BYLAWS OF THE HSA FOUNDATION

1.              OFFICES

1.1.         PRINCIPAL OFFICE

The principal office of the Corporation is located in Austin, Texas, U.S.A.

1.2.         CHANGE OF ADDRESS

The designation of the county or state of the Corporation’s principal office may be changed by a Vote of the Board of Directors.

1.3.         OTHER OFFICES

The Corporation may also have offices at such other places, within or outside its state of incorporation, where it is qualified to do business, as its business and activities may require, and as the Board of Directors may, from time to time, designate.

2.              NONPROFIT PURPOSES AND ANTITRUST

2.1.         GENERAL AND SPECIFIC OBJECTIVES AND PURPOSES

(a)            General Purpose. The Corporation is organized under and shall be operated exclusively as a business defined in Section 501(c)(6) of the Internal Revenue Code, as amended, or the corresponding provisions of any subsequent federal tax law and the applicable corporate laws of the State of Texas, U.S.A.

(b)           Specific Purposes. In addition to the foregoing general purposes, the Corporation is formed to promote the broad and open industry adoption of the HSA Architecture.

2.2.         ANTITRUST COMPLIANCE

The Corporation shall require each Member in the Member’s specific membership agreement (“Membership Agreement”) to make the following covenants: (a) the Member is committed to fostering competition in the development of new products and services based on the HSA Specification(s); (b) the Member acknowledges that they may compete with other Members in various lines of business and that they will comply with all applicable antitrust laws pertaining to membership in the Corporation; (c) the Member agrees that it will not discuss issues relating to product costs, product pricing, quantity or quality of any production levels, methods or channels of product distribution, any division of markets, or allocation of customers or any other topic which should not be discussed among competitors; and (d) the Member will assume full responsibility to provide appropriate legal counsel to its representatives acting under their Membership Agreement regarding the importance of limiting their discussions to subjects that relate to the purposes of the Membership Agreement, whether or not such discussions take place during formal meetings, informal gatherings, or otherwise.

3.              DIRECTORS

3.1.         NUMBER OF DIRECTORS

The Board of Directors (the “Board”) shall consist of a number of Directors (defined in Section 3.5 below) no less than three (3) and no more than nine (9). The property, business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors shall have the power to select and remove all officers, agents, employees and contractors, and to fix reasonable compensation therefor, to authorize and empower officers or agents to enter into contracts and other commitments on behalf of this Corporation, and to appoint and delegate responsibilities and authority to committees, officers and agents.

3.2.         CLASSES OF DIRECTORS

The Directors shall have two (2) classes as follows: (a) Founder Directors and (b) Promoter Directors. Founder Directors shall be those Members who have signed a Founder Membership Agreement within the first ninety (90) days of formation of the Corporation and have been accepted as a Founder Member by the Board of Directors.  Founder Directors shall have a Board position that will continue for so long as the Founder Member remains a Member of the Corporation. Promoter Directors shall be those Members who have signed a Promoter Membership Agreement and have been voted onto the Board at the annual meeting of the Members by either (i) the Promoter Members, or (ii) the Board of Directors.  For every Board position held by a Promoter Member who is elected by the Promoter Members at the annual meeting of the Members there shall be one (1) Promoter Member who is elected by the Board of Directors at the annual meeting of the Members, unless there is only one (1) vacancy on the Board.  If there is only one (1) vacancy on the Board, the Promoter Director will be elected by the Board of Directors. Promoter Directors shall have a Board position that will continue for a period of three (3) years, except for the initial Promoter Directors whose Board positions will be staggered from one (1) year through three (3) years, at the discretion of the Board of Directors.

3.3.         POWERS

The property, business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors shall have the power to select and remove all officers, agents, employees and contractors, and to fix reasonable compensation therefor, to authorize and empower officers or agents to enter into contracts and other commitments on behalf of the Corporation, and to appoint and delegate responsibilities and authority to committees, officers, and agents. The Board of Directors may authorize any officer, employee, or agent to enter into any contract or execute any contract or execute any instrument in the name of and on behalf of the Corporation and such authority may be general or confirmed to specific instances. Unless so authorized by the Board of Directors, no officer, agent, or employee shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or in any amount; provided, however, that any such contract or instrument between the Corporation and any third person, when signed by (i) the Chairperson of the Board, and (ii) the Managing Director or Treasurer of the Corporation, shall be valid and binding upon the Corporation in the absence of actual knowledge on the part of said third person that the signing officers had no authority to execute the same.

3.4.         DUTIES

(a)            It shall be the duty of the Chairperson of the Board to:

(i)             Perform all duties of a Chairperson of the Board as required by these Bylaws;

(ii)           Serve as an ex-officio voting member of all working groups; and

(iii)          Have such other powers and duties as may be designated from time to time by the Board of Directors.

