The Apache Software Foundation Board of Directors Meeting Minutes 27 April 1999 1. Call to order The meeting was held via a group teleconference hosted by IBM. The meeting was called to order at 10:07am PDT -0700, with Roy T. Fielding presiding. 2. Roll Call A quorum was present, including: Brian Behlendorf, Roy. T Fielding, Ben Hyde, Jim Jagielski, Ben Laurie, Sameer Parekh and Randy Terbush. Ken Coar "arrived" late. Dirk-Willem van Gulik was unable to attend. Guests: Drew Wright (counsel) 3. Minutes Minutes of the last meeting, available at: apachegroup-site/board/minutes/board_minutes_1999_04_13.txt were approved via unanimous consent. 4. Officer Reports A. President. [Brian] Brian reported in the status of our search for addition counsel. As of the date of the meeting, he had not found any lawyers available for pro-bono work. Brian reported that he still had a few "leads" available. A discussion was held concerning possibly drafting a project description for this additional counsel and what resources or services ASF could offer in payment. B. Treasurer. [Randy] Randy reported that the formal Band and Merchant account for the ASF has been created with the National Bank of Commerce, 1248 O Street, Lincoln, NE 68508. This bank allowed for accounts to be opened with no balance and there are no fees for non-profit organizations. This effort will further be detailed in Agenda Item 6.A. Randy will distribute signature cards to the above named officers for their signature and return. C. Secretary. [Jim] Jim reported that he had the capability to generate PDF files from other file formats. It was generally agreed that use of PDF files for minor documents was not worth the effort. 5. Committee Reports A. Apache Conferences Committee. [Ken] At the time this report was due, Ken was not available. It was tabled until the time that he joined the conference. AT THAT TIME, Ken reported that he had received, in Microsoft Word format, the latest proposal from LKE regarding ApacheCon. As of the date of the meeting, he had not had the opportunity to read the proposal. It was agreed to by all that Ken should forward the proposal to the Conference Committee, for their review and comments, and to the "core" team members for their information. 6. Special Orders A. Banking Resolutions RESOLVED, that the Corporation open one or more deposit accounts with the National Bank of Commerce, 1248 O Street, Lincoln, NE 68508 (the "Bank"); and be it further RESOLVED, that the officers named immediately below are authorized to sign checks and other orders for the withdrawal of funds from each such account in accordance with this resolution. Name Title Brian Behlendorf President Jim Jagielski Executive Vice-President and Secretary Randy Terbush Treasurer NOW THEREFORE, BE IT FURTHER RESOLVED, that the issuance of checks or other orders for the withdrawal of funds from such accounts in excess of US$5,000 or its equivalent (except for checks between Corporation accounts) shall require the signatures of two of the above-named authorized officers of the Corporation; and be it further RESOLVED, that the standard form of banking resolutions provided by the Bank, reflecting the above signatory requirements as to each such account, hereby are in all respects approved, ratified and adopted with respect to each such account with the Bank, and the officers of the Corporation are hereby authorized and directed to certify to the Bank the approval, ratification and adoption of said resolutions and to file a true copy of the same in the minute book of the Corporation immediately following this Consent, and to execute such other documents and take such other actions as may be necessary in connection with the opening of each such account; The above RESOLUTIONS have been incorporated into apache-core/director-consent.txt B. Appointing additional responsibilities to officers and/or non- officers. 1) director of public relations 2) director of membership relations The proposal was to assign the above responsibilities to present members. It was generally agreed that, at the present time, the assignments were premature due to (a) the desire of ASF to avoid the appearance of a "top heavy" foundation and (b) to wait until more projects and efforts are "folded" into ASF, giving these new people the opportunity for these responsibilities. C. Issues regarding the membership application form Roy has proposed that the license grant part of the membership application form be dropped in favor of a general contributor license form to be filled-out independent of the membership process. Also requires a few changes to the director consent resolutions. The idea was to make it easier for people to submit code and patches without their employers approval and authorization. The discussion was raised concerning the changes in apache-core/membership-application.txt in which the text which required the submitter to check 'Yes' or 'No' regarding their desire to become a member of ASF was changed to: "I have read and understand the Bylaws of The Apache Software Foundation and I wish to become a member in accordance with those Bylaws." There was concern about the possibility of ASF "declaring" people