I just want to be the first to mention how much work Richard has put into this as the person interfacing with the laywer, and personally thank him for his dedication to it. Thanks!

Reid

On Thu, Feb 24, 2022 at 11:19 PM Richard Laager <rlaager@wiktel.com> wrote:

At the last meeting, we discussed various bylaws issues. This started with the quorum issue. I was short on the official notice period for the last meeting, plus there was a desire for legal advice on certain questions, so we held off on voting on things.

As promised, I engaged a lawyer at Moss & Barnett. I consulted with him on the questions, he drafted bylaws changes, I reviewed them, and then the board reviewed them. The results of this are below. I have numbered the changes for ease of reference, but the order is not significant; each amendment is standalone.

The Board recommends adoption of all changes.

The Proposed (all changes) and Current bylaws are attached.

Please review and comment here on the mailing list. Out of respect for people's time, I would like to avoid a long interactive meeting, limiting that to primarily voting. "Speak now or forever hold your peace" as it were.

Change 1: Quorum

This is the issue that we have discussed at length before. There seemed to be a consensus on this previously. Our lawyer's view was that the proposed language was fine. But when he actually integrated it into the text, he did use slightly different structure, giving them "(i)" and "(ii)" prefixes. So this is now using the lawyer's wording.

ACTION:

Amend the first sentence of section 1.11 "Quorum" to insert the words, "the lesser of (i) ten (10) members entitled to vote or (ii)", such that it now reads:

Members representing the lesser of (i) ten (10) members entitled to vote or (ii) ten percent (10%) of the voting power of the membership interests entitled to vote at a meeting of the members are a quorum for the transaction of business.

Change 2: Affiliates

As discussed at the last meeting, we wanted to add to the bylaws (where it belongs) the longstanding MICE policy that affiliated members (e.g. parent companies and subsidiaries) only get one vote. We specifically wanted to get a lawyer to draft the language for defining this.

Originally, we were (or at least I was) thinking that we wanted self-executing language (e.g. if two members merge, one of the entities automatically loses membership status). The lawyer strongly advised against this. First off, for that to work, the language has to be deterministic at the point the e.g. merger happens. For example, there is no way for the merged entities to indicate which will be the member moving forward. Second, he advised this creates a risk of ultra vires actions. Imagine some members merge, then we elect a board member in a nearly-tied election, then the board makes some decisions, etc. etc. Later, we find out about a merger that predated the election, and that changed the result of the election. Now you have to try to unwind all that? While that particular possibility is remote, ultimately he recommended a different approach, which is what is taken here.

This change creates an affirmative duty for members to notify MICE of mergers. It allows the board to refuse to admit the second entity (for new member scenarios) and to terminate the membership of all-but-one affiliate (for e.g. the merger scenario). This is the procedure we have been using.

This also includes a language cleanup to clarify what "Board" means. This is just a cleanup.

The Bylaws allow the Board to amend the membership qualifications section, and that was the original plan discussed at the last meeting. But since the members are already voting on bylaws changes, the board is bringing this to the members too. This also allows for the language cleanup in section 1.1 and the section 1.16 change.

ACTION:

Amend section 1.1 "Membership Qualifications" to make the existing text subsection "(a)".

Amend section 1.1 (a) to insert the text, " of Governors of the Company (the “Board” or “Board of Governors”)" after the first occurrence of "Board", such that it reads:

In order to qualify for membership, a member shall be: (i) an operator of an internet protocol network which has one or more direct, or approved indirect, connections to Midwest Internet Cooperative Exchange LLC’s (the “Company”) switches; or (ii) an operator of equipment providing approved indirect connections; or (iii) an operator of a colocation data center in which the Company’s switches are located.  A member may be elected by the membership or appointed to membership by the Board of Governors of the Company (the “Board” or “Board of Governors”).  Members may have such other qualifications as the Board may prescribe by amendment to this Operating Agreement.

Add a subsection 1.1 (b) that reads:

Each member shall have an affirmative duty to disclose the identity each of its Affiliates that is a member of the Company.  “Affiliate” means, with respect to any entity, (i) any other entity directly or indirectly controlling, controlled by, or under common control with such specified entity, or (ii) any other person or entity owning or controlling fifty percent (50%) or more of the outstanding voting securities of such entity.  For purposes of the foregoing, the term “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as applied to any entity, means the possession, directly or indirectly, of the power to cause the direction of the management and policies of such entity, whether through the ownership of voting or other securities, by contract or otherwise.  The Board may refuse to admit any entity that is an Affiliate of a member or may condition such admission on the acknowledgment that such entity and each of its Affiliates, will only have one member vote which may only be exercised by one of the affiliated members.

Amend section 1.16 "Resignation, Expulsion or Suspension of Members" to add a subsection (d) that reads:

Notwithstanding the foregoing, the Board may terminate the membership of one or more members who are Affiliates, such that such Affiliates shall only have one member vote. The intention of this provision is to prevent the concentration of voting power in members who are under common ownership or common control.

