[bylaws-coord] FW: Amendments to Articles of Incorporation

Tue May 24 18:56:40 UTC 2016

Dear All:

In response to emails earlier today concerning the status of Articles amendments, I am forwarding the emails discussing the draft amendments to ICANN's Articles of Incorporation from April 1, together with a clean copy of the proposed revised Articles, and one showing changes marked against the current Articles, each in both Word and pdf formats.

The change Steve DelBianco asked about is found in Article 7.

We leave it to you to decide to whom this draft should be circulated, and when.

Rosemary and Holly

Rosemary E. Fei
Adler & Colvin
235 Montgomery Street, Suite 1220
San Francisco, CA 94104
415/421-7555 (phone)
415/421-0712 (fax)
rfei at adlercolvin.com
www.adlercolvin.com

_____________________________
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From: Rosemary E. Fei
Sent: Friday, April 01, 2016 12:49 AM
To: 'bylaws-coord at icann.org'
Cc: ICANN-Adler; 'Sidley ICANN CCWG (sidleyicannccwg at sidley.com)'
Subject: RE: Amendments to Articles of Incorporation

Dear Sam:

I attach an update version of proposed edits to the Articles of Incorporation of ICANN.  The version attached:

*        Implements the four numbered changes recommended in our email of March 12 below; and

*        Inserts a specific reference to Article 24.2 of the ICANN Bylaws for procedures for the Empowered Community to approve either an Articles amendment or the sale of substantially all of ICANN's assets.

Please note that we would like ICANN Legal's attention to the highlighted description of ICANN's Mission.  Due to the technical terminology used here, we prefer that you review the highlighted text and suggest edits to ensure that the new Bylaws provisions found in Article 1 will be fully covered by and consistent with the purpose description in the Articles; if any changes are required, then, as noted below, the Articles language should be changed.

I attach a clean version, but despite my earnest efforts, I don't seem to be able to produce a version redlined to the current ICANN Articles right now, so we will have to send you that tomorrow.  If you would find it helpful to have a redline showing changes from the March 12 version attached to my email below, we can provide that tomorrow as well.

Rosemary
Please be aware that this email is intended to provide a short response to the questions posed, without the benefit of legal research.  If you would like a more thoroughly considered and researched response, please let us know.
Rosemary E. Fei
Adler & Colvin
235 Montgomery Street, Suite 1220
San Francisco, CA 94104
415/421-7555 (phone)
415/421-0712 (fax)
rfei at adlercolvin.com<mailto:rfei at adlercolvin.com>
www.adlercolvin.com<http://www.adlercolvin.com>

_____________________________
The information in this e-mail message and any attachments may be privileged, confidential, and protected from disclosure.  If you are not the intended recipient, any use, dissemination, distribution, or copying of this transmission is strictly prohibited.  If you think that you have received this e-mail message in error, please e-mail the sender at rfei at adlercolvin.com<mailto:rfei at adlercolvin.com>, and delete all copies of this message and its attachments, if any.  Thank you.
Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email.

From: Rosemary E. Fei
Sent: Saturday, March 12, 2016 5:39 PM
To: bylaws-coord at icann.org<mailto:bylaws-coord at icann.org>
Cc: ICANN-Adler; Sidley ICANN CCWG (sidleyicannccwg at sidley.com<mailto:sidleyicannccwg at sidley.com>)
Subject: Amendments to Articles of Incorporation

Dear John and Sam:

We're pleased to distribute proposed amendments to the Articles of Incorporation of ICANN, to conform the Articles to the CCWG Final Proposal.  We have two comments that may be helpful in your review.

*        You will note some highlighted text in Article 3.  Since the Articles govern the Bylaws in the event of any inconsistency between them, this text needs to be reviewed to ensure that proposed new Bylaws provisions in Annex 5, Paras. 72, 77, 80, and 83, are fully consistent with this description.  In the event of any inconsistency, changes should be made to this text in the Articles.

*        The minor edits to Article 4 are intended to make the Articles track more closely language in Annex 5, Para. 109, on the same subject.  (Note that the quote from the Articles on this subject found in Annex 5, Para. 5, is slightly inaccurate.)

In addition to the edits required to conform the Articles to the CCWG Final Proposal, you may wish to consider recommending to the ICANN Board making some additional edits now, in anticipation of the scrutiny this document may shortly be receiving outside of ICANN.  These amendments could be made by the Board alone, before the CCWG Final Proposal amendments are adopted.

1.      Article 2, naming the corporation's agent, is required to be included when Articles of Incorporation are initially filed with the Secretary of State.  If the agent changes after that, the information in this provision is obsolete, but it cannot be amended to update the name of the agent.  Section 5810(b) of the California Nonprofit Public Benefit Corporation Law does permit this provision to be deleted once the corporation has filed its initial biennial Statement of Information, and it is standard corporate practice to do so whenever the Articles are amended for other reasons.

2.      The third sentence in Article 3 refers to the possibility of future versions of the Internal Revenue Code ("IRC").  While referring to a "further" law is not entirely wrong, we think substituting "future" would be a more common and easily understood usage.

3.      Subsection (e) of Article 5 prohibits control of ICANN by "disqualified persons" as defined in IRC Section 4946,  or by a specific subset of 501(c)(3) tax-exempt organizations.  There is no legal requirement that ICANN's Articles include this prohibition, so we assume it is a matter of ICANN internal policy.  The reference to the IRC section defining "disqualified persons" is to the definition that applies for private foundations; the applicable definition for a public charity like ICANN is Section 4958, so if this subsection is retained, you may wish to correct that reference.  However, we would be hard-pressed to explain why this prohibition appears in ICANN's Articles at all now, and especially, if control over ICANN is a concern, why control by only a subset of 501(c)(3) nonprofits is prohibited, but not control by other types of tax-exempt organizations or for-profit entities.  Moreover, we think it is unlikely that ICANN has any disqualified persons under IRC Section 4946 other than its foundation managers (directors, officers, and senior executive staff); does ICANN maintain a list of such other disqualified persons, or otherwise monitor compliance with this subsection?  Given all these concerns, we would recommend deleting subsection (e) of Article 5.

4.      Article 8 addresses the possibility that ICANN might some day convert from 501(c)(3) public charity status to exemption as a trade or professional association under IRC Section 501(c)(6).  Since ICANN's assets are now irrevocably dedicated to charitable purposes by both federal tax law and California charitable trust law, any such conversion would require all ICANN's assets prior to the conversion to be distributed to or for 501(c)(3) organizations or purposes, making the cost of any such conversion prohibitive.  Keeping this provision at this point serves no practical function, and could confuse a reader regarding ICANN's long-standing and on-going tax-exempt status under IRC 501(c)(3).  We suggest deleting Article 8.

With the exception of item 2 above (which is a one-word substitution), our recommendations are all deletions, shortening and simplifying the document, and eliminating confusing or no longer applicable provisions.  We think these changes would facilitate review by NTIA and Congressional staff.

Holly and Rosemary

Rosemary E. Fei
Adler & Colvin
235 Montgomery Street, Suite 1220
San Francisco, CA 94104
415/421-7555 (phone)
415/421-0712 (fax)
rfei at adlercolvin.com<mailto:rfei at adlercolvin.com>
www.adlercolvin.com<http://www.adlercolvin.com>

_____________________________
Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email.

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