Version 5
Version 3 was passed by the membership in June, 1987
This version incorporate amendments passed in April,
1988 and December, 1988
Version 3 Drafted by Bob Tolz [70475,1071]
after consultation with the Membership in formation,
with special thanks to Nelson Ford, Barry Simon,
Joan Friedman, Neil Rubenking, Howard Benner, Peter Fletcher,
Steve Schauer, John Friend, Bob Foster, Marshall Magee, Karl
Brendel and Jim Button for their contributions.
Version 5 incorporates changes to Article 4, sections 2 and 3 that
were passed by the membership in January, 1991.
BYLAWS
OF
ASP, INC.
ARTICLE 1: Object of Corporation
Section 1. This Corporation is created by its Members
for the following purposes:
ASP, the Association of Shareware Professionals, was formed
in April 1987 to strengthen the future of shareware (user
supported software) as an alternative to commercial software. Its
members, all of whom are programmers who subscribe to a code of
ethics or are non-programmers sincerely interested in the
advancement of shareware, are committed to the concept of
shareware as a method of marketing.
ASP's primary goals are:
o To inform users about shareware programs and about
shareware as a method of distributing and marketing software;
o To encourage broader distribution of shareware through
user groups and disk dealers who agree to identify and explain
the nature of shareware;
o To assist members in marketing their software;
o To provide a forum through which ASP members may communi-
cate, share ideas, and learn from each other; and
o To foster a high degree of professionalism among share-
ware authors by setting programming, marketing and support
standards for ASP members to follow.
Section 2. The purpose of the Corporation may not be
altered except as an amendment to these bylaws, which shall
require a two-thirds majority vote at an annual or special
meeting of the Membership.
Section 3. The Corporation is not organized, nor shall
it be operated, for pecuniary gain or profit, and it does not
contemplate the distribution of gains, profits or dividends to
its Members and is organized solely for non-profit purposes. The
property, assets and profits and net income of the Corporation
are irrevocably dedicated to the purposes set forth in Section 1
hereof, and no part of its profits or income shall ever inure to
the benefit of any Director, Officer or Member thereof or to the
benefit of any private person.
ARTICLE 2: Membership
Section 1. The Membership of the Corporation shall
consist of those persons who have signed the Certificate of
Incorporation as incorporators together with all persons who are
hereafter received in or elected to Membership as hereinafter
provided.
Section 2. The criteria for Membership in the Corpora-
tion shall be:
(a) That the Member, in the judgment of the Board of
Directors, is and remains a shareware professional, as that
term may be defined by the Board of Directors after consultation
with the Membership.
(b) That the Member pay and remain current in the
payment of dues, fees and assessments.
(c) That the Member agrees to abide by and continues
to abide by the published standards of the Corporation for the
development and distribution of shareware.
(d) Co-authors of a single shareware product one of whose
authors is a member of ASP may apply to be "CoAuthor Members".
Such members shall not have a vote, may not run for the the Board
of Directors, or serve as Officers, shall not pay dues and shall
not recieve notification of meetings. They may take part in
discussions in the continuous meeting and may describe themselves
as ASP members in connection with products coauthored with a
regular member. Nothing in this paragraph shall be construed to
prohibit each co-author from separately becoming regular Members.
(e) Members who are not authors of shareware products
shall be "Associate Members". Associate Members shall be permitted
access to meetings of Members and may be heard thereat, but they
shall not be entitled to vote on any matter. Dues, fees and
assessments for Associate Members may be set differently from dues,
fees and assessments for other Members. Associate Members shall
not be eligible to become directors.
(f) Individuals shall become Associate Memebers only by
explicit invitation of the Board of Directors or by a membership
committee to which the Board of Directors chooses to delegate this
authority.
(g) Associate members must pay and remain current in the
payment of dues, fees and assessments to continue as Associate
members.
(h) At any time, the Board Directors by a 2/3 majority
vote may terminate the membership of any Associate member. This
authority may not be delegated.
