EXHIBIT 10.36
PLAN OF COMPLETE LIQUIDATION AND DISSOLUTION OF
CALCOMP TECHNOLOGY, INC.
This Plan of Complete Liquidation and Dissolution (the "PLAN") is intended
to accomplish the complete liquidation and dissolution of CalComp Technology,
Inc., a Delaware corporation (the "COMPANY"), in accordance with Section 275
and other applicable provisions of the General Corporation Law of Delaware
("DGCL") and Sections 331 and 336 (or Sections 332 and 337, as appropriate) of
the Internal Revenue Code of 1986, as amended (the "CODE").
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 shall have adopted a resolution or resolutions with respect to
the following:
(i) Complete Liquidation and Dissolution: The Board of Directors
shall determine that it is deemed advisable for the Company to be
liquidated completely and dissolved.
(ii) Adoption of the Plan of Liquidation and Dissolution: The Board
of Directors shall approve this Plan as the appropriate means for
carrying out the complete liquidation and dissolution of the Company.
(iii) Sale of Assets: The Board of Directors shall determine that, as
part of the Plan of Liquidation and Dissolution, it is deemed expedient
and in the best interests of the Company to sell all or substantially
all of the Company's assets 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 Preferred and Common
Stockholders. The holders of a majority of the outstanding shares of the
Company's Series A Cumulative Redeemable Preferred Stock, par value $0.01
per share (the "PREFERRED STOCK") and the holders of a majority of the
outstanding shares of common stock of the Company, par value $0.01 per
share (the "COMMON STOCK"), entitled to vote shall have adopted this Plan,
including the dissolution of the Company and those provisions authorizing
the Board of Directors to sell all or substantially all of the Company's
assets, by written consent or at a special meeting of the stockholders of
the Company called for such purpose by the Board of Directors.
2. Dissolution and Liquidation Period
Once the Plan of Liquidation and Dissolution is effective, the steps set
forth below shall be completed at such times as the Board of Directors, in its
absolute discretion, deems necessary, appropriate or advisable. Without
limiting the generality of the foregoing, the Board of Directors may instruct
the officers of the Company to delay the taking of any of the following 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.
(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 will become effective (the "EFFECTIVE
DATE"), and the completion of all actions that may be necessary,
appropriate or desirable to dissolve and terminate the corporate existence
of 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 of all of the assets and
properties of the Company, including the assumption by the purchaser or
purchasers of any or all liabilities of the Company, insofar as the Board
of Directors of the Company deems such sales to be necessary, appropriate
or advisable;
(d) The distribution of the remaining funds of the Company and the
distribution of remaining unsold assets of the Company, if any, to its
stockholders pursuant to Sections 4, 7 and 8 below.
If the Board determines to follow the procedures described in Section 280 of
the DGCL, then the additional steps set forth below shall, to the extent
necessary or appropriate, be taken:
(a) The giving of notice of the dissolution to all persons having a claim
against the Company and the rejection of any such claims in accordance with
Section 280 of the DGCL;
(b) The offering of security to any claimant on a contract whose claim is
contingent, conditional or unmatured in an amount the Company determines is
sufficient to provide compensation to the claimant if the claim matures,
and the petitioning of the Delaware Court of Chancery to determine the
amount and form of security sufficient to provide compensation to any such
claimant who has rejected such offer in accordance with Section 280 of the
DGCL;
(c) The petitioning of the Delaware Court of Chancery to determine the
amount and form of security which would be reasonably likely to be
sufficient to provide compensation for (i) claims that are the subject of
pending litigation against the Company, and (ii) claims that have not been
made known to the Company or that have not arisen, but are likely to arise
or become known within five (5) years after the date of dissolution (or
longer in the discretion of the Delaware Court of Chancery), each in
accordance with Section 280 of the DGCL;
(d) The payment, or the making of adequate provision for payment, of all
claims made against the Company and not rejected in accordance with Section
280 of the DGCL;
(e) The posting of all security offered and not rejected and all security
ordered by the Court of Chancery in accordance with Section 280 of the
DGCL; and
(f) the payment, or the making of adequate provision for payment, of all
other claims that are mature, known and uncontested or that have been
finally determined to be owing by the Company.
Notwithstanding the foregoing, the Company shall not be required to follow
the procedures described in Section 280 of the DGCL, and the adoption of the
Plan of Liquidation and Dissolution by the Company's preferred and common
stockholders shall constitute full and complete authority for the Board of
Directors 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,
Section 281(b) thereof, including the adoption of a plan of distribution as
contemplated by such section.
1. Authority of Officers and Directors
After the Effective Date, the Board of Directors 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 of Directors
may appoint officers, hire employees and retain independent contractors 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,
will be required to undertake, or actually undertake, in connection with the
successful implementation of this Plan. Adoption of this Plan by holders of a
majority of the outstanding shares of Preferred Stock and Common Stock shall
constitute the approval of the Company's stockholders of the Board of
Directors' authorization of the payment of any such compensation.
