BY-LAWS OF X CONSORTIUM, INC. ARTICLE I NAME, PURPOSE, DEFINITION AND OFFICES Section 1.1 Name The corporation is referred to in these By-laws as "the Consortium". Section 1.2 Purpose The primary purpose of the Consortium is to develop, evolve and maintain the "X Window System", a vendor-neutral, system- architecture neutral, network-transparent windowing and user interface standard, and to perform other related research and experimentation in, and implementation of, open systems standards and technology. Section 1.3 Known Place of Business The known place of business of the Consortium (hereinafter the "principal office") shall be initially located in Cambridge, Massachusetts. The Board of Directors is hereby granted full power and authority to change the principal office from one location to another both within and without said state. Section 1.4 Other Offices Branch or subordinate offices may at any time be established by the Board of Directors at any place or places. Section 1.5 Nonprofit Status (a) The Consortium is organized and shall be operated as a non-stock, not for profit membership corporation organized under the General Corporation Law of the state of Delaware. (b) The Board of Directors may, in its sole discretion, elect to seek exemption from Federal taxation for the Consortium pursuant to Section 501(a) of the Internal Revenue Code of 1986, as amended (hereinafter, the "Code"). In the event that such exemption is sought and until such time, if ever, as such exemption is denied or lost, the Consortium shall not be empowered to 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) of the Code. All references to the Code contained herein are deemed to include corresponding provisions of any future United States Internal Revenue Law. ARTICLE II MEMBERS Section 2.1 Classes of Membership The Consortium shall have four classes of membership: Full Members, Associate Members, Affiliate Members and End User Members. Additional classes of voting and non-voting members may be created in the future, and the rights of existing classes of members may be amended, pursuant to Section 2.10 of these By- laws. Full Members, Associate Members, Affiliate Members and End User Members, and any future classes of members which are entitled to voting rights shall be collectively referred to as Voting Members. All Voting and non-voting memberships in the Consortium are collectively referred to in these By-laws as "Memberships"; and a person or entity holding Membership is referred to in these By-laws as a "Member". Section 2.2 General Conditions of Membership A Member shall be admitted to Membership by (a) acceptance of its written application therefor on such form as may be from time to time required by the Consortium (which acceptance shall be administered in a non-discriminatory fashion), and (b) payment of such initiation fees (if any), annual dues or other fees for such class of Membership as may from time to time be established by the Board of Directors. A Member shall remain in good standing as a Member provided all initiation fees, subsequent dues, assessments, and other fees, together with such penalties for late payment as may be determined by the Board of Directors, have been paid within the period set by the Board of Directors and the Member continues to meet all of the other requirements of Membership, as from time to time determined by the Board of Directors. Section 2.3 Conditions of Full Membership Any association, partnership, organization, company or corporation with aggregate gross sales in its most recently completed four fiscal quarters (together with any subsidiaries and parent companies) of $150 million or more may, upon satisfaction of the conditions provided in Section 2.2, become a Full Member. Section 2.4 Conditions of Associate Membership Any association, partnership, organization, company or corporation with aggregate gross sales in its most recently completed four fiscal quarters (together with any subsidiaries and parent companies) of $25 million or more but less than $150 million may, upon satisfaction of the conditions provided in Section 2.2, become an Associate Member. Section 2.5 Conditions of Affiliate Membership Any association, partnership, organization, company or corporation with aggregate gross sales in its most recently completed four fiscal quarters (together with any subsidiaries and parent companies) of less than $25 million may, upon satisfaction of the conditions provided in Section 2.2, become an Affiliate Member. In addition, any educational institution, consortium, membership association user society, and any United States or foreign government agency or laboratory may become an Affiliate Member, upon satisfaction of the conditions provided in Section 2.2; provided that, after any such government agency or laboratory becomes an Affiliate Member of the Consortium, the rights and privileges of membership shall not extend to other non-member branches of the government or the public at large. The criteria for admission as an Affiliate Member and Membership fees and dues for entities of the type referred to in the preceding sentence shall be as determined from time to time by the Board of Directors. Section 2.6 Conditions of End User Membership Any association, partnership, organization, company or corporation (together with any subsidiaries and parent companies) which does not sell information technology products, either hardware, software, or services related thereto may, upon satisfaction of the conditions provided in Section 2.2, become an End User Member. Section 2.7 Privileges of Voting Membership Except as provided in paragraph (i) of this Section 2.7 below, each Voting Member, while in good standing, shall be entitled: (a) to vote for all nominees to the Board of Directors (other than Appointed Directors) and on each other matter submitted to a vote of the Voting Members; (b) to appoint one representative to the Advisory Committee and any other Committee(s) which the Board of Directors may establish (which appointee need not be the same individual for all such committees) and otherwise participate in the Consortium's standards review process, subject to the provisions of Section 5.5(c) of these By-laws; (c) to establish and maintain computer network links with the Consortium sufficient to participate in Consortium activities; (d) to have access to all software and documentation generally released by the Consortium (collectively, "Software and Documentation") prior to release of such Software and Documentation to non-members, consistent with procedures from time to time established by the Board of Directors; (e) subject to the restrictions contained in these By-laws and as otherwise imposed from time to time by the Board of Directors, to incorporate Software and Documentation into products at any time after the materials have been released to the members of the Consortium for incorporation; (f) subject to acceptance in any given case by the President of the Consortium with due regard to the available facilities and current priorities of the Consortium, to volunteer staff members on short assignment to the Consortium, which staff members may serve the Consortium as visiting engineers; (g) to receive all publications of the Consortium which are intended for regular distribution; (h) to attend all meetings and special meetings of the Membership provided for in Article III of these By-laws, provided, that only the Voting Members shall be entitled to vote at such meetings, except as specifically provided for in these By-laws, the Certificate of Incorporation or by law; (i) to participate in all meetings and processes of all technical committees, work groups and special interest groups, or other technical proceedings, in a voting capacity, except that End User Members may not vote at any such meeting or as part of any such process or proceeding; and (j) to such other benefits, rights and privileges as the Board of Directors may designate or the Voting Members may from time to time institute by vote at any meeting of the Voting Members. Section 2.8 Rights in Intellectual Property All intellectual property, specifications, Software and Documentation and any other technology or assets (collectively, "Technology") developed by the Consortium, whether developed by employees of the Consortium alone or with the assistance of volunteer staff contributed pursuant to Section 2.7(f) above or other employees of Members, shall be subject to such rules as the Board of Directors may adopt from time to time. Without limitation, such rules shall control all rights of publication relating to the Technology, the ownership of such Technology, the license rights which Members may be entitled to therein, and the fees (if any) which the Consortium may charge Members for access to such Technology. Section 2.9 Subsidiaries, Etc. (a) Any subsidiary of any Member shall be entitled to the rights and privileges of such Member, and any parent of any Member shall be entitled to the rights and privileges of such Member, in each case where at least 50% of the stock or other ownership interests of such subsidiary are owned by such Member and where the class of Membership has been determined on the basis of their aggregate revenues, except that such parent and subsidiary or subsidiaries shall only be entitled to one vote (in the case of