Section 3. The criteria for Membership in the Corpora-
tion may not be altered except as an amendment to these bylaws,
which shall require a two-thirds majority vote at an annual or
special meeting of the Membership. Promulgation or amendment of
standards shall require a two-thirds majority vote at an annual
or special meeting of the Membership.
Section 4. A Member shall be dismissed from Membership
upon the failure of the Member to meet any Membership criterion.
It shall be the obligation and responsibility of each Member to
advise the Board of Directors if the Member no longer qualifies
as a Member. The procedure for dismissal shall be as follows.
If the Board of Directors determines that there is reasonable
cause to believe that the Member fails to meet any Membership
criterion, it shall provide notice of such failure to the Member.
The Member shall have 15 days from the date notice is given to
respond to such notice. Following the Member's response, if any,
the Board of Directors shall make a factual determination and
shall take such action with regard to Membership as it, in its
sole discretion, deems to be required.
Section 5. A Member may resign from Membership at any
time and shall be required to do so if such Member is not able to
or does not wish to comply with Membership requirements.
Section 6. The Board of Directors may establish a
Membership committee to which it may delegate any responsibility
which the Board of Directors may have regarding Membership. A
Member may appeal to the full Board from any adverse decision of
the Membership committee.
Section 7. Dues, fees and assessments shall be estab-
lished, and may be modified from time to time, by majority vote
of the Membership at any meeting.
Article 3: Government
Section 1. The general management of the affairs of the
Corporation shall be vested in the Board of Directors, who shall
be elected as provided in the bylaws. A Member of the Board of
Directors must be a Member of the Corporation who is not an
Associate Member or a CoAuthor Member.
Section 2. There shall be six (6) Members of the Board
of Directors.
Section 3. The term of office of each Member of the
Board of Directors shall be two (2) years commencing on January 1
following the date of election.
Section 4. Members of the Board of Directors shall be
eligible for reelection.
Article 4: Meetings of Members
Section 1. Continuous meetings of the Members of the
Corporation shall take place on an electronic forum such as
Compuserve or such other forum as may be selected by the Board of
Directors after consultation with the Membership. Wherever in
these bylaws the Board of Directors is required to consult with
the Membership, it shall be sufficient if the Board consults with
the Membership electronically in such continuous meeting. No
votes may be taken at such continuous meetings, other than
unofficial votes for the Board to obtain the sense of the
Membership and other than votes under the provisions for special
meetings set forth below.
Section 2. Annual meetings of the Members of the
Corporation shall be held once each year at a time to be fixed by
the Board of Directors. Final and official notice of the
time and place of the annual meeting shall be provided to each
Member not less than ten nor more than fifty days prior thereto
and shall specify the matters to be discussed and voted upon at
such special meeting. No business may come before a special
meeting which is not so specified. The board may choose to hold
the annual meeting electonically. Members may be present at an
annual meeting in person or by written or electronic proxy. The
Board of Directors may establish a procedure to permit Members
who are not present to participate in the annual meeting by
written or electronic proxy.
Section 3. Special meetings of the Members of the
Corporation may be called from time to time by the Board of
Directors, or by at least 10% of the Membership acting in
concert, or by at least 15 Members acting in concert. Members
shall be deemed to have acted in concert for purposes of the
preceding sentence if they have provided written notice to the
Secretary of the request for a special meeting, such request to
specify the matters to be addressed at such meeting. Notice of
the time and place of a special meeting shall be provided to each
Member not less than ten nor more than fifty days prior thereto
and shall specify the matters to be discussed and voted upon at
such special meeting. No business may come before a special
which is not so specified. Special meetings shall be conducted
electronically and shall be chaired by the President of the
Corporation pursuant to the procedure set forth in Article 5.
Section 4. At any meeting of the Members, each Member
shall have one vote. Members of the Board of Directors shall
not have the right to vote on matters concerning the manner in
which they have exercised their functions, except they may vote
on any matter concerning the description, enlargement or
circumscription of their functions.
Section 5. At all meetings, a quorum shall consist of
those persons who have cast their votes at such meeting.
Section 6. Action at any meeting of Members may be taken
by a simple majority vote of a quorum, except as to any require-
ments for a super-majority vote specifically set forth in these
bylaws.
