The Kuali Foundation
The undersigned incorporator desiring to incorporate a non-profit Corporation pursuant to the provisions of Indiana Nonprofit Corporation Act of 1991, as amended (the “Act”), hereby executes the following articles:
The name of the Corporation is the Kuali Foundation, Inc. (the “Corporation”).
The Corporation is a public benefit Corporation organized for such educational, administrative, scientific, and charitable purposes as shall qualify it for exemption from federal taxation under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), or the corresponding provisions of any future United States internal revenue laws and the Treasury regulations promulgated thereunder, including, but not limited to, serving as a proponent for open and community source collaboration and development for software tools for education, as an information, research and development community for education software tools; fostering multidisciplinary open and community source software development and collaboration, promoting the expansion, development and implementation of education open source software tools to assist higher education and other sectors of the education community for the benefit of society. In particular, the purposes for which the Corporation is organized are:
The Corporation is organized on a nonstock basis.
The Corporation is organized on a membership basis.
The name and address of the incorporator is Bradley C. Wheeler, 3741 Mabel’s Way, Bloomington, Indiana 47408.
The Corporation shall have one class of members as set forth in its bylaws, who shall have the qualifications for membership provided in the bylaws, and who shall have voting rights. The Corporation shall not issue any capital stock.
The Corporation may exercise all power or authority granted to it under the Act or otherwise, including, but not limited to, the power to accept donations of money, property, or any interest therein, or any other thing of value, and to own or lease property, whether real or personal.
In carrying out its purposes, the Corporation shall not have or exercise any power or authority not granted to it under the Act, nor engage directly or indirectly in any activity, that would prevent it from qualifying as a Corporation described in section 501(c)(3) of the Internal Revenue Code of 1986, as amended. The assets of the Corporation shall be at all times dedicated to the purposes set out in Article II. No part of the assets or earnings, current or accumulated, of the Corporation shall at any time inure in whole or in part to the benefit of any private individual, association, or Corporation within the meaning of the prohibition contained in section 501(c)(3) of the Internal Revenue Code of 1986, as amended, however the Corporation shall be authorized and empowered to make payments as reasonable compensation for services rendered or as a reasonable allowance for authorized expenditures incurred on behalf of the Corporation and to make payments and distributions in furtherance of the purposes set forth in Article II.
The Corporation shall not carry on propaganda or otherwise devote more than an insubstantial part of its activities to attempting to influence legislation. The Corporation shall not participate or intervene in any political campaign on behalf of or in (including the publication or distribution of statements) opposition to any candidate for public office. No part of the Corporation’s income, corpus or principal assets shall ever inure to the benefit of, or be distributable to, directly or indirectly, any private individual, and no director or officer of the Corporation may or shall receive any pecuniary benefit from the same; provided, however, that private individuals may be paid such reasonable compensation for services actually rendered and that are necessary to organize the Corporation and to carry out the purposes of the Corporation, as may be fixed in the manner provided by the Board of Directors. No individual shall be precluded from taking such employment and compensation by reason of the fact that he is a director or officer of the Corporation.
Upon the dissolution of the Corporation, the Board of Directors shall, after paying or making provision for payment of all of the liabilities of the Corporation, dispose of all of the assets of the Corporation exclusively for the purposes of the Corporation in such a manner, or to such organization or organizations organized and operated exclusively for charitable, educational, religious or scientific purposes as shall at the time qualify as an exempt organization or organizations under Section 501(c)(3) of the Code as the Board of Directors shall determine. Any of such assets not so disposed of shall be disposed of by the Circuit Court of Monroe County, Indiana, if the principal office of the Corporation is located in the said county at the time of dissolution of the said Corporation, or by the Circuit Court (or equivalent thereof) 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 the said Court shall determine, which are organized and operated exclusively for such purposes.