a Voting Member) and to appoint one representative to any committee to which such class of Member is entitled to appoint a representative. (b) If a Member is itself a consortium, membership organization, user group or other entity which has members or sponsors, then the rights and privileges granted to such Member shall extend only to the paid employees of such member, and not to its members or sponsors. Section 2.10 Additional Classes of Members The conditions, privileges, powers, and voting rights (if any) of any class of Members may be changed, and one or more additional classes of Membership in the Consortium may be created, and the conditions, voting rights (if any), powers and privileges of each such class may be prescribed, by adoption of an amendment to these By-laws pursuant to Article XIV of the By- laws. Section 2.11 Deprivation or Suspension of Membership Any Member in good standing may be deprived of its Membership or be suspended as a Member for cause, and any Member not in good standing may be deprived of its Membership or can be suspended as a Member without cause, by a majority vote of the Board of Directors. Any initial fees, annual dues, assessments, other fees and/or penalties already paid shall not be refundable upon the Member's suspension or deprivation of Membership. No deprivation or suspension of Membership (other than for non- payment of dues, assessments or fees) shall be effective, however, unless: (a) The Member is given notice of the proposed deprivation or suspension of Membership and of the reasons therefor; (b) Such notice is delivered personally or by certified mail, return receipt requested, or by a national overnight courier service, sent to the last address of the Member shown on the Consortium's records; (c) Such notice is given at least thirty (30) days prior to the effective date of the proposed deprivation or suspension of Membership; and (d) Such notice sets forth a procedure determined by the body (said body to consist of the Board of Directors or a committee selected for that purpose by the Board) authorized to decide whether or not the proposed deprivation or suspension shall take place, whereby the Member is given the opportunity to be heard by such body, either orally (and represented by counsel if the Member so desires) or in writing, not less than five (5) days before the effective date of the proposed deprivation or suspension. Any deprivation or suspension of Membership for non-payment of dues, assessments or fees may be effected by written notice from the President of the Consortium pursuant to such rules as the Board of Directors may from time to time adopt. Section 2.12 Resignation by Member A Member may resign as a Member at any time. Any initial fees, annual dues, assessments, other fees and/or penalties already paid shall not be refundable in such event. Section 2.13 Membership Book The name and address of each Member shall be contained in a Membership Book to be maintained at the principal office of the Consortium. Termination of any Membership shall be recorded in the book together with the date of such termination. Each Member shall be responsible for apprising the Consortium in writing of all changes to its name and address, and of the names and addresses of all representatives of such Member appointed to be members of committees or to receive notices or vote on behalf of such Member. Section 2.14 Levy of Dues, Assessments or Fees (a) The Consortium may levy dues, assessments or fees upon its Members in such amount as may be approved from time to time by the Board of Directors, but a Member upon learning of any increase in dues, or of any levy of any assessments or fees, may avoid liability therefor by resigning from Membership prior to the date such dues, assessments or fees are due and payable, except where the Member is, by contract or otherwise, liable for such dues, assessments or fees. No provision of the Certificate of Incorporation or By-Laws of the Consortium authorizing such dues, assessments or fees shall, of itself, create such liability. In no event shall the failure of a Member to pay any dues or assessments give rise to any claim in favor of the Consortium for consequential damages. (b) The President shall be permitted, in his or her discretion, to exchange memberships of the Consortium with other consortia, trade associations and similar non-profit organizations on a no-fee or reduced-fee basis, where he or she believes that such cross membership is in the best interests of the Consortium and its Members. Section 2.15 Use of Names Neither the Consortium nor any Member shall use the name of the other in any form of publicity without the written permission of the other, provided that any Member may disclose and publicize such Member's membership in the Consortium, and, unless requested to the contrary in writing by a Member at the time of application to the Consortium for Membership, the Consortium may publicize such Member's membership in the Consortium. ARTICLE III MEETINGS OF MEMBERS Section 3.1 Place of Meetings All meetings of the Members shall be held at such place within or without the State of Delaware and at such time as may be fixed from time to time by the Board of Directors or President, or if not so designated, at the registered office of the Consortium. Section 3.2 Annual Meeting Annual meetings of Members shall be held on the fourth Monday in February each year, if not a legal holiday, and if a legal holiday, then on the second secular day following, at 10:00 a.m., or at such other date and time as shall be designated from time to time by the Board of Directors or the President, at which meeting Voting Members shall elect in accordance with Section 4.3, a Board of Directors and at which meeting the Members shall transact such other business as may properly be brought before the meeting. If no annual meeting is held in accordance with the foregoing provision, the Board of Directors shall cause the meeting to be held as soon thereafter as convenient, which meeting shall be designated a special meeting in lieu of annual meeting. Section 3.3 Special Meetings Special meetings of the Members, for any purpose or purposes, may, unless otherwise prescribed by statute or by the Certificate of Incorporation, be called by the Board of Directors or the President or Secretary at the request in writing of a majority of the Board of Directors, or at the request in writing of Voting Members constituting at least ten percent (10%) of all Voting Members. Such request shall state the purpose or purposes of the proposed meeting. Business transacted at any special meeting shall be limited to matters relating to the purpose or purposes stated in the notice of meeting. Section 3.4 Notice of Meetings Except as otherwise provided by law, written notice of each meeting of the Members, annual or special, stating the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each Member entitled to attend such meeting. Section 3.5 Voting List The officer who has charge of the Membership Book of the Consortium shall prepare and make, at least ten days before every meeting of the Members, a complete list of the Voting Members entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each such Member. Such list shall be open to the examination of any Voting Member for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city or town where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any Voting Member who is present. Section 3.6 Quorum Except as otherwise provided by statute, the Certificate of Incorporation or these By-laws, thirty-three percent (33%) of the Voting Members, present in person or represented by proxy, shall constitute a quorum at all meetings of the Members for the transaction of business. Section 3.7 Adjournments Any meeting of Members may be adjourned from time to time to any other time and to any other place at which a meeting of Members may be held under these By-laws, which time and place shall be announced at the meeting, by a majority of the Voting Members present in person or represented by proxy at the meeting and entitled to vote, though less than a quorum, or, if no Voting Member is present or represented by proxy, by any officer entitled to preside at or to act as Secretary of such meeting, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each Member. Section 3.8 Action at Meetings Unless the question is one upon which by express provision of law, the Certificate of Incorporation or these By-laws, a different vote is required (in which case such express provision shall govern and control the decision of such question), when a quorum is present at any meeting, the vote of a majority of the Voting Members present in person or represented by proxy and entitled to vote on the question shall decide any question brought before such meeting; provided, that the Certificate of Incorporation may specify the relative voting rights of the Members with respect to the election of Directors to the Board of Directors. Section 3.9 Voting and Proxies Except as otherwise provided in the Certificate of Incorporation, each Voting Member shall at every meeting of the Members be entitled to one vote. Each Member entitled to vote at a meeting of Members, or to express consent or dissent to corporate action in writing without a meeting, may authorize another person or persons