The adoption of the Plan of Liquidation and Dissolution by the Company's
preferred and common stockholders shall constitute full and complete authority
for the Board of Directors 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
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character which the Board or such officers deem necessary, appropriate or
advisable: (i) to sell, dispose, convey, transfer and deliver the assets of
the Company, whether before or after the Effective Date, (ii) to satisfy or
provide for the satisfaction of the Company's obligations in accordance with
Sections 280 and 281 of the DGCL, (iii) to distribute all of the remaining
funds of the Company and any unsold assets of the Company to the Company's
preferred stockholders (up to the $60.0 million, plus accrued and unpaid
dividends, liquidation preference of the Preferred Stock), plus accrued and
unpaid dividends due thereon, with the remaining amounts, if any,
distributable to the common stockholders, and (iv) 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.
2. Conversion of Assets Into Cash or Other Distributable Form
Subject to approval by the Board of Directors, the officers, employees and
agents of the Company, shall, as promptly as feasible and whether before or
after the Effective Date, proceed to collect all sums due or owing to the
Company, to sell and convert into cash any and all corporate assets and, out
of the assets of the Company, to 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 sale of assets and of the liquidation and dissolution provided for by
the Plan of Liquidation and Dissolution.
3. Professional Fees and Expenses
It is specifically contemplated that the Board of Directors 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 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 absolute discretion
of the Board of Directors, pay any brokerage, agency and other fees and
expenses of persons rendering services to the Company in connection with the
collection, sale, exchange or other disposition of the Company's property and
assets and the implementation of this Plan.
4. Indemnification
The Company shall continue to indemnify its officers, directors, employees
and agents in accordance with its Certificate of Incorporation and 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 of Directors, in
its absolute discretion, is authorized to obtain and maintain insurance as may
be necessary, appropriate or advisable to cover the Company's obligations
hereunder.
5. Liquidating Trust
The Board of Directors may establish a Liquidating Trust (the "LIQUIDATING
TRUST") and distribute assets of the Company to the Liquidating Trust. The
Liquidating Trust may be established by agreement with one or more Trustees
selected by the Board. If the Liquidating Trust is established by agreement
with one or more Trustees, the trust agreement establishing and governing the
Liquidating Trust shall be in form and substance determined by the Board of
Directors. In the alternative, the Board may petition the Delaware Court of
Chancery for the appointment of one or more Trustees to conduct the
liquidation of the Company subject to the supervision of the Court. Whether
appointed by an agreement or by the Court, the Trustees shall in general be
authorized to take charge of the Company's property, and to collect the debts
and property due and belonging to the Company, with power to prosecute and
defend, in the name of the Company, or otherwise, all such suits as may be
necessary or proper for the foregoing purposes, and to appoint an agent under
it and to do all other acts which might be done by the Company that may be
necessary, appropriate or advisable for the final settlement of the unfinished
business of the Company.
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6. Liquidating Distributions
Liquidating distributions, in cash or in kind, shall be made from time to
time after the adoption of the Plan of Liquidation and Dissolution to the
holders of record, at the close of business on the date of the filing of a
Certificate of Dissolution of the Company as provided in Section 2 above, of
outstanding shares of stock of the Company, according to the priorities of the
various classes of the Company's stock and pro rata in accordance with the
respective number of shares then held of record; provided that in the opinion
of the Board of Directors 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 of assets
and complete liquidation of the Company). All determinations as to the time
for and the amount and kind of distributions to stockholders shall be made in
the exercise of the absolute discretion of the Board of Directors and in
accordance with Section 281 of the DGCL.
Any assets distributable to any creditor or stockholder of the Company who
is unknown or cannot be found, or who is under a disability and for whom there
is no legal representative, shall escheat to the state or be treated as
abandoned property pursuant to applicable state law.
7. Amendment, Modification or Abandonment of Plan
If for any reason the Company's Board of Directors determines that such
action would be in the best interests of the Company, it may amend, modify or
abandon the Plan of Liquidation and Dissolution and all action contemplated
thereunder, notwithstanding stockholder approval, to the extent permitted by
the DGCL; provided, however, that the Company will not amend or modify the
Plan of Liquidation and Dissolution under circumstances that would require
additional stockholder approval under the DGCL and the federal securities laws
without complying with the DGCL and the federal securities laws. Upon the
abandonment of the Plan of Liquidation and Dissolution, the Plan of
Liquidation and Dissolution shall be void.
8. Cancellation of Stock and Stock Certificates
Following the dissolution of the Company, the Company's stock transfer books
shall be closed and the Company's capital stock and stock certificates
evidencing the Company's Preferred Stock and Common Stock will be treated as
no longer being outstanding.
9. Liquidation under Section 331 and 336 (or Sections 332 and 337, as
appropriate)
It is intended that this Plan shall be a plan of complete liquidation within
the terms of Sections 331 and 336 (or Sections 332 and 337, as appropriate) of
the Code. The Plan of Liquidation and Dissolution shall be deemed to authorize
such action as, in the opinion of counsel for the Company, may be necessary to
conform with the provisions of said Sections 331 and 336 (or Sections 332 and
337, as appropriate).
10. Filing of Tax Forms
The appropriate officer of the Company is authorized and directed, within
thirty (30) days after the effective date of the Plan of Liquidation and
Dissolution, 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 appropriate in connection with this Plan
and the carrying out thereof.
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