The names and affiliation of the initial members of the Board of Directors of the Corporation at the time of filing these Articles of Incorporation are:
Affiliation
Director
Brad Wheeler
Chairman, Chief Information Officer & Dean of IT, Indiana University
Lee Belarmino
Associate VP for IT, San Joaquin Delta College
Bruce Alexander
Associate Director Administrative Systems, Michigan State University
Joanne DeStefano
Vice President for Financial Affairs, Cornell University
Charles Ingram
Finance Officer and Treasurer, University of Arizona
David Lassner
Chief Information Office, University of Hawaii
James Morley
President, National Association of College and University Business Officers
Barry Walsh
Senior Director of e-Business Services & Managing Director FMS, Indiana University
The address for each initial member of the Board of Directors of the Corporation shall be Franklin Hall 116, 601 East Kirkwood Avenue, Indiana University, Bloomington, Indiana 47405.
Definitions. For purposes of this Article XII, the following terms shall have the following meanings:
“Liabilities” and “Expenses” shall mean monetary obligations incurred by or on behalf of a director or officer in connection with the investigation, defense or appeal of a Proceeding or in satisfying a claim thereunder and shall include, but shall not be limited to, attorneys’ fees and disbursements, amounts of judgments, fines or penalties, excise taxes assessed with respect to an employee benefit plan and amounts paid in settlement by or on behalf of a director or officer.
“Other Enterprise” shall mean any Corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise, whether for profit or not, for which a director or officer is or was serving, at the request of the Corporation, as a director, officer, member, manager, partner, trustee, employee or agent.
“Proceeding” shall mean any claim, action, suit or proceeding (whether brought by or in the right of the Corporation or Other Enterprise or otherwise), civil, criminal, administrative or investigative, whether formal or informal, and whether actual or threatened or in connection with an appeal relating thereto, in which a director or officer may become involved, as a party or otherwise,
by reason of his being or having been a director or officer of the Corporation (and, if applicable, an employee or agent of the Corporation) or a director, officer, member, manager, partner, trustee, employee or agent of an Other Enterprise or arising out of his status as such, or
by reason of any past or future action taken or not taken by a director or officer in any such capacity, whether or not he continues to be such at the time he incurs Liabilities and Expenses under the Proceeding.
“Standard of Conduct” shall mean that a director or officer, based on facts then known to the director or officer, discharged the duties as a director or officer, including duties as a member of a committee, in good faith in what he reasonably believed to be in or not opposed to the best interests of the Corporation or Other Enterprise, as the case may be, and, in addition, in any criminal Proceeding, had no reasonable cause to believe that his conduct was unlawful. The termination of any Proceeding, by judgment, order, settlement (whether with or without court approval) or conviction or upon a plea of guilty, shall not create a presumption that the director or officer did not meet the Standard of Conduct. The termination of any Proceeding by a consent decree or upon a plea of nolo contendere, or its equivalent, shall create the presumption that the director or officer met the Standard of Conduct.
Indemnification. If a director or officer is made a party to or threatened to be made a party to any Proceeding, the Corporation shall indemnify the director or officer against Liabilities and Expenses incurred by him in connection with such Proceeding in the following circumstances:
If a director or officer has been wholly successful on the merits or otherwise with respect to any such Proceeding, he shall be entitled to indemnification for Liabilities and Expenses as a matter of right. If a Proceeding is terminated against the director or officer by consent decree or upon a plea of nolo contendere, or its equivalent, the director or officer shall not be deemed to have been “wholly successful” with respect to such Proceeding.
In all other situations, a director or officer shall be entitled to indemnification for Liabilities and Expenses as a matter of right unless(i) the director or officer has breached or failed to perform his duties as a director or officer in compliance with the Standard of Conduct and (ii) with respect to any action or failure to act by the director or officer which is at issue in such Proceeding, such action or failure to act constituted willful misconduct or recklessness. To be entitled to indemnification pursuant to this Section 2(b), the director or officer must notify the Corporation of the commencement of the Proceeding in accordance with Section 5 of this Article XII and request indemnification. A review of the request for indemnification and the facts and circumstances underlying the Proceeding shall be made in accordance with one of the procedures described below; and the director or officer shall be entitled to indemnification as a matter of right unless, in accordance with such procedure, it is determined beyond a reasonable doubt that (i) the director or officer breached or failed to perform the duties of the office in compliance with the Standard of Conduct, and (ii) the breach or failure to perform constituted willful misconduct or recklessness. Any one of the following procedures may be used to make the review and determination of a director’s or officer’s request for indemnification under this Section 2(b) of this Article XII:
by the Board of Directors by a majority vote of a quorum consisting of directors who are not parties to, or who have been wholly successful with respect to, such Proceeding;
if a quorum cannot be obtained under (A) above, by a majority vote of a committee duly designated by the Board of Directors (in the designation of which, directors who are parties to such Proceeding may participate), consisting solely of two or more directors who are not parties to, or who have been wholly successful with respect to, such Proceeding;
by independent legal counsel selected by a majority vote of the full Board of Directors (in which selection, directors who are parties to such Proceeding may participate); or
by a committee consisting of three (3) or more disinterested persons selected by a majority vote of the full Board of Directors (in which selection, directors who are parties to such Proceeding may participate). Any determination made in accordance with the above procedures shall be binding on the Corporation and the director or officer.