to act for him or her by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. Section 3.10 Action Without Meeting Any action required to be taken at any annual or special meeting of Members, or any action which may be taken at any annual or special meeting of such Members, may be taken without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by Voting Members making up not less than that percentage of all Voting Members as would be necessary to authorize or take such action at a meeting at which all Voting Members entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those otherwise entitled to vote thereon who have not consented in writing. For purposes of this Section 3.10, the word "writing" shall be deemed to include a document manually executed and transmitted by telecopy or other electronic facsimile delivery method. Accordingly, any consent evidenced in the minute books of the Consortium by telecopy consents, or any combination of telecopy and original signed copies of such consent, shall be deemed to have been duly adopted under this Section. Section 3.11 Nomination and Election Procedures Subject to the provisions of Section 4.3, the Board of Directors shall establish reasonable nomination and election procedures given the nature, size, and operations of the Consortium, including a reasonable means for Members to nominate a person for election as a Director, a reasonable opportunity for a nominee to communicate to the Members the nominee's qualifications and the reasons for the nominee's candidacy (if requested by such nominee), a reasonable opportunity for all nominees to solicit votes (if requested by any such nominee), and a reasonable opportunity for all Members entitled to vote thereon to choose among the nominees. Section 3.12 Order of Business The order of business at all meetings of Members shall be as determined by the presiding officer, but the order of business to be followed at any meeting at which a quorum is present may be changed by a vote of the Voting Members. Robert's Rules of Order shall be followed for all meetings of Members. ARTICLE IV DIRECTORS Section 4.1 Powers The business and affairs of the Consortium shall be managed by its Board of Directors, which shall be, and shall possess all of the powers of, the "Governing Body" of the Consortium as a not-for-profit membership corporation under Delaware General Corporation Law. The Board of Directors may exercise all powers of the Consortium and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By-laws directed or required to be exercised or done by the Members. Section 4.2 Number of Directors The total number of Directors shall be at least five and not more than nine (except as modified below), constituting all of the Director(s) elected by the Voting Members, and the President, who shall be a Director by virtue of his or her office as President, together with any ex officio Directors appointed pursuant to Section 4.8. Notwithstanding the foregoing, the Consortium may have fewer than five directors until its 1994 Annual Meeting of Members. Section 4.3 Election and Term of Office of Elected Directors Elected Directors shall be elected at the time of the Annual Meeting for one year terms in the manner provided by these By- laws and the Certificate of Incorporation. An elected Director shall hold office until the earliest to occur of (i) the expiration of the term for which such Director was elected and such Director's successor is elected and qualified, and (ii) the death, resignation or removal of the Director. In addition, any elected Director may be removed from office without cause by a majority vote of the other Directors where such Director is the representative of a Member, and such Member ceases to be a Member in good standing. Section 4.4 Appointment and Term of Office of Appointed Directors The President, by virtue of his or her office, shall automatically be a Director (an "Appointed Director"). The President shall hold office as a Director until the earliest to occur of (i) his or her death or resignation as a director, and (ii) his or her resignation or termination as President. Section 4.5 Enlargement or Reduction The number of Directors, the persons eligible to become Directors and the classes of Members eligible to elect Directors may be amended at any time by a vote of the Board of Directors or by a vote of the Voting Members. Section 4.6 Resignation and Removal Any Director may resign at any time upon written notice to the Consortium at its principal place of business or to the President or Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event. Any Director may be removed, with or without cause, by a majority of the Voting Members then entitled to vote at an election of such Director, unless otherwise specified by law or the Certificate of Incorporation, and with cause by a majority of the other Directors. Section 4.7 Vacancies (a) A Vacancy on the Board of Directors caused by the death, resignation or removal of any elected Director, or by an increase in the number of authorized elected Directors, may be filled by a majority of the elected Directors then in office, whether or not less than a quorum, or by a sole remaining elected Director. The term of a Director so elected shall be the unexpired portion of the term of the Director, if any, whom the Director or elected is replacing, or until the next general election of Directors, in the case of an expansion of the Board. (b) In the event of a vacancy in the Board of Directors, the remaining Directors, except as otherwise provided by law or these By-laws, may exercise the powers of the full Board until the vacancy is filled. Section 4.8 Ex Officio Directors In addition to the elected and appointed Directors provided for in Section 4.1, the Board of Directors may elect such ex officio Directors as it may find appropriate. Ex Officio Directors shall be entitled to attend all meetings of the Board of Directors or of committees to which they may be appointed by the Board of Directors. However, ex officio Directors shall serve in an advisory capacity only, and shall not be eligible to act as chairmen of committees, nor shall they be entitled to vote at meetings of the Board of Directors or of any committee thereof. The Board of Directors shall elect ex officio Directors by a unanimous vote of the Directors. Ex officio Directors shall serve for a term of one (1) year, unless they resign or are sooner removed, and may be reelected for additional one-year terms. An ex officio Director shall be subject to removal in the same manner and upon the same conditions as other members of the Board of Directors. Section 4.9 Place of Meetings The Board of Directors may hold meetings, both regular and special, either within or without the State of Delaware. Section 4.10 Regular Meetings Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the Board; provided that any Director who is absent when such a determination is made shall be given prompt notice of such determination. A regular meeting of the Board of Directors may be held without notice immediately after and at the same place as the annual meeting of Members. Section 4.11 Special Meetings Special meetings of the Board may be called by the President, Secretary, or on the written request of two or more Directors, or by one Director in the event that there is only one Director in office. Two business days' notice to each Director, either personally or by telegram, cable, telecopy, commercial delivery service, telex or similar means sent to his or her business or home address, or three business days' notice by written notice deposited in the mail, shall be given to each Director by the Secretary or by the officer or one of the Directors calling the meeting. A notice or waiver of notice of a meeting of the Board of Directors need not specify the purposes of the meeting. Section 4.12 Quorum, Action at Meeting, Adjournments At all meetings of the Board a majority of Directors then in office, but in no event less than one third of the entire Board, shall constitute a quorum for the transaction of business and the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by law or by the Certificate of Incorporation. For purposes of this section the term "entire board" shall mean the number of directors last fixed by the Voting Members or Directors, as the case may be, in accordance with law and these By-laws; provided, however, that if less than all the number so fixed of Directors were elected, the "entire board" shall mean the greatest number of Directors so elected to hold office at any one time pursuant to such authorization. If a quorum shall not be present at any meeting of the Board of Directors, a majority of the Directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. In the event that one or more of the Directors shall be disqualified from voting at any meeting upon any matter, then the required quorum as it relates to the consideration of such matter shall be reduced by one for each such director so disqualified. Section 4.13 Action by Consent (a) Unless otherwise restricted by the Certificate of Incorporation or these 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 Directors then in office (or such greater number of Directors as may be required by law or the by-laws of the Consortium for the taking of any such action at a