ASSIGNMENT AND ASSUMPTION OF LIABILITIES AND ASSETS AGREEMENT
Exhibit
10.3
THIS
ASSIGNMENT AND ASSUMPTION OF LIABILITIES AND ASSETS AGREEMENT (this “Assignment
and Assumption Agreement”) is made and entered into as of March 25, 2010, by and
among Xcorporeal, Inc., a Delaware corporation (“Xcorporeal”), Xcorporeal
Operations, Inc., a Delaware corporation and a wholly owned subsidiary of
Xcorporeal (“Operations,” and together with Xcorporeal, “Assignors”), and
Xcorporeal, Inc. Liquidating Trust (the “Trust”).
WITNESSETH:
WHEREAS,
Assignors are parties to a certain Asset Purchase Agreement (as amended, the
“APA”), dated as of December 14, 2009, by and among the Assignors, National
Quality Care, Inc., a Delaware corporation (“NQCI,” and together with
Xcorporeal, Operations and NQCI, “Sellers”) and Fresenius USA, Inc., a
Massachusetts corporation (“Purchaser”), as amended by Amendment No. 1 to the
Asset Purchase Agreement, dated as of February 8, 2010, pursuant to which, among
other things, the Sellers have agreed to sell, transfer and convey certain
assets to Purchaser and Purchaser has agreed to acquire and accept such assets,
and to assume and be liable for certain liabilities;
WHEREAS,
Assignors are parties to a certain Liquidating Trust Agreement (the “LTA”),
dated as of the date hereof, pursuant to which, among other things, the
Assignors agreed to form the Trust and to transfer all Retained Assets (as
defined below) of the Assignors to the Trust, to be held, administered and
distributed by the Trust pursuant to the LTA for the benefit of the stockholders
of record of Xcorporeal as of the close of business on March 25, 2010
(collectively, the “Beneficiaries”); and
WHEREAS,
the primary purpose of the Trust, the execution of the LTA and of the
appointment of the Trustee is to facilitate the dissolution and liquidation of
the Assignors and the disposition of the Retained Assets, to hold, manage,
administer and liquidate the Trust Assets, and to collect and distribute to the
Beneficiaries the income and the proceeds of the disposition of the Trust
Assets, to collect amounts owed to Assignors, and to pay any Liabilities of
Assignors.
NOW,
THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Each
capitalized term used and not otherwise defined herein shall have the meaning
set forth in the LTA.
2. Assignors
hereby sell, transfer, assign, convey and deliver to the Trust all of Assignors’
right, title and interests in, to and under, all of their assets remaining after
the sale of Assignors’ portion of the Purchased Assets (as defined in the APA)
to Purchaser pursuant to the APA, including, without limitation, (a) their cash,
restricted cash, cash equivalents or accounts receivable, (b) their marketable
securities, (c) their websites, including each such site’s content, look and
feel, verbiage and images, (d) the domain names listed on Schedule 1.3(e)
of the APA and (e) the other assets listed on Schedule 1.3(f)
of the APA.
3. Subject
to the terms and conditions set forth in the LTA and the APA, the Trust accepts
the foregoing assignment and transfer of assets and property, and hereby assumes
and agrees to pay, honor and discharge when due all of the liabilities and
obligations of Assignors to the extent such are not Assumed Liabilities (as
defined in the APA).
4. The
terms of the LTA are incorporated herein by reference. The execution
and delivery of this Assignment and Assumption Agreement by the parties hereto
shall not, in any way, affect or limit the rights and obligations of the parties
under, or enlarge, restrict or otherwise modify the terms of the
LTA. In the event of any conflict between the terms of this
Assignment and Assumption Agreement and the LTA, the LTA shall
control.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties have entered into this Assignment and Assumption
Agreement as of the date first above written.
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By:
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/s/
Xxxxx X. XxXxxxx
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Name:
Xxxxx X. XxXxxxx
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Title:
Chief Executive Officer
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XCORPOREAL
OPERATIONS, INC.
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By:
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/s/
Xxxxx X. XxXxxxx
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Name:
Xxxxx X. XxXxxxx
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Title:
Chief Executive Officer
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TRUST:
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XCORPOREAL,
INC. LIQUIDATING TRUST
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By:
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XCRLT,
LLC
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By:
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/s/
Xxxxx X. XxXxxxx
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Name:
Xxxxx X. XxXxxxx
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Title:
Sole
Member
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