If several claims, issues or matters of action are involved, a director or officer may be entitled to indemnification as to some matters even though he is not entitled to indemnification as to other matters.
The indemnification herein provided shall be applicable to Proceedings made or commenced after the adoption of this Article XII, whether arising from acts or omissions to act which occurred before or after the adoption of this Article XII.
Notification and Defense of Proceeding. Promptly after receipt by a director or officer of notice of the commencement of any Proceeding, the director or officer will, if a request for indemnification in respect thereof is to be made against the Corporation under this Article XII, notify the Corporation of the commencement thereof, but the failure to so notify the Corporation will not relieve it from any obligation which it may have to the director or officer under this Article XII or otherwise. With respect to any such Proceeding as to which the director or officer notifies the Corporation of the commencement thereof:
The Corporation will be entitled to participate therein at its own expense; and
Except as otherwise provided below, to the extent that it may so desire, the Corporation, jointly with any other indemnifying party similarly notified, will be entitled to assume the defense thereof, with counsel reasonably satisfactory to the director or officer. After notice from the Corporation to the director or officer of its election to assume the defense of the director or officer in the Proceeding, the Corporation will not be liable to the director or officer under this Article XII for any legal or other Expenses subsequently incurred by the director or officer in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. The director or officer shall have the right to employ counsel in such Proceeding, but the Expenses of such counsel incurred after notice from the Corporation of its assumption of the defense thereof shall be at the expense of the director or officer unless:
the employment of counsel by the director or officer has been authorized by the Corporation; or
the director or officer shall have reasonably concluded that there may be a conflict of interest between the Corporation and the director or officer in the conduct of the defense of such Proceeding; or
the Corporation shall not in fact have employed counsel to assume the defense of such Proceeding; in each of which cases the Expenses of counsel employed by the director or officer shall be paid by the Corporation. The Corporation shall not be entitled to assume the defense of any Proceeding brought by or in the right of the Corporation or as to which the director or officer shall have made the conclusion provided for in (ii) above; and
The Corporation shall not be liable to indemnify a director or officer under this Article XII for any amounts paid in settlement of any Proceeding without the Corporation’s prior written consent. The Corporation shall not settle any action or claim in any manner which would impose any penalty or limitation on a director or officer without the director’s or officer’s prior written consent. Neither the Corporation nor a director or officer will unreasonably withhold its or his consent to any proposed settlement.
1.1 The name of the Corporation is the Kuali Foundation, Inc.
2.1 The purpose for which the Kuali Foundation, Inc. (“Kuali”) is formed exclusively to promote a community whose purpose is to support best practices and software systems and services that support education and/or other similar nonprofit purposes, as contemplated by Section 501(c) (3) of the Internal Revenue Code of 1986 (any reference herein to any provision of such Code shall be deemed to mean provisions as now or hereafter existing, amended, supplemented, or superseded).
3.1 Purpose. Kuali is a public benefit corporation dedicated to helping educational and non-profit institutions solve problems through approaches that benefit from collective action and coordination. This includes but is not limited to the design and development of collaborative, open source software, provision of services, sharing of documentation and best practices, and scholarly activities.
3.2 Mission. The mission of Kuali is to enable the community to advance the mission of higher education and specifically:
4.1 Membership. Membership in Kuali is open to academic and research organizations and institutions with programs and missions consistent with the purposes of Kuali as set forth in Articles II and III and may include colleges and universities, research and development centers, membership organizations, and other nonprofit organizations, provided that applications for membership show that the organization:
4.2 Applications. Applications for membership shall be forwarded to the Kuali Executive Director or Chair of the Board of Directors (hereafter “Chair”) under the signature of an appropriate administrative officer of the institution or organization seeking membership. For institutions of higher education, submission of the membership application and payment of dues constitutes active membership.
