Attached files
| file | filename |
|---|---|
| 8-K - Xcorporeal, Inc. | v178528_8k.htm |
| EX-10.3 - Xcorporeal, Inc. | v178528_ex10-3.htm |
| EX-10.2 - Xcorporeal, Inc. | v178528_ex10-2.htm |
| EX-10.1 - Xcorporeal, Inc. | v178528_ex10-1.htm |
Exhibit
2.1
PLAN OF LIQUIDATION AND
DISSOLUTION OF XCORPOREAL OPERATIONS, INC.
This Plan
of Liquidation and Dissolution (the “Plan”) is intended to
accomplish the dissolution and liquidation of Xcorporeal Operations, Inc., a
Delaware corporation (the “Company”), in
accordance with Section 275 and other applicable provisions of the General
Corporation Law of the State of Delaware (“DGCL”).
1. Approval
and Adoption of Plan.
This Plan
shall be effective when all of the following steps have been
completed:
(a) Resolutions of the Company’s Board
of Directors: The Company’s Board of Directors (the “Board”) shall have
adopted a resolution or resolutions with respect to the following:
(i) Complete Liquidation and
Dissolution: The Board shall deem it advisable for the Company
to be dissolved and liquidated completely.
(ii) Adoption of the
Plan: The Board shall approve this Plan as the appropriate
means for carrying out the complete dissolution and liquidation of the
Company.
(iii) Sale and Distribution of
Assets: The Board shall determine that, as part of the Plan
(but not as a separate matter arising under Section 271 of the DGCL), it is
deemed expedient and in the best interests of the Company (x) subject to the
approval of the Company’s stockholders at a special or annual meeting of the
stockholders of the Company called for such purpose by the Board (the “Stockholder
Approval”), to sell all or substantially all of the Company’s assets to
Fresenius USA, Inc., a Massachusetts corporation and a wholly-owned subsidiary
of Fresenius Medical Care Holdings, Inc. (the “Asset Sale”), and
transfer the proceeds of the Asset Sale and any of the Company’s assets
remaining after the Asset Sale (collectively, the “Remaining Assets”)
and all liabilities and obligations of the Company remaining on the date of
dissolution of the Company (collectively, the “Remaining
Liabilities”) to the Liquidating Trust (as defined below) or (y) if
Stockholder Approval is not obtained, to sell or distribute to stockholders all
or substantially all of the Company’s property and assets, if any, in order to
facilitate liquidation and distribution to the Company’s creditors and
stockholders, as appropriate.
(b) Adoption of this Plan by the
Company’s Stockholders. This Plan, including the dissolution
of the Company and those provisions authorizing the Board (x) subject to
Stockholder Approval, to proceed with the Asset Sale and transfer to the
Liquidating Trust of the Remaining Assets or (y) to sell or distribute to
stockholders all or substantially all of the Company’s assets in connection
therewith, shall have been approved by the holders of a majority of the voting
power of the outstanding capital stock of the Company entitled to vote thereon
at a special or annual meeting of the stockholders of the Company called for
such purpose by the Board. The date of such approval shall be referred to in
this Plan as the “Approval
Date.”
2. Dissolution
and Liquidation Period.
