Foundation Update 3

Today, I am pleased to give you another update on the Creation Committee’s work, in striving to set up a non-profit foundation for OpenAFS.  To summarize:

1.     It appears that IBM may give us written permission to use OpenAFS and AFS for the name and description of the impending foundation. 
2.     In that case, we will name the foundation “The OpenAFS Foundation, Inc.”
3.     We have been working on the Articles of Incorporation and the Bylaws for the foundation.
4.     Both of these documents are needed at the time of incorporation, but will also be submitted thereafter to the IRS when we apply for a not-for-profit 501c3 status.
5.     We are committed to finalizing these documents by the end of February.
6.     We will then consult a legal counsel to verify our materials.

Here now are more details:

1.     It appears that IBM may give us written permission to use OpenAFS and AFS for the name and description of the impending foundation.  --  Todd has continuously worked with IBM Legal on forging a text that can serve as content for a contract to be executed between IBM and the Creation Committee.  If anyone of you has ever tried getting a contract through IBM, then you know just how hard this can be, but Todd persevered, and he reported recently that the legal team has “blessed” a text.  The second hurdle consisted of finding an appropriate IBM employee who would sign the document on the behalf of IBM.  Todd was able to persuade one of his division leads to agree to sign.  When signed, the contract is expected to give us limited use of “OpenAFS” and “AFS” for the name and description of the foundation.  Should more permissions/trademark releases be needed in the future, this will have to be addressed at that time; for the purpose of creating the foundation, the document should suffice.  This also implies that that re-naming and re-branding OpenAFS won’t be necessary. 

2.     Assuming the release agreement gets ratified as expected, we will name the foundation “The OpenAFS Foundation, Inc.”  and plan to incorporate it in the Commonwealth of Virginia, for ease of administration.  Our research has shown that there are no significant differences in the state of incorporation for a non-profit organization that would matter for our situation, thus it seems prudent to select for pragmatic and administrative reasons.  Margarete, who is serving as the secretary at present, agreed to be the party for keeping official records of the foundation; upon request, these records can be inspected by anybody who wishes to do so, and we had discussed making them available online, but the law requires a hard copy and a physical location. 

3.     We have been working on the Articles of Incorporation and the Bylaws for the foundation.  These documents describe the purpose of the foundation – what the foundation is setting out to do – and the foundation’s methods – how the foundation is going to go about doing things.  Bearing in mind that these definitions are intended for government officials (with the Commonwealth of Virginia at incorporation, and with the IRS at application for non-profit status), the text needs to be particular and detailed enough to make sense to a non-engineer while general enough to allow for elbow-room for the foundation to get its job done and nail the complete essence of our intent. This is easier said than done, and we spent several weeks grappling with these items; however, we believe we have arrived at a useful “happy medium.”  Furthermore, the two documents will define the roles and responsibilities of people participating in the work of the foundation.  This includes, but is not limited to, the Board of Directors, officers, stakeholders, and members.   Each of these classes/roles needs to be described in prose, as well as any of the “programs” that the foundation intends to conduct in the future (for example, each type of possible fundraising, in each possible state of the US).  Therefore, in total, this amounts to 20-30 pages of concise legalese, and we are nearing the completion of these documents. – The content of these documents can be amended at any time by following an appropriate process.

4.     Both of these documents are needed at the time of incorporation, but will also be submitted thereafter to the IRS when we apply for a not-for-profit 501c3 status.  The application for non-profit status entails the completion of a “Form 1023” plus approximately 16 additional documents furnishing prose explanations, descriptions, and policy.  For obvious reasons, the IRS goes through great lengths to ensure that no abuse of power and/or funds can arise.  To that effect and to echo the deep desire of the community toward fairness and transparency, we are submitting a Conflict of Interest Policy outlining how even potential conflicts of interest will be addressed early and solved efficiently.  After the IRS awards an organization the non-profit status, the organization must regularly report to the IRS and communicate any changes, including possible amendments to the Bylaws, so that the IRS can test continually that the organization remains in good standing and continues to meet their criteria 
for a non-profit organization.

5.     We are committed to finalizing these documents by the end of February, as illnesses delayed our work.  Sadly, all of us have fallen ill over the past six weeks, which has slowed down our progress.  It remains our goal to have “The OpenAFS Foundation, Inc.” incorporated by the end of this month.

6.     Prior to the actual submission of the materials, we will consult a legal counsel to verify our materials.  While we have been doing our best, we acknowledge that none of us are experts of the law or in the setting-up of non-profit organizations, thus a “sanity check” seems a wise move.

I hope you find these descriptions helpful and get a good idea of what we have been dealing with and what has been accomplished.  The Creation Committee continues to work diligently and in a most cooperative spirit, and we look forward to completing next steps in our process toward setting up The OpenAFS Foundation.

Sincerely,

Margarete,  Todd, Roman, Derrick, and Thomas