Agreements
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SECOND AMENDED AND RESTATED FOUNDERS’ AGREEMENT
Dated as of December 5, 2014
Appendix I Allocation of Contributors’ Observing Time
Schedule I Table of Commitments; Contribution Schedules
GMTO CORPORATION SECOND AMENDED AND RESTATED FOUNDERS’ AGREEMENT
THIS SECOND AMENDED AND RESTATED FOUNDERS’ AGREEMENT (this “Agreement”), dated as of December 5, 2014 (the “Effective Date”), is entered into by and among GMTO CORPORATION, a Delaware non-stock corporation (the “Company” or “GMTO”), and the persons and entities listed on Exhibit A hereto (individually, a “Founder” and collectively, the “Founders”) who become parties to this Agreement by executing and delivering a signature page in the form of Exhibit B hereto or such other form as may be acceptable to the Company (the “Founder Signature Page”). Capitalized terms used in this Agreement are defined in Section 1.1 hereof.
RECITALS
WHEREAS, the Company was formed on August 27, 2007 as a non-stock, non-profit corporation under the Delaware General Corporation Law;
WHEREAS, the Founders are the initial contributors to the GMT Project before the commencement of operations of the GMT and, subject to the Company’s Certificate of Incorporation and Bylaws, and subject to the terms of this Agreement, will be responsible for the governance of the Company;
WHEREAS, certain of the Founders party to this Agreement on the Effective Date and the Company previously executed the Amended and Restated Founders’ Agreement dated as of March 20, 2009 (the “Prior Agreement”), setting forth the financial arrangements for funding the activities of the Company, the sharing arrangements for Observing Time on the GMT (as defined below), and arrangements for management and governance of the Company (to the extent not otherwise set forth in the Bylaws and Certificate of Incorporation of the Company);
WHEREAS, the Company was founded, among other things, to own and administer the planning, design, construction and operation of the Giant Magellan Telescope, a proposed astronomical telescope with a large effective aperture, and its associated buildings, equipment and instrumentation (taken together, the “GMT”). The planning, design, construction and operation of the GMT shall be referred to herein as the “GMT Project”; and
WHEREAS, the Founders and the Company wish to amend and restate the Prior Agreement to reflect the admission of new Founders and to revise certain provisions of the Prior Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged by all parties hereto, it is agreed as follows.
ARTICLE I (back)
DEFINITIONS
1.1 Definitions. Capitalized terms used herein shall have the meanings designated below:
(a) “A&M” shall mean Texas A&M University.
(b) “AAL” shall mean Astronomy Australia Limited.
(c) “Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person. For purposes of this definition, any use of the terms “controls,” “is controlled by,” or “is under common control with” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of a Person, whether through the ownership of stock, by contract or credit arrangement or otherwise.
(d) “Annual Program Plan” shall have the meaning set forth in Section 3.4(b).
(e) “ANU” shall mean The Australian National University.
(f) “Applicable Law” with respect to any Founder shall mean all laws and all rules and regulations of any governmental authority applicable to such Founder (and not solely Delaware law).
(g) “Arizona” shall mean the Arizona Board of Regents, a governmental authority, on behalf of the University of Arizona.
(h) “Assignment” shall mean any sale, assignment, transfer or gift, but not any pledge, hypothecation or other disposition, by a Founder of any portion of its Founder’s Percentage and corresponding Founders’ Time.
(i) “Board” shall mean the Board of Directors of the Company.
(j) “Capital Contribution Credit” shall have the meaning set forth in Appendix I.
(k) “Capital Cost Phase” means any of the Conceptual Design Phase, the Design Development Phase, and the Construction/Commissioning Phase.
(l) “Capital Funding Round” or “Funding Round” or “Round” shall have the meaning provided in Appendix I.
(m) “Chilean Observer’s Time” shall mean, for any Fiscal Year, the portion of Observing Time allocated pursuant to a cooperative agreement providing for access to GMT by Chilean astronomers.
(n) “CIW” shall mean the Carnegie Institution of Washington.
(o) “Commitment Agreement” shall mean any of the binding Commitment Agreements entered into by the Founders individually with GMTO setting forth each Founder’s firm funding commitment to the GMT Project and each Founder’s agreed contribution schedule for the funding of such commitment. Each Founder that is making a funding commitment to a current Capital Funding Round or that has made a funding commitment prior to the Effective Date and not fully funded such commitment prior to the Effective Date will enter into a separate Commitment Agreement with GMTO in substantially the form set forth on Exhibit C. AAL is not making a separate funding commitment but is instead receiving 50% of the Founder’s Percentage and corresponding Founders’ Time resulting from contributions made by ANU pursuant to ANU’s Commitment Agreement.
(p) “Company” shall have the meaning set forth in the first paragraph of this Agreement.
(q) “Conceptual Design Phase” shall mean the first Project Phase in the development of the GMT, concluding on a date as determined by the Board. The Conceptual Design Phase included preparation of the science case; drafting of top-level scientific requirements; assembly of a science working group and design teams; development of the conceptual design (including risk identification, work breakdown structures, feasibility studies, and preparation of a draft instrument plan); design, construction, and deployment of site testing stations; drafting of a plan for organization and management; initial budget and schedule drafting; conceptual design review; and initial primary mirror production.
(r) “Construction/Commissioning Phase” shall mean the third Project Phase in the development of the GMT, the completion of which will be determined by the Board. The Construction/Commissioning Phase includes obtaining needed construction approvals; letting and administration of design and fabrication contracts; on-site construction; commencement of studies of second generation instrumentation; on-site testing of the telescope, subsystems, and instruments; updating of the plan for commissioning and operations; assembly of staff for commissioning and operations; staff training; system performance reviews; contract and construction acceptance reviews; and phasing in of scientific operations.
(s) “Construction Budget” shall have the meaning set forth in Section 3.4(b).
(t) “Construction Plan” shall have the meaning set forth in Section 3.4(c).
(u) “Contributor” shall have the meaning set forth in Section 9.1.
(v) “Contributors’ Observing Time” shall have the meaning provided in Appendix I.
(w) “Design/Construction/Commissioning Costs” shall mean GMT Project costs attributable to activities during the Conceptual Design, Design Development, and Construction/Commissioning Phases prior to Start of Operations.
(x) “Design Development Phase” shall mean the second Project Phase in the development of the GMT, which began April 1, 2007, and the completion of which will be determined by the Board. The Design Development Phase includes establishment of the GMTO Corporation organizational structure; establishment of the project office; hiring of key project staff; additional site testing and site selection; high-level technical specifications and error budgets; selection of first generation instruments; construction of prototype systems involving high risk and long lead times (including primary mirror supports and adaptive optics); preparation of detailed implementation plan for the Construction/Commissioning Phase; preliminary design reviews; and Board approval of the detailed Construction/Commissioning implementation plan and preliminary design review.
(y) “Discount Rate” shall mean the discount for the cost of capital that will be applied to all contributions committed in the Capital Funding Rounds, which will be a rate that equals (i) the US prime rate as determined by the GMTO President at the commencement of each Capital Funding Round plus (ii) 275 basis points. The Discount Rate is currently 6.0% as of October 31, 2014. The Discount Rate is used to put all Founders on parity with one another irrespective of when the funds are received.
(z) “Engineering Time” shall mean, for any Fiscal Year, the portion of Observing Time during such Fiscal Year that is devoted to repair, refurbishment, and instrument commissioning of the GMT.
(aa) “Facility” means the Las Campanas Observatory.
(bb) “Fiscal Year” of the Company shall be the year ending each June 30, or such other Fiscal Year, as the Board shall adopt. For the sake of clarity, Fiscal Year 2014 ends on June 30, 2014. Previous GMT reports have used the term FY13/14 to refer to Fiscal Year 2014.
(cc) “Founder” shall have the meaning set forth in the first paragraph of this Agreement. No person may become a Founder without becoming a party to this Agreement in accordance with its terms.
(dd) “Founder Exercise Notice” shall have the meaning set forth in Section 7.4(b).
(ee) “Founder Signature Page” shall have the meaning set forth in the first paragraph of this Agreement.
(ff) “Founder’s Percentage” shall have the meaning provided in Appendix I.
(gg) “Founders’ Time” shall have the meaning provided in Appendix I.
(hh) “Full Majority” shall mean a majority of all the Directors on the Board (by headcount) entitled to vote on the relevant matter at such time (taking into account any recusals pursuant to Section 6.8, which recusals shall not be entitled to vote on the relevant matter for purposes of this calculation and shall be removed from both the numerator and denominator in the calculation of a majority).
(ii) “Fully Exercising Founder” shall have the meaning set forth in Section 7.4(b).
(jj) “GMT” shall have the meaning set forth in the Recitals.
(kk) “GMT Master Plan” shall have the meaning set forth in Section 3.4(a).
(ll) “GMT Plan of Finance” shall mean a plan that will (i) dictate a series of Capital Funding Rounds through which the Company will offer Capital Contribution Credits to Founders and prospective Founders at values calculated by the Company to enable the funding of the GMT Construction Budget, (ii) include the Discount Rate (when the start of a new Capital Funding Round is determined) that will be applied for such Capital Funding Round in accordance with the terms of this Agreement, (iii) be updated annually to include the current version of the Construction Budget for the remainder of the Construction/Commissioning Phase that is to be approved in the GMT Master Plan and (iv) be presented to the Board for review at each October Board meeting.
(mm) “GMT Project” shall have the meaning set forth in the Recitals.
(nn) “GMTO” shall have the meaning set forth in the first paragraph of this Agreement.
(oo) “GMTO President” shall mean the full-time employee of the Company who is appointed by the Board to serve as president, with general charge and supervision of the operations of the Company, subject to the direction of the Board. The Board has appointed Ed Moses as the GMTO President as of the Effective Date.
(pp) “GMTO President’s Discretionary Time” shall mean, for any Fiscal Year, the portion of Observing Time allocated for use in a manner determined by the GMTO President in his or her discretion.
(qq) “Harvard” shall mean Harvard University.
(rr) “Indebtedness” is defined in Section 3.11.
(ss) “Las Campanas Observatory” shall mean the observatory facility owned by CIW at Las Campanas, Chile.
(tt) “Las Campanas Observatory Agreement” shall have the meaning set forth in Section 3.10.
(uu) “Observing Time” shall mean, for any Fiscal Year, the total observing time of the GMT available for science operations during such Fiscal Year.
(vv) “Operating Costs” shall mean the aggregate cost of operations of the GMT and the Facility for any Fiscal Year.
(ww) “Operations Budget” shall have the meaning set forth in Section 3.6(a)(i).
(xx) “Operations Phase” shall mean the final Project Phase in the development of the GMT, which will encompass operations of the GMT following Start of Operations.
(yy) “Operations Plan” shall have the meaning set forth in Section 3.6(a).
(zz) “Option Period” shall have the meaning set forth in Section 7.4(d).
(aaa) “Other Observers’ Time” means Chilean Observers’ Time and any other Observing Time that the Company may, under future agreements, allocate to Persons that are neither Founders nor Participants (potentially including government organizations).
(bbb) “Participant” shall mean a Founder or other Person contributing to the Operating Costs of the GMT for a given Fiscal Year pursuant to a Participants Agreement.
(ccc) “Participants Agreement” shall mean a binding commitment agreement entered into by the Participants with GMTO setting forth each Participant’s firm funding commitment to the Operations Budget for the GMT Project and each Participant’s agreed contribution schedule for the funding of such commitment.
(ddd) “Participant’s Percentage” shall have the meaning provided in Appendix I.
(eee) “Participants’ Time” shall have the meaning provided in Appendix I.
(fff) “Person” shall mean any individual, corporation, partnership, trust, limited liability company, association, or other entity, including, but not limited to, a governmental entity or unit.
(ggg) “Project Phase” shall mean any of the Conceptual Design Phase, the Design Development Phase, the Construction/Commissioning Phase, or the Operations Phase.
(hhh) “Proposed Transferee” shall have the meaning set forth in Section 7.3(a).
(iii) “Prospects” shall have the meaning provided in Appendix I.
(jjj) “Round” shall have the meaning provided in Appendix I.
(kkk) “Scientific Advisory Committee” shall have the meaning set forth in Section 6.10.
(lll) “Selling Founder” shall have the meaning set forth in Section 7.3.
(mmm) “Smithsonian” shall mean Smithsonian Astrophysical Observatory.
(nnn) “Start of Operations” shall mean the opening of business on a date selected by the Board that approximates the date on which scientific use of the GMT is expected to commence. Start of Operations may occur prior to completion of the Construction/Commissioning Phase to allow early science use of the GMT. The Board may from time to time amend a Start of Operations date that remains in the future.
