NPG Merger

AGREEMENT AND PLAN OF MERGER
OF
NEGATIVE POPULATION GROWTH, INC.
(A New York Not-for-Profit Corporation)
WITH AND INTO
NEGATIVE POPULATION GROWTH, INC.
(A Delaware Non-Stock Corporation)
UNDER THE NAME OF
NEGATIVE POPULATION GROWTH, INC.

          THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of January __, 2015, is made by and between Negative Population Growth, Inc., a New York not-for-profit corporation (“NPG-NY”), and Negative Population Growth, Inc., a Delaware non-stock corporation (“NPG-DE”).  NPG-NY and NPG-DE together are referred to herein as the “Constituent Corporations”.

          NPG-NY was formed on June 12, 1972 under the laws of the state of New York upon the filing of a certificate of incorporation by the New York Department of State, which was approved by the Supreme Court of the State of New York and consented to by the New York Commissioner of Education.

          NPG-DE was formed on February 19, 2014 under the laws of the state of Delaware upon the filing of a certificate of incorporation by the Delaware Department of State.

          NPG-NY currently has one class of members.  The bylaws of NPG-NY allow the board of directors to divide membership into more than one class, provided, however, that all members, regardless of class of membership, shall be equal in voting privileges.  Pursuant to the bylaws, any person, including any individual, firm, corporation or unincorporated association, is eligible to be a member of NPG-NY upon signing such membership or application form as the board of directors may require and by the payment of such fees as shall be fixed by the board for membership.  There are no other requirements for membership.

          NPG-DE currently has one class of members.  The bylaws of NPG-DE allow the board of directors to divide membership into more than one class, provided, however, that all members, regardless of class of membership, shall be equal in voting privileges.  Pursuant to the bylaws, any person, including any individual, firm, corporation or unincorporated association, is eligible to be a member of NPG-DE upon signing such membership or application form as the board of directors may require and by the payment of such fees as shall be fixed by the board for membership.  There are no other requirements for membership.

          Neither NPG-NY nor NPG-DE has issued any shares or certificates evidencing capital contributions or subventions.

          Upon merger, NPG-DE members will remain members of NPG-DE and members of NPG-NY will become members of NPG-DE.

          The Board of Directors of NPG-NY and the Board of Directors of NPG-DE, have each (i) adopted and approved this Agreement, and (ii) authorized the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby in accordance with the terms hereof and the provisions of the New York Not-for-Profit Corporation Law (the “N-PCL”) as well as all other applicable laws.

          In consideration of the foregoing and the respective covenants contained herein, and intending to be legally bound, the Constituent Corporations hereto agree as follows:

 

ARTICLE 1

THE MERGER

          1.1       Merger.  Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the N-PCL, NPG-NY shall be merged with and into NPG-DE (the “Merger”) on the Effective Date (as hereinafter defined).  From and after the Effective Date, the separate existence of NPG-NY shall cease and NPG-DE, as the surviving corporation, shall continue to be a corporation existing under the Delaware General Corporation Law under the same name (the “Surviving Corporation”).

          1.2       Effective Date.  As soon as practicable, subject to the terms and conditions set forth in this Agreement, the Constituent Corporations shall cause a Certificate of Merger in the form of Exhibit A attached hereto (the “Certificate of Merger”) to be executed and filed with the Department of State of the State of New York.  The effective date of the Merger (the “Effective Date”) shall be the date on which the Certificate of Merger is so filed.  In addition, as soon as practicable, subject to the terms and conditions set forth in this Agreement, the Constituent Corporations shall cause this Agreement to be executed and filed with the Delaware Secretary of State or other appropriate governmental entity in the State of Delaware.

          1.3       Effects of the Merger.  The Merger shall have the effects set forth in this Agreement and the applicable provisions of the New York Not-for-Profit Corporation Law and the Delaware General Corporation Law.

          1.4       Certificate of Incorporation. The existing Certificate of Incorporation of NPG-DE (the “NPG-DE Certificate”) in effect prior to and as of the Effective Date shall be the Certificate of the Surviving Corporation.  Exhibit B attached hereto sets forth the NPG-DE Certificate as it shall read in its entirety, until thereafter amended or repealed as provided therein or by applicable law.  This Merger will not affect or amend the NPG-DE Certificate.

          1.5       By-Laws.  The existing by-laws of NPG-DE (the “NPG-DE By-Laws”) in effect prior to and as of the Effective Date shall be the by-laws of the Surviving Corporation.  Exhibit C attached hereto sets forth the NPG-DE By-Laws as they shall read in their entirety, until thereafter amended or repealed as provided therein or by applicable law.  This Merger will not affect or amend the NPG-DE By-Laws.

          1.6       Directors.  The names of the persons who shall be the Directors of the Surviving Corporation as of the Effective Date are set forth in Exhibit D attached hereto.

          1.7        Officers.  The names of the persons who shall be the officers of the Surviving Corporation as of the Effective Date and the respective offices they shall hold are as set forth in Exhibit E attached hereto.

 

ARTICLE 2

REPRESENTATIONS

          2.1       Authorization.  Each Constituent Corporation represents and warrants to the other that it has all requisite corporate power and authority and has taken all corporate action necessary in order to execute, deliver and perform its obligations under this Agreement and to consummate the Merger.