(b)           It shall be the duty of the Directors to:

(i)             Perform any and all duties imposed on them collectively or individually by law, by the Articles of Incorporation, or by these Bylaws;

(ii)           Appoint and remove, employ and discharge, and, except as otherwise provided in these Bylaws, prescribe the duties and fix the compensation, if any, of all officers, agents and employees of the Corporation;

(iii)          Supervise all officers, agents and employees of the Corporation to assure that their duties are performed properly;

(iv)          Meet at such times and places as required by these Bylaws;

(v)           Register their addresses with the Managing Director of the Corporation, and notices of meetings mailed or telegraphed to them at such addresses shall be valid notices thereof;

(vi)          Elect annually the Chairperson of the Board from the Directors;

(vii)        Elect annually officers for the Corporation, including a President from the Corporation’s membership or from the general public who shall be the Chief Executive Officer of the Corporation and shall perform all duties as required by these Bylaws;

(viii)       Establish and disband other committees and working groups as appropriate to conduct the work of the Corporation;

(ix)          Establish policies relating to confidentiality, ownership rights, license grants, warranties, public relations, and other criteria which shall apply to all Members of the Corporation;

(x)            Approve the Corporation’s annual budget;

(xi)          Establish annual dues for all Member classes, and establish privileges and benefits for all such classes; and

(xii)         Communicate actions related to the duties specified in this Section to the membership within sixty (60) days.

3.5.         APPOINTMENT OF DIRECTORS

For each Founder Member and for those Promoter Members who are elected to hold a position on the Board (also referred herein collectively referred to as “Directors”), they shall each designate a representative (a “Board Representative”). This Board Representative must be a full time employee of such Director. If a Board Representative is removed by the Director or resigns employment or dies while in office, the Director shall be entitled to appoint a new successor Board Representative to the Board. A Director may change its Board Representative at any time by sending a written notice to the Managing Director or by having a written notice sent or delivered to the Board prior to the meeting by its new designated representative.

3.6.         TERM OF OFFICE

Each Director shall serve until said Director ceases to be a Promoter Member or Founder Member of the Corporation.  Furthermore, each Promoter Director shall serve only until their term has expired.

3.7.         COMPENSATION

Directors shall serve without compensation.

Nothing herein contained shall be construed to preclude any Board Representative from serving the Corporation in any other capacity as an officer, agent, employee, or otherwise and receiving compensation therefore so long as such compensation is approved by a majority of disinterested Directors.

3.8.         PLACE OF MEETINGS

Meetings of the Board shall be held at any place within or outside the State of Texas, U.S.A. or in any manner that has been designated by resolution of the Board or in the notice of the meeting or, if not so designated, at the principal office of the Corporation.

In order to encourage maximum participation, meetings may be held in person or by any combination of audio, document or video conferencing techniques, as long as all Directors participating in such meetings can hear one another.

3.9.         ANNUAL AND REGULAR MEETINGS

The Directors shall meet once a year to elect the officers for the Corporation and to agree on the Corporation’s budget for the next fiscal year, and also on such other occasions as scheduled by the Board.

3.10.      SPECIAL MEETINGS

Special meetings of the Board may be called by the President, the Vice President, the Managing Director or any two (2) Directors.

3.11.      NOTICE OF MEETINGS

Unless otherwise provided by the Articles of Incorporation, these Bylaws, or provisions of law, the following provisions shall govern the giving of notice for meetings of the Board of Directors:

(a)            Regular Meetings. At least twenty-one (21) days prior notice shall be given by the Managing Director of the Corporation to each Director unless a two-thirds (2/3) majority of the Directors agree to waive the notice requirement.

(b)           Special Meetings. At least seven (7) days prior notice shall be given by a Managing Director of the Corporation or by the party calling the meeting in accordance with Section 3.10 to each Director of each special meeting of the Board.

Such notices must be by mail or by electronic message, and shall state the place, date and time of the meeting and the matters proposed to be acted upon at the meeting. Any required notice may be waived by individual Directors.

3.12.      QUORUM FOR MEETINGS

A quorum shall consist of a majority of the Members of the Board.

In the absence of a quorum at any meeting of the Board, a majority of the Directors present may adjourn the meeting. A meeting at which a quorum is initially present may continue to transact business, notwithstanding the withdrawal of enough Directors to leave less than a quorum, if any action taken is approved by at least a majority of the required quorum for such meeting.

3.13.      2/3 MAJORITY ACTION AS BOARD ACTION

Every act or decision done or made by a two-thirds (2/3) majority of the Directors present at a meeting duly held at which a quorum is present is the act of the Board, unless the Articles of Incorporation, these Bylaws, or provisions of law require a different percentage or different voting rules for approval of a matter by the Board.

3.14.      CONDUCT OF MEETINGS

Meetings of the Board shall be chaired by the Chairperson of the Board or, in his or her absence, by the President of the Corporation or, in the absence of each of these persons, by a Chairperson chosen by a majority of the Directors present at the meeting. The Managing Director of the Corporation shall act as Secretary of all meetings of the Board, provided that, in his or her absence, the presiding officer shall appoint another person to act as Secretary of the Meeting.

To the extent permitted by applicable law, a Director may designate an alternate representative from the same organization to attend a Board of Directors meeting when that Director is unable to attend a meeting.