(ooo) “Table of Commitments” shall have the meaning set forth in Section 3.5(e).
(ppp) “Texas” shall mean The University of Texas at Austin.
(qqq) “Time Allocation Procedure” shall have the meaning set forth in Section 4.3.
(rrr) “Transfer” shall have the meaning set forth in Section 7.1.
(sss) “Transfer Notice” shall have the meaning set forth in Section 7.3.
(ttt) “Transfer Percentage” shall have the meaning set forth in Section 7.3(b).
(uuu) “Unfunded Commitment” means the portion of any commitment made by a Founder pursuant to a Commitment Agreement that has not yet been funded through the making of contributions to GMTO in a corresponding amount.
(vvv) “Withdrawal” by a Founder shall mean the relinquishment of all such Founder’s interest in the Company as a Founder, and the relinquishment of such Founder’s status as a Founder.
1.2 Construction. Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural, and vice versa. The terms “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”
ARTICLE II (back)
TRANSITION FROM CIW MANAGEMENT; PARTIES
2.1 Transition. CIW acted as project manager for the Conceptual Design Phase, using CIW funds together with funds contributed to CIW by the other Founders, which funds have been credited to each applicable Founder by the Company as reflected on Schedule I attached hereto, which Schedule I is hereby incorporated herein by this reference thereto. The Company previously received recognition of its status as a tax-exempt organization for U.S. tax purposes from the Internal Revenue Service. Subsequently, CIW transferred all rights and materials needed for Company activities to the Company. The Company thereupon assumed control of GMT Project operations for the GMT Project and the Company now holds all rights and is responsible for all matters concerning the GMT. CIW and the Company are additionally currently parties to an Administrative Services Agreement and a Secondment Agreement, each dated August 1, 2010, and CIW and the Company will enter into the Las Campanas Observatory Agreement as more fully detailed in Section 3.10.
2.2 Staffing. The Company’s staff may include individuals who are also employed by CIW or by another Founder. Founders will cooperate with the Company in forming agreements for seconding of staff, dual employment, or other arrangements as may be agreed between the applicable Founder and the Company appropriate to facilitate sharing of staff.
2.3 Company Takeover of Activities. As the transfers and staffing arrangements contemplated in this Article II are complete, the Company has taken over all activities related to the GMT.
2.4 Parties. Each Founder’s obligations under this Agreement are several, and not joint. Each Founder’s obligations pursuant to this Agreement are solely to the Company and not to any other Founder. In no event shall any Founder be liable directly to any other Founder for any obligation undertaken by such Founder pursuant to this Agreement, it being agreed that Founders shall be liable only to GMTO.
ARTICLE III (back)
CONTRIBUTIONS TO COSTS
3.1 Project Phases and Project Stages.
(a) Project Phases; Capital Cost Phases. For purposes of planning and budgeting, the GMT Project shall be carried out in four Project Phases: the Conceptual Design Phase, the Design Development Phase, the Construction/Commissioning Phase, and the Operations Phase. The Board shall make all determinations as to the commencement and ending of each phase.
(b) Project Stages Within Certain Phases. Each of the Design Development Phase and the Construction/Commissioning Phase may, with Board approval, be subdivided into Project Stages reflecting the priority of the work to be undertaken and the resources available from Founders and nonFounders to accomplish the tasks in question. The GMTO President will prepare an implementation plan including a detailed budget, work breakdown structure, and schedule with milestones for any proposed Project Stage that is considered by the Board.
3.2 Overall Budget. In signing this Agreement, Founders acknowledge that the best estimates available at October 2014 indicate that the total project cost is expected to be $1,050 million in as-spent U.S. dollars.
3.3 Commitments for Capital Cost Phases.
(a) Current Commitments. Concurrently with the execution of this Agreement, each then-existing Founder (excluding AAL) that is making a funding commitment to a current Capital Funding Round, or that has made a funding commitment prior to the Effective Date and not fully funded such commitment prior to the Effective Date, is entering into a Commitment Agreement evidencing such Founder’s funding commitment to the Company. Any Person becoming a Founder (in accordance with this Agreement) at a later date will enter into a Commitment Agreement evidencing such Founder’s funding commitment to the Company at the time such Person becomes a Founder. The commitments of each Founder, and the dates on which each Founder is required to fund such commitments, are as set forth in such Founder’s Commitment Agreement and are subject to the terms and conditions of such Commitment Agreement. Each Founder’s commitment under its Commitment Agreement is several, and not joint, with respect to the capital commitments of the other Founders, and in no event shall any Founder be liable or responsible for the commitment of, or other breach or default by, any other Founder. In the event of any conflict between the terms of a Commitment Agreement and this Agreement, the terms and provisions of this Agreement shall prevail; provided that to the maximum extent possible the provisions of the Commitment Agreements and this Agreement will be interpreted in a manner that minimizes any such conflicts; and provided, further that (i) if the prevailing provision in this Agreement would effectively result in an amendment of the terms of a Commitment Agreement in violation of Section 7(a) thereof, then the Commitment Agreement shall prevail solely as to that item and (ii) to the extent this Agreement contains any provisions that are more restrictive than those in the Commitment Agreement or that require additional approvals not required under the Commitment Agreement, those provisions will not be deemed to constitute amendments to the Commitment Agreement and will be given full force and effect. In the event of a conflict between the terms and provisions of the Bylaws and any term or provision of this Agreement, the Founders agree to amend the Bylaws such that the term or provision set forth in this Agreement will apply.
Certain Founders have already made contributions to the Company prior to the Effective Date, as shown on Schedule I hereto, which contributions are attributed to Design Round 1, Design Round 2 or Funding Round 1A, all as shown on Schedule I. All contributions made prior to the Effective Date are agreed to be irrevocable and the Founders contributing the same have no right to any return of such contributions (but, for the avoidance of doubt, such Founders shall receive Capital Contribution Credits in respect thereof as provided in this Agreement).
(b) New Founder. Commitments for a new Founder becoming a party to this Agreement pursuant to Section 12.1 must be made pursuant to a Commitment Agreement. A new Founder may become a Founder only upon (i) satisfaction of the requirements in this Agreement therefor and (ii) such new Founder’s execution of a Commitment Agreement in the form of Exhibit C hereto and a signature page to this Agreement in the form of Exhibit B hereto.
(c) Approval for Certain Commitments. Commitments that, when funded, would cause any Founder’s Percentage to exceed 20% for the first time require prior Full Majority Board approval pursuant to Section 6.7.
3.4 Budgeting and Planning for Capital Cost Phases.
(a) GMT Master Plan. The Company will maintain a “GMT Master Plan” that shall include an implementation plan for ongoing and future Capital Cost Phases (including any approved Project Stages), with a work breakdown structure, budget, and schedule. The Master Plan will be updated periodically to reflect the current state of completion of the GMT Project, budgets, and schedules. The GMTO President will present reports on the GMT Master Plan to the Board for approval at regularly scheduled Board meetings. Only the Board-approved version of the GMT Master Plan may be implemented and executed upon.
(b) Annual Program Plan. Not later than 270 days prior to the beginning of each Fiscal Year during the Capital Cost Phases, the GMTO President shall prepare an “Annual Program Plan” for the GMT Project and will deliver a copy of such plan to the Board. That plan shall be based on the GMT Master Plan. The Annual Program Plan must include a detailed budget (the “Construction Budget”) that shall include estimated amounts necessary to carry out the contemplated activities, support the operations of the GMT Project and Corporate offices and other associated activities, and provide reserves for contingencies, even though such amounts may not be expected to be spent by the Company during the budget year.
(c) Construction Plan. Prior to the completion of the Design Development Phase, the GMTO President will prepare a proposal for the Construction/Commissioning Phase of the GMT Project (the “Construction Plan”) and will deliver a copy of such Construction Plan to the Board. The Construction Plan shall include
(i) a section setting forth the scientific objectives of the GMT Project,
(ii) a section describing the facility and instrumentation that address the GMT scientific goals,
(iii) an operations plan for the GMT observatory,
(iv) a management plan, and
(v) any other material the Board may require.
The management plan shall include a budget broken down by Fiscal Year and a schedule based on a detailed work breakdown structure. The management plan shall also include a section dealing with technical, budget, and schedule risk management. The Board will review and, after making any modifications to the Construction Plan that the Board deems necessary, adopt the Construction Plan. Upon adoption of the Construction Plan by the Board, the Construction Plan shall be incorporated in the GMT Master Plan.
The Board may in its discretion modify the Construction Plan after it has been adopted and will deliver to each Founder a revised Construction Plan reflecting such modification(s) after the revised Construction Plan is adopted. The Construction Plan will include mechanisms to adjust the budget for currency fluctuations and inflation.
3.5 Capital Contribution Credits.
(a) Contribution Procedures. GMTO will offer a series of Capital Funding Rounds through which Founders may make or increase their commitments pursuant to the Commitment Agreements in exchange for Capital Contribution Credits that represent a share of 9,000 total capital contribution credits available for the GMT.
Capital Contribution Credits will be used to determine allocations of Observing Time on GMT as described in Appendix I hereto and pursuant to the Time Allocation Procedure described in Section 4.3 hereof. Capital Contribution Credits are awarded in exchange for contributions and commitments made pursuant to the Commitment Agreements according to a schedule for valuing contributions set by the GMTO Board by Full Majority approval. The number, timing, and sizes of the Funding Rounds will be at the Board’s discretion, but must be approved by the Board by Full Majority approval. The Funding Rounds are currently expected to be tied to the project stages and the initial credit prices are projected to be based on the Accretion Model in the original Founders’ Agreement in effect as of June 2009. None of the Company, the Board or the GMTO President may retroactively change the number, valuation or allocation of Capital Contribution Credits available for issuance in respect of any contribution or commitment made in any Funding Round after any Founder’s commitment or contributions have been made in reliance on the allocations for such Funding Round (but the foregoing shall not be interpreted to prohibit (i) a forfeiture of Capital Contribution Credits pursuant to any Commitment Agreement in accordance with the terms thereof or (ii) any future dilution effected through additional Funding Rounds in the manner contemplated in this Agreement). In addition, the Company may not increase the number of Capital Contribution Credits above 9,000 at any time prior to the end of the Design Phase, or without the approvals as required pursuant to Section 5.1(f).
(b) The GMT Plan of Finance. The GMT Plan of Finance to be submitted with the Construction Plan describes how GMTO will bring in capital using as many Rounds as needed depending on the cash requirements, the availability of capital, and the strength of the GMT Project as determined by the Board from time to time. Use of Funding Rounds will allow GMTO to entertain offers from potential new Founders, while allowing existing Founders to preserve their Founder’s Percentage by funding their proportionate share of credits made available in each Round. The GMT Plan of Finance must be approved by the Board pursuant to Section 6.7 before it is implemented.
(c) Nature of Founder Commitments. To facilitate further financing of the project, each of the Founders will enter into a Commitment Agreement with GMTO setting forth their respective commitments to GMTO on the terms and subject to the conditions set forth therein, based on a schedule agreed between GMTO and such Founder except to the extent such Founder is not committing to contribute capital in a current Capital Funding Round, including as set forth in Section 1.1(o). Similarly, each Participant will enter into a Participants Agreement with GMTO setting forth its respective commitments to GMTO based on a schedule agreed between GMTO and such Participant.
Commitments made pursuant to the Commitment Agreements and Participants Agreements will be legally binding and enforceable obligations of each Founder and Participant, and such commitments will be required to be funded at the times and on the terms and conditions agreed by the respective Founders or Participants therein. All commitments shall be funded in cash unless otherwise agreed by GMTO. GMTO may accept the funding of contributions in-kind with Full Majority Board approval where GMTO deems appropriate, and in such event GMTO shall set the valuation for the in-kind contribution with such Board approval.
A Founder or Participant that defaults on its obligation to fund in a timely manner its Unfunded Commitment may be subject to the remedies and penalties set forth in the Commitment Agreements or Participants Agreements, as applicable.
(d) Allocation of Observing Time. Observing Time will be allocated based on the proportion of Capital Contribution Credits held by each Founder and Participant as described in Appendix I hereto and in accordance with the Time Allocation Procedure described in Section 4.3.
(e) Table of Commitments. GMTO shall maintain a schedule that sets forth the total commitments made by each Founder and each Participant pursuant to the Commitment Agreements (the “Table of Commitments”), the amount of such commitments that have been funded (including those previously funded prior to the Effective Date without having the Commitment Agreements in place) and the amount of such commitments that are unfunded. GMTO shall update the Table of Commitments from time to time as additional commitments and contributions are made, and shall make the Table of Commitments available to each Founder upon request. The Table of Commitments current as of the date hereof is attached hereto as Schedule I.