          2.2      Compliance.   Each Constituent Corporation represents and warrants to the other that it conducts its affairs substantially in compliance with all laws applicable to it or any of its business or property and that it is in substantial compliance with its financial obligations.

 

ARTICLE 3

ADDITIONAL COVENANTS

          3.1       Further Actions.  Each of the Constituent Corporations agrees to take, or cause to be taken, all such actions and to execute and deliver, or cause to be executed and delivered, all such documents as may reasonably be requested by the other to carry out and implement the terms and provisions of this Agreement, including using its reasonable best efforts to obtain mutually satisfactory approvals, orders and consents from the State of Delaware, if required, and the Office of the Attorney General of the State of New York or the Supreme Court of the State of New York.  In case, at any time after the Effective Date, any further actions or documents are reasonably necessary or desirable to carry out the purposes of this Agreement, the proper officers and directors of the Constituent Corporations or the Surviving Corporation, as the case may be, shall take, or cause to be taken, all such actions and execute and deliver, or cause to be executed and delivered, all such documents.

          3.2       Endowments.  Upon consummation of the Merger, the Surviving Corporation shall use any then existing endowments and restricted funds of the Constituent Corporations exclusively for the purposes for which they were created.

          3.3       Service of Process and Amenability to Suit in New York.    Upon consummation of the Merger, the surviving corporation may be served with process in New York in any action or special proceeding for the enforcement of any liability or obligation of any domestic corporation or of any foreign corporation, previously amenable to suit in New York, which is a Constituent Corporation.  Upon consummation of the Merger, the surviving corporation may be sued in New York in respect of any property transferred or conveyed to it as provided in paragraph (c) of section 907 of the New York Not-for-Profit Corporation Law, or the use made of such property, or any transaction in connection therewith.

 

ARTICLE 4

CONDITIONS

          The obligation of each of the Constituent Corporations to file the Certificate of Merger is subject to the accuracy of the representations and warranties of the other set forth in Article 2 and the performance by the other of its obligations under Article 3 to be performed on or prior to the date of such filing and to the receipt of the approvals, orders and consents referred to in Article 3.1 in form and substance reasonably satisfactory to it (or, if permitted by applicable law, waiver by the Constituent Corporation for whose benefit such condition exists).

 

ARTICLE 5

ABANDONMENT OF MERGER

          Notwithstanding anything contained in this Agreement to the contrary, at any time prior to the filing of the Certificate of Merger, the Merger may be abandoned and this Agreement may be terminated:

a)  by mutual written consent of the Constituent Corporations; or

b)  by either Constituent Corporation, if (i) the Merger shall not have been consummated by December 31, 2015 or (ii) the other Constituent Corporation has failed to perform its obligations under Article 3 hereof and such failure cannot be or has not been cured within 10 business days after the giving of written notice to such defaulting party.

          In the event of such abandonment and termination, this Agreement shall be deemed to be void and of no effect and there shall be no liability or obligation on the part of either Constituent Corporation, or its officers, directors or employees, other than (i) the provisions of this Article 5 and Article 7, and (ii) any liability of either Constituent Corporation for any breach of this Agreement prior to such termination.

ARTICLE 6

AMENDMENT

          To the extent permitted by applicable law, the Constituent Corporations may amend, modify or supplement this Agreement by mutual consent of their respective, duly authorized officers, in such manner as may be agreed upon by them in writing at any time prior to the filing of the Certificate of Merger.

 

ARTICLE 7

GENERAL PROVISIONS

          7.1       Entire Agreement.  This Agreement constitutes the entire agreement between the Constituent Corporations with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, between them with respect to the subject matter hereof.

          7.2       Notices.  All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by facsimile or by registered or certified mail (postage prepaid, return receipt requested) to the other party as follows:

To NPG-NY:

Donald Mann
2861 Duke Street, Suite 36
Alexandria, VA 22314
Facsimile: (954) 425-8236

 with a copy (which shall not constitute notice to NPG-NY) to:

Perlman & Perlman LLP
41 Madison Avenue, Suite 4000
New York, NY 10010
Attention: Karen Wu
Facsimile: (212) 743-8120

 To NPG-DE:

Craig Lewis
2861 Duke Street, Suite 36
Alexandria, VA 22314
Facsimile: (703) 370-9514

with a copy (which shall not constitute notice to NPG-DE) to:

Barnaby Zall, Esq.
Weinberg, Jacobs & Tolani, LLP
Suite 500
10411 Motor City Drive
Bethesda, Maryland 20817
Facsimile: (301) 468-5504

or to such other address as the person to whom notice is given may have previously furnished to the other in writing in the manner set forth above.

          7.3       Expenses.  Whether or not the Merger is consummated, any costs and expenses incurred in connection with this Agreement or the transactions contemplated hereby shall be borne by the party incurring the same.

          7.4       Survival.  The covenants and agreements set forth in Article 3 of this Agreement shall survive the Effective Date.

          7.5       Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement.

*     *     *     *     *

          IN WITNESS WHEREOF, each of the Constituent Corporations has caused this Agreement and Plan of Merger to be duly executed on its behalf as of the day and year first above written.

NEGATIVE POPULATION GROWTH, INC. 
(New York not-for-profit corporation)

By:                                                            
Donald Mann
President and Chairman

 

NEGATIVE POPULATION GROWTH, INC. 
(Delaware non-stock corporation)

By:                                                            
Craig Lewis
Executive Vice-President

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