meeting) consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors, provided that: (i) such written consent shall have been sent simultaneously to all Directors then in office for their consideration; (ii) prompt written notice of any action so taken is given to those Directors who have not consented in writing; and (iii) (except as provided for below) two or more such Directors have not objected to the taking of any such action by written notice delivered to the Consortium within ten business days following the date that written notice of the Directors action is mailed or otherwise delivered to such Directors. (b) Notwithstanding the foregoing, the ability of two or more non-consenting Directors to prevent the taking of an action by written consent under clause 4.13(a)(iii) above shall: (i) not prevent any such action from being taken at a later date at an actual meeting of the Board of Directors; and (ii) not exist where the action in question is to confirm the making of an amendment to the Certificate of Incorporation for a second time (as required by Delaware General Corporation Law) after previously having been approved at an actual meeting of the Board of Directors. (c) Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any meeting of any committee of the Board of Directors may be taken in the manner set forth in the preceding clauses 4.13(a) and (b)(i). (d) For purposes of this Section 4.13, the word "writing" shall be deemed to include a document manually executed and transmitted by telecopy or other electronic facsimile delivery method. Accordingly, any consent evidenced in the minute books of the Consortium by telecopy consents, or any combination of telecopy and original signed copies of such consent, shall be deemed to have been duly adopted under this Section. Section 4.14 Telephonic Meetings Unless otherwise restricted by the Certificate of Incorporation or these By-laws, members of the Board of Directors or of any committee thereof may participate in a meeting of the Board of Directors or of any committee, as the case may be, by means of conference telephone, videoconference equipment, or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. Section 4.15 Inspection Rights Every Director shall have the absolute right at any time to inspect, copy and make extracts of, in person or by agent or attorney, all books, records and documents of every kind and to inspect the physical properties of the Consortium. Section 4.16 Fees and Compensation Directors shall not receive any stated salary for their services as Directors, but, by resolution of the Board of Directors, a fixed fee may be allowed for attendance at each meeting. Directors may be reimbursed in such amounts as may be determined from time to time by the Board of Directors for expenses incurred while acting on behalf of the Consortium and/or expenses incurred in attending meetings of the Board of Directors. Nothing herein contained shall be construed to preclude any Director from serving the Consortium in any other capacity as an officer, agent, employee, or otherwise, and receiving compensation therefor. The Directors may also allow compensation for members of committees for service on such committees. ARTICLE V EXECUTIVE COMMITTEE AND OTHER COMMITTEES Section 5.1 Executive Committee The Board of Directors may (but shall not be required) by resolution adopted by a majority of the Directors then in office (provided a quorum is present), create an Executive Committee, consisting of two or more Directors, including the President, should said office then be filled. The Board of Directors may designate one or more Directors as alternate members of such committee, who may replace any absent member at any meeting of such committee. The Executive Committee, subject to any limitations imposed by the Certificate of Incorporation, by these By-laws, by statute, and/or by the Board of Directors, shall have and may exercise all of the powers of the Board of Directors which are delegated to the Executive Committee from time to time by the Board of Directors; provided, however, that the Executive Committee shall have no authority with respect to: (a) The approval of any action which also requires approval of the Voting Members; (b) The filling of vacancies on the Board of Directors; (c) The fixing of compensation of the Directors for serving on the Board of Directors or on any committee; (d) The amendment or repeal of the By-laws or the adoption of new By-laws; (e) The amendment or repeal of any resolution of the Board of Directors which by its express terms is not so amendable or repealable; (f) Amending the Certificate of Incorporation; (g) Adopting an agreement of merger or consolidation; (h) Recommending to the Members the sale, lease or exchange of all or substantially all of the Consortium's property and assets; and (i) Recommending to the Members a dissolution of the Consortium or a revocation of a dissolution. Section 5.2 Other Committees of the Board of Directors The Board of Directors may, by resolution adopted by a majority of the Directors then in office (provided a quorum is present), create such other audit, compensation and other committees, each consisting of two (2) or more Directors appointed by the Board, as it may from time to time deem advisable to perform such general or special duties as may from time to time be delegated to any such committee by the Board of Directors, subject to the limitations imposed by the Certificate of Incorporation or by these By-laws. No such committee shall have the power or authority to take any action prohibited by Section 5.1 above to be taken by the Executive Committee. The Board of Directors may designate one or more Directors as alternate members of any committee, who may replace any absent member at any meeting of the committee. Any committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. Each committee shall keep regular minutes of its meetings and make such reports to the Board of Directors as the Board of Directors may request. Section 5.3 Meetings of Committees of the Board of Directors Except as otherwise provided in these By-laws or by resolution of the Board of Directors, each committee of the Board of Directors may adopt its own rules governing the time and place of holding and the method of calling its meetings and the conduct of its proceedings and shall meet as provided by such rules, but unless otherwise provided by resolution of the Board of Directors or in such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these By-laws for the conduct of the business the Board of Directors. Section 5.4 Term of Office of Members of Committees of the Board of Directors Each member of a committee of the Board of Directors shall serve at the pleasure of the Board of Directors. Section 5.5 Committee Memberships (a) An Advisory Committee of the Consortium shall be established, which shall have such rights and privileges and shall meet at such times and places as shall from time to time be established by the Board of Directors. Each Voting Member shall be entitled to appoint one representative to the Advisory Committee. (b) From time to time, the Board of Directors may establish additional committees and sub-committees whose members need not be Directors. If so required by the Board, only persons representing Voting Members shall be eligible to be voting, participating members on any such committee or subcommittee. (c) A Business Advisory Committee shall be established to advise the Board of Directors and the President regarding industry evaluation, promotion of the X Window System, and such other matters as the Board may decide. During the first year of such committee's existence, the members of such committee shall be the Members who were members of XIA as of the date upon which XIA merged with the Consortium, provided that, with respect to any given committee member, only for so long as such member remains a Member in good standing of the Consortium during such period. After the first year, each Voting Member shall be entitled to appoint one representative to the Business Advisory Committee. The Business Advisory Committee shall otherwise have such rights and privileges as shall from time to time be established by the Board of Directors, and shall meet at such times and places as shall from time to time be established by such committee. ARTICLE VI OFFICERS Section 6.1 Officers The officers of the Consortium shall be a President, a Treasurer and a Secretary. The Consortium may also have, at the discretion of the Board of Directors, one or more Vice Presidents, one or more Assistant Secretaries and/or Assistant Treasurers, and such other officers with such titles, terms of office and duties as may be elected in accordance with the provisions of Section 6.3. One person may hold two or more offices unless the Certificate of Incorporation otherwise provides. Section 6.2 Vacancies A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in these By-laws for regular elections to such office. Section 6.3 Election The Board of Directors at its first meeting after each annual meeting of Members shall choose a President, a Secretary and a Treasurer. Other officers may be elected by the Board of Directors at such meeting, and all officers may be replaced, at any other meeting, or by written consent. Section 6.4 Tenure Each officer of the Consortium