[Eg-oversight-board] Move to MOBIUS

[Mike Rylander]

Thanks, Tim.

Just as a note, per the existing SFC agreement, if I recall correctly,
the SFC can only transfer ownership and funds to a 501(c)(3).  So the
association routes involving assignment and transfer to such an entity
are not possible.  Only plans where a new Evergreen nonprofit with
exempt status, or MOBIUS itself, is the assignee are possible as far
as I can tell.

--
Mike Rylander
 | President
 | Equinox Open Library Initiative
 | phone:  1-877-OPEN-ILS (673-6457)
 | email:  miker at equinoxinitiative.org
 | web:  http://equinoxinitiative.org


On Thu, Jan 4, 2018 at 11:33 AM, Timothy Spindler <tspindler at cwmars.org> wrote:
> 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
>
> tspindler at cwmars.org | 508-755-3323 x120
>
> http://www.cwmars.org
>
>
>
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