as Emeritus Members, since membership itself is something which must have been requested by the individual. It was generally agreed that all Emeritus members of the Apache Group would be asked if they would like membership in ASF and, if so, if they would desire active or Emeritus membership. The amended membership-application.txt (Exhibit A) was then approved by general consent: RESOLVED, that the Membership Application attached hereto as Exhibit A be and hereby are in all respects approved and adopted as the Membership Application of this Corporation, and said Application shall be made a part of the minute book of the Corporation along with these minutes. The Contributor License was further discussed regarding the form and format of the actual text and who would be required to sign the form. Drew's intention was that only the "core" members of ASF be required to sign and that for the "patch submitter," a simpler "point and click" consent, with text to the effect that "I, the submitter, agree and am authorized to submit this patch", would be for such interfaces as the Bug Database. The Board agreed to further refine the license and consider the best implementation for "day to day" development of The Apache Works. D. Adoption of the license agreement form (license-grant.txt) The issue was raised over whether Emeritus or active Apache Group members would decline to sign the license agreement form. Drew's comments were that the form is designed to transfer the license and code of Apache from the Apache Group to the ASF. It was generally agreed to add the clarifiation of "current or former" to the designation of the Apache Group member statement. The amended License Agreement Form (Exhibit B) was then approved by general consent: RESOLVED, that the License Agreement Form attached hereto as Exhibit A be and hereby are in all respects approved and adopted as the License Agreement Form of this Corporation, and said Form shall be made a part of the minute book of the Corporation along with these minutes. E. Adoption of the trademark assignment form (trademark-assignment.txt) See Next Agenda Item: F F. Adoption of the equipment use letter (equipment-use-letter.txt) Assets/Trademarks to be transfered from The Apache Group to The Apache Software Foundation (ASF) were discussed. Only Brian and Randy had such assets/trademarks to be transfered. Brian has the actual physical hardware, Randy has the Apache "feather" trademark and the various Apache domain names. Randy was concerned about the wording of the tranfer documentation; his concern was that it provided no protection from future suits brought against ASF or himself for possible trademark iinfringement issues. Drew's comments clarified the meaning of the documentation, which does, in fact, provide such protection. In essence, when the ASF takes over trademarks, it also "takes over" possible damages as well. The Equipment Use Letter (Exhibit C) was then approved by general consent: RESOLVED, that the Equipment Use Letter attached hereto as Exhibit C be and hereby are in all respects approved and adopted as the Equipment Use Letter of this Corporation, and said Letter shall be made a part of the minute book of the Corporation along with these minutes. The Trademark Assignment form (Exhibit D) was then approved by general consent: RESOLVED, that the Trademark Assignment form attached hereto as Exhibit D be and hereby are in all respects approved and adopted as the Trademark Assignment form of this Corporation, and said Form shall be made a part of the minute book of the Corporation along with these minutes. G. Adoption of the bill-of-sale/assignment form (BOS-and-assignment.txt) The Bill-of-sale/Assignment form (Exhibit E) was then approved by general consent: RESOLVED, that the Bill-of-sale/Assignment form attached hereto as Exhibit E be and hereby are in all respects approved and adopted as the Bill-of-sale/Assignment form of this Corporation, and said Form shall be made a part of the minute book of the Corporation along with these minutes. H. Appointment of a Vice Chairman of the Board It was generally agreed that the President serves under this function. I. Set dates for next two Board meetings The next board meeting is scheduled for Thursday, May 13, 1999 from 10:00am PDT to 12:00pm PDT. The following meeting is tentatively scheduled for Thursday, May 27, 1999 from 10:00am PDT to 12:00pm PDT, depending on the availability of Dirk. 7. Unfinished Business Brian stated that he was continuing the effort in the "reorganization" of the non-public groups and domains. The question was raised as to exactly when ASF was an "official" incorporation. Drew stated that at the point in time when all members have signed and submitted the Membership Application and the Member Consent, and when all board members have signed and submitted the Director Consent, ASF will officially exist. The possibility of using IRC instead of teleconferencing was suggested. It was generally agreed to "hold off" on this effort. 