Agenda Items/OA Amendments April 2014

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OVERVIEW

  • There are 3 proposed OA Amendment groups. Here each are listed with the relevant informations.
  • First, the intent of the change given as the "Purpose" which includes the targeted section of the OA and page number for reference.
  • This is then followed by the wording that is currently in the OA.
    • Anything written in red is to be stricken from the OA.
  • Next is the proposed new wording.
    • Anything written in green is to be added to the OA.
    • In the Case of the Majority section, there are 2 proposed wordings (A & B).
      • Anything written in blue is to be added to the OA and denotes the extra part differentiating the 2 options.
      • This will have the ranked voting (like what was done with the most recent Executive Director vote)
        • Voting Options
  1. Yes to Quorum & Majority Wording A (only Wording A is acceptable)
  2. Yes to Quorum & Majority Wording A>Wording B (Wording A preferred, but Wording B is acceptable)
  3. Yes to Quorum & Majority Wording B (only Wording B is acceptable)
  4. Yes to Quorum & Majority Wording B>Wording A (Wording B preferred, but Wording A is acceptable)
  5. No (leave things unchanged)

1. QUORUM & MAJORITY OA AMENDMENT

  • PURPOSE: Change the definition of majority from Absolute to Simple majority on all Company business excluding special voting provisions stated elsewhere in the OA which is already defined in the rest of the (eg, OA Amendments, removal from office etc…)(Exhibit B, pg. 33). Majority has 2 options, Wording “A” states that financial matters need only simple majority. Wording “B” states that on financial matters, absolute majority is required. Simultaneously, the quorum requirement shall be raised to 40% (4.7.f, pg. 7).
  • CURRENT MAJORITY WORDING: “Majority in the case of Members means a Member or Members having among them Voting Percentages totaling more than fifty percent (50%), and in the case of Directors means a majority of all the Directors. For avoidance of doubt, the determination of fifty percent (50%) or a majority shall be based on all of the outstanding Voting Shares or all of the Directors then holding office, as the case may be, unless otherwise provided herein; provided however, that if there is only one (1) Director, Majority shall mean the sole Director, and if there are two (2) Directors, Majority shall mean both Directors.”
    • NEW MAJORITY WORDING A: “Majority, unless otherwise provided herein, in the case of Member votes shall mean greater than fifty percent (50%) of the total votes cast, minus abstains, providing that the total number of votes cast, including abstains, shall have met or exceeded quorum requirements. In the case of the Board of Directors votes, majority shall mean greater than fifty percent (50%) of all of the Directors then holding office, unless otherwise provided herein; provided however, that if there is only one (1) Director, Majority shall mean the sole Director, and if there are two (2) Directors, Majority shall mean both Directors.”
OR
  • NEW MAJORITY WORDING B: “Majority, unless otherwise provided herein, in the case of Member votes shall mean greater than fifty percent (50%) of the total votes cast, minus abstains, providing that the total number of votes cast, including abstains, shall have met or exceeded quorum requirements. However, in the case of financial expenditures greater than five hundred dollars ($500), majority shall mean a number of votes greater than fifty percent (50%) of all of the outstanding Voting Shares. In the case of the Board of Directors votes, majority shall mean greater than fifty percent (50%) of all of the Directors then holding office, unless otherwise provided herein; provided however, that if there is only one (1) Director, Majority shall mean the sole Director, and if there are two (2) Directors, Majority shall mean both Directors.”
  • CURRENT QUORUM WORDING: “Quorum. The presence of thirty percent (30%) of the Class B Members of the Company holding Voting Shares shall constitute a quorum at meetings of the Class B Members, except as otherwise provided by the Act, the Certificate of Formation or this Agreement…”</font>
    • NEW QUORUM WORDING: “Quorum. The presence of forty percent (40%) of the Class B Members of the Company holding Voting Shares shall constitute a quorum at meetings of the Class B Members, except as otherwise provided by the Act, the Certificate of Formation or this Agreement…”

2. EXECUTIVE DIRECTOR AMENDMENT

  • PURPOSE: Clarify and remove conflicts, so that the Executive Director is one of the Board of Directors positions that is elected by the Class B Members (3.4 pg 3).
  • CURRENT WORDING: "The number of Directors of the Company shall be determined from time to time in accordance with this Agreement but initially shall be seven (7). Each Director shall hold office for the term of three (3) years and until his or her successor shall have been elected and qualified, or until his or her earlier death, resignation or removal. Unless otherwise provided in the Certificate of Formation, Directors need not be Members or residents of the State of Texas. A Majority of the Directors shall appoint one (1) Director to preside as Executive Director of the Board of Directors at regular meetings of the Directors.”
    • NEW WORDING: There is no new wording, just strike the above sentence and the section will not differentiate the Executive Director from any other Directorship position thereby making it a position elected by the membership.

3. OA AMENDMENT MAJORITY

  • PURPOSE: Raise the bar for making future OA Amendments to absolute ⅔ majority, as was the original intent of the membership, and how we had previously operated (14.6, pg 26).
  • CURRENT WORDING: Amendment of Certificate of Formation and Company Agreement. Except as otherwise expressly set forth in this Agreement, the Certificate of Formation of the Company and this Agreement may be amended, supplemented or restated only upon consent of a Majority of the Directors and a Majority of the Members, provided that no change or amendment may affect any rights previously accrued by any Member. Upon obtaining the approval of any amendment to the Certificate of Formation, the Member(s) shall cause a Certificate of Amendment in accordance with the Act to be prepared, and such Certificate of Amendment shall be filed in accordance with the Act.
    • NEW WORDING: “...a Majority of the Directors and a two-thirds (⅔) Majority of all Voting Shares, provided that no change…”