SUPERIOR COURT OF JUSTICE IN BANKRUPTCY AND INSOLVENCY

Transcription

1 District of Ontario Division No 09-Toronto Court No Estate No SUPERIOR COURT OF JUSTICE IN BANKRUPTCY AND INSOLVENCY IN THE MATTER OF THE PROPOSAL OF EXCEL TECHNOLOGIES LIMITED A CORPORATION DULY INCORPORATED UNDER THE LAWS OF THE PROVINCE OF ONTARIO, OF THE TOWN OF MILTON, IN THE PROVINCE OF ONTARIO AMENDED PROPOSAL December 8, 2008 Excel Technologies Limited hereby submits the following Proposal under the Bankruptcy and Insolvency Act of Canada 1. Definitions In this Proposal a) "Act" means the Bankruptcy and Insolvency Act, R S C 1985, B-3 as amended, b) "Administrative Fees and Expenses" means i) all proper fees and expenses of the Trustee, and n) all reasonable legal fees and disbursements of the Debtor and the Trustee that are incidental to any proceedings relating to or arising out of the Proposal, the preparation of the Proposal and negotiations in connection therewith, the performance by the Debtor of his obligations thereunder, and advice to the Debtor thereon, The Administrative Fees and Expenses shall not exceed $120,000 unless otherwise approved by the Inspectors c) "Claim" means any claim against the Debtor of any nature and kind whatsoever as of the Filing Date whether due or not due for payment, including contingent and unliquidated claims, arising out of any transaction entered into by the Debtor prior to the Filing Date, d) "Court" means the Superior Court of Justice (In Bankruptcy and Insolvency), e) "Debtor" means Excel Technologies Limited, f) "Effective Date" shall mean the date on which the Proposal is approved by the Court and is final and non-appealable,

2 g) "Equipment Lessor" means all lessors of equipment to the Debtor, including without limitation, computer equipment, photocopying equipment, motor vehicles, furniture liquor dispensing equipment food preparation equipment or tangible personal property, other than inventory, regardless of whether such leases are true leases or financing arrangements, h) "Filing Date" means December 5, 2008 being the date upon which this Proposal was filed by the Debtor with the Official Receiver, i) "Inspector" means an Inspector appointed pursuant to Paragraph 7 hereof, J) "Legislation" means Section 224 (1 2) Income Tax Act (Canada), the Canada Pension Plan, or Employment Insurance Act and any provisions of any provincial legislation that is similar in nature to any of the foregoing, k) "Performance of the Proposal" means the payment to the Trustee of all amounts owing hereunder, in accordance with the provision of Paragraph 6, I) "Preferred Claims" means a Claim as contemplated by Section 136(1) of the Act, m) "Preferred Creditor" means the holder of a Preferred Claim in such capacity, n) "Proposal" means this Proposal of the Debtor, and the same as may be amended or altered in accordance with the terms hereof, o) "Proposal Fund" means the fund established by Debtor which is described in Paragraph 7, p) "Secured Claim" means the Claim of a Secured Creditor, in such capacity, q) "Secured Creditor" means a Secured Creditor of the Debtor as defined in Section 2 of the Act, r) "Trustee" means The Fuller Landau Group Inc or its duly appointed successor or successors, s) "Unsecured Claim" means any Claim, other than a Claim i) that has been disallowed by the Trustee or expunged by the Court, n) that is a Claim of a Secured Creditors, or in) that is a Preferred Claim, and u) "Unsecured Creditor" means a creditor who has an Unsecured Claim 2. Classes of Creditors The single class of creditors of the Debtor established pursuant to the provisions of the Acrfor the purpose of voting on the Proposal are as follows All Unsecured Creditors and all Preferred Creditors of the Debtor to the extent of their Unsecured Claims and Preferred Claims and any resulting unsecured claims from the

3 sale or liquidation of any assets held by an Equipment Lessor after the Proposal has received Creditor and Court acceptance. 3. Secured Creditors The Claims of the Secured Creditors of the Debtor, if any, shall be dealt with as follows: The Secured Creditors shall be paid in accordance with arrangements which may be made between the Debtor and the Secured Creditors, or the Secured Creditors shall be permitted to realize upon their security after the Trustee has duly assessed their proofs of claims and valued the security, with such priority as may be afforded to them under the Act and under the Personal Property Security Act (Ontario), or other similar or applicable legislation. Equipment Lessors shall be entitled to the return of their equipment and shall be entitled to file a claim, as an unsecured creditor, for any deficiency owing to them. 4. Preferred Claims All proven Preferred Claims, as contemplated by Sections 136(1)(c) to 136(1)(i) of the Act, if any, without interest from the Filing Date, will be paid in full in priority to all Unsecured Claims. Payments will be made as described in Paragraph Payment of Crown Claims As required by the Act, the Debtor shall pay all source deduction obligations arising after the Filing Date, including instalments required to be made under the Income Tax Act (Canada) ordinary course of business. All claims of Her Majesty in Right of Canada or a province of a kind that could be subject to a demand under subsection 224 (1.2) of the Income Tax Act (Canada) or under any substantially similar provision of provincial legislation, if any, shall be paid within six months of the Court Approval Date. 6. Payment of Employee Claims All amounts payable to former employees or current employees of the Debtor which would be payable under subsection 136 (1) (d) of the Act if the Debtor became bankrupt on the Filing Date shall be paid by the Debtor forthwith following Court approval in priority to the Claims of the Unsecured Creditors in accordance with the Act. 7. Purpose of Proposal and Establishment of Proposal Fund a) The purpose of this proposal is to effect an orderly sale of the property, assets and undertaking or the Debtor and to collect all amounts owing to the Debtor in the expectation that Creditors will derive a greater benefit from the efforts of the Debtor to sell its assets and to collect its receivable, than would be realized from a forced liquidation of the Debtor's assets. b) The net proceeds from the sale of the Debtor's assets and the collection of the receivables (the "Proposal Fund"), after payment of all expenses incurred in respect of the liquidation of assets and the collection of receivables after payment of all operating expenses, shall be paid to the Trustee following Creditor acceptance and Court approval and shall be distributed to the Creditors at such times as the Trustee deems appropriate.

4 c) Administrative Fees and Expenses will be paid from the Proposal Fund in priority to all Claims of Preferred Creditors and Unsecured Creditors. d) The Trustee shall be entitled to pay interim draws on account of the Administrative Fees and Expenses provided that any and all payments or draws, interim or otherwise, on account of Administrative Fees and Expenses will be subject to final taxation by the Court. 8. Proposal to Unsecured Creditors The Unsecured Claims shall be paid and satisfied as follows: a) The Unsecured Creditors with proven claims shall be paid a dividend from the Proposal Fund after the payment of Administrative Fees and Expenses, Secured Claims, Preferred Claims, Crown Claims as contemplated by section 60(1.1) of the Act and employee claims as set out in paragraph 6 herein. b) Subject to prior payment of the amounts referred to in sub-paragraph 8 a) above, the dividend payment to Unsecured Creditors shall be paid as soon as reasonably possible after receipt of Proposal Funds by the Trustee. c) The Unsecured Creditors shall accept the payments made pursuant to this Proposal, in full and complete satisfaction of their Unsecured Claims, and all liens, certificates of pending litigation, executions, registrations under the Personal Property Security Act (Ontario) or any other similar legislation or other similar charges or actions or proceedings in respect of such Unsecured Claims of Unsecured Creditors will have no effect in law or equity against such property, assets and undertaking of the Debtor. Upon the making of such payments, any and all such registered liens, certificates of pending litigation, executions, personal property registrations or other similar charges or actions charges or ' actions brought, made or claimed by Unsecured Creditors will be discharged, dismissed or vacated without cost to the Debtor and the Debtor will be released from any and all Unsecured Claims of Unsecured Creditors. 9. Inspectors a) At any meeting of the Creditors to be held to consider the Proposal, the Creditors may appoint one or more, but not exceeding five. Inspectors whose powers shall include amongst other powers: i) advising the Trustee from time to time with respect to any matter, which the Trustee may refer to them; ii) iii) advising the Trustee concerning any dispute which may arise as to the validity of claims of the Creditors which the Trustee may refer to them; reviewing any default in the performance of the Proposal by the Debtor and waiving any such default, including the power to extend the time for payment of any installment due under the Proposal b) Any decision, direction or act of the Inspectors may be referred to the Court by the Trustee and the Court may confirm, reverse or modify the decision, direction or act and make such order as it thinks just.