4.3 Removal from Membership. An institution or organization shall cease to be a Kuali Foundation member upon failure to pay dues and may, by action of the Board of Directors, be dropped from the membership roster upon failure to pay dues by the end of the membership year. Any gap in membership status, whether for failure to pay dues, resignation, or otherwise, requires payment of all back dues and of the annual membership fee before reinstitution.
5.1 Meetings of the Kuali Foundation Members shall be held annually, at least, with the dates and places selected by the Board of Directors, to coincide with the Kuali Conferences or other convenient gatherings of the members. Special meetings may be convened by the Board of Directors or at the written request of one-third of the member institutions to consider matters of extreme importance. A meeting agenda shall be distributed prior to meetings.
6.1 Definition. The Board of Directors is the governing and administrative body of the Kuali Foundation.
6.2 Purposes and Functions.
Purposes
To provide management and oversight of the business and affairs of Kuali in accordance with its By-Laws and consistent with its mission. This includes management of the corporate assets (including funds, intellectual property, trademarks, support, equipment);
To represent the best collective interest of all Kuali members; and
To establish and maintain the processes of coordination determined to be necessary to support the collaboration activities.
6.3 Board Size, Member Term, Meetings.
Meetings of the Board of Directors
6.4 Filling Board Seats. At the end of a term of a Board member, the Board of Directors may reappoint that individual or appoint a different individual to serve on the Board.
6.5 Vacancies. If an individual currently serving on the Board of Directors is incapacitated or resigns, the Board of Directors may appoint an individual to the Board of Directors for the remainder of that vacant person’s term.
6.6 Quorum. A majority of the entire membership of the Board of Directors as fixed in these By-Laws shall constitute a quorum for the transaction of any business. In the absence of a quorum, a majority of those members present may adjourn the meeting. When a quorum is once present to organize a meeting, it is not broken by the subsequent departure of one or more members of the Board of Directors from the meeting, provided that at least one third of the Board of Directors is present at all times. The affirmative vote of a majority of the members present at a Board of Directors meeting at which a quorum is present shall be necessary and sufficient to the making of decisions by the Board of Directors, except as a larger vote may at any time be otherwise specifically required by Indiana Nonprofit Corporation Law, the Articles of Incorporation, or these By-Laws.
6.7 Notice. At least seven (7) days’ notice shall be given to each member of the Board of Directors of a regular meeting of the Board of Directors. A special meeting of the Board of Directors may be held upon notice of five days. Notice of a meeting of the Board of Directors shall specify the date, time, and place of the meeting, but need not specify the purpose for the meeting or the business to be conducted. A member of the Board of Directors may waive notice of any regular or special meeting of the Board of Directors by written statement filed with the Board of Directors, or by oral statement at any such meeting. Attendance at a meeting of the Board of Directors shall also constitute a waiver of notice, except where a Board member states that he or she is attending for the purpose of objecting to the conduct of business on the ground that the meeting was not lawfully called or convened.
6.8 Telephonic meetings. The Board of Directors may participate in a meeting by means of a conference telephone or similar communications equipment through which all Board members participating in the meeting can speak to and hear each other at the same time. Participation by such means shall constitute presence in person at the meeting. This includes online communication methods other than telephone at the Board of Directors’ discretion.
6.9 Unanimous Consent, in lieu of meeting. Any action required or permitted to be taken at a meeting of the Board of Directors or any committee thereof may be taken without a meeting, provided all members of the Board of Directors or members of such committee, as the case may be, consent in writing, which may be by electronic means, to the action and such written consent is filed with the minutes of proceedings of the Board of Directors or such committee. Consent in such fashion shall have the same force and effect as a meeting vote, and may be described as such in any document executed by or on behalf of Kuali.
6.10 Compensation. Members of the Board of Directors other than officers and employees shall receive no compensation for their services but, by resolution of the Board of Directors, may be reimbursed for expenses incurred while acting on behalf of Kuali.