8. New Business 9. Announcements It was announced by Roy that he was leaving on vacation on Thursday, April 29. It was anticipated that the final forms for the incorporation of ASF would be available by then for him to sign. 10. Adjournment The meeting was adjourned at 12:00pm PDT -0700. ==================== Exhibit A: Member Application ==================== The Apache Software Foundation Membership Application Thank you for your interest in The Apache Software Foundation (the "Foundation"). To apply for membership, please complete this application and send it by facsimile to the Foundation at +1-410-803-2258, or send a photocopy by regular mail to The Apache Software Foundation, 1901 Munsey Drive, Forest Hill, MD 21050-2747, U.S.A. Please read this document carefully before signing and keep the original for your records. Full name: ___________________________ Mailing Address:___________________________ Telephone: ___________________ ___________________________ ___________________________ Facsimile: ___________________ ___________________________ Country:___________________________ E-Mail: ___________________ Membership in the Foundation carries certain responsibilities. Your membership is conditioned upon your acceptance of the Foundation's Bylaws (available at ). I have read and understand the Bylaws of The Apache Software Foundation and I wish to become a member in accordance with those Bylaws. Please sign: ________________________________ Date: _____________________ ==================== Exhibit B: License Agreement Form ==================== License Agreement This License Agreement is entered into as of the ___ day of ____________, 1999 by ________________, a resident of _________________ ("Licensor") in favor of The Apache Software Foundation, a Delaware nonstock membership corporation (the "Foundation"). WHEREAS, Licensor is a current or former "core member" of The Apache Group (the "Group"), an unincorporated association of persons maintaining and collaborating on an open-source software project known as "The Apache HTTP Server Project" (the "Project"); WHEREAS, the Foundation has been organized by "core members" of the Group for the purpose of assuming all rights and obligations associated with the Project; and WHEREAS, Licensor desires to grant the Foundation sufficient rights to the software code base associated with the Project to facilitate the assumption by the Foundation of the Project. NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt and legal sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: 1. Licensor hereby grants to the Foundation a non-exclusive, irrevocable, worldwide, no-charge, royalty-free, transferable copyright license to use, execute, prepare derivative works of, and distribute (i) Licensor's past and present contributions of software code, documentation and other materials to the Project, and (ii) all software code, documentation and other materials associated with the Project (the "Apache Works") as a whole, including portions contributed by other persons, and to authorize others to do the same. Licensor is effecting the forgoing license grant both as an individual contributor with respect to Licensor's contributions, and as a co-author of the Apache Works as a whole, with the right to grant the forgoing unrestricted license. In addition, without limiting the generality of the forgoing license grant with respect to the Apache Works, Licensor also hereby provides the Foundation with a license to the Apache HTTP Server, consituting a portion of the Apache Works, from all of its contributors under the terms and conditions of the license attached hereto as Exhibit A. 2. Licensor represents that he is legally entitled to grant the above license and that, except as disclosed with his contributions to the Program, such contributions were his original creation(s). Licensor agrees to notify the Foundation of any facts or circumstances of which Licensor becomes aware and which makes or would make Licensor's representations in this License Agreement inaccurate in any respect. 3. This license is provided AS-IS, without warranty of any kind (either express or implied) including, without limitation, any implied warranty of merchantibility and fitness for a particular purpose and any warranty of non-infringement. IN WITNESS WHEREOF, Licensor has executed this License Agreement as of the date first written above. GRANTOR: By: ________________________________ Print Name: _________________________ Exhibit A License to the Apache HTTP Server /*==================================================================== * Copyright (c) 1995-1999 The Apache Group. All rights reserved. * * Redistribution and use in source and binary forms, with or without * modification, are permitted provided that the following conditions * are met: * * 1. Redistributions of source code must retain the above copyright * notice, this list of conditions and the following disclaimer. * * 2. Redistributions in binary form must reproduce the above copyright * notice, this list of conditions and the following disclaimer in * the documentation and/or other materials provided with the * distribution. * * 3. All advertising materials mentioning features or use of this * software must display the following acknowledgment: * "This product includes software developed by the Apache Group * for use in the Apache