Once the
Plan is effective, the steps set forth below shall be completed at such times as
the Board, in its absolute discretion, deems necessary, appropriate or
advisable:
(a) the
filing of a Certificate of Dissolution of the Company (the “Certificate of
Dissolution”) pursuant to Section 275 of the DGCL specifying the date (no
later than ninety (90) days after the filing) upon which the Certificate of
Dissolution shall become effective (the “Effective Date”), and
the completion of all actions that may be necessary, appropriate or desirable to
dissolve the Company;
(b) the
cessation of all of the Company’s business activities and the withdrawal of the
Company from any jurisdiction in which it is qualified to do business, except
and insofar as necessary for the sale of its assets and for the proper winding
up of the Company pursuant to Section 278 of the DGCL;
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(c) the
negotiation and consummation of sales and conversion of all of the assets and
properties of the Company remaining after the Asset Sale into cash and/or other
distribution form, including the assumption by the purchaser or purchasers of
any or all liabilities of the Company;
(d) the
taking of all actions required or permitted under the dissolution procedures of
Section 281(b) of the DGCL; and
(e) the
(i) payment or making reasonable provision to pay all claims and obligations of
the Company, including all contingent, conditional or unmatured claims known to
the Company; and (ii) making of such provision as will be reasonably likely to
be sufficient to provide compensation for any claim against the Company which is
the subject of a pending action, suit or proceeding to which the Company is a
party; and (iii) making of such provision as shall be reasonably likely to be
sufficient to provide compensation for claims that have not been made known to
the Company or that have not arisen but that, based on facts known to the
Company, are likely to arise or to become known to the Company within ten years
after the date of dissolution. Provided that (x) the Stockholder Approval shall
have been obtained, the Approval Date shall have occurred and a Certificate of
Dissolution shall have been filed with respect to the Company as provided in
Section 275(d) of the DGCL, the Remaining Assets and all Remaining Liabilities
and any unexpended amounts remaining in the Contingency Reserve (as defined
below) shall be transferred to the Liquidating Trust described in Section 8
below no later than 90 calendar days of the Approval Date for purposes of
satisfying such Remaining Liabilities and the distribution of the funds and
assets of the Company, if any, to its stockholders pursuant to the terms of the
Liquidating Trust, this Plan and the DGCL or (y) if the Stockholder Approval is
not obtained, the Approval Date shall have occurred and a Certificate of
Dissolution shall have been filed with respect to the Company as provided in
Section 275(d) of the DGCL, any unexpended amounts remaining in the Contingency
Reserve (defined below) and the distribution of the remaining funds, assets and
properties of the Company, if any, to its stockholders no later than the tenth
anniversary of the Approval Date (the “Final Distribution
Date”).
Without
limiting the generality of the foregoing, the Board may instruct the officers of
the Company to delay the taking of any of the foregoing steps until the Company
has performed such actions as the Board or such officers determine to be
necessary, appropriate or advisable for the Company to maximize the value of the
Company’s assets upon liquidation; provided, that such steps may not be delayed
longer than is permitted by applicable law.
In
addition, notwithstanding the foregoing, the Company shall not be required to
follow the procedures described in Section 281(b) of the DGCL, and the adoption
of the Plan by the stockholder of the Company as provided in Section 1 above
shall constitute full and complete authority for the Board and the officers of
the Company, without further stockholder action, to proceed with the dissolution
and liquidation of the Company in accordance with any applicable provision of
the DGCL, including, without limitation, Sections 280 and 281(a)
thereof.
3. Authority
of Officers and Directors.
After the
Effective Date, the Board and the officers of the Company shall continue in
their positions for the purpose of winding up the affairs of the Company as
contemplated by Delaware law. The Board may appoint officers, hire employees and
retain independent contractors and advisors in connection with the winding up
process, and is authorized to pay to the Company’s officers, directors and
employees, or any of them, compensation or additional compensation above their
regular compensation, in money or other property, in recognition of the
extraordinary efforts they, or any of them, shall be required to undertake, or
actually undertake, in connection with the successful implementation of this
Plan. Adoption of this Plan by the stockholders of the Company as provided in
Section 1 above shall constitute the approval by the Company’s stockholders of
the Board’s authorization of the payment of any such compensation.
