[apnic-talk] Re: comments on legal documents
Obata-san,
Again, thanks _very_ much for the comments. I encourage others to comment
as well.
>>Clarification: shareholders != members. APNIC has no intention of issuing
>>more than one share, that one share being held in trust by the director
>>general for the Executive Council (see the Trust Statement).
>
> I understand now (assuming that != means "not equal" since there were
>several wrong code conversion when I read your documents with Japanese
>Win95).
Sorry. Yes it meant "not equal". C programmer in me coming out...
>Please explain the meaning of "DG for the EC." I thought that DG
>will be a trustee and I could not find organizational relationship between
>DG and EC in the documents.
The Trustee can be anyone, however in practice (historically), it is the
Director General who is given the share of APNIC. According to item B. of
the Trust Statement, the Trustee holds APNIC Pty Ltd on behalf of the
executive council.
I'll discuss with the lawyers the feasibility of making this historical
situation explicit in the documents.
>>>c) It seems better that an international arbitration organization is
>>>assigned as a default in case where the disputants cannot agree on anything
>>>else.
> There is one in den Hague, Netherland, which we often use for
international business.
Hmm. Would AP region folk want to use an organization based in the
Netherlands to arbitrate disputes? In any event, I'll ask the lawyers if
there are any international organizations based in the region to render the
issue moot. If there aren't we'll have to choose between The Hague and
some national body in the region.
>>>d) What is your idea of the initial people defined in this article, such
>>>as, COB, Directors, President, members, officers and subscribers. May I
>>>assume that they will be Chairmen of Executive Council, EC, Director
>>>General, APNIC current members and current employees of APNIC,
>>>respectively? I do not have a good idea of who the subscribers will be but
>>>it seems to me that it may constitute of Directors, Director General and
>>>possibly members of APNIC.
...
>>Members == APNIC Members
>
>This is not aligned with the definition in the Articles say that "The
>Company shall issue to every member holding registered shares
>in the Company a certificate signed by a director or officer of the
>Company under the Seal specifying." There seems to be different
>use of the term "member" in each document.
Yes, you are correct -- I thought you were speaking in more general terms.
In the future, could you indicate which section of which document you are
referring to so I don't get confused?
>Please define the organization of APNIC using the same terms as
>used in By-Laws in the Articles document. It must be helpful if you
>also define the structure of APNIC.
Clarification: The By-Laws speak to the special committee called APNIC
only. The Articles speak to the corporation, APNIC Pty Ltd. In the case
you mention above, members == shareholders. I will ask Freehills to be
more consistent with their terminology.
> It may be troublesome to sign membership agreements each time
>there is a change.
According to membership agreement item #21, changes automatically take
effect upon renewal of the term, without the need to have a new agreement
signed.
Also, RFC document numbers do not change, thus a reference to RFC 2050 will
always refer to the same document.
>>>c) I am not sure whether reference to an FTP address in contracts have any
>>>legal status.
>>Will run it by the lawyers, but I suspect it has the same legal status as
>>(say) telephone numbers.
> In such case the content of the document is not directly refered since a
>telephone number is only a contact address.
As is the case with the FTP address. The idea here is that the Internet
community will continue to make policy and we wanted a directory that
contained those policy documents. Providing an FTP address would insure we
wouldn't have to worry about other archives going away.
>>No, no discount. Billing is monthly, with the start of billing occuring
>>the first day of the next month after the organization joins. The idea is
>>that if an organization starts its membership on May 15, they would enter
>>the billing cycle on June 1 (thereby getting 15 days of free service).
>>Primary reason for this is that Kyoko feels the current daily billing cycle
>>too difficult to manage.
>
> I was asking whether you need to pay for the full year, which seems to
>be the case reading the definition.
Yes. In all but one case (clause 25)
>It is not fair compared to the case when you leave APNIC you are refunded
>of the unsubscribed part of the annual membership fee.
Presumably you are asking about clause 25. This clause is intended to
cover the case where an organization does not require _any_ allocation
services but, because APNIC services are pre-paid, the organization has
already paid some amount of money. We felt it appropriate that the
organization should be able to obtain a refund (not including the one-time
startup fee to cover the costs of initiating the membership and initial
resource request review). If an organization recieves allocation services,
then they are not entitled to a refund.
>1.
>Articles say
>Upon the written request of members holding 5 per cent or more of the
outstanding voting shares in the Company the directors shall convene a
meeting of members.
>
>By-Laws says nothing
Yes, as mentioned, the articles are addressing APNIC Pty Ltd and the
By-Laws are addressing the special committee called APNIC established by
APNIC Pty Ltd.
However, the intent of that clause in the articles is to allow 5% of the
shareholders to demand a meeting. I have had more trouble getting 5% of
the members to come to called meetings (:-)), however if people think this
would be a useful clause to add, it is easy to do so. Let me know.
>2.
>Articles say
>A meeting of members is duly constituted and a quorum is said to be
present if, at the commencement of the meeting, there are present in person
or by proxy not less than 50 per cent of the votes of the shares or class
or series of shares entitled to vote on resolutions of members to be
considered at the meeting. If a quorum be present, notwithstanding the fact
that such quorum may be represented by only one person then such person may
resolve any matter and a certificate signed by such person accompanied
where such person be a proxy by a copy of the proxy forms shall constitute
a valid resolution of members.
>
>By-Laws say
>A meeting of Members is duly constituted and a quorum is said to be
present if, at the commencement of the meeting, there are present in person
or by proxy not less than either 30% of the votes entitled to vote on
resolutions of Members to be considered at the meeting, or 20 Members,
whichever is less.
I suspect the easiest solution here is to change the articles to read 30%
of the votes or 20 shareholders.
>There are others but I think it may not be necessary that you define the
same thing in more than one document.
I believe you have to, as they are addressing different bodies.
Regards,
-drc
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