Meetings shall be governed by such procedures as may be approved from time to time by the Board, insofar as such rules are not inconsistent with or in conflict with the Articles of Incorporation, these Bylaws, or with provisions of law.

3.15.      NON-LIABILITY OF DIRECTORS

The Directors shall not be personally liable for the debts, liabilities, or other obligations of the Corporation.

3.16.      INDEMNIFICATION OF DIRECTORS AND OFFICERS

To the fullest extent permitted by law, the Corporation shall indemnify its Directors, officers, employees, and other persons acting for the Corporation, including persons formerly occupying any such positions, against all expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred by them in connection with any “proceeding,” as that term is used in that section, and including an action by or in the right of the Corporation, by reason of the fact that the person is or was a person described in that section.

On written request to the Board by any person seeking indemnification under this provision, the Board shall promptly decide whether the applicable standard of conduct has been met and, if so, the Board shall authorize indemnification. If the Board cannot authorize indemnification, because the number of Directors who are parties to the proceeding with respect to which indemnification is sought prevents the formation of a quorum of Directors who are not parties to that proceeding, the Board shall promptly call a meeting of Promoter Members. At that meeting, the Promoter Members shall determine under Corporations Code whether the applicable standard of conduct has been met and, if so, the Promoter Members present at the meeting in person or by proxy shall authorize indemnification.

To the fullest extent permitted by law and except as otherwise determined by the Board in a specific instance, expenses incurred by a person seeking indemnification under this Section of these Bylaws in defending any proceeding covered by this Section shall be advanced by the Corporation before final disposition of the proceeding, on receipt by the Corporation of an undertaking by or on behalf of that person that the advance will be repaid unless it is ultimately found that the person is entitled to be indemnified by the Corporation for those expenses.

3.17.      INSURANCE FOR CORPORATE AGENTS

Except as may be otherwise provided under provisions of law, the Corporation may purchase and maintain insurance to the full extent permitted by law on behalf of its officers, Directors, employees, and other agents, to cover any liability asserted against or incurred by any officer, Director, employee, or agent in such capacity or arising from the officer’s, Director’s, employee’s, or agent’s status as such.

3.18.      BOARD ACTION WITHOUT A MEETING

Any action that the Board is required or permitted to take may be taken without a meeting of all members of the Board of Directors upon consent in writing or by electronic message to that action. Such action by written consent shall have the same force and effect as any other validly approved action of the Board. All consents shall be filed with the minutes of the proceedings of the Board.

To conduct such an email vote, the Director requesting the vote must send a proposal to the Managing Director and request that the Managing Director conduct the vote by email. Within a reasonable period of time after receiving such a request, the Managing Director will send an email to the Board requesting their vote on the proposal. Each Director has seven (7) days in which to vote. To cast a vote, a Director must send a reply email to the Managing Director stating his or her vote on the proposal. After the seven (7) day period has expired the Managing Director will tally the votes and email the results to the Board.

3.19.      SUSPENSION OF VOTING RIGHTS

A Member’s right to vote is suspended if that Member is not in good standing. To be in good standing a Member must have paid all outstanding dues and fees, attended two (2) of the last three (3) annual meetings of the Members in person or by phone, counting the current meeting. New Directors (other than those Directors initially placed on the Corporation’s Board during its initial year who may vote in their first meeting) may vote on their second meeting – if they are in good standing. Any Member who has a Board position with suspended voting rights shall not be counted in determination of Board quorum and Board votes.

The Managing Director will provide written notice to a Member whose voting rights have been suspended. The notice will include the reason for the suspension of the voting rights. Upon receipt of such notice, the Member will not be entitled to vote on any matter. A Member whose voting rights have been suspended may have its voting rights reinstated by the Board or when it returns to good standing.

3.20.      ADVISORY BOARD

The Board of Directors may, by resolution, establish a board of advisors (the “Advisory Board”) to be comprised of one (1) or more individuals chosen by the Board of Directors at its sole discretion. The Board of Directors shall not be bound by any advice or decision of the Advisory Board. The members of the Advisory Board shall not have the rights or privileges of Directors and shall have no power or authority over the operation of the Corporation. A Member of the Advisory Board may be removed at any time by the Board of Directors with or without cause.

3.21.      OBSERVERS

Each Founder Member and Promoter Member, shall have the right to designate a single observer to attend meetings of the Board of Directors when such representative of the Member is unable to be present, provided that such director provides prior notice to the Chairperson of the Board and the Chairperson of the Board approves the request, which request shall not be unreasonably denied. An observer permitted to attend shall have the right to participate in the general session but may not put forth or vote on any motion. Observers shall in no event have the right to attend or participate in any executive session attended only by Directors.

4.              OFFICERS

4.1.         DESIGNATION OF OFFICERS

The officers of the Corporation shall be a President, a Managing Director (who shall serve as the Secretary), and a Treasurer (who shall serve as the Chief Financial Officer). The Corporation may also have one (1) or more Vice Presidents, Assistant Secretaries, Assistant Treasurers, and other such officers with such titles as may be determined from time to time by the Board of Directors.