6.11 Executive Committee. Through a vote of the members of the Board of Directors in office, the Board of Directors may designate an Executive Committee consisting of the Chair, Vice-Chair and one other member of the Board of Directors which shall have authority to act for the Board of Directors in between formal meetings; provided, however, that no such committee shall have the authority of the Board of Directors in reference to amending, altering or repealing the By-Laws; electing, appointing or removing any member of any such committee or any Director or officer of Kuali; amending the Articles of Incorporation; adopting a plan of merger or adopting a plan of consolidation with another corporation or entity; authorizing the voluntary dissolution of Kuali or revoking proceedings therefore; adopting a plan for the distribution of the assets of Kuali; fixing the compensation of the Directors for serving on the Board of Directors or on a committee; hiring, firing, or changing the compensation of the Executive Director; or amending, altering or repealing any resolution of the Board of Directors which by its terms provides that it shall not be amended, altered or repealed by such committee. The designation and appointment of any such committee and the delegation thereto of authority shall not operate to relieve the Board of Directors or any individual Board member of any responsibility imposed upon it or the Board member by law. The Board of Directors may designate one or more of its members as alternate members of the Executive Committee, who may replace any absent or disqualified member at any meeting of the Executive Committee upon the request of the Chair. Vacancies in the Executive Committee shall be filled by the Board of Directors at a regular or special meeting.
7.1 Number. The officers of Kuali shall be a Chair, Vice-Chair, Executive Director, Secretary, and Treasurer. Such other officers and assistant officers as deemed necessary may be appointed by the Board of Directors. The duties of any such officers and assistant officers shall be fixed by the Board of Directors, or by the Chair if authorized to do so by the Board of Directors, but to the extent not so fixed, shall be those customarily exercised by corporate officers holding such offices.
7.2 Chair and Vice-Chair. The Chair, who shall serve as President, and Vice-Chair, who shall serve as Vice President, shall be elected by the Board of Directors by majority vote of the full Board of Directors membership. They shall normally serve one year. They may be reelected. The term of office of either officer shall terminate upon the effective date of his or her resignation submitted in writing to the Board of Directors; upon his or her death; or upon a majority vote of the Board to remove him or her from office. Any vacancy created thereby shall be filled by the Board of Directors from among its members. The Vice-Chair shall serve as Chair whenever the Chair is unable to so serve.
7.3 Executive Director. The Executive Director position, when vacant, may be filled on an interim basis by appointment of the Chair to the position. A permanent Executive Director shall be selected by majority vote of the full membership of the Board of Directors from among applicants for the position. Such applicants shall be solicited from the membership institutions, or elsewhere at least two months prior to filling of the vacancy. The Executive Director serves at the pleasure of the Board of Directors.
7.4 Treasurer and Secretary. The offices of Treasurer and Secretary shall be filled by appointment of the Board of Directors. The Treasurer and Secretary, who need not be members of the Board of Directors, shall serve one (1)-year terms; however, the length of the term in office may be changed from time to time by the Board of Directors. An individual may serve as Treasurer or Secretary for successive terms without limitation. The term of office of Treasurer or Secretary shall terminate upon the effective date of his or her resignation submitted orally or in writing to the Board of Directors; upon his or her death; or upon a majority vote of the Board of Directors to remove him or her from office. Any vacancy created thereby shall be filled by appointment by the Board of Directors.
8.1 Purpose. The purpose of the conflict of interest policy is to protect Kuali’s interest when it is contemplating entering into a transaction or arrangement that might benefit the private interest of an officer or director of the Kuali Foundation community or might result in a possible Excess Benefit Transaction (as that term is defined below). This policy is intended to supplement, but not replace, any applicable state and Federal laws governing conflict of interest applicable to non-profit and charitable organizations.
8.2 Definitions. For purpose of Article VIII, the following terms shall have the following meanings:
“Financial Interest” shall mean any person who has, directly or indirectly, through business, investment or family relationship, any of the following:
8.3 Duty to Disclose. In connection with any actual or possible conflict of interest, an Interested Person must disclose the existence and nature of his or her Financial Interest to the directors and members of the appropriate committees that have powers delegated from the Board of Directors to consider the proposed transaction or arrangement.
