AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF ALMALINUX OS FOUNDATION
Pursuant to Sections 242 and 245 of the General Corporation Law of the State of Delaware
AlmaLinux OS Foundation, a non-stock membership corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”), HEREBY CERTIFIES AS FOLLOWS:
- The name of this corporation is “AlmaLinux OS Foundation”. The original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on March 18, 2021.
- Pursuant to Sections 242 and 245 of the General Corporation Law of the State of Delaware, this Amended and Restated Certificate of Incorporation restates and integrates, and further amends the provisions of this corporation’s original Certificate of Incorporation.
- The terms and provisions of this Amended and Restated Certificate of Incorporation have been duly approved by written consent of the Board of Directors in accordance with Section 141 of the General Corporation Law of the State of Delaware. The corporation currently has no members.
- The text of the Amended and Restated Certificate of Incorporation reads in its entirety as follows:
FIRST. The name of the corporation is AlmaLinux OS Foundation (the “Corporation”).
SECOND. The address of its registered office in the State of Delaware is 251 Little Falls Drive, City of Wilmington 19808, County of New Castle; and the name of the registered agent of the Corporation in the State of Delaware at such address is Corporation Service Company.
THIRD. The nature of the business or purposes to be conducted or promoted by the Corporation is to engage in any lawful act or activity for which corporations that are organized not for profit may be organized under the General Corporation Law of Delaware. Initially, the primary purposes of the Corporation are to develop and maintain a no registration, ad free, stable, open source Linux distribution for the benefit of and free use by the general public, and undertake such other activities which its Board of Directors may from time to time approve.
Notwithstanding the foregoing, if the Board of Directors elects to seek and obtains an exemption from Federal taxation for the Corporation pursuant to Section 501(a) of the Internal Revenue Code of 1986, as amended (hereinafter, the “Code”), and until such time, if ever, as such exemption is denied or lost, the Corporation shall not be empowered to knowingly engage directly or indirectly in any activity that it believes would be likely to invalidate its status as an organization exempt from federal income taxation under Section 501(a) of the Code as an organization described in Section 501(c)(6) of the Code.
FOURTH. Except as provided in this Section, no part of the net earnings of the Corporation shall inure to the benefit of, or be distributable to members of its Board of Directors, officers or other private persons, except that the Corporation shall be authorized and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of the purposes herein set forth, but only in a manner permitted by its tax exempt status at such times as the Corporation shall be so qualified.
FIFTH. The Board of Directors of the Corporation shall be, and shall possess all of the powers of, the “Governing Body” of the Corporation as a not-for-profit corporation under Delaware General Corporation Law. The number of members of the Governing Body who shall be present or represented by proxy at any meeting of the Governing Body in order to constitute a quorum for, and the votes that shall be necessary for, the transaction of any business shall be as stated in the by-laws of the Corporation, as from time to time amended. The business and affairs of the Corporation may be managed in a manner different from that set out in Section 141 of the Delaware General Corporation Law, to the extent described in the by-laws of the Corporation, as from time to time amended.
SIXTH. In the event of the liquidation, dissolution or winding up of the affairs of the Corporation (whether voluntary or by operation of law), the Board of Directors will, after paying or making any provision for the payment of all liabilities of the Corporation, distribute all of the assets of the Corporation as it sees fit, consistently with the contractual obligations of the Corporation. Notwithstanding the foregoing, if the Corporation is exempt from Federal taxation pursuant to Section 501(a) of the Code at the time of any such liquidation, dissolution or winding up of the affairs of the Corporation, then the Board of Directors shall make such distribution in a manner which the Board of Directors believes is consistent with such tax exempt status and the applicable requirements of Section 501(c)(6) of the Code and any related regulations.
SEVENTH. The Corporation shall be a membership corporation and shall not have the authority to issue capital stock. The conditions of membership in the Corporation shall be as stated in the by-laws of the Corporation, as from time to time amended.
EIGHTH. All voting power of the Members of the Corporation shall be vested in such class or classes of Members as from time to time shall be provided for in the by-laws of the Corporation. The number of Members having voting power who shall be present or represented by proxy at any meeting of the Members in order to constitute a quorum for, and the votes that shall be necessary for, the transaction of any business shall be as stated from time to time in the by-laws of the Corporation.
NINTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware:
The Board of Directors of the Corporation is expressly authorized to adopt, amend or repeal the by-laws of the Corporation.
Elections of the Board of Directors need not be by written ballot unless the by- laws of the Corporation so provide.
Except to the extent restricted in the by-laws, any action required or permitted to be taken by the Board of Directors may be taken without a meeting and without prior notice if a majority of the Directors then in office (as qualified below), or such greater number of Directors as may be required by law or the by-laws of the Corporation for the taking of any such action at a meeting, consent thereto in writing or by electronic transmission (collectively, "by written consent"), and the writing or writings, or electronic transmission or transmissions, are filed with the minutes of proceedings of the Board of Directors, provided that:
such written consent or electronic transmissions shall have been sent simultaneously to all Directors then in office for their consideration;
prompt written notice (which may be given by electronic transmission) of any action so taken is given to those Directors who have not consented in writing or by electronic transmission; and
two or more such Directors have not objected in writing, or by electronic transmission, to the taking of any such action by written consent, with such notice being delivered to the Corporation within ten business days following the date that the original proposal to take action by written consent was mailed or otherwise delivered to such Directors. Notwithstanding the foregoing, the ability of two or more non-consenting Directors to prevent the taking of an action by written consent under clause (C)(iii) of this Ninth Article shall not prevent any such action from being taken at a later date at an actual meeting of the Board of Directors. For purposes of determining the number of Directors “then in office,” no Director whose attendance and voting rights have been suspended shall be counted.
Any consent required to be given in writing by law, this Certificate of Incorporation or the by-laws may be given in the form of electronic transmission.
For purposes of Section 102(a)(4) of the General Corporation Law of Delaware, those individuals from time to time serving as members of the Board of Directors shall be deemed to be the members of the Corporation, provided, however, that no such individual shall have any voting rights other than in his or her capacity as a member of the Board of Directors.
TENTH. The Corporation eliminates the personal liability of each member of the Board of Directors to the Corporation or the Members for monetary damages for breach of fiduciary duty as a Director, provided that the foregoing shall not eliminate the liability of a Director (i) for any breach of such Director’s duty of loyalty to the Corporation or the Members, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of Title 8 of the Delaware Code or (iv) for any transaction from which such Director derived an improper personal benefit.
ELEVENTH. The Corporation reserves the right to amend or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute and all rights conferred upon each Member herein are granted subject to this reservation.
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of Incorporation to be signed by its President on this 13 day of August, 2021.