shall hold office until his or her successor is chosen and qualifies, unless a different term is specified in the vote choosing or electing him, or until his or her earlier death, resignation or removal. Any officer elected by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors or a committee duly authorized to do so. Any vacancy occurring in any office of the Consortium may be filled by the Board of Directors, at its discretion. Any officer may resign by delivering his or her written resignation to the Consortium at its principal place of business or to the Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event. Section 6.5 President The President shall be the chief executive and the chief operating officer of the Consortium. The President shall, unless the Board of Directors provides otherwise in a specific instance or generally, preside at all meetings of the Members and the Board of Directors, have general and active management of the business of the Consortium and see that all orders and resolutions of the Board of Directors are carried into effect. Without limiting the foregoing, the President shall: (a) Execute bonds, mortgages, and other contracts requiring a seal, under the seal of the Consortium, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the Consortium; all such instruments and contracts shall have been approved by legal counsel; (b) Direct and administer the affairs of the Consortium, including setting compensation (other than his or her own), and the hiring and discharge of office employees; (c) Have complete charge of the records of the Consortium (other than corporate records maintained by the Secretary); (d) Initiate and promote programs which serve and advance the purpose and objective of the Consortium; (e) Coordinate, assist and monitor all committees and their programs; (f) Direct all Consortium functions; (g) Submit an annual budget, together with supporting documentation; (h) Create, and update when necessary, employee job descriptions and hold individual annual reviews with each employee; (i) Serve as a member of the Board of Directors and any Executive Committee with full voting rights, except as to matters relating to his or her compensation or the terms of any agreement with the Consortium pursuant to which he or she is retained to render services; and (j) Perform such other duties as may from time to time be assigned by the Board of Directors and/or any Executive Committee. Section 6.6 Vice-Presidents In the absence of the President or in the event of his or her inability or refusal to act, a Vice-President, or if there be more than one Vice-President, the Vice-Presidents in the order designated by the Board of Directors (or in the absence of any designation, then in the order determined by their tenure in office) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice-Presidents shall perform such other duties and have such other powers as the Board of Directors or the President may from time to time prescribe. Section 6.7 Secretary The Secretary shall have such powers and perform such duties as are incident to the office of Secretary, and shall: (a) Prepare and maintain lists of Members and their addresses as required. (b) Attend all meetings of the Board of Directors and all meetings of the Members and record all the proceedings of the meetings of the Consortium and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. (c) Give, or cause to be given, notice of all meetings of the Members and special meetings of the Board of Directors, and shall perform such other duties as may be from time to time prescribed by the Board of Directors, and shall be under their supervision. (d) Have custody of the corporate seal of the Consortium and the Secretary, or an Assistant Secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by signature of the Secretary or by the signature of such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Consortium and to attest the affixing by such officer's signature. Section 6.8 Assistant Secretaries The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board of Directors, the President or the Secretary (or if there be no such determination, then in the order determined by their tenure in office), shall, in the absence of the Secretary or in the event of his or her inability or refusal to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board of Directors, the President or the Secretary may from time to time prescribe. In the absence of the Secretary or any Assistant Secretary at any meeting of Members or Directors, the person presiding at the meeting shall designate a temporary or acting Secretary to keep a record of the meeting. Section 6.9 Treasurer The Treasurer shall perform such duties and shall have such powers as may be assigned to him or her by the Board of Directors or the President. In addition, the Treasurer shall perform such duties and have such powers as are incident to the office of Treasurer. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Consortium and shall deposit all moneys and other valuable effects in the name and to the credit of the Consortium in such depositories as may be designated by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors, when the President or Board of Directors so requires, an account of all his or her transactions as Treasurer and of the financial condition of the Consortium. Section 6.10 Assistant Treasurers The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors, the President or the Treasurer (or if there be no such determination, then in the order determined by their tenure in office), shall, in the absence of the Treasurer or in the event of his or her inability or refusal to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board of Directors, the President or the Treasurer may from time to time prescribe. Section 6.11 Bond If required by the Board of Directors, any officer shall give the Consortium a bond in such sum and with such surety or sureties and upon such terms and conditions as shall be satisfactory to the Board of Directors, including without limitation a bond for the faithful performance of the duties of his or her office and for the restoration to the Consortium of all books, papers, vouchers, money and other property of whatever kind in his or her possession or under his or her control and belonging to the Consortium. Section 6.12 Compensation The compensation, if any, of the officers shall be fixed from time to time by the Board of Directors, and no officer shall be prevented from receiving such compensation by reason of the fact that the officer is also a Director of the Consortium. The President, although a member of the Board of Directors, shall not vote on matters relating to his or her compensation or duration in office. ARTICLE VII NOTICES Section 7.1 Delivery (a) Whenever, under the provisions of law, or of the Certificate of Incorporation or these By-laws, written notice is required to be given to any Director or Member, such notice may be given by mail, addressed to such Director or Member, at his, her or its address as it appears on the records of the Consortium, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Unless written notice by mail is required by law, written notice may also be given by electronic mail, telegram, cable, telecopy, commercial delivery service, telex or similar means, addressed to such Director or Member at his, her or its address as it appears on the records of the Consortium, in which case such notice shall be deemed to be given when delivered into the control of the persons charged with effecting such transmission, the transmission charge to be paid by the Consortium or the person sending such notice and not by the addressee. Oral notice or other in-hand delivery (in person or by telephone) shall be deemed given at the time it is actually given. (b) Without limiting the foregoing, the Consortium adopts electronic mail as its principal source of communication with its Members. Each Member acknowledges and agrees that the Consortium shall not be under any obligation (except as required by law or these By-laws) to send any notice to any Member by any means other than electronic mail, and it is therefore the responsibility of each Member to avail itself of and make such arrangements as may be necessary to receive notice in such fashion. To the extent that any Member fails to take such action, such Member shall be deemed to have waived its right to receive written notice from the Consortium. Section 7.2 Waiver of Notice Whenever any notice is required to be given under the provisions of law or of the Certificate of Incorporation or of these By-laws, a waiver thereof (i) in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, or (ii) a waiver under Section 7.1(b) above (except to the extent limited by applicable law), shall be deemed equivalent thereto. ARTICLE VIII INDEMNIFICATION Section 8.1 Actions other than by or in the Right of the Consortium The Consortium shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Consortium) by reason of the fact that he or she is or was a Director, ex officio member of the Board, officer, employee or agent of the Consortium, or is or was serving at the request of the Consortium as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Consortium, and, with respect to any criminal action or proceedings, had no reasonable