8.4 Determining Whether a Conflict of Interest Exists. After disclosure of the Financial Interest and all material facts, and after any discussion with the Interested Person, the Interested Person shall leave the Board of Directors or committee meeting while the determination of a conflict of interest is discussed and voted upon. The remaining Board of Directors or committee members shall decide if a conflict of interest exists.
8.5 Procedures for Addressing the Conflict of Interest.
8.6 Violations of the Conflict of Interest Policy.
8.7 Records of Proceedings. The minutes of the Board of Directors or committees with powers delegated from the Board of Directors shall contain:
8.8 Compensation.
8.9 Annual Statements. Each director, officer and member of a committee with powers delegated from the Board of Directors shall annually sign a statement which affirms that such person:
8.10 Periodic Reviews. To ensure that Kuali operates in a manner consistent with its charitable purposes and that it does not engage in activities that could jeopardize its tax-exempt status, periodic reviews shall be conducted. The periodic reviews shall, at a minimum, include the following subjects:
8.11 Use of Outside Experts. When conducting the periodic reviews provided for in Article VIII, Kuali may, but need not, use outside advisors. If outside experts are used, their use shall not relieve the Board of Directors of its responsibility for ensuring periodic reviews are conducted.
9.1 The principal office and registered office of Kuali shall be located in Bloomington, Indiana.
10.1 The standing committees are those committees that operate on a continuing basis. They may be created and disbanded at the desire of the Board of Directors. They will be reviewed on an annual basis.
11.1 The By-Laws or the Articles of Incorporation may be amended in whole or in part by a two-thirds majority vote of the full membership of the Board of Directors except as otherwise specified for special circumstances in these By-Laws or provided by Indiana law. Amendments may be proposed by any Organizational Representative to the Board of Directors. The Board of Directors shall circulate the proposed amendment to all Organizational Representatives, and publish it to the members, for discussion, at least thirty (30) days prior to vote. In addition, all amendments must be discussed at a Board of Directors meeting prior to the one at which they are voted on by the Board of Directors.
12.1 The Board of Directors shall prepare an annual report of activities and such special bulletins and reports as are deemed necessary.
13.1 Contracts. The Board of Directors may authorize any officer or officers, agent or agents of Kuali who are not specifically so authorized by these By-Laws, to enter into any contract or execute and deliver any instrument in the name of and on behalf of Kuali, and such authority may be general or confined to specific instances; provided that such authorization shall be confirmed by written resolution.
13.2 Checks. All checks, drafts or orders for the payment of money, notes or other evidences of indebtedness issued in the name of Kuali, shall be signed by such officer or officers, agent or agents of Kuali and in such manner as shall from time to time be determined by resolution of the Board of Directors. Those who have check signing ability for Kuali shall be bonded.
13.3 Deposits. All funds of Kuali shall be deposited from time to time to the credit of Kuali in such banks, trust companies or other depositories as the Board of Directors may select.
13.4 Contributions and Gifts. The Board of Directors may accept or reject on behalf of Kuali any contribution, gift, bequest, or devise for the general purpose or for any special purpose of Kuali.
14.1 Books and Records. Kuali shall keep correct and complete books and records of accounts and shall also keep minutes of the proceedings of its Board of Directors and committees having any of the authority of the Board of Directors, and shall keep at the registered or principal office a record giving the names and addresses of the Board of Directors. All books and records of Kuali may be inspected by any director, or his or her agent or attorney for any proper purpose at any reasonable time.
15.1 Fiscal year. The annual accounting period of Kuali shall be determined by the Board of Directors.
15.2 Parliamentary Authority. The rules of parliamentary procedure in “Robert’s Rules of Order, Newly Revised”, commonly known as “Robert’s Rules,” shall govern the proceedings of the meetings of Kuali, subject to all other rules contained in the Articles of Incorporation and By-Laws.
15.3 Severability. Each of the sections, subsections and provisions hereof shall be deemed and considered separate and severable so that if any section, subsection or provision is deemed or declared to be invalid or unenforceable, this shall have no effect on the validity or enforceability of any of the other sections, subsections or provisions.
15.4 Website. Kuali shall maintain a publicly-accessible web site, which may include, among other things: