[Members] Re: Proposals - programmatic and organizational business

Hi, I'm in favour, it would make several types of cooperation easier. But, I can't judge what this would mean for taxes and so on. Winfried On 9 May 2024 12:09:32 CEST, Nicola Fabiano <nicola(a)fabiano.law> wrote:      ;TLTR      Dear all,      Regarding what is in the subject, I reproduced below the entire thread of      emails exchanged with the Board members related to my proposal regarding the      presence of XSF in Europe.      Each email is a block with a line separating one from the others.      All the best,      Nicola      --------------------------------------------------------------------------------      Dear all,      Following our last Board meeting, I propose to discuss the organization of      XSF's activities further to promote the XMPP protocol at every level,      including at European institutions, possibly by participating in projects to      obtain contributions and funding (I have some ideas, but I will explain later).      Each Board member's input is crucial.      I encourage everyone to outline a few items as our agenda for the next 6/12      months.      These points should be related to programmatic and organizational business      only (non-technical), reflecting your unique perspectives and expertise.      In that way, everyone can be in the running for one or more items to deal      with and what goal we (XSF) want to achieve following our program.      Hence, feel free to share your thoughts about the programmatic and      organizational business, and then we can discuss them.      Apart from programmatic and organizational business, the first step is the      proposal concerns amending the statutes of the registered office. That      modification is necessary to access the European institutions. Other      modification proposals are welcome, and we can evaluate all of them.      Otherwise, an amended version (in bold italic) of Article 1 follows.            ARTICLE I: Offices      *Section 1.1 Registered Office and Registered Agent.* The address of the      initial registered office of The XMPP Standards Foundation (the      “Corporation”) in the State of Delaware and the name of the initial      registered agent of the Corporation at such address are set forth in the      Certificate of Incorporation (the “Certificate”). The Corporation may, from      time to time, designate a different address as its registered office or a      different person as its registered agent, or both; provided, however, that      such designation shall become effective upon the filing of a statement of      such change with the Secretary of State of the State of Delaware as is      required by law.      /*Section 1.2 Principal Offices.*/ The principal offices of the Corporation      shall be at 1899 Wynkoop Street, Denver, Colorado 80202, /*and at xxxx, xxx,      Europe,*/ or at such other place as the Board of Directors shall designate      from time to time. The business of the Corporation shall be transacted from      the principal /*offices*/, and the records of the Corporation shall be kept      there. /*Both principal offices have legal effect, irrespective of where the      activities are carried out and where they are intended*/.      *Section 1.3 Other Offices.* The Corporation shall have such offices either      within or outside the State of Delaware and within or outside the United      States, as the Board of Directors may from time to time determine or as the      business of the Corporation may require. In the event the Corporation      desires to qualify to do business in one or more states other than Delaware,      the Corporation shall designate the location of the registered office in      each such state and designate the registered agent for service of process at      such address in the manner provided by the law of the state in which the      corporation elects to be qualified.      --------------------------------------------------------------------------------      Dear Eddie,      Thank you for your email.      I highlight that my email follows what I said during the Summit in Bruxelles.      My intervention represents a proposal submitted to the Board, which must be      discussed and voted on.      On 27 Apr 2024, at 15:14, E.M. wrote:          Dear Nicola,          many thanks for the effort to bring to review of our XSF organizational          setup and make a suggestion to create a legal instance in Europe.          I assume there will be more coming than creating an European instance          for the XSF, right?      I thought it would be appropriate or helpful to try to be more proactive in      Europe.      This also involves ensuring that XSF has a European presence and is ready      with an action plan and agenda.          Not being a lawyer, I am supporting this attempt in general very much. I          believe we have a strong community in Europe and should also back up our          community here with a legal instance for the technology we standardize.          My question would be what legal aspects we need to discuss having a          "bilateral" (or more) organizational setup? Does this bring any conflict?          How do we as Board member refer and deal with new things like DMA etc.?          What will EU legislation expect from us? What can we expect?       From my perspective, the legal aspects are mainly concerned with amending      the bylaws to provide for a seat in Europe and the existence of a program,      i.e., what XSF proposes to do to promote XMPP.      There shouldn't be any conflict because these are purely organizational      activities.      I think that Board members should continue performing the same current      activities in compliance with the bylaws, such as providing information,      communicating, providing support where necessary, plus implementing programs.      It's important to note that XSF, as a foundation, must act respecting the      bylaws, make proposals, and realize projects (if they exist).      