[CCWG-ACCT] Documents for Posting for CCWG-ACCT

Avri Doria avri at acm.org
Mon Oct 5 12:10:07 UTC 2015


(sorry about the messed up subject.  resend)

hi,

Thanks for the explanation.

Who has standing to object? Any person?

thanks

avri



On 05-Oct-15 03:27, Rosemary E. Fei wrote:
>
> For the sake of completeness, although it’s not relevant to answering
> your question, Alan, I should have mentioned one other step:  Unless a
> corporation has no assets, attached to the Certificate of Dissolution
> must be a waiver from the California Attorney General of objections to
> the corporation’s distribution of assets.  Without that, the
> Certificate of Dissolution will not be accepted for filing by the
> California Secretary of State and the dissolution will be incomplete. 
> The process of seeking that waiver from the AG generally occurs after
> the election to dissolve, and before any substantial distribution of
> assets.
>
>  
>
> Rosemary
>
>  
>
> *From:*Rosemary E. Fei
> *Sent:* Sunday, October 04, 2015 11:36 PM
> *To:* Holly Gregory; Alan Greenberg; leonfelipe at sanchez.mx;
> thomas at rickert.net; mathieu.weill at afnic.fr;
> accountability-cross-community at icann.org
> *Cc:* Sidley ICANN CCWG; ACCT-Staff; ICANN-Adler
> *Subject:* RE: [CCWG-ACCT] Documents for Posting for CCWG-ACCT
>
>  
>
> Dear Alan:
>
>  
>
> You asked the following question:
>
>  
>
> Although it has no direct impact on the current discussion, could you
> please further elaborate on your statement at the top of page 2 that
> the corporation can be dissolved by a simple majority of a minimal
> quorum (5/9/16). The California statute [1900.5.a and 1900.5.a(7)]
> seems to state that for dissolution, a majority of directors must sign
> a certificate of dissolution. That would imply that 9 were required
> (presuming the Board had its full complement of voting directors at
> that time).
>
>  
>
> The sections that you cite in the excerpt above relate to California’s
> General Corporation Law, which applies to business corporations,
> rather than its Nonprofit Public Benefit Corporation Law, which
> applies to ICANN.  Since the two laws are roughly parallel, though, we
> understand your point regarding who signs the Certificate of
> Dissolution.  That final step in the dissolution process can only be
> understood in the context of how the entire dissolution process works.
>
>  
>
> The relevant statutory requirements are in Sections 6610 et seq. of
> the Nonprofit Public Benefit Corporation Law, which is part of the
> California Corporations Code.  As mentioned in footnote 1 of the
> memorandum, Section 6610(b) provides that, in a corporation without
> memberssuch as ICANN is today, a corporation may elect by approval of
> the board to wind up and dissolve.  This approval could legally take
> place at a meeting at which a bare quorum of the Board were present; a
> majority of those present would then be enough to elect dissolution. 
> No higher voting requirement is imposedby the law or by ICANN’s
> current governing documents.  It is this vote that is the key board
> action necessary to start the process of dissolving the corporation. 
>
>  
>
> The next step, described in Section 6611, is the requirement to file
> with the California Secretary of State a certificate evidencing this
> election to dissolve.  This certificate may be signed by two officers
> (it could instead be signed by a majority of the directors then in
> office, but this is not required; two officers is sufficient by
> law).   We assume that even the mere filing of a Certificate of
> Election to Dissolve would be extremely disruptive to ICANN.
>
>  
>
> Section 6613 makes it clear that after theseinitial steps, the
> dissolution process commences.  That is, the affairs of the
> corporation are wound up, and the assets of the corporation are
> liquidated and/or distributed as required by the law and its Articles
> of Incorporation.  (Before any assets are distributed, the election to
> dissolve can be revoked, as provided in Section 6612.)  When the
> corporation’s affairs have been completely wound up, thefinal step
> occurs: filing a Certificate of Dissolution with the Secretary of
> State to end the corporation’s existence by dissolution. As Section
> 6615 provides, this Certificate must be signed by a majority of the
> directors then in office.  This is the requirement you refer to in
> your question.  It is true that, depending on how many directors are
> still in office at this stage, it is possible that more directors
> would need to sign the Certificate of Dissolution than the number who