4.2.         ELECTION AND TERM OF OFFICE

Officers shall be elected by the Board of Directors, at a meeting of the Board, no more than twelve (12) months following the previous election and each officer shall hold office until he or she resigns or is removed or is otherwise disqualified to serve, or until his or her successor shall be elected and qualified, whichever occurs first.

It shall be required for officers to maintain membership in the Corporation.

4.3.         REMOVAL AND RESIGNATION

Any officer may be removed, either with or without cause, by the Board, at any time. Any officer may resign at any time by giving written notice to the Board or to the President or Managing Director of the Corporation. Any such resignation shall take effect at the date of receipt of such notice or at any later date specified therein, and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. The above provisions of this Section shall be superseded by any conflicting terms and conditions of a contract which has been approved or ratified by the Board relating to the employment of any officer of the Corporation.

4.4.         VACANCIES

Any vacancy caused by the death, resignation, removal, disqualification, or otherwise, of any officer shall be filled by the Board. In the event of a vacancy in any office other than that of President, such vacancy may be filled temporarily by appointment by the Vice President until such time as the Board shall fill the vacancy. Vacancies occurring in offices of officers appointed at the discretion of the Board may or may not be filled as the Board of Directors shall determine.

4.5.         DUTIES OF PRESIDENT

The President shall be the chief executive officer of the Corporation and shall, subject to the control of the Board, supervise and control the affairs of the Corporation and the activities of the officers. He or she shall perform all duties incident to his or her office and such other duties as may be required by law, by the Articles of Incorporation, or by these Bylaws, or which may be prescribed from time to time by the Board, including presiding as chairperson at all meetings of the Promoter Members.

4.6.         DUTIES OF MANAGING DIRECTOR (SECRETARY)

The Managing Director (who shall serve as the Secretary of the Corporation) shall: certify and keep at the principal office of the Corporation the original, or a copy, of the Articles of Incorporation and these Bylaws as amended or otherwise altered to date; shall keep at the principal office of the Corporation, or at such other place as the Board may determine, a book of minutes of all meetings of the Directors, membership, and, if applicable, meetings of committees or working groups, recording therein the time and place of holding, whether regular or special, how called, how notice thereof was given, the names of those present or represented at the meeting, and the proceedings thereof, including all ballots; shall see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law and advise the Members in writing of all results of any election of Officers; be custodian of the records and of the seal of the Corporation and affix the seal, as authorized by law or the provisions of these Bylaws, to duly executed documents of the Corporation; shall keep at the principal office of the Corporation a membership book containing the name and address of each and any Members, and, in the case where any membership has been terminated, he or she shall record such fact in the membership book together with the date on which such membership ceased; shall exhibit at all reasonable time to any Director, or to his or her agent or attorney, on request therefore, these Bylaws, the membership book, and the minutes of the proceedings of the Directors of the Corporation; in general, perform all duties incident to the office of Managing Director and Secretary and such other duties as may be required by law, by the Articles of Incorporation, or by these Bylaws, or which may be assigned to him or her from time to time by the Board.

4.7.         DUTIES OF TREASURER

The Treasurer (who shall serve as the Chief Financial Officer of the Corporation) shall: keep and maintain, or cause to be kept and maintained, adequate and correct books and accounts of the Corporation’s properties and transactions; shall send or cause to be given to the Members and Directors such financial statements and reports as are required to be given by law, by these Bylaws, or by the Board; shall ensure the books of account shall be open to inspection by any Director at all reasonable times; shall (i) deposit, or cause to be deposited, all money and other valuables in the name and to the credit of the Corporation with such depositories as the board may designate; (ii) disburse the Corporation’s funds as the Board may order; (iii) render to the President and the Board, when requested, an account of all transactions as Chief Financial Officer and of the financial condition of the Corporation; and (iv) have such other powers and perform such other duties as the Board or the Bylaws may require, including restoration to the Corporation of all of its books, papers, vouchers, money, and other property of every kind in the possession or under the control of the Chief Financial Officer on his or her death, resignation, retirement, or removal from office.

4.8.         COMPENSATION

The officers shall serve without compensation, unless compensation is authorized by the Board.

Nothing herein contained shall be construed to preclude any officer from serving the Corporation in any other capacity as an agent, employee, or otherwise and receiving compensation therefore as long as such compensation is approved by a majority of disinterested Directors.

5.              COMMITTEES; WORKING GROUPS

5.1.         EXECUTIVE COMMITTEE

The Board may designate an Executive Committee consisting of three (3) or more Directors and may delegate to such committee the powers and authority of the Board in the management of the business and affairs of the Corporation, to the extent permitted, and except as may otherwise be provided, by provisions of law.

The Board may at any time revoke or modify any or all the Executive Committee authority so delegated, increase or decrease but not below three (3) the number of the members of the Executive Committee, and fill vacancies on the Executive Committee from the Directors. The Executive Committee shall keep regular minutes of its proceedings, cause them to be filed with the corporate records, and report the same to the Board from time to time as the Board may require.