Section 7. Members who are unable to attend an annual
meeting may send in a written or electronic proxy to the Secre-
tary on the matters on the agenda, appointing the Board of
Directors to cast votes for such Member in a manner specified in
such proxy.
Section 8. The President shall chair all meetings. In
the absence of the Prsident, the chair shall pass to the remain-
ing Officers of the Corporation, in the order they are named in
Article 7. The meetings shall be governed by Roberts Rules of
Order, Revised (1979 edition) except where, in the opinion of the
chair, a limitation or enhancement of electronic conferencing
makes certain of those rules either unworkable or unnecessary.
Section 9. Any resolution which is defeated at any
meeting may not be reintroduced or placed on the agenda for any
meeting within six (6) months following defeat of such resolu-
tion.
Section 10. Associate Members shall be entitled to notice
of meetings and shall be entitled to be heard thereat. However,
Associate Members shall not be entitled to vote on any matter.
CoAuthor members shall not be entitled to notice or to vote but
may speak at meetings. Whereever in this Article reference is
made to action by the Membership, such reference shall be construed
to mean Members other than Associate or CoAuthor Members.
Article 5: Procedure for Special Meetings
Section 1. Special meetings shall take place on a
continuing daily basis via computer telecommunications on a
bulletin board system ("BBS") chosen by the Board of Directors.
Section 2. Only the Chairman of the Board of Directors
or the President may call for an end of discussion and for a vote
on a proposal and such call shall constitute the beginning of the
"voting period".
Section 3. Each Member shall have one vote, except that
Members of the Board of Directors shall not have the right to
vote on matters concerning the exercise of their functions.
Section 4. A proposal shall be open for voting until
either accepted or rejected by a simple majority of a quorum of
the Membership or until the voting period has expired, except as
to any requirements for a super-majority vote specifically set
forth in these bylaws.
Section 5. The voting period shall be a minimum of 48
hours. If less than one-third of the Membership has voted within
such period, then the voting period shall be extended until one-
third of the Membership has voted or 168 hours have elapsed from
the beginning of the voting period, whichever comes first.
Section 6. A proposal shall be accepted or rejected
based on a simple majority of the votes of the quorum, except as
to any requirements for a super-majority vote specifically set
forth in these bylaws.
Section 7. In lieu of voting on the BBS, a Member may
send in a written vote to the Secretary and it shall be counted
if received during the voting period.
Section 8. Should the BBS which is normally used for
meetings be unavailable to the general Membership for 6 or more
continuous hours during the voting period, the voting period
shall be extended for an additional 24 hours.
Section 9. The rights of Associate and CoAuthor Members at
Special Meetings shall be governed by Article 4, Section 10.
Article 6: Election of Directors and Officers
Section 1. The Directors of the Corporation shall be
elected at a special meeting which shall be called by the
Secretary of the Corporation not later than December 1 of each
year. The term of office shall be as set forth in Article 3,
Section 3. Notwithstanding the foregoing, at the first election
of the Board of Directors by the Membership, the three Directors
with the greatest number of votes shall serve for a period
commencing with the date of election and ending with the second
January 1 following election, and the three Directors with the
least number of votes shall serve for a period commencing with
the date of election and ending with the first January 1 follow-
ing election.
Section 2. The Members of the Board of Directors shall
elect a Chairman of the Board of Directors at any meeting of the
Board. The duties of the Chairman shall be to chair all meetings
of the Board of Directors and to provide guidance and leadership
for the Corporation and its Membership.
Section 3. If a vacancy occurs among the Board of
Directors, the Secretary of the Corporation shall call a special
meeting for the purpose of filling the vacancy.
Section 4. Following the election of Directors, the
Directors shall elect from the Members a President, a Vice-
President, a Secretary and a Treasurer, who shall serve at the
pleasure of the Board of Directors.
Section 5. If a vacancy occurs among the Officers, the
vacancy shall be filled by the the Board from a member who is not a
CoAuthor Member or Associate Member.