> earlier authorized the dissolution.  However, since the Certificate of
> Dissolution is not filed until the very end of the dissolution
> process, its signature requirement does not prevent the dissolution
> process from being initiated by the Board under the scenario discussed
> above.
>
>  
>
> We hope this clarifies the legal requirements for dissolving a
> non-member nonprofit public benefit corporation.
>
>  
>
> Rosemary
>
>  
>
> Rosemary E. Fei
> Adler & Colvin
> 235 Montgomery Street, Suite 1220
> San Francisco, CA 94104
> 415/421-7555 (phone)
> 415/421-0712 (fax)
> rfei at adlercolvin.com <mailto:rfei at adlercolvin.com>
> www.adlercolvin.com <http://www.adlercolvin.com>
>
> 	
>
>  
>
> _____________________________
>
> Adler & Colvin is a San Francisco Green Business certified by the City
> and County of San Francisco. Please consider the environment before
> you print this email.
>
>  
>
> *From:*Holly Gregory
> *Sent:* Sunday, October 04, 2015 4:59 PM
> *To:* Alan Greenberg; leonfelipe at sanchez.mx
> <mailto:leonfelipe at sanchez.mx>; thomas at rickert.net
> <mailto:thomas at rickert.net>; mathieu.weill at afnic.fr
> <mailto:mathieu.weill at afnic.fr>;
> accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>
> *Cc:* Sidley ICANN CCWG; ACCT-Staff; ICANN-Adler; Rosemary E. Fei
> *Subject:* RE: [CCWG-ACCT] Documents for Posting for CCWG-ACCT
>
>  
>
> Hi Alan, Thanks for your question.  The footnote we provided explained
> that section and addresses your question. Rosemary will send along a
> further explanatory note to clarify (as our expert on California not
> for profit law).  Kind regards, Holly
>
>
>
> Sent with Good (www.good.com <http://www.good.com>)**
>
> * *
>
> ------------------------------------------------------------------------
>
> *From:*Alan Greenberg
> *Sent:* Sunday, October 04, 2015 04:47:39 PM
> *To:* Gregory, Holly; leonfelipe at sanchez.mx
> <mailto:leonfelipe at sanchez.mx>; thomas at rickert.net
> <mailto:thomas at rickert.net>; mathieu.weill at afnic.fr
> <mailto:mathieu.weill at afnic.fr>;
> accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>
> *Cc:* Sidley ICANN CCWG; ACCT-Staff; ICANN at adlercolvin.com
> <mailto:ICANN at adlercolvin.com>
> *Subject:* Re: [CCWG-ACCT] Documents for Posting for CCWG-ACCT
>
> Holly,
>
> Although it has no direct impact on the current discussion, could you
> please further elaborate on your statement at the top of page 2 that
> the corporation can be dissolved by a simple majority of a minimal
> quorum (5/9/16). The California statute [1900.5.a and 1900.5.a(7)]
> seems to state that for dissolution, a majority of directors must sign
> a certificate of dissolution. That would imply that 9 were required
> (presuming the Board had its full complement of voting directors at
> that time).
>
> Alan
>
> At 02/10/2015 03:38 PM, Gregory, Holly wrote:
>
> Thomas, Mathieu and Leon and CCWG,,
>  In addition to slides comparing the Sole Member, Sole Designator and
> Board Proposal from last week (which we understand did not get posted
> yet) , we are providing a memo as requested in LA that discusses how
> the statutory rights of a member can be constrained in the Sole Member
> model.
> Kind regards, Holly and Rosemary
>  
>  
> *HOLLY* *GREGORY*
> Partner
>
> *Sidley Austin LLP
> *+1 212 839 5853
> holly.gregory at sidley.com <mailto:holly.gregory at sidley.com>
>  
>  
>
>  
>
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> Content-Type: application/pdf; name="CCWG Memo_ Constraining the
> Exercise of"
>  Statutory Rights (00719283xA3536....pdf"
> Content-Description: CCWG Memo_ Constraining the Exercise of Statutory
>  Rights (00719283xA3536....pdf
> Content-Disposition: attachment; filename="CCWG Memo_ Constraining the"
>  Exercise of Statutory Rights (00719283xA3536....pdf"; size=54222;
>          creation-date="Fri, 02 Oct 2015 19:20:05 GMT";
>          modification-date="Fri, 02 Oct 2015 19:20:05 GMT"
>
> Content-Type:
> application/vnd.openxmlformats-officedocument.presentationml.presentation;
>          name="Revised Slides - Key Characteristics Comparison. CMSM,
> CMSD, and Board"
>  P....pptx"
> Content-Description: Revised Slides - Key Characteristics Comparison.
> CMSM,
>  CMSD, and Board P....pptx
> Content-Disposition: attachment; filename="Revised Slides - Key"
>  Characteristics Comparison. CMSM, CMSD, and Board P....pptx";
> size=493931;
>          creation-date="Fri, 02 Oct 2015 19:20:06 GMT";
>          modification-date="Fri, 02 Oct 2015 19:20:06 GMT"
>
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