cause to believe this conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Consortium, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful. Section 8.2 Actions by or in the Right of the Consortium The Consortium shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Consortium to procure a judgment in its favor by reason of the fact that he or she is or was a director, ex officio member of the Board, officer, employee or agent of the Consortium, or is or was serving at the request of the Consortium as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him or her in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Consortium and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery of the State of Delaware or such other court shall deem proper. Section 8.3 Success on the Merits To the extent that any person described in Section 8.1 or 8.2 of this Article VIII has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in said Sections, or in defense of any claim, issue or matter therein, he or she shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him or her in connection therewith. Section 8.4 Specific Authorization Any indemnification under Section 8.1 or 8.2 of this Article VIII (unless ordered by a court) shall be made by the Consortium only as authorized in the specific case upon a determination that indemnification of any person described in said Sections is proper in the circumstances because he or she has met the applicable standard of conduct set forth in said Sections. Such determination shall be made (1) by the Board of Directors by a majority vote of a quorum consisting of Directors who were not parties to such action, suit or proceeding, or (2) by the Members of the Consortium. Section 8.5 Advance Payment Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the Consortium in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of any person described in said Section to repay such amount if it shall ultimately be determined that he or she is not entitled to indemnification by the Consortium as authorized in this Article VIII. Section 8.6 Non-Exclusivity The indemnification and advancement of expenses provided by, or granted pursuant to, the other Sections of this Article VIII shall not be deemed exclusive of any other rights to which those provided indemnification or advancement of expenses may be entitled under any By-law, agreement, vote of Voting Members or disinterested Directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office. Section 8.7 Insurance The Board of Directors may authorize, by a vote of the majority of the full Board, the Consortium to purchase and maintain insurance on behalf of any person who is or was a Director, ex officio member of the Board, officer, employee or agent of the Consortium, or is or was serving at the request of the Consortium as a Director, ex officio member of the Board, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Consortium would have the power to indemnify him or her against such liability under the provisions of this Article VIII. Section 8.8 Continuation of Indemnification and Advancement of Expenses The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall continue as to a person who has ceased to be a Director, ex officio member of the Board, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. Section 8.9 Severability If any word, clause or provision of this Article VIII or any award made hereunder shall for any reason be determined to be invalid, the provisions hereof shall not otherwise be affected thereby but shall remain in full force and effect. Section 8.10 Intent of Article The intent of this Article VIII is to provide for indemnification and advancement of expenses to the fullest extent permitted by Section 145 of the General Corporation Law of Delaware. To the extent that such Section or any successor section may be amended or supplemented from time to time, this Article VIII shall be amended automatically and construed so as to permit indemnification and advancement of expenses to the fullest extent from time to time permitted by law. ARTICLE IX BOOKS AND RECORDS Section 9.1 Books and Records The Consortium shall keep adequate and correct books and records of account, minutes of the proceedings of the Members, the Board of Directors and committees of the Board of Directors, and a record of the Members giving their names and addresses and the class of Membership held by each. Section 9.2 Form of Records Minutes shall be kept in written form. Other books and records shall be kept either in written form or in any other form capable of being converted into written form. Section 9.3 Reports to Directors, Members and Others The Board of Directors shall cause such reports to be prepared, filed and/or distributed as may be required. Section 9.4 Record Date In order that the Consortium may determine the Members entitled to notice of or Voting Members entitled to vote at any meeting of Members or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any distribution, if any, permitted by law and the Consortium's then current federal and state tax status, or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty days nor fewer than ten days before the date of such meeting, nor more than sixty days prior to any other action to which such record date relates. A determination of Members of record entitled to notice of or Voting Members entitled to vote at a meeting of Members shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. If no record date is fixed, the record date for determining Members entitled to notice of or Voting Members entitled to vote at a meeting of Members shall be at the close of business on the day before the day on which notice is given, or, if notice is waived, at the close of business on the day before the day on which the meeting is held. The record date for determining Members entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is necessary, shall be the day on which the first written consent is expressed. The record date for determining Members for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating to such purpose. Section 9.5 Registered Members The Consortium shall be entitled to recognize the exclusive right of a person registered on its books as a Member or a representative of a Member to receive distributions, if any, and to vote, if such records indicate that such person is a Voting Member or a representative of a Voting Member, and to hold liable for fees, penalties and assessments a person or entity registered on its books as a Member, and shall not be bound to recognize any equitable or other claim to or interest in Membership on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the Delaware General Corporation Law. ARTICLE X CERTAIN TRANSACTIONS Section 10.1 Transactions with Interested Parties No contract or transaction between the Consortium and one or more of its Directors or officers, or between the Consortium and any other corporation, partnership, association, or other organization in which one or more of its Directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the Director or officer is present at or participates in the meeting of the Board or committee thereof which authorizes the contract or transaction or solely because his, her or their votes are counted for such purpose, if: (a) The material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested Directors, even though the disinterested Directors be less than a quorum; or (b) The material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the Voting Members entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the Voting Members; or (c) The contract or transaction is fair as to the Consortium as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof, or the Voting Members. ARTICLE XI GRANTS, CONTRACTS, LOANS, ETC. Section 11.1 Grants The making of grants and contributions, and otherwise rendering financial assistance for the purposes of the Consortium, may be authorized by the Board of Directors. The Board of Directors may authorize any officer or officers, agent or agents, in the name of and on behalf of the Consortium to make any such grants, contributions or assistance. Section 11.2 Execution of Contracts The Board of Directors may authorize any officer, employee or agent, in the name and on behalf of the Consortium, to enter into any contract or execute and satisfy any instrument, and any such authority may be general or confined to specific instances, or otherwise limited. In the absence of any action by the Board of Directors to the contrary, the President shall be authorized to execute such contracts and instruments on behalf of the Consortium. Section 11.3 Loans The President or any other officer, employee or agent authorized by the Board of Directors may effect loans and advances at any time for the Consortium from any bank, trust company or other institutions or from any firm, association or individual, and for such loans and advances may make, execute and deliver promissory notes, bonds or other certificates or evidences of indebtedness of the Consortium, and when authorized by the Board of Directors so to do, may pledge and hypothecate or transfer assets of the Consortium as security for any such loans or advances. Such authority conferred by the Board of Directors may be general or confined to specific instances or