HTTP server project (http://www.apache.org/)." * * 4. The names "Apache Server" and "Apache Group" must not be used to * endorse or promote products derived from this software without * prior written permission. For written permission, please contact * apache@apache.org. * * 5. Redistributions of any form whatsoever must retain the following * acknowledgment: * "This product includes software developed by the Apache Group * for use in the Apache HTTP server project (http://www.apache.org/)." * * THIS SOFTWARE IS PROVIDED BY THE APACHE GROUP ``AS IS'' AND ANY * EXPRESSED OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE * IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR * PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE APACHE GROUP OR * ITS CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, * SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT * NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; * LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) * HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, * STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) * ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED * OF THE POSSIBILITY OF SUCH DAMAGE. *==================================================================== * * This software consists of voluntary contributions made by many * individuals on behalf of the Apache Group and was originally based * on public domain software written at the National Center for * Supercomputing Applications, University of Illinois, Urbana-Champaign. * For more information on the Apache Group and the Apache HTTP server * project, please see . * */ ==================== Exhibit C: Equipment Use Letter ==================== ___________, 1999 The Apache Software Foundation 1901 Munsey Drive Forest Hill, MD 21050-747 US Re: Use of Equipment and/or Services Gentlemen: I have volunteered to provide The Apache Software Foundation (the "Foundation") use of certain equipment, space and/or services. I am writing to outline our mutual responsibilities to ensure that this arrangement will not create a misunderstanding or conflict in the future. This letter supersedes any prior letter between us concerning this arrangement. I will be providing the Foundation with use of the equipment, space and/or services listed in Exhibit A to this letter. This arrangement is a simple, revocable, at-will license, and is not a lease. I cannot guarantee that this license will continue uninterrupted during its term. For example, business plans may require interruptions arising from relocation of the equipment, and may require assignment of alternative space for the Foundation. In addition, outages, whether for the maintenance or modification of the equipment or otherwise, may require interruption of the Foundation's license. Any equipment, space and services provided are provided on an as-is basis, without warranty of any kind. I may find it advisable to terminate this license in the future and may so terminate this license in my sole discretion. Although I intend to notify the Foundation of changes whenever possible, I am not required to provide any notice. Please note that any equipment of the Foundation located in any space provided hereunder will not be covered by any insurance maintained by me, and I cannot assume responsibility for any damage to such equipment (including damage from my relocation of such equipment) except damage caused by my willful conduct or gross negligence. I strongly recommend that the Foundation maintain insurance on such equipment. This letter is intended to set our expectations and minimize the potential for misunderstandings and conflict. If the above is consistent with the Foundation's understanding and the Foundation is in agreement, please execute this letter in the space provided below and return it to me for my files. Sincerely, Agreed and accepted: THE APACHE SOFTWARE FOUNDATION By: ________________________________ Print Name: _________________________ Title: _______________________________ Exhibit A List of Equipment, Space and/or Services [To be provided] ==================== Exhibit D: Trademark Assignment form ==================== TRADEMARK ASSIGNMENT WHEREAS, _________________, a resident of ____________ ("Member"), as a "core member" of The Apache Group (the "Group"), an unincorporated association of persons maintaining and collaborating on an open-source software project known as "The Apache HTTP Server Project" (the "Project"), has certain rights to, has adopted, used and is currently using in connection with the business of the Group and the Project the "Apache", "Apache Server", "Apache HTTP Server" and "Apache Group" trademarks (the "Trademarks"); WHEREAS, The Apache Software Foundation, a Delaware nonstock membership corporation (the "Foundation"), has been organized by the "core members" of the Group for the purpose of assuming all rights and obligations associated with the Project; and WHEREAS, the Foundation desires to acquire all right, title and interest Member has to the Trademarks, and Member desires to transfer all such right, title and interest in and to the Trademarks to the Foundation. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Member by these presents does sell, assign and transfer unto the Foundation and its successors and assigns, Member's entire right, title and interest, including all registrations thereof and all common law rights, in and to the Trademarks, along with the goodwill of the business in connection with which the Trademarks are used, together with all claims for profits and damages by reason of past infringement, if any, of the Trademarks, with the right to sue for and collect the same for the Foundation's own use and advantage and for the use and advantage of the Foundation's successors, assigns or other legal representatives. Member covenants that he will do or cause to be done all such further acts, and shall execute and deliver, or cause to be executed and delivered, all deeds, transfers, assignments, conveyances, evidences of title, notices, powers of attorney, and assurances necessary or desirable to better assure and confirm the Foundation's title to the Trademarks. This Assignment shall be deemed to be effective as of and from the day hereof. IN WITNESS WHEREOF, Member has executed this as of this ___ day of ________, 1999. By: ________________________________ Print Name: _________________________ ==================== Exhibit E: BOS and Assignment form ==================== BILL OF SALE AND ASSIGNMENT AND ASSUMPTION AGREEMENT THIS BILL OF SALE AND ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement") is made effective as of the ___ day of _______, 1999, by and between ____________, a resident of _________________ ("Grantor"), and The Apache Software Foundation, a Delaware nonstock membership corporation ("Grantee"). P R E A M B L E WHEREAS, Grantor is a "core member" of The Apache Group (the "Group"), an unincorporated association of persons maintaining and collaborating on an open-source software project known as "The Apache HTTP Server Project" (the "Project"); WHEREAS, Grantee has been organized by the "core members" of the Group for the purpose of assuming all rights and obligations associated with the Project; and WHEREAS, Grantee desires to acquire all right, title and interest Member has to the assets and contract rights listed in Exhibit A (the "Assets"), and Member desires to transfer all such right, title and interest in and to the Assets to Grantee. NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt and legal sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: 1. Bill of Sale and Assignment. (a) Grantor does hereby sell, transfer, convey, assign and deliver to Grantee, and its successors and assigns, all of its rights, title and interest in and to each and all of the Assets; provided, however, as to any lease, contract, agreement, permit or other authorization included in the Assets which cannot be sold, transferred, conveyed, assigned or delivered effectively without the consent of a third party, which consent has not been obtained, this Agreement shall be of no force or effect until such requisite consent is obtained, whereupon this instrument shall become of full force and effect with respect thereto. (b) Grantor hereby constitutes and appoints Grantee the true and lawful attorney of Grantor, with full power of substitution, in Grantor's name and stead or otherwise, for the account and benefit of Grantee: (i) to demand and receive from time to time any and all of the Assets; (ii) to give receipts and releases for and in respect of the Assets or any part thereof; and (iii) to give any notices and to do all acts and things in relation to the Assets as Grantee shall deem desirable including, without limitation, executing any and all legal or administrative documents or proceedings to assert or enforce any claim, right, or title in or to any of the Assets. 2. Assumption of Liabilities. Grantee hereby assumes and agrees to pay, perform and discharge each and all of the obligations of Grantor under each lease, contact, agreement, permit or other authorization included in the Assets in accordance with the terms thereof; provided, however, as to any lease, contact, agreement, permit or other authorization included in the Assets which cannot be sold, transferred, assigned, conveyed or delivered effectively without the consent of a third party, which consent has not been obtained, this Agreement shall be of no force or effect until such requisite consent is obtained, whereupon this Agreement shall become of full force and effect with respect thereto. Nothing contained herein shall require Grantee to perform, pay or discharge any obligations assumed hereunder as long as Grantee in good faith shall contest the amount or validity thereof. Other than specifically stated herein, Grantee assumes no obligations of Grantor. IN WITNESS WHEREOF, the undersigned have executed or caused this Bill of Sale and Assignment and Assumption Agreement to be duly executed and delivered as of the date first above written. GRANTOR: By: ________________________________ Print Name: _________________________ GRANTEE: THE APACHE SOFTWARE FOUNDATION By: ________________________________ Print Name: _________________________ Title: _______________________________ EXHIBIT A List of Assets [To be provided.]