3.6 Management and Funding of the Operations Budget.
(a) Operations Plan and Budget. One year prior to the anticipated Start of Operations, and every three years thereafter, GMTO management will present to the Board, and the Board shall approve with such changes as it deems advisable and adopt, a three-year program plan and operations budget applicable to the Operations Phase (“Operations Plan”). At the intervening two years’ October meetings the three-year Operations Plan in effect will be reviewed and adjustments will be proposed to the Board as necessary, which the Board shall determine whether to approve and adopt. The Board may in its discretion modify the Operations Plan after it has been adopted and will deliver to each Founder a revised Operations Plan reflecting any such modification(s) that have been adopted. This Operations Plan will be developed taking into account the current scientific and technical goals of the GMT Project and Founders, the operations budget envelope envisaged in the GMT Master Plan and an assessment of the likely value per night that GMTO will receive for participant nights made available to fund operations.
The Operations Plan will include the following items:
(i) Operations Budget. The “Operations Budget” will include (A) a base budget for the operations of the GMT Project; (B) a development budget for instrumentation and similar expenses, and (C) a plan for funding reserves on an ongoing basis over the course of the first 30 years of operations for the safe and secure wind-up of operations of the GMT Project in the manner required pursuant to the Las Campanas Observatory Agreement.
(ii) Distribution of Observing Time. The Operations Plan will include a plan for distribution of Observing Time among the following categories: (A) Engineering Time, (B) Other Observers’ Time, (C) GMTO President’s Discretionary Time, and (D) Contributors’ Observing Time consisting of time allocable to Founders and to Participants.
(iii) Annual Business Plan. The Operations Plan will include an Annual Business Plan that includes (A) a minimum value per night for Participant’s Time, as well as a calculation of the applicable value per night for Founders if there is a difference to the value per night for Participants, and (B) a plan for funding the Operations Budget using the sale of additional Participant’s Time.
The Board will approve and adopt the Operations Plan, or a modified plan, and GMTO management will implement it.
(b) Operations Plan. In the first step of implementation of the Operations Plan, the Founders will be offered the opportunity to purchase Participants’ Time at the minimum value per night in accordance with their respective then-existing respective Founder’s Percentages. If any Founders decline to purchase their pro rata share of such Participants’ Time, the Company will give notice to each Founder that elects to purchase its full pro rata share of such Participant’s Time, and each Founder that has so fully elected shall have an additional option to purchase all or any part of the balance of the available Participants’ Time. In the event there are two or more such Founders that choose to exercise the last-mentioned option for a total amount of Participants’ Time in excess of the amount remaining available, the Participants’ Time available for each such Founder’s option shall be allocated to such Founder on a pro rata basis according to such Founder’s own Founder’s Percentage.
If there are remaining Participants’ nights and the Operations Budget has not been fully subscribed by the Founders, GMTO management will seek buyers, as approved in the Operations Plan, for the remaining Participant’s Time until the Operations Budget is subscribed. GMTO management may offer Participants’ Time at values per night equal to or greater than the minimum value.
Once sufficient funds to cover the Capital Cost Phase and the total Operations Budget have been committed, the Founders are permitted to sell access to any or all of their Founders’ Time to other Founders or other parties approved by the Board in its reasonable discretion, at a value equal to or above the minimum value approved in the Operations Plan.
No Founder or Participant may sell access to any Founders’ Time or Participants’ Time except as expressly permitted in this Agreement (and in the event of any sale in breach of this provision, the Company will not recognize the rights of the buyer). All sales (which must be conducted in compliance with Article VII) will be pursuant to a written, Boardapproved form of contract, which will include appropriate covenants, conditions, representations, warranties, and indemnities by the transferee for the benefit of the Company. A Founder or Participant making a permitted transfer pursuant to such Board-approved form will not be responsible for the transferee's conduct or use of Company facilities.
3.7 Budget Overlap. Nothing herein shall be construed to preclude expenditures under both the Construction Budget and a Fiscal Year’s Operations Budget during the same Fiscal Year.
3.8 Scientific Instrument Costs. Scientific instrument costs will be described as a separate line item in the Construction Budget and Operations Budgets, as applicable.
3.9 Intentionally Omitted.
3.10 Site Arrangements. The GMT will be located at the Las Campanas Observatory. CIW will be credited with a $12,500,000 contribution in the first Capital Funding Round at the first Capital Funding Round pricing determined by the Board, as described in the valuation methodology set forth in Appendix I, for CIW’s provision of an appropriate site located within the Las Campanas Observatory and an appropriate site for a GMT support facility within the El Pino compound.
CIW and the Company (acting with Board approval) will enter into an agreement (the “Las Campanas Observatory Agreement”) governing the provision of services to the Company by CIW and providing that CIW will retain authority over the Las Campanas Observatory while the Company will have authority over the GMT. Prior to Start of Operations, CIW will provide certain services to the Company for fees, pursuant to the Las Campanas Observatory Agreement.
Similarly, during the Operations Phase, CIW may provide services to the Company pursuant to the Las Campanas Observatory Agreement, and will, at CIW’s option, either be paid for providing such services (at rates to be specified in the Las Campanas Observatory Agreement) or be credited to CIW as contributions to Operating Costs in an amount equal to the cost of such services in calculating CIW’s Participant’s Percentage or a combination thereof.
3.11 Financing. With the approval of a Full Majority of the Board, the Company may obtain third party debt financing for the GMT Project on an unsecured basis in an aggregate principal amount not to exceed, on a cumulative basis with respect to the principal amount of all third party debt financing then outstanding at the time such debt financing is incurred, 10% of the aggregate Unfunded Commitments of the Founders as then existing at the time such debt financing is incurred. Such third party debt financing may be in the form of borrowing or other similar credit, reimbursement, guarantee, financing or refinancing arrangements or similar agreements, and may include one or more credit facilities, lines of credit, letters of credit, bond financings, or other accommodations (collectively, for purposes of this Agreement, “Indebtedness”). For the avoidance of doubt, the foregoing limitation shall not apply to purchase orders, trade debt or trade payables incurred in the ordinary course of business in accordance with an approved Construction Budget or Operations Budget, which GMTO shall be permitted to incur without a separate Founder or Board approval in the ordinary course of its business.
The Company and the Board will use commercially reasonable efforts to minimize any disturbances created by any such financing. The Founders and Participants will be reasonable in considering any required changes to the terms of their participation that would facilitate efficient financing for the GMT Project (including its operations). Notwithstanding the foregoing, no Founder will be obligated to agree to increase its commitment to GMTO, or to change the timing of its funding obligations, or to be liable directly or indirectly for any such financing obligations (other than pursuant to a pledge of all Commitment Agreements approved by Founders holding aggregate Founder’s Percentages of at least 67%), in each case without its consent in its sole discretion.
ARTICLE IV (back)
ALLOCATION OF OBSERVING TIME
4.1 Ownership of and Access to GMT. The Company will hold all right, title and interest to and in the GMT. Founders and Participants will receive access rights to use the GMT as outlined in this Article IV.
4.2 Allocations of Observing Time. Observing Time will be divided into five components, Engineering Time, Other Observers’ Time, GMTO President’s Discretionary Time, Founders’ Time and Participants’ Time, as follows.
(a) Engineering Time. The amount of Observing Time allocated in each Fiscal Year to Engineering Time will be determined by the GMTO President, in consultation with the Board, so as to meet the operational needs and budgetary restrictions of the GMT.
(b) Other Observers’ Time. Other Observers’ Time will include any Chilean Observers’ Time and any other Observing Time that the Company may, under future agreements (as approved by the Board), allocate to Persons that are neither Founders nor Participants (potentially including government organizations).
(c) GMTO President’s Discretionary Time. The amount of Observing Time allocated in each Fiscal Year to GMTO President’s Discretionary Time will be determined by the Board; provided that in no event will such amount exceed five percent (5%) of the Observing Time after the deduction of Engineering Time for such Fiscal Year. The GMTO President will determine in his or her discretion how the GMTO President’s Discretionary Time allocated by the Board is to be used.
(d) Contributors’ Observing Time. The remainder of the Observing Time during each Fiscal Year will be allocated, first, to Founders’ Time and, second, to Participants’ Time, as follows:
(i) Founders’ Time. Founders’ Time for a Fiscal Year will be allocated among Founders in proportion to their respective Founder’s Percentages. The method to be used for calculating each Founder’s Percentage is described in Appendix I attached hereto.
(ii) Participants’ Time. Participants’ Time for a Fiscal Year will be allocated among Participants in proportion to their respective Participant’s Percentages for such Fiscal Year. The method for calculating each Participant’s Percentage is described in Appendix I attached hereto. A Founder may contribute to Operating Costs and thus be allocated a portion of the Participants’ Time in addition to such Founder’s allocation of Founders’ Time for a Fiscal Year, thus increasing such Founder’s overall allocation of Observing Time.
(iii) Allocation of Contributors’ Observing Time. The fraction of Contributors Time allocated to Founders’ Time and Participants’ Time will be approved by a Full Majority vote of the Board, taking into account the time- and risk-weighted relative contributions of capital and operations costs to the 30-year life cycle costs of the Facility.
4.3 Management of Observing Time. The GMTO President will prepare a report setting forth a procedure (“Time Allocation Procedure”) for allocating Observing Time and will deliver such report to the Board for approval three years in advance of the commencement of Operations. At the commencement of the Operations Phase the GMTO President will have responsibility for managing the schedule of Observing Time to ensure a fair distribution across seasons and lunar phases. The Board may modify the Time Allocation Procedure from time to time.
4.4 AAL and ANU Observing Time. AAL and ANU have advised the Founders and the Company that, pursuant to their governmental funding approvals, ANU is making the sole funding Commitment for AAL and ANU, but AAL and ANU will each receive 50% of the Founder’s Percentage and corresponding Founders’ Time resulting from contributions made by ANU pursuant to ANU’s Commitment Agreement. Accordingly, notwithstanding anything in this Agreement or the ANU Commitment Agreement to the contrary, the Founders and the Company agree to recognize the foregoing and treat AAL as a Founder holding 50% of the Founder’s Percentage and corresponding Founders’ Time that would otherwise inure to the benefit of ANU. The Founders and the Company further recognize that AAL will not be party to a Commitment Agreement as a result of ANU making the entire Commitment for AAL and ANU collectively.
ARTICLE V (back)
FOUNDER VOTING RIGHTS
5.1 Supermajority Requirements. Matters to be voted upon by the Founders, whether required by the Delaware General Corporation Law or required or permitted by the Certificate of Incorporation or Bylaws of the Company, this Agreement, the operation of law, or otherwise, shall be adopted and/or approved by the Founders upon the receipt of the written consent or affirmative vote of the Founders holding aggregate Founder’s Percentages greater than 50% unless a different percentage is specified elsewhere; provided that for all purposes hereunder and under any Commitment Agreement, a Founder shall be recused and excluded from participating in any vote, consent or approval on any matter with respect to which such Founder has a conflict of interest that is not shared by the other Founders as a group. Such conflicts of interest shall include (but not be limited to) any determinations to be made regarding the exercise of any right or fulfillment of any obligation under an agreement between the Company, on the one hand, and the particular Founder or an Affiliate of that Founder, on the other hand. In such event, the conflicted Founder shall automatically be recused from such vote, consent, approval or other determination, and the Founder’s Percentage of such recused Founder shall be disregarded from both the numerator and the denominator for the purposes of calculating such vote. A Founder must promptly disclose to the Board any conflict of interest involving such Founder or its Affiliates, in each case in respect of the Company, that is not already known to the Board.
Notwithstanding the foregoing, the Company shall not, either directly or indirectly by amendment, merger, consolidation or otherwise, do any of the following without (in addition to any other vote required by law or the Company’s Certificate of Incorporation or Bylaws) the written consent or affirmative vote of the Founders holding aggregate Founder’s Percentages of at least 67%:
(a) amend, alter or repeal any provision of the Certificate of Incorporation or Bylaws of the Company or of this Agreement (and, in the case of amendments to this Agreement, subject to the requirements of Section 12.9);
(b) form any subsidiary of the Company;
(c) approve new Founders pursuant to Section 12.1;
(d) approve the form of intellectual property agreement to be executed pursuant to Section 11.1;
(e) terminate the GMT Project and commence winding-up operations pursuant to Article X;
(f) take any action leading to the dilution of the Founder’s Percentage held by any Founder that is not otherwise provided for in this Agreement or the Commitment Agreements; or
(g) approve any Company indebtedness, financing, pledge or other similar obligation not otherwise expressly permitted pursuant to this Agreement.
5.2 Voting Mechanics. Each Founder will designate one representative of such Founder to exercise its voting rights with respect to any matter on which such Founder (in its capacity as such) is required or permitted to vote.