otherwise limited. Section 11.4 Checks, Drafts, Etc. All checks, drafts and other orders for the payment of money out of the funds of the Consortium, and all notes or other evidences of indebtedness of the Consortium, shall be signed on behalf of the Consortium in such manner as shall from time to time be determined by resolution of the Board of Directors. Section 11.5 Deposits The funds of the Consortium not otherwise employed shall be deposited from time to time to the order of the Consortium in such banks, trust companies, or other depositories, or shall be otherwise invested, as the Board of Directors may select or direct, or as may be selected or directed by an officer, employee or agent of the Consortium to whom such power may from time to time be specifically delegated by the Board of Directors. Section 11.6 Legal Review In the ordinary course, but subject to the judgment of the President in any given case, all material contracts and commitments shall be reviewed by legal counsel. ARTICLE XII GENERAL PROVISIONS Section 12.1 Fiscal Year The fiscal year of the Consortium shall be determined, and may be changed, by resolution of the Board of Directors. Section 12.2 Reserves The Directors may set apart out of any funds of the Consortium a reserve or reserves for any proper purpose and may abolish any such reserve. Section 12.3 Seal The Board of Directors may, by resolution, adopt a corporate seal. The corporate seal shall have inscribed thereon the name of the Consortium, the year of its organization and the word "Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. The seal may be altered from time to time by the Board of Directors. Section 12.4 Proprietary Rights (a) All information disclosed by any participant during any official meeting or activity of the Consortium, including but not limited to Member meetings, Board meetings, Committee meetings, Sub-committee meetings, electronic mail or the like, shall be deemed to have been disclosed on a non-confidential basis, and, subject to rights and restrictions represented by valid patents, patent applications, and Federal and international statutory copyrights (no waiver of any rights pertaining to which shall be implied from such disclosure or the terms of this Section 12.4), may be used by anyone without restriction. (b) No express or implied right, whether by implication, estoppel, or otherwise, to any patent, copyright, trademark, trade secret, or other intellectual property right of any Member is or shall be deemed to be granted to the Consortium or to any other Member by reason of its membership in or participation in the activities of the Consortium, except as may be provided in a separate written agreement. (c) No Member shall at any time be required to exchange proprietary information with any other Member solely by reason of its being a Member of the Corporation. ARTICLE XIII ANTITRUST COMPLIANCE Section 13.1 General The Consortium will conduct all of its activities in conformance with the federal and state antitrust laws, including the Sherman Act, the Clayton Act, the Robinson-Patman Act and the Federal Trade Commission Act. The Board of Directors and the President of the Consortium shall consult legal counsel and seek legal review whenever necessary to insure that the activities of the Consortium are conducted in conformance with such laws. Section 13.2 Availability of Technology It is the good faith objective of the Consortium (i) to make all Technology available as soon as its development and adoption by the Consortium is complete to all Members who have not participated in the development or determination of such Technology as well as to all those who have participated on the same terms, and (ii) to make all such Technology available at the same point in time to all Members, and (iii) to make all such Technology available to all non-Members on fair and reasonable terms and conditions. Section 13.3 No Obligation to Endorse No Member shall, by reason of its membership or participation in the Consortium or otherwise, be obligated to license, use or endorse any Technology developed or endorsed by the Consortium, or to conform any of its products to any standards or specifications developed or adopted by the Consortium, nor shall any such Member be precluded from independently licensing, using or endorsing similar intellectual property, software, specifications or documentation developed by it or by others. ARTICLE XIV AMENDMENTS These By-laws may be altered, amended or repealed or new By- laws may be adopted by (i) the Voting Members, or (ii) by the Board of Directors, except where such power is expressly limited by law or the Certificate of Incorporation, at any annual meeting of the Voting Members or regular meeting of the Board of Directors or at any special meeting of the Voting Members or of the Board of Directors, provided, however, that in the case of a regular or special meeting of Voting Members, notice of such alteration, amendment, repeal or adoption of new By-laws shall be contained in the notice of such meeting. BYLAWS.V6 Rev: 3/13/95 Register of Amendments to the By-laws Date Section Affected Change 11/16/93 See Attached Exhibit A 6/24/94 See Attached Exhibit B 2/22/95 See Attached Exhibit C Exhibit A: November 16, 1993 Amendments Section 2.1 Classes of Membership The Consortium shall [initially] have [two] three classes of membership: Full Members, Associate Members and Affiliate Members. Additional classes of voting and non-voting members may be created in the future, and the rights of existing classes of members may be amended, pursuant to Section [2.8] 2.9 of these By-laws. Full Members, Associate Members and Affiliate Members, and any future classes of members which are entitled to voting rights shall be collectively referred to as Voting Members. All Voting and non-voting memberships in the Consortium are collectively referred to in these By-laws as "Memberships"; and a person or entity holding Membership is referred to in these By-laws as a "Member". Section 2.2 General Conditions of Membership A Member shall be admitted to Membership by (a) acceptance of its written application therefor on such form as may be from time to time required by the Consortium (which acceptance shall be administered in a non-discriminatory fashion), and (b) payment of such initiation fees (if any), annual dues or other fees for such class of Membership as may from time to time be established by the Board of Directors. A Member shall remain in good standing as a Member provided all initiation fees, subsequent dues, assessments, and other fees, together with such penalties for late payment as may be determined by the Board of Directors, have been paid within the period set by the Board of Directors and the Member continues to meet all of the other requirements of Membership, as from time to time determined by the Board of Directors. Section 2.3 Conditions of Full Membership Any association, partnership, organization, company or corporation with aggregate gross [annual] sales in its most recently completed four fiscal quarters (together with any [subsidiaries) in excess of $50 million] subsidiaries and parent companies) of $150 million or more may, upon satisfaction of the conditions provided in Section 2.2, become a Full Member. Section [2.4 Conditions of Affiliate] 2.4 Conditions of Associate Membership Any association, partnership, organization, company or corporation with aggregate gross [annual] sales in its most recently completed four fiscal quarters (together with any [subsidiaries) of less than $50 million, and any educational institution, consortium, membership association or user society,] subsidiaries and parent companies) of $25 million or more but less than $150 million may, upon satisfaction of the conditions provided in Section 2.2, become an Associate Member. Section 2.5 Conditions of Affiliate Membership Any association, partnership, organization, company or corporation with aggregate gross sales in its most recently completed four fiscal quarters (together with any subsidiaries and parent companies) of less than $25 million may, upon satisfaction of the conditions provided in Section 2.2, become an Affiliate Member. In addition, any educational institution, consortium, membership association or user society, may become an Affiliate Member, upon satisfaction of the conditions provided in Section 2.2. The criteria for admission as an Affiliate Member and Membership fees and dues for entities of the type referred to in the preceding sentence shall be as determined from time to time by the Board of Directors. Section [2.5Privileges] 2.6 Privileges of Voting Membership Each \Voting\ Member, while in good standing, shall be entitled:... (d) to have access to all software and documentation generally released by the Consortium (collectively, "Software and Documentation") prior to release of such Software and Documentation to non-members, consistent with procedures from time to time established by the Board of Directors;... Section [2.7Subsidiaries] 2.8 Subsidiaries, Etc. (a) Any subsidiary of any Member shall be entitled to the rights and privileges of such Member, and any parent of any Member shall be entitled to the rights and privileges of such Member, in each case where at least 50% of the stock or other ownership interests of such subsidiary are owned by such [member] Member and where the class of Membership has been determined on the basis of their aggregate revenues, except that such parent and subsidiary or subsidiaries shall only be entitled to one vote (in the case of a Voting Member) and to appoint one representative to any committee to which such class of Member is entitled to appoint a representative. Section [2.9Deprivation] 2.10 Deprivation or Suspension of Membership Any Member in good standing may be deprived of its Membership or be suspended as a Member for cause, and any Member not in good standing may be deprived of its Membership or can be suspended as a Member without cause, by a majority vote of the Board of Directors. Any initial fees, annual dues, assessments, other fees and/or penalties already paid shall not be refundable upon the Member's suspension or deprivation of Membership. No deprivation or suspension of Membership (other than for non-payment of dues, assessments or fees) shall be effective, however, unless:... (b) Such notice is delivered personally or by [first class or] certified mail, return receipt requested, or by a national overnight courier service, sent to the last address of the Member shown on the Consortium's records;... Section 6.5 President The President shall be the chief executive and the chief operating officer of the Consortium. The President shall, unless the Board of Directors provides otherwise in a specific instance or generally, preside at all meetings of the Members and the Board of Directors, have general and active management of the business of the Consortium and see that all orders and resolutions of the Board of Directors are carried into effect. Without limiting the foregoing, the President shall: (a) Execute bonds, mortgages, and other contracts requiring a seal, under the seal of the Consortium, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the Consortium; all such instruments and contracts shall have been approved by legal counsel;... \Section 11.6 Legal Review In the ordinary course, but subject to the judgment of the President in any given case, all material contracts and commitments shall be reviewed by legal counsel.\ Section 7.1 Delivery... (b) Without limiting the foregoing, the Consortium adopts electronic mail as its principal source of communication with its Members. Each Member acknowledges and agrees that the Consortium shall not be under any obligation (except as required by [law)] law or these By-laws) to send any notice to any Member by any means other than electronic mail, and it is therefore the responsibility of each Member to avail itself of and make such arrangements as may be necessary to receive notice in such fashion. To the extent that any Member fails to take such action, such Member shall be deemed to have waived its right to receive written notice from the Consortium. Section 13.1 General The Consortium will conduct all of its activities in conformance with the federal and state antitrust laws, including the Sherman Act, the Clayton Act, the Robinson-Patman Act and the Federal Trade Commission Act. The Board of Directors and the President of the Consortium shall consult legal counsel and seek legal review whenever necessary to insure that the activities of the Consortium are conducted in conformance with such laws. Exhibit B: June 24, 1994 Amendments: (a) The following phrase is hereby added to Section 2.6(b) of the By-laws after the last sentence of that Section: ", subject to the provisions of Section 5.5(c) of these By-laws." (b) A new Section 5.5(c) is hereby added immediately after Section 5.5(b) of the By-laws, to read in its entirety as follows: "A Business Advisory Committee shall be established to advise the Board of Directors and the President regarding industry evaluation, promotion of the X Window System, and such other matters as the Board may decide. During the first year of such committee's existence, the members of such committee shall be the Members who were members of XIA as of the date upon which XIA merged with the Consortium, provided that, with respect to any given committee member, only for so long as such member remains a Member in good standing of the Consortium during such period. After the first year, each Voting Member shall be entitled to appoint one representative to the Business Advisory Committee. The Business Advisory Committee shall otherwise have such rights and privileges as shall from time to time be established by the Board of Directors, and shall meet at such times and places as shall from time to time be established by such committee." Exhibit C: March 2, 1995 Amendments Section 2.1 Classes of Membership The Consortium shall have [three] \four\ classes of membership: Full Members, Associate Members [and]\,\ Affiliate \Members and End User\ Members. Additional classes of voting and non-voting members may be created in the future, and the rights of existing classes of members may be amended, pursuant to Section [2.9] \2.10\ of these By-laws. Full Members, Associate Members [and]\,\ Affiliate \Members and End User\ Members, and any future classes of members which are entitled to voting rights shall be collectively referred to Voting Members. All Voting and non-voting memberships in the Consortium are collectively referred to in these By-laws as "Memberships"; and a person or entity holding Membership is referred to in these By-laws as a "Member". Section 2.5 Conditions of Affiliate Membership Any association, partnership, organization, company or corporation with aggregate gross sales in its most recently completed four fiscal quarters (together with any subsidiaries and parent companies) of less than $25 million may, upon satisfaction of the conditions provided in Section 2.2, become an Affiliate Member. In addition, any educational institution, consortium, membership association [or] user society, \and any United States or foreign government agency or laboratory\ may become an Affiliate Member, upon satisfaction of the conditions provided in Section 2.2\; provided that, after any such government agency or laboratory becomes an Affiliate Member of the Consortium, the rights and privileges of membership shall not extend to other non-member branches of the government or the public at large\. The criteria for admission as an Affiliate Member and Membership fees and dues for entities of the type referred to in the preceding sentence shall be as determined from time to time by the Board of Directors. \Section 2.6 Conditions of End User Membership Any association, partnership, organization, company or corporation (together with any subsidiaries and parent companies) which does not sell information technology products, either hardware, software, or services related thereto may, upon satisfaction of the conditions provided in Section 2.2, become an End User Member.\ Section [2.6] \2.7\ Privileges of Voting Membership [Each] \Except as provided in paragraph (i) of this Section 2.7 below, each\ Voting Member, while in good standing, shall be entitled: (a) to vote for all nominees to the Board of Directors (other than Appointed Directors) and on each other matter submitted to a vote of the Voting Members; (b) to appoint one representative to the Advisory Committee and any other Committee(s) which the Board of Directors may establish (which appointee need not be the same individual for all such committees) and otherwise participate in the Consortium's standards review process, subject to the provisions of Section 5.5(c) of these By-laws; (c) to establish and maintain computer network links with the Consortium sufficient to participate in Consortium activities; (d) to have access to all software and documentation generally released by the Consortium (collectively, "Software and Documentation") prior to release of such Software and Documentation to non-members, consistent with procedures from time to time established by the Board of Directors; (e) subject to the restrictions contained in these By-laws and as otherwise imposed from time to time by the Board of Directors, to incorporate Software and Documentation into products at any time after the materials have been released to the members of the Consortium for incorporation; (f) subject to acceptance in any given case by the President of the Consortium with due regard to the available facilities and current priorities of the Consortium, to volunteer staff members on short assignment to the Consortium, which staff members may serve the Consortium as visiting engineers; (g) to receive all publications of the Consortium which are intended for regular distribution; (h) to attend all meetings and special meetings of the Membership provided for in Article III of these By-laws, provided, that only the Voting Members shall be entitled to vote at such meetings, except as specifically provided for in these By-laws, the Certificate of Incorporation or by law; [ and ] \(i) to participate in all meetings and processes of all technical committees, work groups and special interest groups, or other technical proceedings, in a voting capacity, except that End User Members may not vote at any such meeting or as part of any such process or proceeding; and\ [(i)]\(j)\ to such other benefits, rights and privileges as the Board of Directors may designate or the Voting Members may from time to time institute by vote at any meeting of the Voting Members.