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This report is to be read in conjunction with the Administrators' Section 439A
Report dated 5 September 2013 ("Section 439A Report"). We note that we have no
material changes or subsequent matters to report to creditors other than those
detailed in this circular.
As discussed in the Section 439A Report, the Directors of the core H&S Vision
Group entities have been attempting to facilitate a refinance/debt sale of the debt
owed to the secured creditor. This would be via a substantial Hong Kong
commercial entity which we will refer to as the Hong Kong Refinancier ("HKR') for
the purposes of this report. Should the refinance/debt sale occur, the Directors were proposing that this would be the basis of, or form part of a proposal for a Deed of
Company Arrangement (“Deed”) which would include a repayment of unsecured
creditors (potentially in full). At the time of releasing the Section 439A Report, no
Deed proposal had been received from the Directors or any other party.
On Friday, 13 September 2013 we received correspondence from the solicitor representing the Directors advising that negotiations had been ceased by the HKR.
However, the Directors further advised that they understood that "major
concessions" were then offered by the secured creditor which they believe could
revive negotiations, however a "key decision maker" from the HKR was unavailable
until 16 September 2103. The Directors were therefore still pursuing this avenue and were hopeful that an agreement could be reached that would enable the proposal of
a Deed to be submitted to creditors for their consideration. The Directors sought to
speak at the meeting of creditors to this point and seek an adjournment of the
meetings.
At the concurrent second meeting of creditors on 16 September 2013, the solicitor
representing the Directors appraised the meeting of the current understanding of the
Directors with regards to the negotiations and requested that an adjournment of the meetings be sought so as to allow additional time for those negotiations to progress
to a stage whereby the Directors were in a position to submit a Deed for
consideration. The solicitor advised that the Directors believed that they should
know very soon whether negotiations can be continued and that a two week
adjournment would be sufficient.
At the concurrent second meeting of creditors on 16 September 2013, the
Administrators then noted that while they were supportive in principal of any future
proposal which would result in a greater return to creditors than a liquidation, that in
the interests of balance the creditors also needed to consider the impacts of an
adjournment when considering the request for an adjournment, including:
� No actual Deed proposal currently exists and the Administrators have enquired
of the secured creditor as to the status of negotiations between them and the
HKR and have been advised that post the "major concessions" being offered by
the secured creditor, the HKR issued correspondence via their legal
representative that they were no longer interested in proceeding. No further correspondence has since been issued;
� An adjournment would result in additional costs of the administration;
� An adjournment will potentially impact the timing of a sale of the assets of the
companies (both in receivership and administration) which may result in those
assets having to be held over the unprofitable Christmas trading periods and hence further increase costs of the administration; and
� An adjournment will delay the ability for employees to access the FairWork
The motion to adjourn the concurrent meeting to 30 September 2013 was then put
to the meeting and passed by those creditors attending. It is noted that no creditors
voted against the motion.
Ahead of the reconvened meeting we wrote to the Directors, via their solicitor, requesting that if a Deed was to be proposed that it be submitted by close of
business, Friday, 20 September 2013, to allow sufficient time for the proposal to be
properly evaluated and details reported to creditors prior to the continuance of the
second meeting of creditors. This time is required to allow the Administrators to
determine if any such proposal warrants a change of the Administrators' recommendation as per the Section 439A Report (i.e. that the companies be wound
up).
We have also enquired with the secured creditor as to whether negotiations for a
refinance/debt sale have been re-engaged. Our understanding from those
discussions is that at the time of this notice there were no negotiations ongoing with the HKR.
At approximately 5.25pm on Friday 20 September 2013, we received a letter from
the Directors via our legal representatives which provided an update on the issues
they raised at the meeting of 13 September 2013 and included a Deed proposal. The
letter and Deed proposal are attached in full at Appendix A.
Please refer to Section 2 for further discussion regarding the Deed proposal.
Second meeting of creditors reconvened
At the second meeting of creditors of the Companies, convened concurrently at
11.00am, Monday 16 September 2013, it was determined by those creditors present
to adjourn the meeting. The continuance of this meeting is now convened as
follows:
Time : 11.00am
Date : Monday, 30 September 2013
Place : Pullman Reef Hotel Casino, 35-41 Wharf Street, Cairns, Qld
Further details of this meeting is provided at Section 5.
Proposal for a Deed of Company Arrangement ("Deed")
We refer to our previously issued Section 439A Report to creditors which provided
details of correspondence with the Directors regarding a proposed Deed.
In Section 2 of this report we further outlined the Directors communication to the
Administrators and to the creditors generally at the meeting of 16 September 2013 in regards to their on-going attempts to facilitate a refinance of the secured creditors
debts, which they in turn expect would result in a Deed being proposed which would
result in unsecured creditors being paid in full.
As mentioned in Section 2 of this report the Directors provided a letter and Deed
proposal (attached in full at Annexure A) on 20 September 2013.