We should not expect more.      However, XSF has the potential to form partnerships with companies that have      plans to present projects on a European level.          If we create a new legal instance, can we create the instance on an          "Europe level" or would the instance exist in a distinct EU country? If          so, which country?      The current bylaws already provide the possibility of setting up other      locations.      We should only add a European XSF legal office (any Member State) so anyone      can see this in the bylaws themselves.          My question to Board would be: As I am in all favor for this attempt,          and also in favor to put work and time into it, are you as well in          favor? Or are you not, and what does not meant to you? My basic question          is that I don't want to spent time fighting something that is actually          not of interest by a majority in the Board or the XSF organization.          Please kindly review this for yourself, too.      I reiterate that my intervention is only a proposal that the Board discusses      and votes on.      Therefore, I await the replies of others.          By the way, do we need to review the way we handle member applications          and personal data? Any other hosting of data?          Have a good day and stay healthy,          Eddie          On 26.04.24 16:28, Nicola Fabiano wrote:              Dear all,              Following our last Board meeting, I propose to discuss the              organization of XSF's activities further to promote the XMPP              protocol at every level, including at European institutions,              possibly by participating in projects to obtain contributions and              funding (I have some ideas, but I will explain later).              Each Board member's input is crucial.              I encourage everyone to outline a few items as our agenda for the              next 6/12 months.              These points should be related to programmatic and organizational              business only (non-technical), reflecting your unique perspectives              and expertise.              In that way, everyone can be in the running for one or more items to              deal with and what goal we (XSF) want to achieve following our program.              Hence, feel free to share your thoughts about the programmatic and              organizational business, and then we can discuss them.              Apart from programmatic and organizational business, the first step              is the proposal concerns amending the statutes of the registered              office. That modification is necessary to access the European              institutions. Other modification proposals are welcome, and we can              evaluate all of them.              Otherwise, an amended version (in bold italic) of Article 1 follows.              --------------------------------------------------------------------------------                    ARTICLE I: Offices              *Section 1.1 Registered Office and Registered Agent.* The address of              the initial registered office of The XMPP Standards Foundation (the              “Corporation”) in the State of Delaware and the name of the initial              registered agent of the Corporation at such address are set forth in              the Certificate of Incorporation (the “Certificate”). The              Corporation may, from time to time, designate a different address as              its registered office or a different person as its registered agent,              or both; provided, however, that such designation shall become              effective upon the filing of a statement of such change with the              Secretary of State of the State of Delaware as is required by law.              /*Section 1.2 Principal Offices.*/ The principal offices of the              Corporation shall be at 1899 Wynkoop Street, Denver, Colorado 80202,              /*and at xxxx, xxx, Europe,*/ or at such other place as the Board of              Directors shall designate from time to time. The business of the              Corporation shall be transacted from the principal /*offices*/, and              the records of the Corporation shall be kept there. /*Both principal              offices have legal effect, irrespective of where the activities are              carried out and where they are intended*/.              *Section 1.3 Other Offices.* The Corporation shall have such offices              either within or outside the State of Delaware and within or outside              the United States, as the Board of Directors may from time to time              determine or as the business of the Corporation may require. In the              event the Corporation desires to qualify to do business in one or              more states other than Delaware, the Corporation shall designate the              location of the registered office in each such state and designate              the registered agent for service of process at such address in the              manner provided by the law of the state in which the corporation              elects to be qualified.              --------------------------------------------------------------------------------              I look forward to receiving a reply from you.              All the best,              Nicola              ssigen      I am available.      --------------------------------------------------------------------------------      Ciao Peter,      Thank you for your email and your insights.      On 29 Apr 2024, at 21:22, Peter Saint-Andre wrote:          Ciao Nicola,          Thank you for initiating this discussion.          I don't feel qualified to provide accurate insights regarding your          proposal, so instead I will ask a few questions:          (1) Is the intent here primarily to seek funding from European          organizations (e.g., EU grants)?      