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The
adoption of the Plan by the stockholders of the Company as provided in Section 1
above shall constitute full and complete authority for the Board and the
officers of the Company, without further stockholder action, to do and perform
any and all acts and to make, execute and deliver any and all agreements,
conveyances, assignments, transfers, certificates and other documents of any
kind and character that the Board or such officers deem necessary, appropriate
or advisable: (i) to dissolve the Company in accordance with the laws of the
State of Delaware and cause its withdrawal from all jurisdictions in which it is
authorized to do business; (ii) (x) subject to Stockholder Approval, to proceed
with the Asset Sale and to transfer the Remaining Assets and Remaining
Liabilities to the Liquidating Trust or (y) otherwise to sell, dispose, convey,
transfer and deliver all of the assets and properties of the Company; (iii) to
satisfy or provide for the satisfaction of the Company’s obligations in
accordance with Sections 280 and 281 of the DGCL; and (iv) (x) for the Trustee
or for the Board, as applicable, to distribute any properties and assets of the
Company and all remaining funds pro rata to the stockholders
of the Company’s common stock in accordance with the respective number of shares
then held of record as of Effective Date.
4. Conversion
of Assets Into Cash and/or Other Distributable Form.
Subject
to approval by the Board and the consummation of the Asset Sale, the officers,
employees and agents of the Company shall, as promptly as feasible, proceed to
(i) collect all sums due or owing to the Company, (ii) sell and convert into
cash and/or other distributable form of all the remaining assets and properties
of the Company, if any, and (iii) out of the assets and properties of the
Company, pay, satisfy and discharge or make adequate provision for the payment,
satisfaction and discharge of all debts and liabilities of the Company pursuant
to Section 2 above, including all expenses of the sales of assets and of the
dissolution and liquidation provided for by the Plan.
The
adoption of the Plan by the stockholders of the Company as provided in Section 1
above shall constitute full and complete authority for the Asset Sale, subject
to Stockholder Approval, or for any sale, exchange or other disposition of the
properties and assets of the Company contemplated by the Plan, whether such
sale, exchange or other disposition occurs in one transaction or a series of
transactions, and shall constitute ratification of all such contracts for sale,
exchange or other disposition. The Company may invest in such interim assets as
determined by the Board in its discretion, pending conversion to cash or other
distributable forms.
5. Professional
Fees and Expenses.
It is
specifically contemplated that the Board may authorize the payment of a retainer
fee to a law firm or law firms selected by the Board for legal fees and expenses
of the Company, including, among other things, to cover any costs payable
pursuant to the indemnification of the Company’s officers or members of the
Board provided by the Company pursuant to its Certificate of Incorporation and
Bylaws, as amended and/or restated, or the DGCL or otherwise.
In
addition, in connection with and for the purpose of implementing and assuring
completion of this Plan, the Company may, in the sole and absolute discretion of
the Board, pay any brokerage, agency and other fees and expenses of persons
rendering services, including accountants and tax advisors, to the Company in
connection with the Asset Sale, subject to Stockholder Approval, and the
collection, sale, exchange or other disposition of the Company’s property and
assets and the implementation of this Plan.
6. Indemnification.
The
Company shall continue to indemnify its officers, directors, employees and
agents in accordance with its Certificate of Incorporation and Amended and
Restated Bylaws and any contractual arrangements, for actions taken in
connection with this Plan and the winding up of the affairs of the Company. The
Board, in its sole and absolute discretion, is authorized to obtain and maintain
insurance as may be necessary, appropriate or advisable to cover the Company’s
obligations hereunder, including without limitation directors’ and officers’
liability coverage.
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7. Liquidating
Distributions.