5.2.         OTHER COMMITTEES

The Corporation shall have such other committees as may from time to time be designated by resolution of the Board. These committees may consist of persons who are not also Members of the Board and shall act in an advisory capacity to the Board. The Board of Directors may delegate to any committee having the authority of the Board, any of the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation; provided, however, that no committee may: (a) authorize distributions; (b) approve or recommend to members dissolution, merger or the sale, pledge or transfer of all or substantially all of this corporation’s assets; (c) elect, appoint, or remove directors or fill vacancies on the board or on any of its committees; or (d) adopt, amend or repeal the Articles, these Bylaws, or any resolution of the Board of Directors.

5.3.         MEETINGS AND ACTION OF COMMITTEES

Meetings and actions of the Executive Committee and other committees shall be governed by, noticed, held and taken in accordance with the provisions of these Bylaws concerning meetings of the Board of Directors, with such changes in the context of such Bylaw provisions as are necessary to substitute the Executive Committee or other committees and its members for the Board. The Board of Directors or such other committees may also adopt rules and regulations pertaining to the conduct of meetings of the committees to the extent that such rules and regulations are not inconsistent with the provisions of these Bylaws.

5.4.         WORKING GROUPS

The Directors may form working groups to focus on particular issues related to the aims of the Corporation. Participation in working groups is limited to Founder Members, Promoter Members, Supporter Members, Contributor Members (as defined below), and Academic Members (not including voting rights) and each working group shall operate as defined by the Corporation’s Membership Agreement or under a charter that is agreed by the working group membership and approved by the Board.

6.              EXECUTION OF INSTRUMENTS, DEPOSITS AND FUNDS

6.1.         EXECUTION OF INSTRUMENTS

The Board, except as otherwise provided in these Bylaws, may authorize any officer of the Corporation to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances. Unless so authorized, no officer, agent, or employee shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable monetarily for any purpose or in any amount.

6.2.         CHECKS AND NOTES

Except as otherwise specifically determined by resolution of the Board, or as otherwise required by law, checks, drafts, promissory notes, orders for the payment of money, and other evidence of indebtedness of the Corporation shall be signed by the Managing Director and a second officer of the Corporation. In cases where the amount is equal to or less than a pre-determined threshold determined by the Board the signature of the Managing Director alone will be sufficient.

6.3.         DEPOSITS

All funds of the Corporation shall be deposited from time to time to the credit of the Corporation in such banks, trust companies, or other depositories as the Board may select.

6.4.         GIFTS

The Board may accept on behalf, and for the benefit, of the Corporation any contribution, gift, bequest, or devise for the non-profit purposes of the Corporation.

7.              CORPORATE RECORDS, REPORTS, SEAL, INSPECTION RIGHTS AND FISCAL YEAR

7.1.         MAINTENANCE OF CORPORATE RECORDS

The Corporation shall keep at its principal office:

(a)            Minutes of all meetings of Directors, committees of the Board and of all meetings of Members, indicating the time and place of holding such meetings, whether regular or special, how called, the notice given, and the names of those present and the proceedings thereof;

(b)           Adequate and correct books and records of account, including accounts of its properties and business transactions and accounts of its assets, liabilities, receipts, disbursements, gains and losses;

(c)            A record of its Members, if any, indicating their names and addresses and, if applicable, the class of membership held by each Member and the termination date of any membership;

(d)           A copy of the Corporation’s Articles of Incorporation and Bylaws as amended to date, which shall be open to inspection by the Members of the Corporation at all reasonable times during office hours.

7.2.         CORPORATE SEAL

The Board may adopt, use, and at will alter, a corporate seal. Such seal shall be kept at the principal office of the Corporation. Failure to affix the seal to corporate instruments, however, shall not affect the validity of any such instrument.

7.3.         DIRECTORS’ INSPECTION RIGHTS

Every Director shall have the absolute right at any reasonable time to inspect and copy all books, records and documents of every kind and to inspect the physical properties of the Corporation as may be allowed under the Articles of Incorporation and under the provisions of law.

7.4.         RIGHT TO COPY AND MAKE EXTRACTS

Any inspection under the provisions of this Section may be made in person or by agent or attorney and the right to inspection shall include the right to copy and make extracts as may be allowed under the Articles of Incorporation and under the provisions of law.

7.5.         PERIODIC REPORT

The Board shall cause any annual or periodic report required under law to be prepared and delivered to an office of the State of Texas, U.S.A. or to the Members of the Corporation, to be so prepared and delivered within the time limits set by law.

The Board shall cause an annual report to be prepared within one hundred twenty (120) days after the end of the corporation’s fiscal year. That report shall contain the following information in appropriate detail:

(a)            A balance sheet as of the end of the fiscal year, an income statement, and statement of changes in financial position for the fiscal year, accompanied by an independent accountants’ report or, if none, by the certificate of an authorized officer of the Corporation that they were prepared without audit from the corporation’s books and records; and

(b)           A statement of the place where the names and addresses of current Members are located.

The Managing Director shall annually notify each Member of its right to receive a copy of the financial report under this Section 7.5. The Managing Director shall promptly cause the most recent annual report to be sent to any requesting Promoter Member or Founder Member.