Article 7: Duties of Officers
Section 1. The President shall preside at all meetings
of the Corporation and shall have the right to vote at such
meetings. In the case of a tie the President shall have the
power to cast two votes to break the tie. The President and the
Secretary shall sign the record of meetings and shall act as the
chief executive Officer of the Corporation. The President may
establish committees and shall appoint chairmen of such commit-
tees. The President shall act as chief executive Officer of the
Corporation, coordinate the activities of the Officers and the
committees and shall provide guidance and leadership in the day-
to-day operation and functioning of the Corporation.
Section 2. In the absence of the President, the Vice-
President shall perform the President's duties.
Section 3. The Secretary shall keep the minutes of all
meetings of the Members and of the Board of Directors, shall keep
a register of the Members, and shall provide notices of meetings
of the Members.
Section 4. The Treasurer shall keep accurate books of
account, prepare and present periodic operating statements and
balance sheets to the Board of Directors, and deposit and
withdraw funds of the Corporation under the direction of the
Board of Directors.
Article 8: Duties and Powers of the Board of Directors
Section 1. The Board of Directors shall have general
charge and management of the affairs, funds and property of the
Corporation. They shall have full power and it shall be their
duty to carry out the purposes of the Corporation according to
its charter and bylaws; to determine whether the conduct of any
Member is detrimental to the welfare of the Corporation and to
fix the penalty for such misconduct or any violation of the
charter or bylaws; to employ personnel for the carriying out of
the Corporation's objectives; and to make the rules for the
conduct of the Members.
Section 2. Any action required or permitted to be taken
by the Board of Directors may be taken without a meeting if all
Members of the Board consent in writing to the adoption of a
resolution authorizing the action.
Section 3. Meetings of the Board may be called and
governed in such manner as the Board may from time to time
determine.
Section 4. All action of the Board shall be taken by
majority vote of a quorum. A quorum of the Board shall consist
of four Members of the Board.
Article 9: Indemnification; Insurance
Section 1. The Corporation shall indemnify and hold
harmless from all costs and expenses (including reasonable
attorneys fees) of any person who was or is an elected or
appointed Officer or director of the Corporation and is threa-
tened to be or has been made a party to an action, claim, or
other proceeding arising out of such person's performance,
purported performance, or failure to perform, any duties on
behalf of the Corporation. Such indemnification shall not extend
to liabilities arising out of a person's gross negligence,
misfeasance or willful misconduct.
Section 2. The Board of Directors is authorized to
obtain Directors and Officers liability insurance to shield such
persons from liability for all costs, expenses and attorneys fees
arising out of the conduct of their duties as Directors and
Officers, except for liabilities arising out of their gross
negligence, misfeasance or willful misconduct.
Article 10: Dissolution
Section 1. The Corporation can be dissolved only upon a
two-thirds majority vote of a quorum present at any meeting. On
dissolution or winding up of the Corporation its assets remaining
after the payment of, or provision for the payment of, all debts
and liabilities shall be distributed to a non-profit fund,
foundation or Corporation which is organized and operated
exclusively for educational or charitable purposes and which has
established its tax exempt status under Section 501(c)(3) of the
Internal Revenue Code of 1986, as the same may be amended from
time to time. If the Corporation holds any assets outside the
state of its inCorporation they shall be disposed of in such
manner as may be necessary by a decree of a court of competent
jurisdiction in accordance with the laws of such jurisdiction
Article 11: Notices and Communications
Section 1. All notices or communications required or
permitted hereunder may be mailed through the United States Post
Office or by electronic means to their last known addresses as
shown in the records of the Corporation, and proof of such
mailing by return receipt or electronic acknowledgment shall
constitute presumptive evidence of such mailing thereof.
Article 12: Amendments
Section 1. These bylaws may be amended only by a two-
thirds majority vote of a quorum present in person or by proxy at
an annual or special meeting of the Corporation, provided that
notice of the purport of any proposed amendment has been stated
in the call for the meeting. The Secretary shall be required to
provide notice of any such amendment if any Member so requests at
least five days prior to the mailing of notices.
Article 13: Fiscal Year
Section 1. The fiscal year of the Corporation shall be
as determined by the Board of Directors.