Change 3: Action Without a Meeting

This cleanup was proposed by the lawyer, when reviewing the bylaws. The first sentence says that we can do things without a meeting by every single member consenting to it. As a practical matter, that would never happen. It's also duplicative, since the second sentence says we can do things without a meeting with a majority of all members.

ACTION:

Amend section 1.13 "Action Without a Meeting" to strike the first sentence, "Any action required or permitted to be taken at a meeting of the members may be taken by written action signed, or consented to by authenticated electronic communication, by all the members entitled to vote on such action."

Change 4: Removal of Board Members

The lawyer found a number of concerns in the existing language (drafting errors, referencing the wrong statute, etc.) and procedure. He basically felt that it needed to be thrown out and completely redrafted.

The current bylaws allow the members to remove a governor, with or without cause, by a "[two-thirds] majority" (drafting errors per original). At our current size, this is effectively impossible. The proposed change allows the members to remove a governor, with or without cause, by a majority (of all members, not just those voting on the issue), which is still a very high bar, but far more possible should the need arise.

The current bylaws allow the board to remove a governor only if the board appointed that governor in the first place. The proposed change allows the board to remove a governor for cause (which is defined in quite a bit of detail) or disability (also defined).

The Board had significant discussion on this change. There are two directly opposite concerns here, and any solution is going to involve some compromise. First, it is desirable to be able to remove a governor, promptly, when this is legitimate. Second, it is desirable to slow down or prevent removing a governor when this is illegitimate.

We ultimately went back to the lawyer asking him to provide a mechanism by which a removal could be reviewed by the members. This ended up raising the question of notice to the removed governor. Initially notice was required by implication; this was made explicit. As part of this, section 1.14(d) "Notice to Members" was then copied, with s/member/governor (and the "(1)" and "(2)" labels removed), as 2.11(c).

ACTION:

Amend section 2.11 to add a subsection (c) which reads:

Any notice to governors given by the Company or the Board by a form of electronic communication consented to by the governor to whom the notice is given is effective when given.  The notice is deemed given by:

(i)    facsimile communication, when directed to a telephone number at which the governor has consented to receive notice;

(ii)    electronic mail, when directed to an electronic mail address at which the governor has consented to receive notice;

(iii)    a posting on an electronic network on which the governor has consented to receive notice, together with separate notice to the governor of the specific posting, upon the later of: (i) the posting; and (ii) the giving of the separate notice; and

(iv)    any other form of electronic communication by which the governor has consented to receive notice, when directed to the governor.

Consent by a governor to notice given by electronic communication may be given in writing or by authenticated electronic communication.  The Company and the Board is entitled to rely on any consent so given until revoked by such governor, provided that no revocation affects the validity of any notice given before receipt by the Company or the Board of revocation of the consent.

Replace the contents of section 2.17 "Removal of Governors" entirety with:

(a)    Removal for Cause or Disability by the Governors.  The Board may remove a governor for Cause or Disability by the unanimous vote of the governors, excluding the governor to be removed (the “Voting Governors”).  “Cause” shall exist if the Voting Governors determine in good faith that the governor to be removed (i) has failed to discharge his, her, or their duties as governor in good faith, (ii) has breached his, her, or their fiduciary duties to the Company or its members, (iii) has committed theft, embezzlement or conversion of Company property, (iv) has engaged in any illegal activity or fraud in connection with the Company, (v) has been convicted of a felony or other crime involving moral turpitude, while a governor; (vi) has engaged in a conflict of interest without complying with Section 5.1 and 5.2 of this operating agreement or (vii) has engaged in acts or omissions which the Board reasonably deems to be materially damaging to the name, reputation, or business of the Company or which could jeopardize the good will or relationship with its member or other persons and entities important to its mission.  “Disability” a physical or mental impairment which prevents the governor from performing his, her, or their duties as a governor for a period of not less than 6 months.  The Board shall send a written notice to the removed governor stating the basis for their removal under this Section 2.17(a), within three (3) business days following a Board vote removing a such governor.

(b)    Retention Vote by Members.  In the event the Board has removed a governor solely for the reasons stated in Section 2.17(a)(i) or (vii) (and not for any other reason constituting Cause or Disability), the removed governor within ten (10) business days following the dispatch of the notice of removal may provide a notice of disagreement with such removal and a request to submit such matters to the vote of the Members.  The Board shall call a meeting of the Members to vote on the retention of such governor to be held within 30 days.  Prior to such meeting, the governor shall continue to be removed subject to later reinstatement by the Members by affirmative vote.  If the governor is not reinstated by affirmative vote, the position shall be filled by a vote of the Members.  If notice by the removed governor is not given within ten (10) business days, the removed governor shall have waived his or her right to challenge the removal.  No governor shall have the right to appeal or challenge a removal by the Board under Section 2.17(a), except as expressly set forth in this Section 2.17(b)

(c)    Removal by Members.  Any one or all of the governors may be removed at any time, with or without cause, by the affirmative vote of a majority of the voting power of all membership interests entitled to vote at an election of governors.

-- 
Richard

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--

Reid Fishler
Senior Director
Hurricane Electric
+1-510-580-4178

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