Annex to Document Register No. 1095 /2006 of Notary Public Dr. F.-J. Peus in Münster from September 21, 2006
Memorandum and Articles of Association of 52° North Initiative for Geospatial Open Source Software GmbH whose Registered Office is in Münster/Westphalia
Art. 1 Name, Registered Office
(1) The Company is a private limited company by the name of 52° North Initiative for Geospatial Open Source Software GmbH.
(2) The Company has its registered office in Münster.
Art. 2 Object of the Enterprise
(1) The object of the enterprise is to promote the conception, development and application of free open source geo-software for research, education/training and practical use. The goals are:
- to promote science and research, education and training in the field of geo- informatics,
- to promote the mutual transfer of knowledge between research and practical use,
- to improve the availability of geo-information technologies and technology competence in developing and transformation countries.
Implementation of the goals is to be effected in particular through:
- the organisation of a collaborative software development process between science, business and administration,
- the coordination of national and international research and development projects,
- the quality management of the 52° North Open Source Software
- communication support and PR work for the international 52° North developer community,
- management of the utilisation rights to the 52° North Open Source Software
- the establishment of legal certainty and security for the developers and users of the 52° North Open Source Software.
(2) Funds of the Company may only be used for the purposes as set forth in its statutes. The shareholders may receive no profit shares and, in their capacity as shareholders, no other payments from funds of the Company. The Company may not apply its funds, whether directly or indirectly, for the support or promotion of political parties.
(3) The Company may not enter into competition, whether directly or indirectly, with any of its shareholders.
(4) The Company may not favour any person through expenditure which is foreign to the purposes of the Company or through disproportionately high remuneration.
Art. 3 Nominal Capital
(1) The nominal capital of the Company amounts to € 26,000.-- (Euro twenty-six thousand).
(2) Towards the nominal capital, *
a) con terra - Gesellschaft für Angewandte Informationstechnologie mbH, Münster (No. HR B 4149 in the commercial register of Münster Local Court), has a nominal amount of shares of € 6,240.--
b) the foundation incorporated under Dutch law by the name of Stichting International Institute for Geo-Information Science and Earth Observation (ITC), Enschede, has a nominal amount of shares of € 6,760.--
c) Münster University has has a nominal amount of shares of € 6,760.--.
d) Environmental Systems Research Institute Inc., of Redlands, Ca. USA has a nominal amount of shares of € 6,240.--.
(3) The original capital contributions must be paid in cash. They are due and payable immediately.
Art. 4 Term, Financial Year
(1) The Company has not been formed for a defined term.
(2) The financial year is the calendar year.
Art. 5 Management
(1) The Company has one or more managing directors. Where the Company has more than one managing director, one of them may be appointed by a shareholders meeting to the position of chairman of the management.
(2) The managing directors have a duty to conduct the business of the Company in compliance with the law, the provisions of the Memorandum and Articles of Association, any bylaws as may be adopted by the shareholders and all other resolutions of the shareholders.
(3) Notwithstanding the power of representation towards outside parties, the power of the managing directors to conduct the business of the Company is limited to such acts and transactions as occur in the normal course of the commercial operations of the Company. Any acts and transactions beyond the scope as aforesaid are only permissible with the prior consent of a shareholders meeting. The consent of a shareholders meeting shall always be required for any of the following acts and measures:
a) purchase, sale and encumbrance of real property and rights equivalent to real property,
b) erection of buildings or the performance of building alterations involving expenses of more than € 50,000.--,
c) procurement or sale of fixtures or furnishings with a value in each case of more than € 50,000.--,
d) raising or granting of credits and loans and guarantees with a value in each case of more than € 50,000.--,
e) purchase and sale of participating interests in other enterprises,
f) conclusion of agreements on the inclusion of a silent partner,
g) all acts which are declared by a shareholders meeting as requiring consent, except such acts as are required mandatorily by law,
h) licence agreements with shareholders,
i) other agreements and contracts with shareholders obliging the Company to make payments in an amount of more than € 50,000.--,
j) appointment of employees with an annual salary of more than € 50,000.--,
k) all agreements and contracts obliging the Company to make payments in an amount of more than € 500,000.--.
Art. 6 Representation
(1) The Company is represented by one managing director alone if he/she is the sole managing director or has been granted power by resolution of a shareholders meeting to represent the Company alone. Otherwise, the Company is represented by two managing directors jointly or by one managing director jointly with an authorised commercial signatory.
(2) One, several or all of the managing directors may, by resolution of a shareholders meeting, be released from the restrictions pursuant to Section 181 BGB [German Civil Code] (prohibition to conclude legal transactions on behalf of the Company with oneself acting in one’s own name or as representative of a third party).
Art. 7 Scientific and Technical Advisory Board
(1) The Company has a scientific and technical advisory board comprising at least four members.
(2) Each shareholder has the right to appoint and discharge one member of the advisory board. The other members are appointed and discharged by a shareholders meeting.
(3) Membership of the advisory board is honorary. The members therefore receive no remuneration for their services. The shareholders meeting may, however, resolve on a case-by-case basis that a member of the advisory board receive compensation in reasonable amount for the costs of travel to advisory board meetings.
(4) The advisory board has the following tasks:
a) To advise the Company in respect of scientific, organisational and technical questions arising from the object of the enterprise (Art. 2).
b) To assess the activities of the Company once a year and to report on this to the shareholders meeting. (5) The advisory board shall give itself a set of standing rules. It shall elect a chair-person from among its members.
