Certificate of Incorporation

Note that the word »Corporation» in this certificate does not refer to MariaDB Corporation, but to MariaDB Foundation

Also note that the core parts of the Certificate are items (1) and (2) of the THIRD section below, which are highlighted.

State of Delaware

Certificate of Incorporation

of
MariaDB Foundation
(a Non-Stock Corporation)

FIRST: The name of the corporation (the “Corporation”) shall be:

MariaDB Foundation

SECOND: The address of the corporation’s registered office in the State of Delaware is Renaissance Centre, 405 King Street, Suite 500, Wilmington, Delaware 19801 (New Castle County). The name and address of the Corporation’s registered agent at such address is Resagent, Inc.

THIRD: The Corporation is formed exclusively to further and promote charitable, scientific and educational purposes, and the business and objects to be carried on and promoted by it are to

(1) continue the development of, free public access to, and adoption of the open source database management software known as “MariaDB” (which is based on the MySQL open source software);

(2) promote, foster and facilitate collaboration among developers and users in the continued development and improvement of, and free public access to, MariaDB open source software; and

(3) perform any activities which are permitted to be performed by corporations that are: 

(i) formed as non-stock corporations under the General Corporation Law of the State of Delaware; and 

(ii) exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, or the corresponding provisions of any future United States Internal Revenue Law (the “Code”), and contributions to which are deductible under Sections 170(c)(2) and 2522(a)(2) of the Code (such organizations are referred to herein as “Section 501(c)(3) Organizations”), including the making of distributions to other Section 501(c)(3) Organizations and states, territories, or possessions of the United States, any political subdivision of any of the foregoing, or to the United States or the District of Columbia, but only for charitable, scientific or educational purposes, as those terms are defined in Section 501(c)(3) of the Code.

FOURTH: The Corporation is not authorized to issue, and shall not have, any capital stock.

FIFTH: The conditions, rights and privileges of members of the Corporation shall be as stated in the Corporation’s By-Laws.

SIXTH: The initial number of directors of the Corporation shall be one (1), which number may be increased pursuant to the By-Laws of the Corporation. The name and mailing address of the initial Director is as follows:

Michael Widenius
365 East Main Street, Suite 900
Middletown, Delaware 19709

SEVENTH: The Corporation is not organized for profit and no part of the net earnings of the Corporation shall inure to the benefit of, or be distributable to, its members, directors, 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 set forth in Article THIRD hereof. No substantial part of the activities of the Corporation shall be the carrying on of propaganda or otherwise attempting to influence legislation, and the Corporation shall not participate in, or intervene in (including the publishing or distribution of statements), any political campaign on behalf of any candidate for public office. Notwithstanding any other provision of this Certificate of Incorporation, the Corporation shall not take any action not permitted to be taken, or engage in any activities not permitted to be engaged in, by a Section 501(c)(3) Organization.

EIGHTH: Upon liquidation, dissolution or winding up of the Corporation, the Board of Directors shall, after paying or making provisions for the payment of all of the liabilities of the Corporation, distribute all of the assets of the Corporation to: 

(i) one or more organization or organizations organized and operated exclusively for charitable, educational or scientific purposes as shall at the time qualify as Section 501(c)(3) Organizations; or 

(ii) any state, territory or possession of the United States, any political subdivision of any of the foregoing, or to the United States or the District of Columbia, but only for charitable, scientific or educational purposes, as those terms are defined in Section 501(c)(3) of the Code. The Board of Directors shall determine how the Corporation’s assets will be distributed in accordance with the foregoing sentence. Any of the Corporation’s assets not so disposed of shall be disposed of by the Court of Common Pleas of the County in which the principal office of the Corporation is then located, exclusively to such organizations, as said Court shall determine, that are organized and operated exclusively for such purposes.

NINTH: During any fiscal year of the Corporation during which the Corporation is determined to be a private foundation as defined in Section 509(a) of the Code, the Corporation shall: 

(i) distribute its income for such taxable year at such time and in such manner as not to become subject to the tax on undistributed income imposed by Section 4942 of the Code;

(ii) not engage in any act of self-dealing as defined in Section 4941(d) of the Code;

(iii) not retain any excess business holdings as defined in Section 4943(c) of the Code;

(iv) not make any investments in such manner as to subject it to tax under Section 4944 of the Code; and

(v) not make any taxable expenditures as defined in Section 4945(d) of the Code.

TENTH: In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors shall have the power, in a manner provided in the By-Laws of the Corporation to make, alter, amend, change, add to or repeal the By-Laws of the Corporation.

ELEVENTH: The Corporation reserves the right to amend, alter, change or repeal any of the provisions contained in this Certificate of Incorporation, in the manner now or thereafter prescribed by the laws of the State of Delaware.

TWELVETH: The Corporation shall indemnify to the full extent permitted by, and in the manner permissible under, the laws of the State of Delaware, any person made or threatened to be made a party to an action or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he is or was a director or officer of the Corporation or served any other enterprise as a director or officer at the request of the Corporation and such right of indemnification shall also be applicable to the executors, administrators and other similar leval representative of any such director or officer. The foregoing provisions of this Article TWELVETH shall be deemed to be a contract between the Corporation and each director and officer who serves in such capacity at any time while this Article TWELVETH is in effect , and any repeal or modification thereof shall not affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any action, suit or proceeding theretofore or thereafter brought based in whole or in part upon any such state of facts. The foregoing rights of indemnification shall not be deemed exclusive of any other rights to which any director or officer or his legal representative may be entitled apart from the provisions of this Article TWELVETH.

THIRTEENTH: No member of the Board of Directors of the Corporation shall be personally liable to the Corporation, or to any of the members of the Corporation, for monetary damages for any breach of any fiduciary duty owed by such Director to the Corporation, or to any of its members; provided, however, that nothing contained in this Article THIRTEENTH shall eliminate or limit the personal liability of a Director

(1) for any breach of the Director’s duty of loyalty to the Corporation;

(2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;

(3) under Section 174 of the General Corporation Law of the State of Delaware; or

(4) for any transaction from which the Director derived an improper personal benefit.

FOURTEENTH: The Corporation reserves the right to amend or repeal any of the provisions contained in this Certificate of Incorporation in any manner now or hereinafter permitted by the laws of the State of Delaware.

FIFTEENTH: The name and mailing address of the incorporator are as follows:

Eva H. Hill, Esquire
Whiteford, Taylor & Preston L.L.P.
7 Saint Paul Street
Baltimore, Maryland 21202-1636

IN WITNESS WHEREOF, the undersigned, for the purpose of forming a corporation under the laws of the State of Delaware, hereby acknowledges this Certificate of Incorporation to be her act and deed this 17th day of October, 2012.

By Eva H. Hill, Incorporator