[Eg-oversight-board] Move to MOBIUS

[Timothy Spindler]

Donna Bacon (Executive Director of MOBIUS) sent options for how we might
work with MOBIUS to handle the Evergreen project.  The following are the
options for how we might contract with them from their attorney.  Scenario
1 and 4 are the more traditional ways we have talked about.  In Scenario 1,
we move forward forming a non-profit for for the Evergreen Project that
would then contract with MOBIUS.  If we went with their attorney, they word
incorporate Evergreen in Missouri.  We could begin this process and MOBIUS
could still handle the contracts for the 2019 conference until the
Evergreen Non-profit is complete.  In Scenario 2, the EOB members would
sign the agreement similarly to what was done with the SFC.  There are two
other scenarios which are variations.  Donna is willing to support the
board with any of these options.

I will have this on the agenda for discussion at the next board meeting.

FROM MOBIUS' ATTORNEYS:

*As a follow up to our call on Friday, we want to outline some of Evergreen
Project’s (“Evergreen Project”) options regarding moving from the Software
Freedom Conservancy (“SFC”) to MOBIUS for its services, with the target
goal of transitioning on June 1, 2018.  As you know, Evergreen is not
currently a separate entity and its trademark is owned by SFC and its funds
are held by SFC in a segregated account under SFC’s name, so any transfer
will require the cooperation and consent of SFC.  *



*Please note, we have prepared this summary for the benefit and in
connection with our representation of MOBIUS.  Nothing herein creates an
attorney-client relationship between this firm and the Evergreen Project.*



*In general, Evergreen’s options are:*



*Scenario #1- Recommended Approach*

*(1)    **Form a non-profit entity for Evergreen and apply for tax
exemptions;*

*(2)    **SFC assigns the trademark and transfers any and all assets its
holds for Evergreen Project (including the deposit account) to the new
entity; *

*(3)    **SFC transfers the funds to an account held in the name of
Evergreen entity; and*

*(4)    **The new entity and MOBIUS enter into a contract for MOBIUS to
perform certain management services.*



*Scenario #2*

*(1)    **Evergreen, as an unincorporated association of its members,
enters into a contract with MOBIUS for MOBIUS to perform certain management
services (EOB members will need to sign the contract);*

*(2)    **SFC assigns the trademark to all of the members of Evergreen, as
an unincorporated association;*

*(3)    **SFC transfers the funds to an account in the name of Evergreen,
as an unincorporated association (all EOB members will need to sign
authorization);*

*(4)    **Form a non-profit entity for Evergreen and apply for tax
exemptions;*

*(5)    **Assign the MOBIUS contract to the new entity; and*

*(6)    **Assign the trademark to the new entity (signatures of all members
will need to be obtained).*



*Scenario #3*

*(1)    **Evergreen, as an unincorporated association of its members,
enters into a contract with MOBIUS for MOBIUS to perform certain management
services;*

*(2)    **SFC keeps ownership of the trademark until a new entity is formed
(SFC will need to consent to any enforcement action, Evergreen will be
relying on SFC to make any necessary filings to continue the mark, and SFC
may charge a fee for this);*

*(3)    **SFC transfers the funds to an account in the name of Evergreen,
as an unincorporated association (all EOB members will need to sign
authorization);*

*(4)    **Form a non-profit entity for Evergreen and apply for tax
exemptions;*

*(5)    **Assign the MOBIUS contract to the new entity; and*

*(6)    **Assign the trademark to the new entity.*



*Scenario #4*

*(1)    **Evergreen, as an unincorporated association of its members,
enters into a contract with MOBIUS for MOBIUS to perform certain management
services;*

*(2)    **SFC transfers the funds to an account in the name of Evergreen,
as an unincorporated association (all EOB members will need to sign
authorization);*

*(3)    **SFC assigns the trademark to all of the members of Evergreen, as
an unincorporated association; and*

*(4)    **No new entity is formed.*



*We recommend forming an entity for Evergreen for a number of reasons, but,
in particular, it will help protect the members from personal liability for
the obligations and liabilities of Evergreen Project (protection they do
not currently have), it will eliminate assignment issues if any member
dies, dissolves, or has leadership change, it will make obtaining insurance
policies to cover items like slip and fall accidents at the conference
easier (the entity can obtain the policy rather than a policy naming all of
the individual members), and it will make it easier for filing taxes by
allowing an entity to report taxes rather than passing it through to all
the members of the unincorporated association.  Having Evergreen as its own
entity will also make trademark administration easier as it will not
require involving SFC or all of the members, depending on the above
scenarios, to take enforcement actions to protect the trademark or sign off
on filings to continue the mark.*


*In general, forming a Missouri non-profit corporation, for the basic
documents, will cost approximately $1500 if our firm handles the work.
This does not include the cost of any accountants or legal fees to obtain
tax exemptions for the organizations.  The actual entity formation can be
completed in a couple of weeks, though the tax applications take longer.
Trademark assignment filing fees should be approximately $50, plus $250-500
in attorneys’ fees to complete the assignment.  Note, in the case of
assigning to the general partners, due to the number of parties involved,
filing fees and attorneys’ fees will be higher.*

*_________*

Tim Spindler | Executive Director | C/W MARS

ts <tspindler at cwmars.org>pindler at cwmars.org <tspindler at cwmars.org> |
508-755-3323 x120

http://www.cwmars.org
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://list.evergreen-ils.org/pipermail/eg-oversight-board/attachments/20180104/8fbc409b/attachment.html>