5.3 Table of Approvals. For the convenience of the Founders, attached as Exhibit D hereto is a table summarizing the requisite approval requirements for various actions set forth in this Agreement and in the Commitment Agreements. The Founders agree that such table does not govern with respect to any approval requirements in respect of the Founders, the Board or the Company, which approval requirements are solely and exclusively as set forth in this Agreement (without regard to Exhibit D), in the Commitment Agreements, in the Company’s Bylaws and in the Company’s Articles. Nothing in Exhibit D shall bind the Founders, the Board or the Company in any manner, nor shall Exhibit D be deemed to affect the interpretation of any provision of this Agreement or any Commitment Agreement.
5.4 Ratification. Each Founder hereby ratifies the appointment of Edward Moses, Ph.D., as the GMTO President as of the Effective Date.
ARTICLE VI (back)
BOARD OF DIRECTORS
6.1 Board Composition. Each Founder shall vote, from time to time and at all times, in whatever manner as shall be necessary to ensure that at each annual or special meeting of Founders at which an election of directors is held or pursuant to any written consent of the Members, the following persons shall be elected to the Board:
(a) Board Representation. Each Founder shall vote so as to elect as directors:
(i) two (2) individuals designated by each Founder having a Founder’s Percentage equal to or greater than ten percent (10%);
(ii) one (1) individual designated by each Founder having a Founder’s Percentage less than ten percent (10%) but greater than or equal to five percent (5%); or
(iii) one (1) individual designated by any group of Founders that individually have Founder’s Percentages less than five percent (5%) but that taken together have aggregate Founder’s Percentage equal to or greater than five percent (5%); provided, however, that for purposes of calculating the aggregate Founder’s Percentages pursuant to this clause (iii), each Founder may only be counted as part of one group of Founders. The Founders shall cause the Company to amend the Bylaws to the extent necessary to accommodate the resulting number of directors.
(b) Transition to Extra Director Status. In the case of a Founder or group of Founders whose contributions during a Fiscal Year are projected to change its entitlement under clause (a) above from one director to two directors as of the beginning of the next Fiscal Year, such Founder or group may, upon recommendation of the Board (with appropriate recusals) and two thirds (2/3) of the other Founders, designate an additional director for the first such Fiscal Year.
(c) Additional Directors. In the event that two-thirds (2/3) of the members of the Board elected pursuant to Section 6.1(a) shall determine that the addition of one or more additional voting or non-voting directors is in the best interests of the Company, the Board shall so notify the Founders, together with the proposed term for such director(s) and the proposed Founder(s) or Participant(s) who would be entitled to direct the appointment of such director(s); provided that, in the case of a director to be designated by a Participant, the term for such director shall be related to the term and duration of the Participant’s contributions.
At the next meeting at which the Founders are entitled to elect directors of the Company, the Founders shall vote so as to elect the individual(s) designated by the Board, in each case for such term as is designated in the resolution electing such individual.
6.2 Failure to Designate a Director. In the absence of any designation from any Founder(s) with the right to designate one or more directors pursuant to Section 6.1(a), as applicable, the director(s) previously designated by such Founder(s) and then serving shall be reelected if still eligible to serve as provided herein.
6.3 Removal. Each Founder shall vote, from time to time and at all times, in whatever manner as shall be necessary to ensure that:
(a) any director elected pursuant to Section 6.1(a) shall be removed from office upon the direction or approval, conveyed in writing to the Company, of the Founder(s) originally entitled to designate or approve such director or occupy such Board seat pursuant toSection 6.1(a). No director elected pursuant to Section 6.1(a) may be removed from office other than for cause (the existence of “cause” to be as determined by the Board) unless:
(i) such removal is directed or approved by the affirmative vote of the Founder that designated such director pursuant to Section 6.1(a), or
(ii) the Founder(s) originally entitled to designate or approve such director or occupy such Board seat pursuant to Section 6.1(a) is no longer so entitled to designate or approve such director or occupy such Board seat; and
(b) any vacancies created by the resignation, removal or death of a director elected pursuant to Section 6.1(a) shall be filled pursuant to the provisions of this Article VI.
All Founders shall execute any written consents reasonably required to perform the obligations of this Agreement, and the Company shall, at the request of any party entitled to designate directors, call a special meeting of Members (as defined in the Company’s Bylaws) for the purpose of electing directors.
6.4 No Liability for Election of Recommended Directors. No party shall have any liability as a result of designating a person for election as a director for any act or omission by such designated person in his or her capacity as a director of the Company, nor shall any party have any liability as a result of voting for any such designee in accordance with the provisions of this Agreement.
6.5 Notices. The Company shall provide the Founders with twenty (20) days’ prior written notice of any meeting at which directors are to be elected. Such notice shall specify the number of directors the Founder is entitled to designate pursuant to Section 6.1(a).
The Founders shall give written notice to the Company and to the other Founders, no later than five (5) days prior to such meeting, of the persons designated pursuant to Section 6.1(a) as nominees for election as directors. If the Founders shall fail to give notice to the Company as provided above, it shall be deemed that the designees then serving as directors shall be the designees for reelection.
In the event the number of directors the Founder is entitled to designate is less than such Founder’s designees then serving, then if the Founder fails to provide a proper notice hereunder, the Board shall designate the director or directors to be removed and such removal shall be effective notwithstanding Section 6.3.
6.6 No Reimbursement of Director Attendance Expenses. Notwithstanding any contrary permission in the Bylaws, the Company will not reimburse any director of the Company who is not an employee of the Company for any portion of his or her out-of-pocket expenses incurred in attending each meeting of the Board or any committee thereof. The Company will reimburse each director of the Company who is an employee of the Company for all of his or her out-of-pocket expenses incurred in attending each meeting of the Board or any committee thereof. Founders are expected to address director expenses as matters between each Founder and its affiliated directors.
6.7 Matters Requiring Board Approval. The following matters, and any other matters not listed in this Section 6.7 but required by this Agreement elsewhere to be subject to Board approval, shall be determined by the Board. Notwithstanding any lesser quorum or voting requirements in GMTO’s Bylaws, Board decisions on such matters shall be determined by a Full Majority of the Board (subject to any higher or additional vote that may be expressly specified elsewhere in this Agreement), in each case otherwise in accordance with the voting processes and requirements set forth in GMTO’s Bylaws:
(a) Approval of any agreement having the effect of increasing Other Observers’ Time;
(b) Approval of any contribution to the Company, including any in-kind contribution to the Company or any contribution described in Section 3.3(c);
(c) Adoption of any Master Plan pursuant to Section 3.4(a) and approval of any third-party lending arrangements;
(d) Adoption of any Annual Program Plan pursuant to Section 3.4(b);
(e) Adoption of any Construction Plan pursuant to Section 3.4(c) and the determination to commence construction;
(f) Determination of contribution procedures under Section 3.5(a) and the amount of credit to be given in respect of in-kind contributions pursuant to Section 3.5(c), subject to the recusal of designees of the contributing Founder;
(g) Adoption of the Operations Plan and Budget pursuant to Section 3.6(a);
(h) Approval of contributions from non-Founders to cover Operating Costs in return for Participants’ Time pursuant to Section 3.6(b);
(i) Determination of the amount of Observing Time allocated in each Fiscal Year to GMTO Discretionary Time pursuant to Section 4.2(c);
(j) Approval of any Time Allocation Procedure pursuant to Section 4.3;
(k) By the vote of two-thirds (2/3) of the members of the Board, addition of one or more additional voting or non-voting directors to the Board, subject to Sections 6.1(b) and 6.1(c);
(l) Appointment of the GMTO President and approval of the GMTO President’s recommended appointment of any GMTO executives;
(m) By the unanimous vote of the members of the Board, approval of a Person to whom a Founder proposes to Transfer its Founder’s Percentage pursuant to Section 7.3(a);
(n) By the unanimous vote of the members of the Board, any Transfer of a Founder’s Percentage (other than pursuant to the Board’s exercise of default remedies pursuant to the Commitment Agreement, which shall require only a Full Majority of the Board, excluding any Director appointed by the defaulting Founder) resulting in a Founder holding a positive Founder’s Percentage of less than five percent (5%) or more than twenty percent (20%) pursuant to Section 7.3(b) or the Withdrawal by a Founder or other termination of any Founder’s commitment (other than pursuant to the Board’s exercise of default remedies pursuant to the Commitment Agreement, which shall require only a Full Majority of the Board, excluding any Director appointed by the defaulting Founder) that would result in a Founder holding a positive Founder’s Percentage of less than five percent (5%) or more than twenty percent (20%);
(o) Determination of all matters relating to insurance for the Company, including the amount of insurance coverage pursuant to Section 8.2;
(p) Determination of a Founder’s being in Default pursuant to Article IX;
(q) Approval of the Scientific Advisory Committee pursuant to Section 6.10;
(r) Approval of any Transfers in accordance with Article VII;
(s) Termination of the GMT Project pursuant to Article X;
(t) Approval of compensation of and any loans or advances to the GMTO President; and
(u) Entrance into any employment agreements that are not on an at-will basis.
6.8 Conflict of Interest Recusal. Directors elected by any Founder shall recuse themselves from participation in Board decisions affecting transactions or potential transactions between the Company and such Founder, together with any additional recusals as appropriate to avoid participation in decisions that may benefit such director personally or the Founder electing such director. In addition, for all purposes hereunder and under any Commitment Agreement, a Director shall be recused and excluded from participating in any vote, consent or approval on any matter with respect to which such Director, or the Founder that appointed such Director, has a conflict of interest that is not shared by the other Founders as group. Such conflicts of interest shall include (but not be limited to) any determinations to be made regarding the exercise of any right or fulfillment of any obligation under an agreement between the Company, on the one hand, and the particular Founder or an Affiliate of that Founder, on the other hand, that appointed such Director. In such event, the conflicted Director shall automatically be recused from such vote, consent, approval or other determination, and such Director shall be disregarded from both the numerator and the denominator for the purposes of calculating a Full Majority or other applicable vote. A Director must promptly disclose to the Board any conflict of interest involving such Director, or involving the Founder that appointed such Director or involving such Founder’s Affiliates, in each case in respect of the Company, that is not already known to the Board.
6.9 Appointment of Executives. The Board shall have the power to appoint the GMTO President and to approve the GMTO President’s recommended appointment of any key GMTO executives, including the Observatory Director, the Chief Financial Officer and the General Counsel (if any). Other key personnel, their duties, and lines of reporting shall be as determined by the GMTO President in consultation with the Board.
6.10 Scientific Advisory Committee. A “Scientific Advisory Committee” shall be appointed to advise the Board and the Company on scientific and technical issues from time to time when any of the Board, the Company or the Scientific Advisory Committee deems it appropriate.
Each Founder having a Founder’s Percentage equal to or greater than five percent (5%), or any group of Founders that individually have Founder’s Percentages less than five percent (5%) but that taken together have aggregate Founder’s Percentages equal to or greater than five percent (5%), shall have the right to nominate one representative subject to Board confirmation to serve on the Scientific Advisory Committee. Such representatives need not be directors of the Company.
The GMTO President in consultation with the Board will select a member to serve as chairperson, who will call and preside over meetings of the Scientific Advisory Committee. The Board may appoint other individuals to serve as members of the Scientific Advisory Committee. Scientific Advisory Committee members serve at the discretion of the Board. The Scientific Advisory Committee will serve in an advisory capacity only, and will not have independent power to act for or legally bind the Company.
6.11 Certificate and Bylaws. Each Founder agrees to cooperate in accomplishing any amendments to the Certificate of Incorporation and Bylaws of the Company that are appropriate to facilitate the matters contemplated by this Agreement, taking into account the need to preserve the tax-exempt status of the Company and the Company’s other regulatory and contractual compliance obligations.
ARTICLE VII (back)
RESTRICTIONS ON TRANSFER
7.1 Prohibited Transfers.
(a) No Founder shall sell, assign, pledge, hypothecate, transfer or otherwise dispose of, by gift or otherwise, whether voluntarily or by operation of law (“Transfer”), all or any of such Founder’s rights or obligations pursuant to this Agreement or its Commitment Agreement (including any part of its Founder’s Percentage and/or corresponding Founders’ Time now or hereafter owned by such Founder) except as permitted in Section 7.2 and subject to compliance with the other terms of this Article VII (and, to the extent applicable, in compliance with such Founder’s Commitment Agreement). No Participant shall Transfer any of such Participant’s rights or obligations pursuant to this Agreement or its Participants Agreement, except as set forth in the applicable Participants Agreement.
