.10, 2.11, 4.10(b) and Articles III and VIII