7.6.         FISCAL YEAR

The fiscal year of the Corporation shall be from June 1 of each year to May 31 of the following year.

8.              IRC 501(C)(6) TAX EXEMPTION PROVISIONS

8.1.         LIMITATION ON ACTIVITIES

Notwithstanding any other provisions of these Bylaws, the Corporation shall not carry on any activities not permitted to be carried on (a) by a Corporation exempt from federal income tax under Section 501(c)(6) of the Internal Revenue Code.

8.2.         PROHIBITION AGAINST PRIVATE INUREMENT

No part of the net earnings of the Corporation shall inure to the benefit of, or be distributable to its Members, Directors or trustees, officers, or other private persons, except that the Corporation shall be authorized and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of the purposes of the Corporation.

8.3.         DISTRIBUTION OF ASSETS

Upon the dissolution of the Corporation, its assets remaining after payment, or provision for payment of all debts and liabilities of the Corporation shall be distributed for one or more exempt purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code or shall be distributed to the federal government, or to a state or local government, for a public purpose. Such distribution shall be made in accordance with all applicable provisions of the laws of the State of Texas, U.S.A.

9.              AMENDMENT OF BYLAWS

These Bylaws may be altered, amended, or repealed and new Bylaws adopted by approval of the Board.

10.           CONSTRUCTION AND TERMS

If there is any conflict between the provisions of these Bylaws and the Articles of Incorporation of the Corporation, the provisions of the Articles of Incorporation shall govern.

Should any of the provisions or portions of these Bylaws be held unenforceable or invalid for any reason, the remaining provisions and portions of these Bylaws shall be unaffected by such holdings.

All references in these Bylaws to the Articles of Incorporation shall be to the Articles of Incorporation, Articles of Organization, Certificate of Incorporation, Organizational Charter, Corporate Charter, or other founding document of the Corporation filed with an office of the State of Texas, U.S.A. and used to establish the legal existence of the Corporation.

All references in these Bylaws to a section or sections of the Internal Revenue Code shall be to such sections of the Internal Revenue Code of 1986 as amended from time to time, or to corresponding provisions of any future federal tax code.

11.           MEMBERSHIP PROVISIONS

11.1.      CLASSES AND RIGHTS OF MEMBERS

Any individual, firm, partnership, corporation, unincorporated association, academic institution or government body with a demonstrated interest in promoting the cause(s) of the Corporation, may apply for membership in the Corporation.

The Corporation shall have six (6) classes of Members, designated as the Founders, Promoters, Contributors, Associates, Academics and Supporters.

(a)            Rights of Founder Members – Founder Member membership shall be open to those businesses (the term “business” shall mean any entity other than educational institutions, governmental agencies, or individuals whether such entity is operated on a for-profit or on a not-for-profit basis) that engage in or support the research, development, production, manufacture, use, sale, or standardization of heterogeneous system architectures and software (both closed and open source) upon payment of the Founder membership initiation fee and/or annual dues prescribed from time to time by the Board of Directors that are initially paid within thirty (30) days from the filing of the Articles of Incorporation before the Texas Secretary of State or from the effective date of the Founder Member’s Member Agreement if the Founder joins after the filing of the Articles of Incorporation as set forth above. Each Founder Member shall have all rights, privileges and obligations of a Promoter Member described hereunder. A Founder Member shall be a Member of the Board of Directors for so long as such Founder Member continues to be a Member within the Corporation.

(b)           Rights of Promoter Members – Promoter Member membership shall be open to those businesses that engage in or support the research, development, production, manufacture, use, sale, or standardization of heterogeneous system architectures and software (both closed and open source) upon payment of the Promoter membership initiation fee and/or annual dues prescribed from time to time by the Board of Directors that are initially paid within thirty (30) days from the effective date of the Promoter Member’s Member Agreement. Promoter Members shall be the only class of Members entitled to vote other than the Founder Members on Corporation matters. Promoter Members as a group shall have the right to appoint one (1) representative to the Board of Directors as described in these Bylaws. Promoter Members shall have the right to participate in working groups as described in these Bylaws and qualify to be a chairperson of a working group. Each Promoter Member shall have the right to a single vote in the working group(s) in which such Promoter Member is a participant and any Member meetings. The vote of a Promoter Director appointed by a Promoter Member shall be deemed to be the vote of the Promoter Member to the extent that Member votes are required.

(i)             For clarity, a quorum for Promoter Member Meetings shall consist of a majority of the Promoter Members. Every act or decision done or made by a two-thirds (2/3) majority of the Promoter Members present at a meeting duly held at which a quorum is present is the act of the Promoter Members, unless the Articles of Incorporation, these Bylaws, or provisions of law require a different percentage or different voting rules for approval of a matter by the Promoter Members.