(b) Any Transfer not made in compliance with the requirements of this Agreement shall be null and void ab initio, shall not be recorded on the books of the Company, and shall not be recognized by the Company. Each party hereto acknowledges and agrees that any breach of this Agreement would result in substantial harm to the other parties hereto for which monetary damages alone could not adequately compensate.
(c) The parties hereto unconditionally and irrevocably agree that the Company shall be entitled to seek protective orders, injunctive relief and other remedies available at law or in equity (including seeking specific performance or the rescission of purchases, sales and other transfers of Founder’s Percentages or Founders’ Time not made in strict compliance with this Agreement), and neither the Company nor the Founders shall be required to recognize as valid the Transfer of any rights or obligations under this Agreement or any Commitment Agreement if such Transfer is not in strict compliance with this Agreement (and, to the extent applicable, in compliance with the applicable Commitment Agreement).
7.2 Permitted Transfers. The following Transfers shall be permitted subject to compliance with the other provisions of this Article VII:
(a) Any Transfer of a Founder’s rights or obligations pursuant to this Agreement or its Commitment Agreement (including any Founder’s Percentage and corresponding Founders’ Time) that has been unanimously approved in advance by the Board (and the Board may determine, in its discretion, that such Transfer need not comply with Sections 7.3 and 7.4);
(b) Any Assignment of all or any portion of a Founders’ Percentage and corresponding Founders’ Time between or among ANU, AAL and instrumentalities of the government of Australia (which transfer shall be exempt from Sections 7.3 and 7.4);
(c) After such time as commitments have been received by the Company sufficient in total to fund the Capital Cost Phase and the Operations Budget, an Assignment of a Founders’ Percentage and corresponding Founders’ Time (but not any other type of Transfer or any Withdrawal) that is made in accordance with Sections 7.3 and 7.4; and
(d) After such time as commitments have been received by the Company sufficient in total to fund the Capital Cost Phase and the Operations Budget, a Transfer (other than a Transfer permitted pursuant to Section 7.2(a) or a Transfer that is solely an Assignment permitted pursuant to Section 7.2(b) or Section 7.2(c)) of a Founder’s rights or obligations pursuant to this Agreement or its Commitment Agreement (including any Founder’s Percentage and corresponding Founders’ Time, and including any Withdrawal) that is both (i) approved by Founders holding 67% of the Founder’s Percentages and (ii) made in accordance with Sections 7.3 and 7.4.
Notwithstanding anything to the contrary in this Agreement, a Founder’s Percentage cannot be transferred separately from the corresponding Founders’ Time (or vice versa) unless unanimously approved by the Board.
7.3 Offer and Notice of Proposed Sale. If any Founder desires to Transfer any of its Founder’s Percentage or Founders’ Time (other than a Transfer pursuant to Section 7.2(b), and subject to Section 7.2(a)), such Transfer must nevertheless comply with Section 7.2 and such Founder (the “Selling Founder”) shall first provide each other Founder with the rights set forth in Section 7.4, which shall be offered by the Selling Founder in the manner described in this Section 7.3. Further to the foregoing, the Selling Founder shall deliver written notice of its desire to make such Transfer (the “Transfer Notice”) to the Company and each of the other Founders, which shall be delivered in the manner prescribed in Section 12.7 of this Agreement. The Transfer Notice must specify the following:
(a) the name and address of the Person to which the Selling Founder proposes to Transfer the Founder’s Percentage and corresponding Founders’ Time, which Person must be either a Founder or a non-Founder that has been unanimously approved in advance by the Board, acting exclusively of any director that has been designated by the Selling Founder, which approval shall not be unreasonably withheld, conditioned or delayed if such Person is reasonably comparable to the Selling Founder in financial resources and astronomical activities (the “Proposed Transferee”);
(b) the amount of Founder’s Percentage and corresponding Founders’ Time the Selling Founder proposes to Transfer, which in no event may be an amount that would result in either the Selling Founder or the Proposed Transferee holding, as a result of the Transfer, a positive Founder’s Percentage of less than five percent (5%) (for the sake of clarity, a Selling Founder’s Percentage of zero percent (0%) shall be permitted to result) or more than twenty percent (20%) unless such result is unanimously approved in advance by the Board, acting exclusively of any director that has been designated by the Selling Founder (the “Transfer Percentage”); and
(c) the consideration to be delivered to the Selling Founder for the proposed Transfer; and all other material terms and conditions of the proposed transaction.
7.4 Founders’ Option to Purchase.
(a) In connection with a Transfer Notice provided pursuant to Section 7.3, each Founder shall have an option, exercisable for a period of 120 days from the date of delivery of the Transfer Notice, to purchase, on a pro rata basis according to such Founder’s own Founder’s Percentage relative to the Founders’ Percentages of non-transferring Founders, the Transfer Percentage for the same price and on the same terms and conditions set forth in the Transfer Notice. Such option shall be exercised by such Founder by delivering written notice to the Secretary of the Company.
(b) At the end of such 120-day period, the Company shall promptly give notice (the “Founder Exercise Notice”) to each Founder that elects to purchase its full pro rata share of the Transfer Percentage (a “Fully Exercising Founder”) of any other Founder’s failure to do likewise, and each Fully Exercising Founder shall have an additional option, for the period of five (5) business days next succeeding the expiration of such 120-day period, to purchase all or any part of the balance of such Transfer Percentage on the terms and conditions set forth in the Transfer Notice, which option shall be exercised by the delivery of written notice to the Secretary of the Company.
In the event there are two or more such Founders that choose to exercise the last-mentioned option for a total amount of Transfer Percentage in excess of the amount remaining available, the Transfer Percentage available for each such Founder’s option shall be allocated to such Founder on a pro rata basis according to such Founder’s own Founder’s Percentage.
(c) If the options to purchase the Transfer Percentage are exercised in full by the Founders, the Company shall immediately notify all of the exercising Founders of that fact. The closing of the purchase of the Transfer Percentage shall take place at the offices of the Company no later than five (5) days after the date of such notice to the Founders. The Founders shall have no right to purchase any of the Transfer Percentage hereunder unless the Founders exercise their options to purchase all of the Transfer Percentage.
(d) If the Founders do not exercise their options to purchase all of the Transfer Percentage within the periods described in this Agreement (the “Option Period”), then all options of the Founders to purchase the Transfer Percentage, whether exercised or not, shall terminate.
The Selling Founder may, during the sixty (60)-day period following the expiration of the Option Period, sell the Transfer Percentage, but only to the Proposed Transferee listed in the Transfer Notice and only upon terms and conditions (including price) which are not more favorable, in the aggregate, to the Proposed Transferee than those set forth in the Transfer Notice.
If the Company does not enter into an agreement for the sale of the Transfer Percentage within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Transfer Percentage shall not be offered unless first reoffered to the Founders in accordance with this Article VII.
(e) Certain Restrictions. No Transfer pursuant to this Section 7.4 shall be effective until the Proposed Transferee has taken steps deemed reasonably necessary by the Board to effectuate such Transfer and to become a party to the Founders’ Agreement, including without limitation compliance with Section 12.1. For the avoidance of doubt, a Founder’s Percentage may not be transferred independently from the corresponding Founders’ Time, and vice versa; and any Person receiving a Founder’s Percentage and corresponding Founders’ Time must agree to be bound by this Agreement and all of the obligations associated with such Founder’s Percentage and corresponding Founders’ Time.
7.5 Special Rules for Withdrawal. Any attempted Withdrawal by a Founder from the Company will not be effective to eliminate such Founder’s commitments as set forth in its Commitment Agreement, whether those commitments are in cash or in kind, or to otherwise alleviate such Founder of its obligations pursuant to this Agreement or such Founder’s Commitment Agreement, in each case unless and until:
(a) permitted transferees of such Founder have entered into binding agreements to perform such commitments and other obligations of the Founder seeking to accomplish its Withdrawal, including an assumption of all of such Founder’s obligations under this Agreement and its Commitment Agreement;
(b) such Withdrawal has been approved by the written consent or affirmative vote of Founders holding at least 67% of the aggregate Founder’s Percentages (such approval not to be unreasonably withheld, conditioned or delayed if such Person is reasonably comparable to the Selling Founder in financial resources and astronomical activities); and
(c) such Withdrawal has received any other consents or approvals required pursuant to this Agreement and the applicable Commitment Agreement.
Accordingly, subject to compliance in any event with Section 7.2, a Founder that proposes to accomplish its Withdrawal must identify one or more Proposed Transferees, agree to proposed consideration and other terms with such Proposed Transferees, pursue the notice, option, and other procedures in this Article VII, and successfully accomplish a permitted transfer of 100% of its rights and obligations pursuant to this Agreement and its Commitment Agreement (including its Founder’s Percentage, its corresponding Founders’ Time and its associated commitments and other obligations), and which must include the express assumption by the Proposed Transferees of all of such Founder’s obligations under this Agreement and such Founder’s Commitment Agreement and the execution by the Proposed Transferees of a joinder to this Agreement and such Commitment Agreement, in order to accomplish such Withdrawal and be released from its commitments and other obligations hereunder and under such Founder’s Commitment Agreement.
Notwithstanding the foregoing, subject to compliance with any lender requirements if financing has been obtained by the Company, a Founder may also accomplish its Withdrawal and may be released from its commitments and other obligations upon the unanimous approval of the other Founders, obtained either by unanimous written consent or by unanimous vote (and which approval may be made subject to such terms and conditions as the Founders may determine, each in their sole discretion).
7.6 Overriding Provisions. Notwithstanding anything to the contrary in this Agreement, no Transfer shall become effective until the Proposed Transferee has become party to the transferor’s Commitment Agreement or Participants Agreement, to the extent applicable at the time of such Transfer. Notwithstanding anything to the contrary in this Agreement, all Transfers will be subject to any applicable restrictions in such Commitment Agreement or the Participants Agreement, as applicable.
7.7 Transfers of Rights; Replacement Founders. This Agreement, and the rights and obligations of any Founder hereunder, are not assignable except pursuant to a permitted Transfer and/or Withdrawal as set forth in this Article VII. If a permitted Transferee has acquired all of the rights and obligations of a Founder through a Transfer permitted pursuant to this Article VII (and has otherwise satisfied the other requirements of a permitted Transfer pursuant to this Article VII) and such transferring Founder has complied with the requirements of Section 7.5 to effect its Withdrawal, then such transferee shall thereafter be deemed a “Founder” for purposes of this Agreement.
ARTICLE VIII (back)
COVENANTS
8.1 Preservation of Nonprofit Status. No Founder or Affiliate of a Founder will take any action that would adversely affect the status of the Company as a nonprofit organization described in Section 501(c)(3) of the Internal Revenue Code.
8.2 Insurance. The Company shall purchase and maintain with an insurance company or companies Comprehensive General Liability Insurance (including liability hereunder) against any liability arising out of the design, construction, occupancy, operation, use or maintenance of the GMT, in amounts determined by the Board, naming each Founder as an additional insured. In addition, the Company shall purchase and maintain Directors and Officers Insurance and Property and Casualty Insurance in amounts determined by the Board. Liability insurance limits shall not be construed to limit an indemnitee’s right of indemnity hereunder.
8.3 Liability. Notwithstanding anything to the contrary in Section 2.4, to the extent allowable by Applicable Law, each Founder acknowledges that it is liable for any expense, including any judgment, settlement and attorneys’ fees, incurred as a result of a claim arising out of or in connection with an actual or alleged negligent or wrongful act or failure to act in connection with the GMT by such Founder or any of its Affiliates, trustees, directors, officers, employees or agents. Any obligations hereunder shall first be satisfied, to the extent available, from proceeds of any applicable insurance policies.
8.4 Terms of Use. The Founders acknowledge that the GMT and the Facility will be subject to certain standard terms of use to be approved by the Board in connection with the Operations Phase. Each Founder will agree to comply with the standard terms of use approved by the Board as a condition to such Founder’s use of the GMT and the Facility.
ARTICLE IX (back)
DEFAULT
9.1 Default Remedies. Each Founder and Participant (collectively the “Contributors” and each a “Contributor”) must meet its obligations under its Commitment Agreement and/or Participants Agreement, as applicable, in a timely manner. A Contributor that defaults on its obligation to fund in a timely manner its Unfunded Commitment will be subject, at the discretion of a Full Majority of the Board (excluding any Board designees of the Contributor in default), to the remedies and penalties set forth in its Commitment Agreement and/or Participants Agreement, as applicable, in each case, on the terms and subject to the conditions set forth therein.
