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The meeting was adjourned to June 23, 2017 to permit the Company to voluntarily delist from NASDAQ and to begin the process of withdrawing its election to be regulated by the U. Securities and Exchange Commission (“SEC”) as a business development company.
The effective date of the delisting of the Company’s common stock from NASDAQ was June 22, 2017.
BMW also argued that the Payments were not subject to forfeiture under § 544 because German law governed the transaction and did not provide a state-law remedy for the trustee.In ruling on BMW’s motion to dismiss, the court found the Payments to be extraterritorial in nature.
However, the court rejected BMW’s argument that the fraudulent transfer provisions of § 548 do not apply to extraterritorial transfers (i.e., those for which the “center of gravity” is outside the United States), concluding that § 548 applies to property everywhere in the world because any property recovered by a debtor or trustee becomes property of the estate under § 541 and the estate should have access to its property regardless of where it may be located. After determining that the complaint sufficiently pleaded that Fisker did not receive reasonably equivalent value in the form of materials, services, or otherwise from BMW after making the Payments and that Fisker had been insolvent for several years prior to the Payments, the Court allowed the trustee’s § 548 claim to proceed in part.
Second, why would the independent directors knowingly sacrifice the company so that Magnacca could achieve his personal agenda? One might say that it is not the plaintiff's job to explain the personal motivations of men and women; that the facts speak for themselves.
The Trust alleges that the independent directors breached their duty of loyalty when they approved Magnacca's appointment to the board of American Apparel, and then made him the point man to negotiate with Standard General with respect to the financing that allegedly led to Radio Shack's demise. First, why would Magnacca sacrifice his position as head of one of America's most "iconic" retailers in exchange for such paltry and illusory consideration?
According to the Trust, Standard General's attempts to co-opt Magnacca's loyalty manifested themselves both in actions and assurances.
The complaint also asserted a claim for unjust enrichment.
BMW opposed the trustee’s motion and argued that the Payments were not subject to § 548 because (i) the Payments were extraterritorial, occurring in Germany, not in the US, (ii) most of the Payments occurred more than two years prior to the debtor’s petition date, and (iii) the complaint failed to adequately allege Fisker’s insolvency.
That is because if there is no satisfactory answer, it suggests that the duty at issue is not loyalty, but care.
But, where, as here, the directors are said to have breached their duty of loyalty, it is fair to ask why.
Pursuant to the Plan of Liquidation, the Company has filed with the State of Maryland all documents required to convert the Company into a Maryland statutory trust. Upon the Conversion, each outstanding share of common stock of the Company will be converted into and exchanged for one unit of beneficial interest of Crossroads Liquidating Trust and all physical certificates representing common stock of the Company will become null and void.