Subject
to the terms of Section 8 of this Plan in the event Stockholder Approval is
obtained and the Asset Sale is consummated, liquidating distributions, if any,
shall be made from time to time after the filing of the Certificate of
Dissolution as provided in Section 2 above and adoption of this Plan by the
stockholders to the stockholders of record, at the close of business on such
date (or pursuant to the terms of the Liquidating Trust, to the stockholders of
record as of the close of business on the Effective Date), pro rata to stockholders of
the Company’s common stock in accordance with the respective number of shares
then held of record; provided that in the opinion of the Board or the Trustee,
as applicable, adequate provision has been made for the payment, satisfaction
and discharge of all known, unascertained or contingent debts, obligations and
liabilities of the Company (including costs and expenses incurred and
anticipated to be incurred in connection with the sale and distribution of
assets and liquidation of the Company). Liquidation distributions shall be made
in cash or in kind, including in stock of, or ownership interests in,
subsidiaries of the Company and remaining assets of the Company, if any. Such
distributions may occur in a single distribution or in a series of
distributions, in such amounts and at such time or times as the Board or the
Trustee, as applicable, in its absolute discretion, and in accordance with
Section 281 of the DGCL, may determine; provided, however, that the Company
shall complete the distribution of all its properties and assets to its
stockholders as provided in this Section 7 or to the Liquidating Trust as
provided in Section 8 below as soon as practicable following the filing of its
Certificate of Dissolution with the Secretary of State of the State of Delaware
and in any event on or prior to the Final Distribution Date.
If and to
the extent deemed necessary, appropriate or desirable by the Board or the
Trustee, as applicable, in its absolute discretion, the Company may establish
and set aside a reasonable amount of cash and/or property to satisfy claims
against the Company and other obligations of the Company (a “Contingency
Reserve”), including, without limitations, (i) tax obligations, (ii) all
expenses of the sale of the Company’s property and assets, if any, (iii) the
salary, fees and expenses of members of the Board, management and employees,
(iv) expenses for the collection and defense of the Company’s property and
assets, (v) the expenses described in Sections 3, 5 and 6 above and (vi) all
other expenses related to the dissolution and liquidation of the Company and the
winding-up of its affairs. Any unexpended amounts remaining in a Contingency
Reserve shall be transferred to the Liquidating Trust described in Section 8
below or distributed to the Company’s stockholders no later than the Final
Distribution Date.
As
provided in Section 12 below, distributions made pursuant to this Plan shall be
treated as made in complete liquidation of the Company within the meaning of the
Internal Revenue Code of 1986, as amended (the “Code”) and the
regulations promulgated thereunder. Subject to Stockholder Approval, the
adoption of the Plan by the stockholders of the Company as provided in Section 1
above shall constitute full and complete authority for the making by the Board
of all distributions contemplated in this Section 7.
8. Liquidating
Trusts.
Subject
to Stockholder Approval and the consummation of the Asset Sale, the Company will
transfer the Remaining Assets and all Remaining Liabilities to a liquidating
trust established for the benefit of the Company’s stockholders (the
“Liquidating Trust”), which assets, subject to the satisfaction of all Remaining
Liabilities, would thereafter be sold or distributed on terms approved by the
Trustee (as defined below). In addition, in the event the Company has not
completed the distribution of its assets and properties to stockholders as
provided in Section 7 above on or prior to the Final Distribution Date, all the
remaining funds, properties, and assets of the Company and all interests therein
including any Contingency Reserve shall be transferred to one or more
liquidating trusts. Any liquidating trusts established pursuant to this Section
8 shall exist for the principal purpose of liquidating and distributing the
assets and properties transferred to them, and for the sole benefit of the
Company’s stockholders. Notwithstanding the foregoing, to the extent that a
distribution or transfer of any asset or property cannot be effected without the
consent of a governmental authority or third party, no such distribution or
transfer shall be effected without such consent.
The
liquidating trusts shall be established pursuant to trust agreements to be
entered into with one or more directors, officers or third party individuals or
entities appointed by the Board on behalf of the stockholders to act as trustees
thereunder (the “Trustee”) in a form
approved by the Board and compliant in all material respects with applicable
Internal Revenue Service guidelines treating such liquidating trusts as
liquidating trusts for U.S. federal income tax purposes. Any Trustee so
appointed, in its capacity as trustee, shall assume all of the obligations and
liabilities of the Company with respect to the transferred assets, including,
without limitation, any unsatisfied claims and unascertained or contingent
liabilities relating to these transferred assets, and any such conveyances to
the Trustee shall be in trust for the stockholders of the Company. Further, any
conveyance of assets to any liquidating trust established pursuant to this
Section 8 shall be deemed to be a distribution of property and assets by the
Company to the stockholders holding a beneficial interest in the liquidating
trust for the purposes of Section 7 of this Plan. Any such conveyance to any
liquidating trust shall be in trust for the stockholders of the Company holding
a beneficial interest in the liquidating trust. Upon a determination by the
Trustee of such liquidating trust that all of the trust’s liabilities have been
satisfied, but in any event, not more than ten years from the date of its
creation, such liquidating trust shall, to the fullest extent permitted by law,
make a final distribution of any remaining assets to the holders of the
beneficial interests of the trust.