9.2 Security for Obligations. In support of its obligations under its Commitment Agreement or Participants Agreement, as applicable, each Contributor, to the maximum extent not prohibited by Applicable Law, hereby grants a security interest to the Company in all of its rights and benefits (including Capital Contribution Credits) received pursuant to this Agreement, its Commitment Agreement and/or Participants Agreement, as applicable, but in each case subject to the terms of such Contributor’s Commitment Agreement and/or Participants Agreement, as applicable (and in no event shall this Section 9.2 be deemed to expand the scope of the remedies provided for therein).
9.3 Potential Disruption. The GMTO President shall notify the Board and the Founders if a delinquency or prospect of delinquency threatens to disrupt planned operations of the GMT. The Chair of the Board shall convene such special meetings of the Board as shall be appropriate to consider responses to any such threatened disruption, including changes in operations and possible additional fundraising.
9.4 Government Instrumentalities. In the case of any Contributor that is a government instrumentality subject to special restrictions concerning financial obligations, including limitations relating to appropriation of government funds, such Contributor will be required to represent in its Commitment Agreement and/or Participants Agreement, as applicable, that it has received all necessary approvals in support of its commitment, and any failure of such Contributor to receive necessary appropriations to meet its funding obligations in a timely manner shall not affect the Company’s right to exercise any remedy set forth above.
ARTICLE X (back)
TERMINATION AND WINDING-UP OF THE GMT PROJECT
Upon the vote of at least two-thirds (2/3) of the directors then holding office, the Company shall terminate the GMT Project and commence winding-up operations using the financial and other resources that remain in the Company. Following such determination, the GMTO President shall oversee safe and secure shutdown of operations in the manner that he or she determines (in consultation with the Board) will have the least present value cost (or greatest present value benefit) to the Founders as a group. GMTO and the Board will cause the Operations Plan to include a plan for funding reserves on an ongoing basis over the course of the first 30 years of operations to cover the anticipated cost to wind-up operations of the GMT in a safe and secure manner and as required pursuant to the Las Campanas Observatory Agreement. GMTO and CIW will negotiate in good faith to reach agreement on a reasonable plan for the safe and secure shutdown of the facility when shutdown becomes appropriate.
ARTICLE XI (back)
INTELLECTUAL PROPERTY
11.1 Intellectual Property. Each of the Founders will negotiate with each other and GMTO in good faith to enter into a commercially reasonable intellectual property agreement in a form approved by both the Board and the Founders (in the case of the Founders in accordance with Section 5.1), which intellectual property agreement will address the ownership and rights of the Founders and the Company related to inventions (including inventions as defined in 37 CFR § 401, patent applications, patents, copyrights, trademarks, mask works, trade secrets and any other legally protectable information, including computer software) first made or generated using the GMT Project (it being agreed that intellectual property rights with respect to equipment and instruments procured by the Company will nevertheless be governed by the relevant procurement agreements); provided that the Founders agree that it would not be commercially reasonable for such an agreement to create obligations that are unlawful or incompatible with regulatory and other legal requirements applicable to any Founder.
ARTICLE XII (back)
GENERAL
12.1 Additional Founders. With the written consent or affirmative vote of Founders holding aggregate Founder’s Percentages of at least 67%, or such higher percentage as is required pursuant to Section 6.7, additional Persons may become new Founders after the Effective Date and receive Founder’s Percentages. Such a new Person shall become a Founder and shall become a party to this Agreement by executing and delivering to the Company a Founder Signature Page specifying its commitment of future contributions in accordance with the terms of this Agreement. This provision is intended to apply to new commitments to GMTO and not to Transfers of existing commitments, which are addressed in Article VII.
In the event that any additional Person becomes a Founder in accordance with this Section 12.1, or any existing Founder increases its funding commitment, each other Founder shall have the right, but not the obligation, to increase its funding commitment in an amount sufficient to maintain such Founder’s pro rata percentage of the aggregate funding commitments of all Founders. The Board shall establish the procedures applicable to the rights of the Founders in this paragraph and shall provide each Founder with reasonable notice of such procedures.
12.2 Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
12.3 Specific Performance. In addition to any and all other remedies that may be available at law in the event of any breach of this Agreement, each Founder shall be entitled to specific performance of the agreements and obligations of the Company hereunder and to such other injunctive or other equitable relief as may be granted by a court of competent jurisdiction.
12.4 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the General Corporation Law of the State of Delaware, as to matters within the scope thereof, and the internal laws of the State of Delaware (without reference to the conflicts of law provisions thereof), as to all other matters.
To the extent not prohibited by Applicable Law, in the event of any dispute, claim or controversy arising out of, in connection with or relating to this Agreement or any Commitment Agreement, the parties to such dispute shall negotiate in good faith to resolve such dispute via non-binding mediation. If the parties do not resolve such dispute within 90 days after commencing such mediation, any party to such dispute may initiate further legal action as set forth herein.
To the extent not prohibited by Applicable Law, any legal action or proceeding with respect to this Agreement shall be brought in the courts of the State of Delaware, and, by execution and delivery of this Agreement, each Founder hereby irrevocably accepts for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts. To the extent not prohibited by Applicable Law, each Founder hereby further irrevocably waives any claim that any such courts lack personal jurisdiction over it, and agrees not to plead or claim, in any legal action proceeding with respect to this Agreement in any of the aforementioned courts, that such courts lack personal jurisdiction over it. To the extent not prohibited by Applicable Law, any legal action or proceeding with respect to this Agreement by any Founder seeking any relief whatsoever against the Company or any other Founder shall be brought only in the Chancery Court of the State of Delaware (or other appropriate state court in the State of Delaware), and not in any other court in the United States of America, or any court in any other country. To the extent not prohibited by Applicable Law, each Founder hereby irrevocably waives any objection that it may now or hereafter have to the laying of venue of any of the aforesaid actions or proceedings arising out of or in connection with this Agreement brought in the aforesaid courts and hereby further irrevocably, to the extent not prohibited by Applicable Law, waives its rights to plead or claim and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum. Each Member, to the extent not prohibited by Applicable Law, irrevocably consents to service of process in connection with any matter arising under this Agreement by first class mail, certified postage prepaid, in accordance with the provisions of Section 12.7. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law. EACH FOUNDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, ANY RIGHT THAT SUCH FOUNDER MAY HAVE TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT.
12.5 Non-Discrimination. The Company and the Founders shall comply with all applicable state and federal statutes and regulations governing equal employment opportunity, non-discrimination, and immigration.
12.6 No Joint Venture. It is expressly understood and acknowledged that the parties are entering into this Agreement as independent contractors and that this Agreement is not intended to create, nor shall it be construed as creating, any type of partnership, joint venture, franchise or agency relationship between or among the parties.
12.7 Notices. All notices, requests, consents and other communications under this Agreement shall be in writing and shall be deemed delivered:
(a) three business days after being sent by registered or certified mail, return receipt requested, postage prepaid,
(b) one business day after being sent via a reputable nationwide overnight courier service guaranteeing next business day delivery, or
(c) upon actual receipt if sent by electronic mail, in each case to the intended recipient as set forth below:
If to the Company:
GMTO Corporation
251 South Lake Avenue, Suite 300
Pasadena, California 91101
Attention: CFO
Tel.: +1 (626) 204-0544 Fax: +1 (626) 204-0535
Email: bschaefer@gmto.org
With a copy to:
GMTO Corporation
251 South Lake Avenue, Suite 300
Pasadena, California 91101
Attention: President
Tel.: +1 (626) 204-0500
Email: emoses@gmto.org
With a copy to:
Latham & Watkins LLP
12670 High Bluff Drive
San Diego, CA 92130 Attention: Nadia Sager, Esq. Tel.: +1 (858) 523-5400 Fax: +1 (858) 523-5450
Email: nadia.sager@lw.com
If to a Founder:
At its address set forth on Exhibit A, or at such other address as may have been furnished in writing by such Founder to the other parties hereto.
Any party may give any notice, request, consent or other communication under this Agreement using any other means (including personal delivery, messenger service, telecopy, first class mail or electronic mail), but no such notice, request, consent or other communication shall be deemed to have been duly given unless and until it is actually received by the party for whom it is intended. Any party may change the address to which notices, requests, consents, or other communications hereunder are to be delivered by giving the other parties notice in the manner set forth in this Section.
Subject to the limitations set forth in Section 232(e) of the Delaware General Corporation Law, each Founder consents to the delivery of any notice given by the Company under the Act or the Certificate of Incorporation or Bylaws by (i) facsimile telecommunication to the facsimile number set forth for such Founder on Exhibit A, (ii) electronic mail to the electronic mail address set forth on Exhibit A, (iii) posting on an electronic network together with separate notice to the Founder of such specific posting, or (iv) any other form of electronic transmission (as defined in the Delaware General Corporation Law) directed to the Founder. The consent in this paragraph may be revoked by a Founder by written notice to the Company and may be deemed revoked in the circumstances specified in Section 232 of the Delaware General Corporation Law.
12.8 Complete Agreement. This Agreement, together with all Schedules, Exhibits and Appendices hereto, the Commitment Agreements, any side letters entered into between GMTO and a Founder that have been disclosed to all of the Founders, and the Participant Agreements, constitutes the entire agreement and understanding of the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements and understandings relating to such subject matter.
12.9 Amendments and Waivers. This Agreement overrides and supersedes the Prior Agreement, effective as of the Effective Date.
This Agreement may be amended, modified or terminated and the observance of any term of this Agreement may be waived with respect to all parties to this Agreement (either generally or in a particular instance and either retroactively or prospectively), with the written consent or affirmative vote of Founders holding aggregate Founder’s Percentages of at least 67%. Notwithstanding the foregoing,
(a) this Agreement may not be amended, modified or terminated and the observance of any term hereunder may not be waived with respect to any Founder if such amendment, modification, termination or waiver purports to disproportionally and adversely affect such Founder relative to the other Founders as a group, without the written consent of the affected Founder (provided that nothing in this Section 12.9 shall prevent the Company or the Board from making such amendments to this Agreement without the consent of a defaulting Contributor as are necessary or appropriate to implement the provisions ofArticle IX or Section 2 of the Commitment Agreements); and Section 3.10 of this Agreement, and any other provision relating to CIW or the Las Campanas Observatory Agreement, may not be amended or terminated without the written consent of CIW;
(b) this Agreement may be amended by the Company from time to time without the consent of the other parties hereto to update contact information for the Company, the Founders, and their respective legal representatives; and
(c) Exhibit A hereto may be amended by the Company from time to time without the consent of the other parties hereto to add information regarding persons that acquire Transfer Percentages or acquire Founder’s Percentages from the Company hereafter in accordance with Section 7.7 or 12.1.
The Company shall give prompt written notice of any amendment or termination hereof or waiver hereunder to any party hereto that did not consent in writing to such amendment, termination or waiver. Any amendment, termination or waiver effected in accordance with this Section 12.9 shall be binding on all parties hereto, even if they do not execute such consent.
No waivers of or exceptions to any term, condition or provision of this Agreement, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such term, condition or provision.
Notwithstanding anything to the contrary in this Agreement, the Company (with the consent of a Full Majority of the Board) may make such amendments to this Agreement (in each case without the consent of a defaulting Contributor) as are necessary or appropriate to implement the provisions of Article IX in respect of a defaulting Contributor.
For the avoidance of doubt, no amendment can be effected that increases any Founder’s capital commitment or accelerates its funding schedule as set forth on its respective Commitment Agreement without the written consent of such Founder.
12.10 Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts (including, in the case of the Founders, Founder Signature Pages), each of which shall be deemed to be an original, and all of which shall constitute one and the same document. This Agreement (including the Founder Signature Pages) may be executed by facsimile signatures.
12.11 Section Headings and References. The section headings are for the convenience of the parties and in no way alter, modify, amend, limit or restrict the contractual obligations of the parties. Any reference in this agreement to a particular section or subsection shall refer to a section or subsection of this Agreement, unless specified otherwise.
12.12 Power of Attorney.
(a) Each Founder, by its execution of this Agreement, to the extent not prohibited by Applicable Law, irrevocably constitutes and appoints the GMTO President as its true and lawful attorney-in-fact with full power and authority in its name, place and stead to execute, acknowledge, deliver, swear to, file and record at the appropriate public offices such documents as may be necessary or appropriate to carry out the following:
(i) All amendments to this Agreement adopted in accordance with the terms hereof (including the consent requirements in Section 12.9 hereof).
(ii) All agreements and other instruments which the Board reasonably deems necessary in order to carry out the purposes and intent of Article IX, including bills of sale or other appropriate transfer documents necessary or advisable to effectuate Transfers of any interest of a defaulted Contributor in accordance with Article IX.
(b) For the avoidance of doubt, the GMTO President shall not have the authority pursuant to this Section 12.2 to enter into any debt obligation in the name of any Contributor or to confess any judgment on behalf of any Contributor.