The Directors noted in their 20 September 2013 letter the following key issues:
� The Directors advise that they believe there is a genuine willingness between the
secured creditor and the HKR to execute an assignment of securities but there
are impediments to the progress of such an agreement due to "communication
problems" which both parties are working to resolve;
� The Directors advised that the two key elements of the Deed proposal that
require the HKR's agreement (release of certain real estate security and agreement
to pay certain proceeds of assets sales to a trust for the benefit of creditors) have
been discussed and agreed in principal; and
� The Directors have requested the HKR's legal representative to confirm that their client agrees to the above (two key issues) by Monday 23 September 2013.
We note that the completion of a transaction between the secured creditor and the
HKR is required for the Directors proposed Deed to be capable of being
progressed.
Contents of the Proposed Deed
In broad terms the Deed proposes the following:
Assumed Pre-Conditions to the Deed
� A transaction can be completed between the secured creditor and the HKR in
regards to a refinance of the Group's debt;
� That once a refinance has been completed that the HKR agrees to the release of
a residential unit ("the unit") from the security currently provided and the HKR
further agrees to allow payments to the proposed creditors trust from the sale of
Group assets (not defined) in advance of the HKR's security.
Key Terms of the Deed
� Release of the security over the unit owned by Ross Straguzi (Director) and
currently secured by the secured creditor to the value of $2.5m without fresh
security being provided by the HKR;
� A Trust fund being created for the benefit of unsecured creditors;
� First mortgage security would be granted over the unit to the current Administrators as security for performance by the Directors/Group's obligations
under the Deed;
� Upon completion of the assignment of securities the administration would end
and Receivers and Managers would be retired and the Directors would retain
control of the Group companies;
� On sale of some of the Group properties some of those funds would be released
to satisfy the terms of the Deed and the Trust Fund with a total of $1.5mbe paid
into the Trust Fund;
� Unsecured creditors to be paid a distribution from the Trust Fund; and
� In the event the unsecured creditors do not receive the intended distribution in full within 12 months, the security over the residential unit could be enforced to
facilitate payment to the unsecured creditors from the sale proceeds of the unit.
In addition, RG82 identifies the following obligations of Administrators:
� 1.11 Before submitting any Deed proposal to creditors, Administrators should
specifically consider whether there is a proposal suitable for submission. For example, it will rarely be appropriate for an administrator to submit to creditors a
Deed proposal where the administrator does not have sufficient concrete details
to comply with all their disclosure obligations (see paragraphs 1.15-1.18 of
RG82);
� 1.12 Where the Deed proposal involves a creditors trust, Administrators should specifically consider whether such mechanism is appropriate in the company's
circumstances. We think this includes considering whether the Deed proposal (if
accepted) may be an abuse of Part5.3A or otherwise contrary to the public
interest. If so it may be appropriate for the administrator to seek directions from
the court before submitting the Deed proposal to creditors.
At "Section 2: Disclosing material information" of RG82 ASIC makes the following
comments that are also relevant to the Administrators considerations in this
circumstance:
� 2.3 Where the Deed proposal involves a creditors trust, we consider this
obligation means that information should be provided which enables creditors to understand the actual and potential implications and specific risks for them of the
proposed creditors trust arrangements. Creditors should be able to make a
realistic and informed assessment of the proposal and whether they should
approve it (including, but not limited to, whether they are likely to receive a better
return under the particular Deed proposal than under a Deed that does not involve a creditors trust, or under a winding up);
Administrators' considerations should a Deed be proposed
Standard Considerations
As advised in our Section 439A Report, upon receipt of a Deed the Administrators
will need to consider the proposal and provide a recommendation to creditors.
Please refer to the Section 439A report for a summary of the key issues which are generally considered when assessing a Deed proposal.
Considerations relevant to a Deed involving a Creditors Trust
In addition to the above, as the proposal issued by the Directors includes the use of
a "creditors trust" ("CT') then the contents of ASIC's Regulatory Guide 82 ("RG82")
also need to be considered. Creditors may view RG82 at http://www.asic.gov.au/asic/pdflib.nsf/lookupbyfilename/creditors_trusts_guide.p
df/$file/creditors_trusts_guide.pdf or alternatively on the Grant Thornton website.
In RG82 ASIC makes the following comments in its introduction to RG82 which
are relevant in understanding the consideration an Administrator must give to a
Deed in this circumstance:
� We consider that Deed proposals should not involve creditors trusts unless
Administrators have adequately considered the appropriateness of using a
creditors trust in the particular case, and the advantages and disadvantages for the
company, the creditors and the administrator;
� Deed's involving a creditors trust create special risks for creditors. Further, using a creditors trust in a Deed in some cases may be an abuse of the Part5.3A process
or be otherwise contrary to the public interest. As a result, our view is that while
the use of a creditors trust in a Deed may occasionally be justified by the
circumstances of a particular company, indiscriminate use of creditors' trusts in
Deed's is not appropriate;
� We will generally consider that an administrator has not adequately complied with
all their obligations under the Act and the general law if an administrator asks
creditors to vote on a Deed proposal involving a creditors trust and the
administrator has not followed this guide in a material respect.