5 c) The authority and term of office of the Inspectors shall terminate upon the discharge of the Trustee. d) Approval of the Trustee's final account in respect of all receipts and disbursements relating to the administration of this Proposal. 10. Indemnification The Trustee and the Inspectors, if any, shall be indemnified in full by the Debtor and from Proposal Funds for all personal liability arising from fulfilling any duties or exercising any powers conferred upon them by this Proposal except for any willful or wrongful act, default or neglect. 11. Amendment to the Proposal This Proposal may be amended by the Creditors with the consent of the Debtor at the meeting of Creditors called to consider the same or at any adjournment thereof, 12. Amendments to Agreements Notwithstanding the terms and conditions of all agreements or other arrangements with Creditors entered into before the Filing Date, for so long as an event of default under this Proposal has not occurred, all such agreements or other arrangements will be deemed to be amended to the extent necessary to give effect to all the terms and conditions of this Proposal. In the event of any conflict or inconsistency between the terms of such agreements or arrangements and the terms of this Proposal, the terms of this Proposal will govern. All Creditors will provide such acknowledgements, agreements, discharges or other documentation as may be necessary to give effect to the intent of this Proposal. 13. Superintendent Levy All monies payable under the Proposal shall be paid by the Debtor to the Trustee and notwithstanding any other provision hereof, all dividend payment(s) made by the Trustee in respect of Claims pursuant to the terms hereof shall be made net of the Superintendent's Levy required to be paid pursuant to Sections 147 and 60(4) of the Act. 14. Post Filing Goods and Services a) All persons, who may advance monies, provide goods or services to the Debtor after the Filing Date shall be paid by the Debtor in the ordinary course of business, if applicable. b) On approval by the Court of this Proposal the Debtor will commence making installments of future income tax (if necessary) and it will be kept current for the term of this Proposal. c) Current Source Deductions, if applicable, shall be paid to Her Majesty in Right of Canada in full by the Debtor as and when due. d) Current Goods and Services Tax (GST), and all amounts owing on account of provincial sales taxes, if applicable, shall be paid in full by the Debtor as and when due.

6 15. Claims Against Directors Any Claim against the Debtor by any Creditor that are also claims against former or current directors of the Debtor that relates to obligations of the Debtor where directors are under any law liable in their capacity as directors for the payment of such obligations, shall be released and forever discharged as against such directors of the Debtor upon acceptance of this Proposal by the Creditors and approval by the Court. Claims against Directors will not include claims that (a) relate to contractual rights of one or more creditors arising from contracts with one or more directors; or (b) are based on allegations of misrepresentation made by directors to creditors or of wrongful or oppressive conduct by directors 16. Release In the event that the Debtor does not complete the proposal then the provisions of s. 50(16) will apply reinstating the remedies available as against the directors and that those claim(s) will be determined net of any dividend received from this proposal. Upon the Effective Date, the Debtor shall be released and discharged from any and all demands, actions, causes of action, counterclaims, suits, debts, sums of money, accounts, covenants, damages, judgments, expenses, executions, options, liens, and other recoveries on account of any liability, obligation, demand or cause of action of whatever nature which any Creditor or Person may be entitled to assert as of the Filing Date, This release shall have no effect if the terms of this Proposal are not fully performed. Sections 91 to 101 of the Act shall not apply to the Proposal, nor shall the Fraudulent Conveyances Act, Assignments and Preferences Act, other applicable federal or provincial legislation, or the common law. This paragraph shall bar any such claim, whether it is brought by the Trustee or by any creditor making a claim that could have been brought by the Trustee. This paragraph in no way binds the Creditors or the Trustee with respect to such clams in the event of a bankruptcy. 17. Trustee The Fuller Landau Group Inc. shall be the Trustee of the Proposal and upon payment of the dividends provided for in this Proposal, the Trustee will be entitled to be discharged from its obligations under the terms of this Proposal. The Trustee is acting in its capacity as Trustee under this Proposal, and not in its personal capacity and should not be responsible or liable for any obligations of the Debtor. 18. Default of Proposal The Debtor's failure to meet all the terms of this Proposal will deem this Proposal to be annulled.

7 19. Postponement by Related Parties Related parties who have unsecured claims have agreed that, subject to creditor acceptance and court approval, they will postpone their claims to the claims of the Unsecured Creditors. Dated at Toronto, Ontario, this 8 th day of December, EXCEL TECHNOLOGIES LIMITED Per r-\ Stephen Dulong / Authorized'Signing Officer