(c) The appointment by all Contributors of the GMTO President as attorney-in-fact shall be deemed to be a power coupled with an interest, in recognition of the fact that each of the Founders under this Agreement will be relying upon the power of the GMTO President to act as contemplated by this Agreement in connection with the matters described in this Section 12.12, shall survive the disability or incapacity of any Person hereby giving such power, and the Transfer or assignment of all or any portion of the interest of such Person in this Agreement, and shall not be affected by the subsequent incapacity of a principal.
(d) In no event shall the power of attorney given hereunder be construed to exceed the maximum delegation allowable under Applicable Law (and if the power of attorney given hereunder would otherwise exceed the maximum delegation allowable under Applicable Law then the power shall be deemed to have been granted solely to the maximum extent allowable pursuant to Applicable Law and no further power shall be deemed to have been granted).
(e) This power of attorney may be exercised by such attorney-in-fact for all Contributors (or any of them) by a single signature of the GMTO President acting as attorney-in-fact with or without listing all of the Contributors executing an instrument.
(f) In any instance, the GMTO President may only exercise the power of attorney given hereunder at the direction of, and with the consent of, the Board.
12.13 No Third Party Beneficiaries. Unless otherwise approved in writing by Founders holding 67% of the Founders’ Percentages, none of the provisions of this Agreement shall be for the benefit of, or be enforceable by, any creditor of the Company (or any creditor of any subsidiary of the Company as may be created from time to time) or any creditor of any Founder. Except as otherwise expressly provided herein or otherwise approved in writing by Founders holding 67% of the Founders’ Percentages, this Agreement is not intended to confer any rights or remedies hereunder upon, and shall not be enforceable by, any Person other than the Parties hereto.
(Signature page follows.)
Executed as of the date first written above.
COMPANY
GMTO CORPORATION
By:
Name: Edward Moses
Title: President
Signature Page to Founders’ Agreement
EXHIBIT A (back)
LIST OF FOUNDERS
Name and Address
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Carnegie Institution of Washington
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Harvard University
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Smithsonian Astrophysical Observatory
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Texas A&M University
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Arizona Board of Regents, on behalf of the University of Arizona
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Astronomy Australia Limited |
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The University of Texas at Austin
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The Australian National University
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Korea Astronomy and Space Science Institute |
The University of Chicago
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Fundacao de Amparo à Pesquisa do Estado de São Paulo
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EXHIBIT B (back)
FORM OF FOUNDER SIGNATURE PAGE
By execution and delivery of this signature page, the undersigned hereby (1) agrees to become, or hereby continues as, a “Founder,” as defined in that certain Second Amended and Restated Founders’ Agreement (the “Founders’ Agreement”) by and among GMTO CORPORATION, a Delaware corporation (the “Company”), and the Founders (as defined in the Second Amended and Restated Founders’ Agreement), dated as of December 5, 2014, and to be bound by the terms and conditions of the Founders’ Agreement as a “Founder” thereunder, and (2) authorizes this signature page to be attached to the Founders’ Agreement, or counterparts thereof.
Executed, in counterpart, as of the date set forth below.
FOUNDER: FAPESP
NAME OF FOUNDER: Celso Lafer
By:
Title: President
Date: December 10th, 2014
Contact Person: João Steiner
Telephone No.: 55 11 30912713
Telecopy No.: 55 11 30912860
Email Address: joao.steiner@iag.usp.br
EXHIBIT C (back)
FORM OF COMMITMENT AGREEMENT
See attached.
EXHIBIT D (back)
NON-BINDING TABLE OF APPROVALS
This Exhibit D is provided solely for the convenience of the Founders and does not supersede or affect the interpretation of the Founders’ Agreement or any Commitment Agreement.
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Decisions Requiring 67% Approval of Founder’s Percentages |
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Action To be Taken |
Agreement / Section |
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Enter into any debt not otherwise authorized pursuant to Founders’ Agreement Section 3.11 (such as third party financing in excess of 10% of the aggregate Unfunded Commitments, secured debt, etc.) |
Founders’ Agreement Section 3.11; Commitment Agreement Section 3(a) |
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Amend, alter or repeal any provision of the Certificate of Incorporation or Bylaws of the Company or of the Founders’ Agreement (other than certain administrative changes) [1] |
Founders’ Agreement Section 5.1(a); Founders’ Agreement Section 12.9 |
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Form any subsidiary of the Company |
Founders’ Agreement Section 5.1(b) |
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Approve new Founders |
Founders’ Agreement Section 5.1(c) |
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Approve the form of intellectual property agreement to be agreed to by GMTO and the Founders |
Founders’ Agreement Section 5.1(d) |
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Terminate the GMT Project and commence winding-up |
Founders’ Agreement Section 5.1(e) |
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Take any action leading to the dilution of the project share percentage held by any Founder |
Founders’ Agreement Section 5.1(f) |
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Approve any Company indebtedness, financing, pledge or other similar obligation not otherwise expressly permitted pursuant to the Founders’ Agreement |
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Approve the Transfer of the Founder’s rights or obligations pursuant to the Founders’ Agreement or Commitment Agreement, unless approved by the Board by unanimous consent (and subject to certain lesser Transfer rights that require lesser approvals) |
Founders’ Agreement Section 7.2(d) |
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Approve the Withdrawal of a Founder [2] |
Founders’ Agreement Section 7.5(b); Commitment Agreement Section 4(b) |
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Approve the admission of an additional Founder |
Founders’ Agreement Section 12.1(b) |
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Amend the Founders’ Agreement (subject to certain exceptions) |
Founders’ Agreement Section 12.9 |
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Approve any third party beneficiary of the Founders’ Agreement or Commitment Agreements |
Founders’ Agreement Section 12.13 |
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Amend any Commitment Agreement (other than certain administrative changes) [3] |
Commitment Agreement Section 7(a) |
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Assignment of GMTO’s rights or obligations under any Commitment Agreement |
Commitment Agreement Section 7(e) |
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Decisions Requiring Unanimous Approval of the GMTO Board |
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Action To be Taken |
Agreement / Section |
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Approve of a Person to whom a Founder proposes to Transfer its Founder’s Percentage |
Founders’ Agreement Section 6.7(m) |
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Approve any Transfer (other than pursuant to the Board’s exercise of default remedies pursuant to the Commitment Agreement, which shall require only a Full Majority of the Board, excluding any Director appointed by the defaulting Founder) of a Founder’s Percentage resulting in a Founder holding a positive Founder’s Percentage of less than 5% or more than 20%, or Withdrawal by any Founder or other termination of such Founder’s Commitment (other than pursuant to the Board’s exercise of default remedies pursuant to the Commitment Agreement, which shall require only a Full Majority of the Board, excluding any Director appointed by the defaulting Founder) that would result in the Founder holding a Founder’s Percentage of less than 5% or more than 20% |
Founders’ Agreement Section 6.7(n) |
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Approve the Transfer of the Founder’s rights or obligations pursuant to the Founders’ Agreement or Commitment Agreement, unless approved by Founders holding 67% of the Founder’s Percentages and subjected to Founders’ option to purchase rights (and subject to certain lesser Transfer rights that require lesser approvals) |
Founders’ Agreement Section 7.2(d) |
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Decisions Requiring Approval of a Full Majority of the GMTO Board [4] |
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Action To be Taken |
Agreement / Section |
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Set the Start of Operations |
Founders’ Agreement Section 1(nnn) |
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Approve and complete any Project Stage |
Founders’ Agreement Section 3.1(b) |
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Adopt the GMT Plan of Finance |
Founders’ Agreement Section 3.5(b) |
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Approve a form of Founder transfer agreement |
Founders’ Agreement Section 3.6(b) |
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Approve the Las Campanas Observatory Agreement |
Founders’ Agreement Section 3.10 |
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Obtain third-party debt financing provided such indebtedness is (i) unsecured and (ii) in an aggregate principal amount not more than 10% of aggregate Unfunded Commitments |
Founders’ Agreement Section 3.11 |
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Approve any agreement having the effect of increasing Other Observers’ Time |
Founders’ Agreement Section 6.7(a) |
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Approve any contribution to the Company, including any in-kind contribution or any contribution that would cause a Founder’s Percentage to exceed 20% for the first time |
Founders’ Agreement Section 6.7(b); Section 3.3(c) |
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Adopt a GMT Master Plan |
Founders’ Agreement Section 6.7(c) |
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Adopt an Annual Program Plan |
Founders’ Agreement Section 6.7(d) |
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Adopt or modify a Construction Plan and determine to commence construction |
Founders’ Agreement Section 6.7(e) |
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Determine contribution procedures and the amount of credit to be given in respect of in-kind contributions (subject to the recusal of designees of the contributing Founder) |
Founders’ Agreement Section 6.7(f) |
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Adopt the Operations Budget and Operations Plan |
Founders’ Agreement Section 6.7(g) |
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Approve contributions from non-Founders to cover Operating Costs in return for Participants’ Time |
Founders’ Agreement Section 6.7(h) |
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Determine the amount of Observing Time allocated in each fiscal year to GMTO President’s Discretionary Time |
Founders’ Agreement Section 6.7(i) |
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Approve any Time Allocation Procedure |
Founders’ Agreement Section 6.7(j) |
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Add one or more additional voting or non-voting directors to the Board [5] |
Founders’ Agreement Section 6.7(k) |
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Appoint the GMTO President, executives and other key staff to the GMT Project |
Founders’ Agreement Section 6.7(l) |
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Determine all insurance matters for the Company |
Founders’ Agreement Section 6.7(o) |
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Determine a Founder’s being in Default |
Founders’ Agreement Section 6.7(p) |
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Appoint the Scientific Advisory Committee |
Founders’ Agreement Section 6.7(q) |
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Approve any Transfers |
Founders’ Agreement Section 6.7(r) |
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Terminate the Project |
Founders’ Agreement Section 6.7(s) |
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Approve compensation of, and any loans or advances to, the GMTO President |
Founders’ Agreement Section 6.7(t) |
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Enter into any employment agreements other than on an at-will basis |
Founders’ Agreement Section 6.7(u) |
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Apply default remedies |
Founders’ Agreement Section 9.1 |
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Approve the exercise by the GMTO President of the power of attorney given by each Founder |
Founders’ Agreement Section 12.12(f) |
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All other reserved or unspecified powers of management over GMTO appropriate given the Board’s role |
Founders’ Agreement |
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Agree to the pro rata termination of the Founders’ Capital Commitments due to force majeure |
Commitment Agreement Section 1(c) |
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Apply default remedies with respect to a Defaulting Founder [6] |
Commitment Agreement Section 2 |
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Adjust default remedies with respect to a Defaulting Founder that paid the full amount of interest penalties in the event that a subsequent Defaulting Founder, due to Applicable Law, substituted a decrease in its Capital Contribution Credits in lieu of certain interest payments, and the Capital Contribution Credits became severely diminished in value [7] |
Commitment Agreement Section 2(a) and 2(b) |
APPENDIX I (back)
ALLOCATION OF CONTRIBUTORS’ OBSERVING TIME
This Appendix I to that certain Second Amended and Restated Founders’ Agreement (the “Founders’ Agreement”), dated as of December 5, 2014, by and among the Company and the Founders named therein, describes (i) how Contributors’ Observing Time for a given Fiscal Year of operations would be divided between Founders’ Time and Participants’ Time; (ii) how Founders’ Time would be allocated among Founders; and (iii) how Participants’ Time would be allocated among Participants. Certain capitalized terms used in this Appendix I are defined below; any capitalized terms used in this Appendix I and not expressly defined herein shall have the meanings ascribed to them in the Founders’ Agreement.
In broad concept, the allocation is based on the observation that any year’s total “cost” includes actual current operating costs plus an additional amount representing a credit for contributions to the capital costs of creating the GMT Project. The model used in the Founders’ Agreement departs from accounting notions of depreciation of historic cost, instead using a notion of Capital Contribution Credits. Capital Contribution Credits take account of the fact that early contributions are more valuable than late contributions, not only because of the time value of money but also because the earliest contributions are the riskiest. The value of the Capital Contributions Credits are expected to rise as the GMT Project proceeds, such that shortly prior to the first year of operations, the credit value will be only slightly less than the expected value per night charged to Participants in the first year of operations.
Using the defined terms specified below and in the Founder’s Agreement:
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Founders’ Time plus Participants’ Time will equal 100 percent of Contributors’ Observing Time for any year.
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Founders’ Time for a Fiscal Year will be shared among Founders according to their respective Founder’s Percentages. This sharing is proportionate to the Capital Contribution Credits allocable to the respective Founders.
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Participants’ Time for a Fiscal Year will be shared among Participants according to their respective Participant’s Percentages, which are allocated in proportion to each Participant’s contribution to that year’s Operating Costs.
