DRAFT AGREEMENT OF MERGER

Transcription

1 DRAFT AGREEMENT OF MERGER This agreement of merger (this Agreement ), dated as of, 2012, is entered into by and between Citizens of the World Charter Schools Los Angeles, a California nonprofit public benefit corporation (the Surviving Corporation ) and Citizens of the World Charter Co., a California nonprofit public benefit corporation (the Disappearing Corporation and, together with the Surviving Corporation, the Parties ). WHEREAS, the Parties intend by this Agreement to set forth the terms and conditions of a merger, subject to approvals as required by law and by the articles of incorporation and bylaws of the Parties; WHEREAS, the Surviving Corporation s sole member is Citizens of the World Charter Schools, a California nonprofit public benefit corporation; WHEREAS, the Disappearing Corporation has no members within the meaning of section 5056 of the California Nonprofit Corporation Law (the Law ). WHEREAS, in order to achieve operational efficiency and to better serve their common charitable and educational tax-exempt purposes, the Parties have determined that it is advisable and in the best interest of each of them that the Disappearing Corporation be merged with and into the Surviving Corporation on the terms and conditions hereinafter set forth, in accordance with the applicable provisions of the statutes of the State of California which permit such merger, including, without limitation, Sections 6010 and 6018 of the Law. NOW, THEREFORE, in consideration of the premises and of the agreements, covenants and mutual promises hereinafter contained, the Parties hereby agree as follows: 1. Statement of Merger. It is agreed by the Parties that, on the Effective Date as determined under Paragraph 3 of this Agreement, the Disappearing Corporation shall be merged with and into the Surviving Corporation (the Merger ), the corporate existence of the Surviving Corporation shall continue, and the separate corporate existence of the Disappearing Corporation shall cease. The corporate identity, existence, purposes, powers, rights, and immunities of the Disappearing Corporation shall be merged into, and vested in, the Surviving Corporation and, except as otherwise provided in this Agreement, the corporate identity, existence, name, purposes, powers, rights, and immunities of the Surviving Corporation shall continue unaffected and unimpaired by the Merger. 2. Liabilities of Disappearing Corporation. The Surviving Corporation shall be subject to all of the Disappearing Corporation s debts, liabilities, and trust obligations in the same manner as if the Surviving Corporation had itself incurred them, and all rights of creditors and all liens and trust obligations on, or arising from, the property of each constituent corporation shall be preserved unimpaired, as long as such liens and trust obligations on the property of the Disappearing Corporation, if any, shall be limited to the property affected by such liens and obligations immediately before the Effective Date.

2 3. Effective Date. When all applicable laws have been complied with and all necessary notices have been timely provided, including pursuant to Paragraph 8, below, and any required authorizations, approvals, or consents have been received, a copy of this Agreement, together with an officer s certificate of each of the Parties, shall be submitted by the Surviving Corporation to the California Secretary of State for filing. The Merger shall become effective on the date of the latest of (i) such filing or (ii) August 1, 2012 (the Effective Date ). 4. Approvals and Consents. The Merger is subject to approval by the sole member of the Surviving Corporation, which has been received as indicated by its signature hereto. 5. s and Officers. The Surviving Corporation s directors and officers from and after the Effective Date until changed in accordance with the Law and in accordance with the Surviving Corporation s articles of incorporation and bylaws, shall be those individuals who are set forth on Exhibit A attached hereto and incorporated herein by this reference. 6. Sole Member. The membership in the Surviving Corporation outstanding on the Effective Date shall not be changed or converted as a result of the Merger but shall remain outstanding as the sole membership in the Surviving Corporation. The Disappearing Corporation has no members. 7. Articles of Incorporation and Bylaws. No amendments to the articles of incorporation and bylaws of the Surviving Corporation are required in any respect by reason of this Agreement or the Merger. 8. Notice to Attorney General. No later than twenty (20) days prior to the Effective Date, written notice of the Merger and a fully executed copy of this Agreement shall have been provided to the California Attorney General in accordance with Section 6010(b) of the Law. 9. Termination or Abandonment. This Agreement may be terminated and the Merger abandoned at any time before the Effective Date: (i) by the mutual consent of the respective boards of directors of the Parties or (ii) if, in the opinion of the board of directors of either the Disappearing Corporation or the Surviving Corporation, evidenced by a certified copy of resolutions of that board provided to the other party to this Agreement, the Merger is impractical or undesirable because of any of the following facts or circumstances: (a) a material and adverse change in the other party s activities, holdings, or financial position or (b) the inability to obtain the necessary approvals. If termination occurs as provided in this Paragraph 9, neither the Disappearing Corporation nor the Surviving Corporation or their respective boards of directors or members shall be liable to the other or its board of directors or, with respect to the Surviving Corporation, its member. 10. Amendments to Agreement. This Agreement may be amended by the mutual consent of the boards of directors of the Parties, except that any amendment that would change any of the principal terms of the Agreement must be approved by the sole member of the Surviving Corporation. 11. Governing Law. This Agreement shall be governed by the law of the State of California. The Parties consent to the jurisdiction of California courts over all matters relating to 2

3 this Agreement. The venue of any dispute between the Parties shall be Los Angeles County, California. 12. Entire Agreement. This Agreement (including Exhibit A) contains the entire understanding of the Parties with respect to the transactions contemplated by this Agreement and supersedes all prior contemporaneous agreements, understandings, representations and statements, oral or written, between the Parties on the subject matter of this Agreement. 13. Counterparts. This Agreement may be executed in any number of counterparts and each such counterpart shall be deemed to be an original instrument, but all of them together shall constitute only one Agreement. 14. Further Assurances. On request by the Surviving Corporation, the Disappearing Corporation shall, from time to time, execute and deliver such documents and instruments and take such actions that may be necessary or convenient to vest in the Surviving Corporation the title to, and possession of, all rights, properties, assets, trusts, and business of the Disappearing Corporation or otherwise to carry out the intent and purpose of this Agreement. (Signature page follows) 3

4 IN WITNESS WHEREOF, the Surviving Corporation and the Disappearing Corporation, pursuant to the approval and authority duly given by resolutions duly adopted by their respective Boards of s, have caused this Agreement to be executed by the authorized officers of each of the Surviving Corporation and the Disappearing Corporation as of the date first above written. Surviving Corporation: Citizens of the World Charter Schools Los Angeles, a California nonprofit public benefit corporation Disappearing Corporation: Citizens of the World Charter Co., a California nonprofit public benefit corporation J. Kristean Dragon Name: Eugene Straub Secretary Name: Secretary Approval of Sole Member : Citizens of the World Charter Schools, a California nonprofit public benefit corporation and sole member of Citizens of the World Charter Schools Los Angeles, hereby approves this Agreement as of the date first above written. J. Kristean Dragon 4

5 Exhibit A Officers and s J. Kristean Dragon and Eugene Straub Secretary, CFO and Derrick Chau Krupa Desai Hillary Johnson Yvette King-Berg Josh McLaughlin Heather McManus James Randle John Sun Craig Tessler