(c)            Rights of Contributor Members – Contributor Member membership shall be open to those businesses that engage in or support the research, development, production, manufacture, use, sale, or standardization of heterogeneous system architectures and software (both closed and open source) upon payment of the Contributor membership initiation fee and/or annual dues prescribed from time to time by the Board of Directors that are initially paid within thirty (30) days from the effective date of the Contributor Member’s membership agreement. Contributor Members shall have the right to participate in working groups as described in these Bylaws. Each Contributor Member shall have the right to a single vote in the working group(s) in which such Contributor Member is a participant. Contributor Members are not statutory members of the Corporation and shall have no right to vote on Corporation matters.

(d)           Rights of Associate Members – Associate Member membership shall be open to those businesses that engage in or support the research, development, production, manufacture, use, sale, or standardization of heterogeneous system architectures and software (both closed and open source) upon payment of the Associate membership initiation fee and/or annual dues prescribed from time to time by the Board of Directors that are initially paid within thirty (30) days from the effective date of the Associate Member’s membership agreement.  Associate Members are not statutory members of the Corporation and shall have no right to vote on Corporation matters or in  working groups.

(e)            Rights of Academic Members – Academic Member membership shall be open to those individuals or academic entities that (i) that engage in or support the research, development, use, or standardization of heterogeneous system architectures and software (both closed and open source); (ii) provide a specialized knowledge or skill that the Board believes would be helpful in achieving the objectives of the Corporation; (iii) pay the  Academic Membership initiation fee and/or annual dues prescribed from time to time by the Board of Directors that are initially paid within thirty (30) days from the effective date of the Academic Member’s membership agreement; and (iv) are invited by the Board to join the Corporation as an Academic Member.  Academic Members shall have the right to participate in working groups as described in these Bylaws; however Academic Members shall not have the right to vote in the working group(s). Academic Members are not statutory members of the Corporation and shall have no right to vote on Corporation matters.

(f)            Rights of Supporter Members – Supporter Member membership shall be open to those businesses having revenues of less than Twenty-Five Million U.S. Dollars (US$25,000,000.00) per year, or a Non Profit Business, and have a primary business of core tool development of compilers, simulators, debuggers, and/or libraries.  Such Supporter Members must engage in or support the research, development, production, manufacture, use, sale, or standardization of tools (e.g. compilers, simulators, debuggers, performance tools, libraries), operating systems and development runtimes for heterogeneous system architectures and software (both closed and open source) upon payment of the Supporter Membership initiation fee and/or annual dues prescribed from time to time by the Board of Directors that are initially paid within thirty (30) days from the effective date of the Supporter Member’s membership agreement. Supporter Members shall have the right to participate in working groups as described in these Bylaws and qualify as the chairperson of a working group that focuses on core tool development of compilers, simulators, debuggers, and/or libraries. Each Supporter Member shall have the right to a single vote in the working group(s) in which such Supporter Member is a participant.

11.2.      NUMBER OF MEMBERS

There is no limit on the number of Members the Corporation may admit.

11.3.      FEES AND DUES

The annual dues payable to the Corporation by each class of Members shall be established and may be changed from time to time by resolution of the Board. The Board may decide to accept in-kind contributions in lieu of annual dues. Dues shall be initially due and payable upon confirmation of admission to membership by the Corporation and as set each year by the Board.

The Corporation shall operate on a not-for-profit basis. However, annual dues and other special fees may be levied by the Board of Directors to offset expenses. These dues and fees shall be used to support the activities of the Corporation, including administrative costs (including expenses related to managerial expenses, meetings, travel costs, legal fees, web site development and maintenance), promotional expenses, and any other purposes that are approved by the Board.

11.4.      ADMISSION TO MEMBERSHIP

Applicants may apply to be admitted as a Member by submitting a completed and signed Membership Agreement together with payment of the first annual dues fee (if applicable) and any other documents as may be required by the Corporation from time to time. The Board, or a designated party, may approve or reject such application in accordance with the criteria established from time to time by the Board. In any case, Promoter membership must be approved by the Board, and Contributor, Associate, Academic or Supporter membership may be approved by the President or Managing Director. Members shall be admitted upon confirmation by the Corporation that its application for admission has been accepted and receipt of payment of the then current membership fees applicable to that applicant’s class of membership. The HSA Foundation may publicly disclose the admission of the Member at its sole discretion.

11.5.      MEMBERSHIP BOOK

The Corporation shall keep a membership book containing the name and address of each Member, the date upon which the applicant became a Member, and the name of one individual from each Member organization who shall serve as a primary representative for the Corporation and vote on all issues on which such Member is entitled to vote, receive all correspondence and information, and distribute this information within his/her organization. Termination of the membership of any Member shall be recorded in the book, together with the date of termination of such membership. Such book shall be kept at the Corporation’s principal office.

11.6.      NON LIABILITY OF MEMBERS

No Member of this Corporation is, as such, individually liable for the debts, liabilities, or obligations of the Corporation.

11.7.      TRANSFERABILITY OF MEMBERSHIPS

If two (2) Members merge then the new or surviving entity may assume the membership rights of the most senior Member, provided that the new entity re-executes the appropriate Membership Agreement. If one (1) Member acquires more than fifty percent (50%) of the controlling interests of another Member then the acquiring Member may assume the membership rights of the most senior member, provided that it executes the appropriate Membership Agreement if necessary and notifies the Managing Director in writing. In all other cases, no Member may transfer a membership or any right arising therefrom without the prior written consent of the Board of Directors. All rights of membership cease upon a Member’s dissolution.