“Capital Contribution Credit” shall mean a unit of measure that can be used to allocate Observing Time to Founders based on contributions made to the Company through Capital Funding Rounds. The total funds received in exchange for a fixed total number of Capital Contribution Credits must be sufficient to fund the capital budget for the GMT Project. The percentage share of total Capital Contribution Credits issued that a Founder holds is equivalent to the proportionate share of the available observing nights for the total Founders’ Time that Founder is entitled to.
“Capital Funding Round” (also called a “Funding Round” or a “Round”) shall mean a call for contribution commitments from Founders and prospects in connection with a specified round of funding (including, for the avoidance of doubt, Design Round 1 and Design Round 2). The terms of each Round require a legally binding commitment (pursuant to the Commitment Agreements) to a schedule of payments in return for Capital Contribution Credits issued to a Founder when such Founder’s funding committed to such Round has been completed. The planned value, amount of Capital Contribution Credits and closing date for committing to each Round are reflected in the GMT Plan of Finance; however, the actual value, amount of Capital Contribution Credits and closing date for each Round will be determined by the Board. Accordingly, the planned values, amounts, and closing dates are subject to revision in the annual update to the GMT Plan of Finance.
“Contributors’ Observing Time” shall mean, for any Fiscal Year, the Observing Time for such Fiscal Year that can be allocated for scientific observation by Founders and Participants, after deducting Engineering Time, Other Observers’ Time, and GMTO President’s Discretionary Time.
“Founder’s Percentage” shall mean the percentage calculated by dividing (i) such Founder’s Capital Contribution Credits by (ii) the total Capital Contribution Credits for the GMT Project.
As of any date, Founder’s Percentages shall be calculated by dividing (x) such Founder’s Capital Contribution Credits as of the last day of the most recently ended Fiscal Year by (y) the total Capital Contribution Credits for the GMT Project as of the last day of the most recently completed Fiscal Year. Subject to Transfers made pursuant to Article VII and subject to any loss of Capital Contribution Credits pursuant to the Commitment Agreements, Founder’s Percentages will become permanently fixed as of the conclusion of the Construction/Commissioning Phase.
“Founders’ Time” shall mean, for any Fiscal Year, the aggregate portion of Contributors’ Observing Time allocable to Founders, reflected in the Operations Plan.
“Participant’s Percentage” shall mean, as to any Participant, the percentage calculated by dividing:
(i) such Participant’s contribution toward the Operations Budget (as reflected in the Operations Plan) for a given Fiscal Year by
(ii) the entire Operations Budget (as reflected in the Operations Plan) for such Fiscal Year.
“Participants’ Time” shall mean, for any Fiscal Year, the aggregate portion of Contributors’ Observing Time available to Participants, reflected in the Operations Plan.
Points of Clarification; Explanation of Example
Managing a Round
Upon approval from the Board, the Company will announce a Round six to twelve months in advance of its scheduled closing date. This announcement will be made available to Founders and selected prospects (“Prospects”) in accordance with the GMT Plan of Finance and will include a value range that is targeted for the Round. The final closing value and amount for each Round will be set approximately one month prior to the closing date. During the time between the announcement of a Round and the establishment of the closing value, the Company will conduct discussions with the administrators of Founders and Prospects to assess the willingness and ability of Contributors to make commitments. In particular, the elasticity of contributions in relation to Capital Contribution Credit value will be tested. If necessary, the Company may request Board approval for adjustments of Round terms, post announcement, at Board meetings or teleconferences, and the Company shall be permitted to adjust Round terms accordingly (but the Company will in any event notify the Founders and applicable Prospects of any such changes).
Increases/Decreases to Founder Commitments
Should the funds committed by Founders and Prospects fail to fully fund a Round, the Board will have the authority to increase the contributions required for Capital Contribution Credits in future Rounds, increase the contributions per Capital Contribution Credits for all Capital Contribution Credits in a Round, or seek other sources of funds. Should a Founder or Prospect choose to make contributions beyond the total funds called for in a given Round, these incremental commitments will be assigned to the next planned Capital Funding Round unless the Board approves the expansion of the current Capital Funding Round.
New Founders
Should the current Founders seek to invite an additional Founder to join the GMT Project, in accordance with the procedure specified in the Founders’ Agreement, the Board has the authority to offer available Capital Contribution Credits to the prospective Founder, provided that the prospective Founder is prepared to make a binding commitment pursuant to a Commitment Agreement to fund those Capital Contribution Credits. The roster of Prospects approved as potential Founders will be included in the GMT Plan of Finance.
Schedule I (back)
TABLE OF COMMITMENTS; CONTRIBUTION SCHEDULES
Capital Contribution Credits shown below reflect all Capital Contribution Credits for prior and current funding rounds, assuming full funding of all commitments.
|
Funding Round 1A |
Beginning January 1, 2015 |
|
|
|
Founder’s Name |
Capital Commitment |
Remaining Capital Contribution Funding Schedule (Date / Amount) |
Capital Contribution Credits Including Design 1, Design 2 and IA Rounds |
|
Carnegie Institution of Washington |
$41,397,000 |
$1,418,000 on June 15, 2015 $35,061,000 on June 15, 2016 $1,511,000 on June 15, 2017 $1,136,000 on June 15, 2018 $1,136,000 on June 15, 2019 $1,136,000 on June 15, 2020 |
943 which includes credits for Las Campanas site |
|
Harvard University |
$19,800,000 |
$3,960,000 on June 15, 2015 $3,960,000 on June 15, 2016 $3,960,000 on June 15, 2017 $3,960,000 on June 15, 2018 $3,960,000 on June 15, 2019 |
282 |
|
Smithsonian Astrophysical Observatory |
$0 |
$0 |
187 |
|
Texas A&M University |
$33,900,000 |
$4,750,000 on June 15, 2015 $6,225,000 on June 15, 2016 $3,875,000 on June 15, 2017 $4,075,000 on June 15, 2018 $3,775,000 on June 15, 2019 $3,775,000 on June 15, 2020 $3,725,000 on June 15, 2021 $3,700,000 on June 15, 2022 |
538 |
|
Arizona Board of Regents, a governmental authority, on behalf of the University of Arizona |
$25,924,000 |
$3,500,000 on June 15, 2016 $3,500,000 on June 15, 2017 $3,750,000 on June 15, 2018 $3,250,000 on June 15, 2019 $3,000,000 on June 15, 2020 $3,000,000 on June 15, 2021 $5,924,000 on June 15, 2022 |
677 |
|
Astronomy Australia Limited [8] |
$0 |
$0 |
476 |
|
The University of Texas at Austin |
$0 |
$0 |
600 |
|
Australian National University |
$15,575,000 |
$15,575,000 on June 15, 2015 |
476 |
|
Korea Astronomy and Space Science Institute |
$41,388,000 |
$7,600,000 on June 15, 2015 $7,600,000 on June 15, 2016 $7,600,000 on June 15, 2017 $7,600,000 on June 15, 2018 $7,600,000 on June 15, 2019 $3,388,000 on June 15, 2020 |
801 |
|
The University of Chicago |
$46,000,000 |
$4,143,000 on June 15, 2015 $7,143,000 on June 15, 2016 $7,143,000 on June 15, 2017 $7,143,000 on June 15, 2018 $4,143,000 on June 15, 2019 $7,143,000 on June 15, 2020 $9,143,000 on June 15, 2021 |
422 |
|
Fundacao de Amparo à Pesquisa do Estado de São Paulo |
$40,000,000 |
$5,000,000 on June 15, 2015 $5,000,000 on June 15, 2016 $5,000,000 on June 15, 2017 $5,000,000 on June 15, 2018 $5,000,000 on June 15, 2019 $5,000,000 on June 15, 2020 $5,000,000 on June 15, 2021 |
341 |
|
Design Round 1: Amounts Funded Prior to 6/30/13 |
|
|
Founder’s Name |
Previously Funded Amounts |
|
Carnegie Institution of Washington |
$18,219,000 |
|
Harvard University |
$2,499,000 |
|
Smithsonian Astrophysical Observatory |
$4,380,000 |
|
Texas A&M University |
$12,600,000 |
|
Arizona Board of Regents, a governmental authority, on behalf of the University of Arizona |
$14,076,000 |
|
Astronomy Australia Limited |
$3,330,000 |
|
The University of Texas at Austin |
$3,768,000 |
|
Australian National University |
$38,196,500 |
|
Korea Astronomy and Space Science Institute |
$24,562,000 |
|
The University of Chicago |
$2,000,000 |
|
Fundacao de Amparo à Pesquisa do Estado de São Paulo |
$0 |
|
Design Round 2 |
6/1/2013-9/30/14 |
After 9/30/14 |
|
Founder’s Name |
Previously Funded Amounts |
Remaining Capital Contribution Funding Schedule (Date / Amount) |
|
Carnegie Institution of Washington |
$4,424,000 |
$2,600,000 on December 31, 2014 |
|
Harvard University |
$4,000,000 |
$0 |
|
Smithsonian Astrophysical Observatory |
$6,300,000 |
$0 |
|
Texas A&M University |
$3,500,000 |
$0 |
|
Arizona Board of Regents, a governmental authority, on behalf of the University of Arizona |
$0 |
$20,000,000 on December 31, 2014 |
|
Astronomy Australia Limited |
$0 |
$0 |
|
The University of Texas at Austin |
$0 |
$46,232,000 on December 31, 2014 |
|
Australian National University |
$0 |
$9,425,000 |
|
Korea Astronomy and Space Science Institute |
$7,500,000 |
$550,000 on December 31, 2014 |
|
The University of Chicago |
$2,000,000 |
$0 |
|
Fundacao de Amparo à Pesquisa do Estado de São Paulo |
$0 |
$5,000,000 on December 31, 2014 |
Credit Allocations
Assumes full funding of commitments.
|
Founder’s Name |
Commitments 12/31/14 ($M) |
Percentage of Total Project Budget |
Credits at 12/31/14 |
Percentage of Credits* 12/31/14 |
Founder's Percentage** 12/31/14 |
Voting Board Members by Calculation 12/31/14 |
Current Voting Board Members |
|
Texas A&M University |
$50.0 |
4.71% |
538 |
5.98% |
9.37% |
1 |
2 |
|
Astronomy Australia Limited |
33.5 |
3.16% |
476 |
5.30% |
8.29% |
1 |
2 |
|
Australian National University |
33.0 |
3.11% |
476 |
5.30% |
8.29% |
1 |
2 |
|
Arizona Board of Regents, a governmental authority, on behalf of the University of Arizona |
60.0 |
5.66% |
677 |
7.52% |
11.79% |
2 |
2 |
|
Carnegie Institution of Washington |
79.1 |
7.46% |
943 |
10.48% |
16.42% |
2 |
2 |
|
The University of Chicago |
50.0 |
4.71% |
422 |
4.69% |
7.35% |
1 |
1 |
|
Harvard University |
26.3 |
2.48% |
282 |
3.13% |
4.91% |
0 |
1 |
|
Korea Astronomy and Space Science Institute |
74.0 |
7.00% |
801 |
8.90% |
13.95% |
2 |
2 |
|
Michigan/AURA |
11.4 |
1.08% |
N/A |
NA |
NA |
NA |
NA |
|
Fundacao de Amparo à Pesquisa do Estado de São Paulo |
40.0 |
3.77% |
341 |
3.79% |
5.94% |
1 |
0 |
|
Smithsonian Astrophysical Observatory |
10.7 |
1.01% |
187 |
2.08% |
3.26% |
0 |
1 |
|
The University of Texas at Austin |
50.0 |
4.71% |
600 |
6.67% |
10.45% |
2 |
1 |
|
Total |
$518.0 |
48.84% |
5743 |
63.81% |
100.0% |
13 |
16 |
* Calculated against total pool of Capital Contribution Credits
** Fraction of currently subscribed Capital Contribution Credits
[1] Note: Any amendment, alteration or repeal of any provision of the Founders’ Agreement that disproportionally and adversely affects a Founder relative to the other Founders as a group (other than amendment necessary to implement default provisions against a defaulting Founder) requires the consent of the affected Founder.
[2] Note: If any Indebtedness is outstanding, Lender approval may be required as well as necessary under the loan documents.
[3] Note: Any amendment, alteration or repeal of any provision of any Commitment Agreement that disproportionally and adversely affects a Founder relative to the other Founders with respect to all Commitment Agreements (other than amendment necessary to implement default provisions against a defaulting Founder) requires the consent of the affected Founder.
[4] Note: A Full Majority means a majority of the all the Directors on the Board (by headcount) entitled to vote on the relevant matter at such time.