RE: Incorporation or not?

Roeland M.J. Meyer (rmeyer@mhsc.com)
Sat, 09 Jan 1999 02:21:14 -0800


At 10:18 AM 1/9/99 +0100, Roberto Gaetano wrote:
>You know our opinion differ, I will be glad if I can have consensus on my
>position, but I will be also happy if you could convince people and have
>consensus on your opinion.
>For the time being, it seems to me that the silence of the majority (the
>silent majority?!?) means that we have consensus on 3 "I have no clue", that
>is the nice way to say: "I don't know and I don't care". And this disturbes
>me.

If I may opine, that the ICANN wants to sign a contract, with a separate
entity, almost mandates incorporation. This may be the reason for your loud
silence, considering that you have placed the DNSO.ORG in the ICANN
jurisdiction. The real question is whether or not such mandates will be
acceptable from the ICANN. If they are then your question is moot.

The real issue is that, under US law (and IANAL), my understanding is that
a vendor can not have BoD seats with the contractor's company. At best, it
is an incestuous relationship. This may also be the reason for the silence.
Most business folk recognise quagmire when they see it. This effect the
discussion on the ORSC list as well and I am CCing this there also.

The questions are:

1) If ICANN decides to change vendors, what happens to the BoD seats?
2) Can the DNSO sever the contract with ICANN?
3) Are ICANN/DNSO truely independent entities?
4) Given standard severability clauses in most contract boiler-plate, what
part is severable?
5) If the contract is non-standard, is it defensible?
6) What's the performance bond for either entity, remedies for failure to
perform?
7) How does either entity indemnify the other?
8) What is being exchanged for what value?
9) Is it a valid exchange when, in some views, the entities are not severable?

Remember, ICANN is a California corp. Regardless of which country the DNSO
is corp'd in, California law may not treat them a separate entities for
liability, because of the BoD seats. This is where I really start to get
over my head because I've never seen this type of relation before and I
sincerely doubt many others have either. Even the lawyers on the list
should be worried about this because rare legal birds have a tendency to
get cooked in court, especially a California court.

I can not stress enough that IANAL on this one. I'd really like to hear
answers on this issue myself. I do cookbook business law for myself. I've
never seen this recipe before. It is worrisome.

___________________________________________________
Roeland M.J. Meyer -
e-mail: mailto:rmeyer@mhsc.com
Internet phone: hawk.lvrmr.mhsc.com
Personal web pages: http://staff.mhsc.com/~rmeyer
Company web-site: http://www.mhsc.com
___________________________________________________
I hold it, that a little rebellion, now and then, is a good thing...
-- Thomas Jefferson