This is a draft of the articles of incorporation for the Gallery Software Foundation.
ARTICLES OF INCORPORATION OF THE GALLERY SOFTWARE FOUNDATION
The undersigned incorporator desiring to form a corporation (hereinafter referred to as the "Corporation") pursuant to the provisions of the California Nonprofit Public Benefit Corporation Law (hereinafter referred to as the "Act"), execute the following Articles of Incorporation.
The name of this corporation is Gallery Software Foundation.
This corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the California Nonprofit Public Benefit Corporation Law for charitable and public purposes. The Corporation shall be organized and operated exclusively for charitable, religious, educational, and scientific purposes, including for such purposes, the making of distributions to organizations that qualify as exempt organizations under section 501(c)(3) of the Internal Revenue Code of 1986 or the corresponding section of any future federal tax laws (the "Code"). Without limiting the foregoing general statement of purposes, the specific purposes for which the Corporation is organized include:
[SPECIFIC PURPOSES]
Notwithstanding any other provision of these Articles of Incorporation, neither the Board of Directors nor the Corporation shall have the power or authority to do any act that will prevent the Corporation from being an organization described in Sections 170(c)(2)(B), 501(c)(3), 2055(a)(2), and 2522(a)(2) of the Code. Subject to the foregoing statement, and subject to and in furtherance of the purposes for which it is organized, the Corporation shall possess all of the rights, privileges, and powers conferred by the Act or by other law and, in addition, the following rights, privileges, and powers:
Section 1. To cease its activities and to dissolve and surrender its corporate franchise.
Section 2. To indemnify any person against liability and expenses pursuant to Article XII.
Section 3. To make gifts, donations, contributions, loans, and grants of all or any part of the Corporation’s income, assets, and property.
Section 4. To receive from any source by gift, bequest, devise, or otherwise any money or property, absolutely or in trust, to be used for the furtherance of the Corporation’s purposes.
Section 5. To purchase, lease, acquire, hold, invest, reinvest, use, mortgage, pledge, exchange, sell, assign, transfer, convey, and otherwise dispose of both real and personal property and any interest therein.
Section 6. To borrow money and issue its notes and evidences of indebtedness therefore.
Section 7. To establish offices, carry out its purposes, and exercise its powers in the State of California and elsewhere.
Section 8. To enter into, make, and perform contracts with and guarantee the obligations and performance of any individual, firm, partnership, association, corporation, or other entity.
Section 9. To perform any act permitted to it either alone, as a partner, or in association with any individual, firm, partnership, association, corporation, or other entity.
Section 10. To engage in any act and do anything incidental to or convenient or necessary for the furtherance of the Corporation’s purposes.
No power conferred by the Act or set forth in any of the foregoing provisions of this Article III shall be construed to limit any other such power. The expression of the foregoing powers shall not be deemed to exclude any other power of like character although not expressed.
The period during which the Corporation shall continue is perpetual.
The name and street address in the State of California of the Corporation's initial agent for service of process is:
[NAME AND ADDRESS OF REGISTERED AGENT]
The Corporation will (not?) [have members. The qualifications for members and the manner of their admissions shall be regulated by the Bylaws of the Corporation.]
The exact number of directors of the Corporation shall be fixed in accordance with the Bylaws of the Corporation at a number no smaller than three (3).
The persons who shall constitute the initial Board of Directors of the Corporation and their places of residence are as follows
[TBD]
The directors of the Corporation shall be elected, appointed, or designated in the manner and for terms as specified in accordance with the Bylaws of the Corporation.
No part of the net earnings of the Corporation shall inure to the benefit of, or be distributable to its trustees, officers, or other private persons, except that the Corporation shall be authorized and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of the purposes set forth in Article II hereof.
The affairs of the Corporation shall be subject to the following provisions:
Section 1. Notwithstanding any other provision of these Articles of Incorporation, if for any taxable year the Corporation is deemed a “private foundation” described in Section 509(a) of the Code, the Corporation shall make distributions at such time and in such manner as not to subject the Corporation to the tax imposed by Section 4942 of the Code.