11.8.      RELATED COMPANIES

No Member shall hold more than one (1) membership in the Corporation. It shall not be permitted for any subsidiary of a Member to hold a membership of the Corporation where the Member has ownership or control of more than fifty percent (50%) of the controlling interests of that subsidiary. In case of any dispute the Board shall determine the suitability of related company memberships in a manner that is consistent with the Corporation’s Articles and these Bylaws and the best interests of the Corporation.

11.9.      TERMINATION OF MEMBERSHIP

(a)            Involuntary Termination of Non-Promoter Member or Non-Founder Member.  The Board may terminate any non-Promoter Member or non-Founder Member on the good faith determination that such Member has to a material or serious degree violated these Bylaws, the Articles of Incorporation, the terms and conditions of the Membership Agreement executed by such Member, any duly adopted resolutions of the Board of Directors, or the rules of conduct of the Corporation as established by the Board of Directors, or has engaged in conduct materially and seriously prejudicial to the purposes and interests of the Corporation. If no fewer than one-third (1/3) of the Promoter Member or Founder Members submit a written request to the Managing Director calling for the termination of a non-Promoter Member or non-Founder Member, then within thirty (30) days of receiving the appropriate number of requests, the Managing Director will call a meeting of the Board. At the meeting, the non-Promoter Member or non-Founder Member that is being considered for termination must be given the opportunity to make a statement. If the non-Promoter Member or non-Founder Member does not attend the meeting after receiving proper notice, which shall be no less than fifteen (15) days, then no such opportunity needs to be given. A two-thirds (2/3) vote of all of the Directors eligible to vote is necessary to terminate a non-Promoter Member or non-Founder Member.

(b)           Involuntary Termination of Promoter Member or Founder Member. The Board may terminate any Promoter Member or Founder Member on the good faith determination that such Member has to a material or serious degree violated these Bylaws, the Articles of Incorporation, the terms and conditions of the Member Agreement executed by such Member, any duly adopted resolutions of the Board of Directors or the rules of conduct of the Corporation as established by the Board of Directors, or has engaged in conduct materially and seriously prejudicial to the purposes and interests of the Corporation. If no fewer than one-third (1/3) of the Promoter Members or Founder Members submit a written request to the Managing Director calling for the termination of a Promoter Member or Founder Member, then within thirty (30) days of receiving the appropriate number of requests, the Managing Director will call a meeting of the Board. At the meeting, the Member that is being considered for termination must be given the opportunity to make a statement. If the Promoter Member or Founder Member does not attend the meeting after receiving proper notice, which shall be no less than fifteen (15) days, then no such opportunity needs to be given. A unanimous vote of all of the Directors eligible to vote is necessary to terminate a Promoter Member or Founder Member. The Member who is being considered for termination is not entitled to vote on the issue of its termination.

11.10.   WITHDRAWAL OF MEMBERSHIP

A Member may withdraw from the Corporation at any time by providing written notice to the Managing Director which shall be effective upon receipt of notice by the Managing Director or upon such later date as specified in such notice or upon such other date specified in the Membership Agreement executed by the withdrawing Member, as the case may be.

11.11.   EFFECT OF TERMINATION, SUSPENSION, OR WITHDRAWAL OF MEMBERSHIP

A Member who is terminated by the Board or who withdraws from the Corporation shall have no further interest or participation in any of the activities of the Corporation. A terminated Member shall not be allowed to be permitted to reapply for membership in the Corporation, unless the terminated Member shall receive the consent of the Board. Termination, suspension, or withdrawal of membership shall not affect the termination or survival of any rights as granted under the Membership Agreements. No termination or withdrawal shall relieve a Member from full payment of any and all dues and other fees or assessments remaining unpaid on the date of termination or withdrawal. Upon termination or withdrawal, a Member shall not be entitled to a refund of any amounts paid during membership.

11.12.   WAIVER OF FEES FOR INVITED EXPERTS

The Board may agree to waive the membership dues for an invited expert when the Corporation would benefit from their participation and the payment of dues is a genuine barrier to membership. An invited expert must execute the applicable Membership Agreement with an amendment that states that: they may participate in any working group that invites them; they may represent themselves as a Member; and that the terms and conditions of the waiver are confidential within the HSA Foundation. Any waiver must be reviewed and renewed annually by the Board.

            11.13   CHANGING MEMBERSHIP CLASS

A Member may change its membership class by submitting a new completed and signed Membership Agreement together with payment of the annual dues fee (if applicable) and any other documents as may be required by the Corporation from time to time. The Board, or a designated party, may approve or reject such application to move to Promoter Member status in accordance with the criteria established from time to time by the Board. Similarly, the President or Managing Director may approve or reject such application to move to Contributor, Associate, Academic, or Supporter Member status. Members shall be admitted upon confirmation by the Corporation that its application for admission has been accepted and receipt of payment of the then current membership fees applicable to that applicant’s class of membership.