Art. 8 Shareholders Meetings, Shareholders’ Resolutions
(1) An ordinary shareholders meeting must be held within the first six months following the end of each financial year. It is called by the managing directors with at least two weeks’ prior notice, the day of dispatch of the invitation and the day of the shareholders meeting being not included in calculation of the aforesaid two-week period. As well as by registered letter, invitations may also be issued in return for a written acknowledgement of receipt or by telefax. The invitation must be accompanied by the agenda of the meeting and the annual financial statements for the preceding financial year prepared by the managing directors together with the auditor’s report, if an auditor has been appointed.
(2) An extraordinary shareholders meeting may be called by the managing directors at any time with the same period of notice as set forth above. They shall have a duty to call such meeting if requested to do so by one shareholder at least. The minority rights pursuant to Section 50 GmbH-Gesetz [Private Limited Companies Act] shall remain unaffected.
(3) Shareholders meetings shall be held at the registered office of the Company; they may, with the consent of all shareholders, also be held at any other place. Each shareholder may be represented by a representative authorised by written power of attorney.
(4) At each shareholders meeting, the shareholders shall elect a chairman from among their members.
(5) A shareholders meeting shall be deemed to have a quorum if the whole of the nominal capital is represented. If this is not the case, a new shareholders meeting with the same agenda must be called within at least two weeks with two weeks’ prior notice. This meeting shall be deemed to have a quorum in every case provided this fact is indicated in the invitation.
(6) Each share of € 1.-- in the nominal capital of the Company shall confer one vote. To be adopted, resolutions require a two-thirds majority of the votes cast at the shareholders meeting, unless a different majority is specified in the law or the Memorandum and Articles of Association. Changes to the statutes can only be adopted unanimously. The same shall also apply to admission to make a further original capital contribution (Section 55 Clause 2 GmbH-Gesetz).
(7) Unless another form is mandatorily specified by law or the Memorandum and Articles of Association, shareholders’ resolutions may also be adopted outside of shareholders meetings through written voting, provided each shareholder participates in the voting. A declaration sent by telefax shall also be deemed to have been made in writing.
(8) Each resolution adopted by a shareholders meeting or by written vote must be recorded in writing. The minutes of each shareholders meeting must be produced by the minute keeper elected at the meeting and signed by him/her and the chairman; the written record of resolutions adopted by written vote must be signed by the managing directors. The managing directors must send photocopies of the written records to each shareholder within two weeks.
Art. 9 Annual Financial Statements, Appropriation of Net Income
(1) The managing directors must prepare the annual financial statements with management report within the statutory period following the end of the financial year. The next ordinary shareholders meeting shall then resolve on adoption of the annual financial statements and on the appropriation and distribution of the net income.
(2) The annual surplus may only be used for the objects of the Company as set forth in the Memorandum and Articles of Association. The shareholders shall receive no profit shares.
(3) A shareholders meeting may resolve to appoint an auditor if such appointment is not already required by law.
Art. 10 Announcements
Announcements of the Company will be made in the electronic Federal Gazette only.
Art. 11 Recall of Capital Shares
(1) The capital share of a shareholder may be recalled without his consent if
a) the capital share is garnished by a creditor of the shareholder or if execution is otherwise levied on it and the enforcement measure is not lifted within three months,
b) bankruptcy proceedings are opened against the shareholder or the opening of such proceedings is refused for lack of funds,
c) grounds are found to exist in the person of the shareholder which justify his exclusion.
(2) The recall shall become effective on service of the resolution recalling the share, irrespective of the time at which the amount of compensation due to the retiring shareholder is determined.
Art. 12 Retirement from the Company
(1) Each shareholder may retire from the Company at the end of a financial year with at least six months’ prior notice. The notice of retirement must be made in writing to all the other shareholders. The notice of withdrawal must be sent by registered letter or given in return for a written acknowledgement of receipt.
(2) The retirement of a shareholder shall not cause the Company to be dissolved unless all the other shareholders likewise give notice of retirement within three months from receipt of the original notice of retirement.
Art. 13 Compensation
(1) A shareholder leaving the Company through recall of his shares or notice of retirement shall receive compensation from the Company in the amount of the book value of his participating interest in the Company on the day of his leaving the Company, though not more than the original capital contribution paid by him.
(2) The due compensation must be paid to the shareholder within six months from his leaving the Company; no interest is payable on the compensation.
Art. 14 Disposal of Capital Shares, Right of First Refusal
(1) To be effective, the disposal of a capital share (assignment, pledging or grant of usufruct) shall require the consent of the Company. The managing directors may give such consent only on the strength of a unanimous resolution of a shareholders meeting.
(2) Should a shareholder wish to sell his capital share, each other shareholder shall have a right of first refusal. This shall also apply in the case of sale to a fellow shareholder. The period as set forth in Section 469 Para. 2 Sentence 1 BGB for the exercise of a right of first refusal shall be extended to two weeks after the receipt of a notarised copy of the agreement on sale and purchase of the share.
Art. 15 Dissolution of the Company
If the Company is dissolved or annulled or if its purpose as existing hitherto ceases to exist, any assets of the Company that exceed the original capital contributions paid by the shareholders shall be transferred to a non-profit organisation that supports the objects of the Company as set forth in Art. 2. The original capital contributions paid in shall be paid back to the shareholders if the assets of the Company are sufficient for that purpose.
Art. 16 Formation Expenses
The notarisation, court and accountancy costs associated with formation of the Company (formation expenses) shall be borne by the Company up to an amount of altogether € 1,500.--.
Art. 17 Salvation Clause
Should any of the provisions of this deed be or become ineffective or should it be found to have any omissions, this shall have no effect on the validity of the other provisions. In any such case, the shareholders shall have a duty to agree on a valid provision in place of the invalid provision or to fill the missing provision which most nearly corresponds in economic intent to that of the invalid provision or which, in light of the sense and purpose of this deed, would have been agreed had the parties hereto given consideration to the point in question.
* There has been a shift of shares as of February 17, 2009. The shares stated in this document are the current shares.