Foundation: Constitution
Foundation: Constitution
(Date: 2007-08-28)
#1 Name, Register of Associations, Residence, Fiscal Year
| 1. |
The Foundation will be known by the name "OpenPKG Foundation".
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| 2. |
The Foundation will be listed in the register of associations.
When it is listed in the register of associations it will use the
name suffix "eingetragener Verein" in the abbreviated
form "e.V.".
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| 3. |
The fiscal year is the calendar year.
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| 4. |
The Foundation resides in Dachau.
The postal address of the Foundation is:
OpenPKG Foundation e.V.
Weblinger Weg 28
85221 Dachau
GERMANY
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#2 Intention of the Foundation
Intention of the Foundation is the ideational, financial, material and
manned support of the Open Source Software Project "OpenPKG".
#3 Membership admission
| 1. |
Admission to become a member of the Foundation is possible
for every contractually capable real person and every legal entity holding rights.
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| 2. |
Members should have a good grasp of the english language
to understand the bylaws of the Foundation and to
participate in Foundation internal communication.
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| 3. |
Membership arises from admission into the
Foundation
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| 4. |
The forthcoming member must submit the application for admission
directly.
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| 5. |
The Board of Directors incontestable decides
upon admission.
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| 6. |
The admission is effective on delivery of a
Membership certificate.
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| 7. |
There is no entitlement for admission.
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#4 Membership retirement
| 1. |
Members are entitled to retire from the
Foundation.
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| 2. |
Retirement is allowed to the end of the month
adhered a cancellation period of two weeks
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| 3. |
Retirement is to be communicated to the Directors of the Board. To adhere
to the cancellation period (#4.2) timely ingress
of the notice of resignation to a Director of the Board
is required.
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| 4. |
The Foundation may continue utilization of
merits, loans and rentals granted by the member until regular
termination of loan or rental contracts or up to three
months past retirement under constant conditions. Materials
will be made available for pickup after this respite.
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| 5. |
Immediately post retirement the member must not continue
to draw merits from the Foundation and must return
materials provided by the Foundation promptly.
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| 6. |
Refund of membership fees payed in advance
is optional for the Foundation.
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| 7. |
Membership also ends by death of real
persons respectively loss of holding rights for legal
entities.
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#5 Membership exemption
| 1. |
Membership furthermore ends by exemption.
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| 2. |
The general meeting decides upon exemption after
the Board of Directors files a petition.
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| 3. |
The Board of Directors is empowered to instantaneously
expel the member from receiving Foundation merits and suspend
it from performing Foundation activities upon clearence of the petition.
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| 4. |
With regards to the use of loans and refund of membership fees
the rules from #4 "Membership retirement" apply.
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| 5. |
The exemption from the Foundation requires a
sufficient reason. The general meeting decides upon the
sufficiency of reasons.
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| 6. |
The Directors of the Board have to communicate the petition
to the member at least two weeks in advance of
the general meeting.
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| 7. |
A statement from the member is to be proclaimed
in the general meeting deciding upon the petition.
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| 8. |
The exemption of a member takes place
immediately with the adoption of the decision
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| 9. |
The Board of Directors should proclaim the exemption
to the member promptly.
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#6 Membership cancellation
| 1. |
A member furthermore retires with cancellation of
the Foundation membership.
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| 2. |
The cancellation of the membership takes place on
failure to settle membership fees due for payment or
failure to answer important inquiries in spite of a collection notice.
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| 3. |
The collection notice is effective even if
delivery fails.
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| 4. |
The cancellation of the membership takes place by decision
of the Directors of the Board and without notice to the member.
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| 5. |
With regards to the use of loans and refund of membership fees
the rules from #4 "Membership retirement" apply.
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| 6. |
Collection charges, notification frequencies, time limits and more details
are covered by the bylaws of the Foundation.
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#7 Membership fee
| 1. |
A admission fee may be raised.
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| 2. |
A membership fee is to be paid.
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| 3. |
The amount of the admission fee and the membership fee
is claimed by the general meeting after hearing of the
Board of Directors.
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| 4. |
Along with filing a notice of resignation the
member can defer the raise of a membership fee up to
four weeks.
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| 5. |
Method of payment, currencies, payment frequencies and more details
are covered by the bylaws of the Foundation.
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#8 Types of members
| 1. |
Directors of the Board are elected by the general
meeting. They must be active members at the time of their election.
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| 2. |
Active members are elected and deselected by the
Directors of the Board. Assessment factors are defined
in the bylaws of the Foundation.
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| 3. |
Honorary members are elected and deselected by the general
meeting based on proposals by the Directors of the Board.
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| 4. |
All remaining members of the Foundation are
passive members.
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| 5. |
All members will be invited to have a voice
in the general meeting.
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| 6. |
Active members and honorary members have suffrage
in the general meeting.
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| 7. |
Active and passive members have to comply to the rules
regarding membership fees. Honorary members are free
to pay membership fees.
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#9 Building blocks of the Foundation
| 1. |
A building block of the Foundation is the Board of Directors (#10 and #11 of the
constitution).
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| 2. |
Another building block of the Foundation is the general meeting
(##12 to 16 of the constitution).
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#10 Board of Directors
| 1. |
The Board of Directors (§26 BGB) is made up
of at least two contractually capable real persons.
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| 2. |
Two Directors of the Board occupy
the roles of the President and the Vice President.
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| 3. |
The Foundation internal responsibilities and authorities of the Directors of the Board
are determined by the President and Vice President.
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| 4. |
The President and
the Vice President represent the Foundation in
legal and financial interests by oneself.