Section 2. Notwithstanding any other provision of these Articles of Incorporation, if at any time the Corporation is deemed a “private foundation” described in Section 509(a) of the Code, the Corporation shall not:
2.1. Engage in any act of self-dealing as defined in Section 4941(d) of the Code;
2.2. Retain any excess business holdings as defined in Section 4943(c) of the Code;
2.3. Make any investment in such manner as to subject the Corporation to tax under Section 4944 of the Code; or
2.4. Make any taxable expenditure as defined in Section 4945(d) of the Code.
Section 3. Except as otherwise permitted by Section 501(h) of the Code, no substantial part of the activities of the Corporation shall be the carrying on of propaganda or otherwise attempting to influence legislation.
Section 4. The Corporation shall not participate in or intervene in (including the publishing or distribution of statements) any political campaign on behalf of or in opposition to any candidate for public office.
Section 5. Subject to the provisions of these Articles of Incorporation and applicable law, the Board of Directors shall have complete and plenary power to manage,control, and conduct all of the affairs of the Corporation.
Section 6. The power to make, alter, amend, and repeal the Corporation's Bylaws shall be vested in the Board of Directors.
Section 7. No director of the Corporation shall be liable for any of its obligations.
Section 8. Meetings of the Board of Directors may be held at any location, either in the State of California or elsewhere.
Section 9. All parties dealing with the Corporation shall have the right to rely upon any action taken by the Corporation pursuant to authorization by the Board of Directors by resolution duly adopted in accordance with the Corporation's Articles of Incorporation, Bylaws, and applicable law.
Section 10. The Board of Directors may from time to time, in the Corporation's Bylaws or by resolution, designate such committees as the Board of Directors deems desirable for the furtherance of the purposes of the Corporation.
The Corporation shall, to the fullest extent permitted by applicable law now or hereafter in effect indemnify any person who is or was a director, officer, or employee of the Corporation (an “Eligible Person”) and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a “Proceeding”) by reason of the fact that such person is or was a director, officer or employee of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee, partner, member, manager, trustee, fiduciary or agent of another corporation, partnership, joint venture, limited liability company, trust or other enterprise (including, without limitation, any employee benefit plan), against all expenses (including attorneys' fees), judgments, fines or penalties (including excise taxes assessed with respect to an employee benefit plan) and amounts paid in settlement actually and reasonably incurred by such Eligible Person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a Proceeding commenced by an Eligible Person except to the extent provided otherwise in the Corporation's Bylaws or an agreement with an Eligible Person. The Corporation may establish, in the Bylaws of the Corporation or in agreements with any Eligible Person, provisions supplemental to or in furtherance of the provisions of this Article XII, including, but not limited to, provisions concerning the determination of entitlement of any Eligible Person to indemnification, mandatory or permissive advancement of expenses to an Eligible Person incurred in connection with a Proceeding, the effect of any change in control of the Corporation on indemnification and advancement of expenses and the funding or other payment of amounts necessary to effect indemnification and advancement of expenses.
If the Corporation is dissolved, all of its property remaining after payment and discharge of its obligations shall be distributed for one or more exempt purposes within the meaning of Section 501(c)(3) of the Code to an organization or organizations that have been selected by the Corporation's Board of Directors that are organized and operated for purposes substantially the same as those of the Corporation and that are described in Section 501(c)(3) of the Code, or shall be distributed to the federal government, or to a state or local government, for a public purpose. Any such assets not so disposed of shall be disposed by a Court of Competent Jurisdiction of the county in which the principal office of the Corporation is then located, exclusively for such purposes or to such organization or organizations, as said Court shall determine, which are organized and operated exclusively for such purposes.
In witness whereof, the undersigned incorporator of said Corporation executes this document, and verifies subject to penalties of perjury that the facts contained herein are true this _______ day of March, 2006
This instrument was prepared by: Michael C. Schultheiss