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(x) With
the exception of the Company having not completed the distribution of its assets
and properties to stockholders as provided in Section 7 above on or prior to the
Final Distribution Date, in which case the adoption of the Plan by approval of
the stockholders of the Company as provided in Section 1 above, or (y) the
adoption of the Plan and the Asset Sale by approval of the stockholders of the
Company as provided in Section 1 above, if applicable, shall constitute full and
complete appointment of the Trustee and the transfer of any assets by the
Company to the liquidating trusts as contemplated in this Section
8.
9. Unallocated
Stockholders.
Any cash
or other property held for distribution to stockholders of the Company who have
not, at the time of the final liquidation distribution, whether made to
stockholders pursuant to Section 7 above or to the Liquidating Trustees pursuant
to Section 8 above, been located shall be transferred to the official of such
state or other jurisdiction authorized by applicable law to receive the proceeds
of such distribution. Such cash or other property shall thereafter be held by
such person(s) solely for the benefit of and ultimate distribution, but without
interest thereon, to such former stockholder or stockholders entitled to receive
such assets, who shall constitute the sole equitable owners thereof, subject
only to such escheat or other laws as may be applicable to unclaimed funds or
property, and thereupon all responsibilities and liabilities of the Company or
any Trustee with respect thereto shall be satisfied and exhausted. In no event
shall any of such assets revert to or become the property of the
Company.
10. Amendment,
Modification or Abandonment of Plan.
If for
any reason the Board determines that such action would be in the best interests
of the Company, it may amend, modify or abandon the Plan and all actions
contemplated thereunder, including the Asset Sale or the proposed dissolution of
the Company, notwithstanding stockholder approval of the Asset Sale or the Plan,
to the extent permitted by the DGCL; provided, however, that the Board shall not
abandon the Plan following the filing of the Certificate of Dissolution without
first obtaining stockholder consent. Upon the abandonment of the Plan, the Plan
shall be void.
11. Cancellation
of Stock and Stock Certificates.
At the
time of the final liquidating distribution, whether made to stockholders of the
Company pursuant to Section 7 above or to the Trustees pursuant to Section 8
above, the Company may call upon the stockholders to surrender to the Company
the certificates that represented their shares of stock. In the event that the
final liquidating distribution is made to a Trustee pursuant to Section 8 above,
at the time of such final liquidating distribution, the Trustee shall generally
notify the record holders of shares of stock on the Effective Date of their
respective percentage beneficial interests in the assets held by the Trustee.
Following the Effective Date, the Company shall no longer permit or effect
transfers of any of its stock.
12. Liquidation
under Code Sections 331 and 336.
It is
intended that this Plan shall be a plan of complete liquidation of the Company
in accordance with the terms of Sections 331 and 336 of the Code. The Plan shall
be deemed to authorize the taking of such action as, in the opinion of counsel
to the Company, may be necessary to conform with the provisions of said Sections
331 and 336 and the regulations promulgated thereunder.
13. Filing
of Tax Forms.
The
appropriate officers of the Company are authorized and directed, within thirty
(30) days after the effective date of the Plan, to execute and file a United
States Treasury Form 966 pursuant to Section 6043 of the Code and such
additional forms and reports with the Internal Revenue Service as may be
necessary or appropriate in connection with this Plan and the carrying out
thereof.
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