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| 5. |
The Directors of the Board are elected for three fiscal years
by the general meeting. They remain in office
until the next statutory elected Directors of the Board assume office.
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| 6. |
The occupation of a Director of the Board ends with the
exit from the Foundation or with disease that, which by the
discretion of the other Directors of the Board,
inhibits continued exercise of the function for more
than three months.
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| 7. |
A single person must not occupy multiple
Director roles of the Board.
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#11 Limitations of the procuration of the Directors of the Board.
| 1. |
The procuarion of the Directors of the Board
agains third parties is limited in a way (§26 Abs. 2 Satz
2 BGB) that the raising of a credit that exceeds
fivethousand Euros requires approval by the
general meeting.
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#12 Appointment of the general meeting
| 1. |
The general meeting is to be appointed when the
interests of the Foundation require it.
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| 2. |
The general meeting has to be appointed at least annually,
best in the first month of the fiscal year.
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| 3. |
In case a Director of the Board prematurly terminates his occupation
a general meeting is to be appointed within a month.
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#13 Appointment conditions
| 1. |
The general meeting is subject to be
appointed by the Directors of the Board
at least two weeks in advance.
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| 2. |
The appointment of the meeting must denote the agenda
including the subject of the adoption.
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| 3. |
The respites start with the day the invitation is sent off
to the last known address of the member.
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#14 Quorum
| 1. |
Every general meeting appointed according to the rules
has a quorum.
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| 2. |
Quorum about the decomposition of the Foundation
requires participation of two thirds of all
elective mebers (§41 BGB).
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| 3. |
In case a general meeting deciding upon the decomposition of the Foundation
has no quorum with regards to #14.2 another general meeting has to be
appointed using the same rules and the same agenda. This additional meeting
has to take place before six weeks past the original date.
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| 4. |
The invitation to the additional meeting has to include a
note regarding the relieved decisionmaking (#14.5)
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| 5. |
The additional meeting has a quorum irrespective of the
number of participating elective members.
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#15 Decision-making
| 1. |
Election happens by simple declaration of intention.
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| 2. |
As a general rule decisions are made by the
bare majority of the participating elective members.
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| 3. |
A decision changing the constitution requires affirmation
of three fourth of the participating elective members.
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| 4. |
A decision changing the #2 "Intention of the Foundation"
requires affirmation by all elective members.
Elective members not participating must file their affirmation
subsequently.
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| 5. |
Quorum about the decomposition of the Foundation
requires affirmation of three fourth of all participating
elective mebers (§41 BGB).
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#16 Writing of the minutes
| 1. |
Regarding the decisions in the meeting a transcript
has to be recorded.
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| 2. |
The recorded transcript must be signed
by the chairman of the meeting.
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| 3. |
Every member of the Foundation is entitled to view
the recorded transcript using a suitable communication method.
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#17 Decomposition of the Foundation
| 1. |
The Foundation can be decomposted by the general meeting
(#15.5).
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| 2. |
The liquidation is executed by the Board of Directors (#10 of
the constitution).
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| 3. |
With regards to the use of loans and refund of membership fees
the rules from #4 "Membership retirement" apply.
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| 4. |
The Foundation funds is prorated their deposited
capital share and the value of their
assets in kind back to the members.
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#18 Foundation internal rules
| 1. |
Essential enduring rules are fixed up in this constitution.
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| 2. |
Additional and alterable rules are fixed up in the
publicly viewable bylaws.
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| 3. |
The general meeting decides on the bylaws upon request by the
Board of Directors.
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| 4. |
By virtue of the international scope the language of the Foundation
is english. The constitution and the bylaws must be made available in
german and english language.
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| 5. |
By virtue of the diversification of members
general meetings can be accomplished with a suitable communication method
with no need to meet personally.
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#19 Severability clause
In case one clause of this constitution is fully or partly ineffective
or looses its legal effect later the remaining clauses remain effective.
The ineffective clause in the constitution should receive an adjustment
that contains an appropriate replacment that comes closest to what was
meant by the authors of the constitution given they would have knew
the ineffectiveness of the clause.
#20 Formation
This constitution was formed February, 9th. 2005.
Changelog
| 2005-02-09: |
original document
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| 2005-02-16: |
Changes postulated by local court:
#10.1: Titles of the Directors of the Boards harmonised and localized into german.
#10.4: Change wording to explicitly state each director can represent alone by oneself.
#20: add prescribed clause of formation.
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| 2007-08-28: |
Simplification of organizational structures
#10.1: Removal of the predefined Organigram.
#10.2: Shrink DoB minimum to two Presidents.
#10.3: Flexible internal organisation.
#10.5: Election of the DoB extended to three fiscal years.
#10.6: End of occuptation of a DoB after three months disease.
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Translation Notes
Due to legal reasons the original language of this document is german.
This translation is based on the german version as of 2005-02-16.
The german word "Verein" translates to association, club or foundation.
It has a further legal meaning in Germany (and possibly Austria and
Switzerland) similar to the word "non profit organization" of some
english speaking countries. A "eingetragener Verein" is an officially
listed association registered with the local district court. It operates
much like a corporation, however it does not make a profit. It acts like
a legal entity and protects its individual members from litigation for
work they do on behalf of the foundation. The constitution is officially
listed and is very hard to change.
The OpenPKG Foundation e.V. is not interested in becoming a
"gemeinnütziger Verein" type of organization. We do not like the degree
of government control which would accompany receiving the otherwise
desirable tax exempt status.
The BGB means "Bürgerliches Gesetzbuch", a book published each year
containing the entire german civil code.
Unless otherwise noted, the currency mentioned is Euro (EUR). For current
exchange rates see
Universal Currency
Converter.