Not only that, but the intention is to create a European positioning to      evaluate any possible initiative. XSF's official headquarters in the US      could be a distraction. From my point of view, an official presence in      Europe would facilitate involvement in possible partnerships and more      attention from the institutions (the European digital strategy is strongly      focused on an internal market). That is my idea, and I hope to be right.          (2) Is European domicile or a European business presence required in          order to receive such grants?      That may not be the case, but as I said, presence in Europe would facilitate      access to possible resources.          (3) What are the legal, regulatory, tax (and thus also financial)          implications of establishing a European business presence or          "co-domicile" such as you have outlined?      I am not an accountant, so I am answering from my experience. Since XSF is a      Foundation, contributions should not be taxed, especially if they come from      institutional sources (participation in any EU projects). It may be      necessary, with an office in Europe, to apply for a tax code or VAT number,      but this should be asked of an accountant.          (4) What is needed in order to establish such a presence or co-domicile?          Do we need an office / physical address, or merely a mailing address?      The bylaws should be changed to provide for a seat in Europe with a postal      address of any kind.          (5) Should we perhaps consider moving the organization to Europe          entirely instead of having some presence in the USA and some in a          European country?      I propose to amend the bylaws, and I note two possible solutions:       1. change the registered office from the US to Europe and then have only          one office in the EU;       2. Add - as provided for in the statute - a seat in the EU that is as          official as the one in the USA; this second solution, legally, seems          less valid to me.      It always depends on what one wants to do, i.e., what projects are to be      realized and what XSF intends to do.          I'd like to "take a step back" and consider what our goals are. Consider:            *              perhaps we feel it would be beneficial to significantly increase              certain kinds of activity, for example:                o promote XMPP as a neutral technology for interoperability (cf. DMA)                o raise money that we can use to help support implementation of                  key protocols in open-source servers and clients            *              perhaps we feel that the best way to do that would be to seek out              funding from European sources            *              perhaps we feel we won't be considered for such grants unless we              have a European business presence / co-domicile            *              then we might conclude that what you propose makes sense          But it seems to me that we need to be clear on the goals, first.      I agree, but XSF's identity and the goals it wants or would like to achieve      need clarification. Therefore, an organizational, administrative (not      technical) program is needed.          Peter          P.S. Aside from the reasoning outlined above, there might be other          reasons to consider a co-domicile arrangement or moving the Foundation          to Europe entirely. For example: most of the XSF's and the community's          activity (Summits, FOSDEM, major open-source projects and companies) is          in Europe, not North America. So that might be worth discussing anyway.      I agree, and this is one of the reasons why I made my proposal.      We are in no hurry. We can discuss it together, but we must evaluate it      soon. Otherwise, XSF remains isolated from the rest of the business world,      with a role relegated solely to technical aspects. XSF deserves more.      All the best,      Nicola          On 4/26/24 8:28 AM, Nicola Fabiano wrote:              Dear all,              Following our last Board meeting, I propose to discuss the              organization of XSF's activities further to promote the XMPP              protocol at every level, including at European institutions,              possibly by participating in projects to obtain contributions and              funding (I have some ideas, but I will explain later).              Each Board member's input is crucial.              I encourage everyone to outline a few items as our agenda for the              next 6/12 months.              These points should be related to programmatic and organizational              business only (non-technical), reflecting your unique perspectives              and expertise.              In that way, everyone can be in the running for one or more items to              deal with and what goal we (XSF) want to achieve following our program.              Hence, feel free to share your thoughts about the programmatic and              organizational business, and then we can discuss them.              Apart from programmatic and organizational business, the first step              is the proposal concerns amending the statutes of the registered              office. That modification is necessary to access the European              institutions. Other modification proposals are welcome, and we can              evaluate all of them.              Otherwise, an amended version (in bold italic) of Article 1 follows.              --------------------------------------------------------------------------------              |ARTICLE I: Offices |              /Section 1.1 Registered Office and Registered Agent./ The address of              the initial registered office of The XMPP Standards Foundation (the              “Corporation”) in the State of Delaware and the name of the initial              registered agent of the Corporation at such address are set forth in              the Certificate of Incorporation (the “Certificate”). The              Corporation may, from time to time, designate a different address as              its registered office or a different person as its registered agent,              or both; provided, however, that such designation shall become              effective upon the filing of a statement of such change with the              Secretary of State of the State of Delaware as is required by law.              //Section 1.2 Principal Offices.// The principal offices of the              Corporation shall be at 1899 Wynkoop Street, Denver, Colorado 80202,              //and at xxxx, xxx, Europe,// or at such other place as the Board of              Directors shall designate from time to time. The business of the              Corporation shall be transacted from the principal //offices//, and              the records of the Corporation shall be kept there. //Both principal              offices have legal effect, irrespective of where the activities are              carried out and where they are intended//.              /Section 1.3 Other Offices./ The Corporation shall have such offices              either within or outside the State of Delaware and within or outside              the United States, as the Board of Directors may from time to time              determine or as the business of the Corporation may require. In the              event the Corporation desires to qualify to do business in one or              more states other than Delaware, the Corporation shall designate the              location of the registered office in each such state and designate              the registered agent for service of process at such address in the              manner provided by the law of the state in which the corporation              elects to be qualified.      --------------------------------------------------------------------------------      On 2 May 2024, at 1:38, Peter Saint-Andre wrote:          Ciao Nicola, more thoughts below...          On 4/30/24 1:32 AM, Nicola Fabiano wrote:              Ciao Peter,              Thank you for your email and your insights.              On 29 Apr 2024, at 21:22, Peter Saint-Andre wrote:              |Ciao Nicola, Thank you for initiating this discussion. I don't feel              qualified to provide accurate insights regarding your proposal, so              instead I will ask a few questions: (1) Is the intent here primarily              to seek funding from European organizations (e.g., EU grants)? |              Not only that, but the intention is to create a European positioning              to evaluate any possible initiative. XSF's official headquarters in              the US could be a distraction. From my point of view, an official              presence in Europe would facilitate involvement in possible              partnerships and more attention from the institutions (the European              digital strategy is strongly focused on an internal market). That is              my idea, and I hope to be right.          This seems like a reasonable hypothesis.          If there were no costs involved and we could identify people to handle          certain aspects of XSF operations (e.g., the Treasurer role that I've          filled for many years), I would be in favor of moving the entire          organization from the USA to the EU.          Of course, there are always costs involved and it's not always easy to          find people to fill certain roles in the long term. :-) But I think it's          worth exploring.          Naturally, if this change led to more funding, then we'd have money to          spend on legal and accounting help to make the transition across the          Atlantic. But we have a bit of a "chicken and egg problem" here.              |(2) Is European domicile or a European business presence required              in order to receive such grants? |              That may not be the case, but as I said, presence in Europe would              facilitate access to possible resources.              |(3) What are the legal, regulatory, tax (and thus also financial)              implications of establishing a European business presence or              "co-domicile" such as you have outlined? |              I am not an accountant, so I am answering from my experience. Since              XSF is a Foundation, contributions should not be taxed, especially              if they come from institutional sources (participation in any EU              projects). It may be necessary, with an office in Europe, to apply              for a tax code or VAT number, but this should be asked of an accountant.          For sure. I am reasonably familiar with U.S. rules for non-profits, but          I am utterly ignorant of the situation in the EU (or UK), I don't know          how things differ by country and which countries are most friendly to          non-profit organizations, etc.              |(4) What is needed in order to establish such a presence or              co-domicile? Do we need an office / physical address, or merely a              mailing address? |              The bylaws should be changed to provide for a seat in Europe with a              postal address of any kind.          BTW, the current Bylaws specify an address of 1899 Wynkoop Street in          Denver, but that was the old Jabber Inc. address and we no longer          receive mail there. At this point the Principal Address is probably my          house! (We do have a post office box, but business operations are not          conducted there.)              |(5) Should we perhaps consider moving the organization to Europe              entirely instead of having some presence in the USA and some in a              European country? |              I propose to amend the bylaws, and I note two possible solutions:               1. change the registered office from the US to Europe and then have                  only one office in the EU;          See above. This is not a trivial undertaking and we'd need to estimate          the costs, both initial and recurring. But I am not opposed to it.               2. Add - as provided for in the statute - a seat in the EU that is as                  official as the one in the USA; this second solution, legally, seems                  less valid to me.              It always depends on what one wants to do, i.e., what projects are              to be realized and what XSF intends to do.          True. We also need to think about things like organizational continuity          and succession planning. Specifically, I am uncomfortable being one of          the only active XSF members in the U.S., and the only one who can access          our bank account, file tax forms, etc.              |I'd like to "take a step back" and consider what our goals are.              Consider: * perhaps we feel it would be beneficial to significantly              increase certain kinds of activity, for example: o promote XMPP as a              neutral technology for interoperability (cf. DMA) o raise money that              we can use to help support implementation of key protocols in              open-source servers and clients * perhaps we feel that the best way              to do that would be to seek out funding from European sources *              perhaps we feel we won't be considered for such grants unless we              have a European business presence / co-domicile * then we might              conclude that what you propose makes sense But it seems to me that              we need to be clear on the goals, first. |              I agree, but XSF's identity and the goals it wants or would like to              achieve need clarification. Therefore, an organizational,              administrative (not technical) program is needed.          Agreed.              |Peter P.S. Aside from the reasoning outlined above, there might be              other reasons to consider a co-domicile arrangement or moving the              Foundation to Europe entirely. For example: most of the XSF's and              the community's activity (Summits, FOSDEM, major open-source              projects and companies) is in Europe, not North America. So that              might be worth discussing anyway. |              I agree, and this is one of the reasons why I made my proposal.              We are in no hurry. We can discuss it together, but we must evaluate              it soon. Otherwise, XSF remains isolated from the rest of the              business world, with a role relegated solely to technical aspects.              XSF deserves more.          I'm curious to hear more about your thinking here.      I agree with you. As you said, it is worth considering a legal office in Europe.          Peter      Ciao Peter,      Thank you.      All the best,      Nicola      --------------------------------------------------------------------------------      On 2 May 2024, at 17:37, Peter Saint-Andre wrote:          On 5/2/24 1:01 AM, Nicola Fabiano wrote:              On 2 May 2024, at 1:38, Peter Saint-Andre wrote:              |Ciao Nicola, more thoughts below... On 4/30/24 1:32 AM, Nicola              Fabiano wrote: We can discuss it together, but we must evaluate it              soon. Otherwise, XSF remains isolated from the rest of the business              world, with a role relegated solely to technical aspects. XSF              deserves more. I'm curious to hear more about your thinking here. |              I agree with you. As you said, it is worth considering a legal              office in Europe.          Specifically, I would like to understand more fully why you say that the          "XSF remains isolated from the rest of the business world, with a role          relegated solely to technical aspects."          Since its founding in 2001, the XSF as a standards development          organization has indeed been dedicated (or relegated) solely to          technical aspects: primarily defining standardized protocols along with          a very few ancillary matters. With a few rare exceptions, the XSF hasn't          even actively supported (e.g., with monetary grants) the projects and          companies that develop XMPP-compatible software. In large part, this is          a legacy of the XSF's place in the Jabber/XMPP ecosystem and its          founding as a neutral organization that would not favor any particular          vendor or developer, or even favor open-source software over proprietary          software. It is also consistent with the nature of our community, which          consists of technically-minded people who don't know much about things          like marketing or government policy.          In your mind, what would a closer integration with the rest of the          business world look like? What new activities would we engage in? What          expertise would we need to acquire? And so on.          Peter      Peter,      My meaning was that XSF—as a foundation—even though it was born in a      technical context and is dedicated to XEP, could also organize public      events, do dissemination, participate in competitions to obtain public or      private funding, be proactive in the communication and dissemination of      XMPP, etc.      I did not mean that XSF does not carry out activities but that these could      extend.       From my point of view, I see more opportunities in Europe than in the rest      of the world.      --------------      /This e-mail (including attachments) is intended only for the recipient(s)      named above. It may contain confidential or privileged information and      should not be read, copied, or used by anyone else. If you are not the named      recipient, please contact the sender and delete the e-mail from your system./ -- Normally there is some text here, bragging about the new phone and excusing for the brevity. That is insane: if this phone was really that great, I would have sent a decent mail.