Administrators considerations in regards to the proposed Deed terms
We make the following comments regarding the proposed Deed having regard to
our duties under the Corporations Act and with reference to RG82:
� The inclusion of a CT in the proposed Deed requires significant additional
information and analysis be collated and conducted and be presented to creditors
to assist them understand the impact of the Deed and whether they should vote
for it. Given the timing of receipt of the Deed proposal there is not sufficient
time to adequately investigate and report on these issues ahead of the reconvened second creditors meeting scheduled for 30 September 2013;
� The proposed Deed includes inherent pre-conditions requiring satisfaction for
the proposed Deed to be completed, specifically that a refinance can be
completed (or that negotiations re same are in fact continuing) and that the HKR
agrees to the proposed terms of the Deed specifically those terms that require the HKR to release certain assets and funds for the benefits of unsecured creditors;
� Some key details of the Deed have also not been confirmed or provided including
(but not limited to):
– What is the definition of "unsecured creditors" for the purpose of the Deed
i.e. will Directors, related parties and intercompany creditors be eligible to participate in the distribution from the CT;
– What assets are proposed to be sold and what is the timeframe for such sales?;
– Confirmation of the value of the Unit proposed as security for the obligations
to pay funds to the creditors trust i.e.an independent valuation;
– Why the unit cannot be sold immediately to allow creditors to be paid in full in a much shorter time period?;
– Why can the same outcome not be obtained for creditors within a Deed
without the use of a CT?.
� 2.4 Much of the information we think should be provided to creditors will
describe the Administrators understanding of the law. Therefore, we consider
that Administrators should base such information on legal advice received by them that is applicable to the particular Deed proposal;
� 2.5 Because of the additional complexity involved in a Deed proposal involving a
creditors trust, we consider that creditors should be given adequate opportunity
to obtain (if they wish) professional advice about the proposal, its implications
and risks before they vote on the proposal. This may affect the appropriate period of notice of meeting, the need for an extension of the convening period,
or the need for an adjournment of the meeting;
� 2.6 Table 1 lists the information that should be provided to creditors and
includes:
– Reasons for the CT
– Key events – anticipated sequence of events if the Deed is approved
– Return to creditors anticipated
– Trustee particulars including skills, experience and insurance proposed
– Remuneration of deed administrator and trustee
– Indemnities provided for fees and or liabilities
– Powers – differences between powers of deed administrator and trustee
– Claims – how creditors claims will be dealt with under the Deed and in what
priority
– Details of differences of the rights of a beneficiary and creditor
– GEERS – affect on employee entitlements
– Solvency Statement – basis for opinion that company will be solvent at the
date of Deed effectuation
– Tax – details of taxation and stamp duty implications and differences in
treatment of creditors vs beneficiaries of a trust
We have written to the Directors requiring their urgent confirmation in regards to
the various information outlined above and to understand the actual current status
of negotiations between the secured creditor and the HKR in an effort to understand both the full details of the Deed that are relevant to the creditors
consideration of the Deed and whether any such Deed is a realistic prospect of
success.
We consider understanding this information is critical to the creditors decision as:
� Any delay to pursue a Deed without genuine prospects of success will necessarily result in additional costs of the voluntary administration (including assessing the
Deed and the use of a CT), the proposed Deed period and the various Group
receiverships;
� Will most likely delay a sale of the Group's assets. This could result in those
assets not being able to be marketed for sale until early 2014 subject to the length of time it ultimately takes to resolve whether the proposed Deed is to proceed.
This prolonged period of sale may risk a deterioration of asset realisation value;
and
� Will delay the ability of employees from accessing FairWork Employee
Guarantee (FEG). Please refer to our Section 439A report dated 5 September 2013 for further information.
As detailed in the Section 439A Report, the following options are available to
creditors to decide pursuant to s439C of the Corporations Act, being that:
1. The Company execute a Deed of Company Arrangement;
2. The administration should end; or
3. The Company be wound up.
Since our Section 439A Report was issued we have received a Deed proposal from
the Directors as outlined in this report.
As outlined in this report the Deed proposal is both complex and lacking the full
details required to allow it to be fully considered. In addition, given the time the proposed Deed was received and the complex nature of same, there is insufficient
time available to properly assess the proposed Deed before this report needs to be
issued so that our report is received by creditors in time for it to be considered ahead
of the reconvened second creditors meeting.
In our view, the Deed proposal also, importantly, requires certain confirmations to be received from the secured creditor and in particular the HKR in regards to the
status of the refinance negotiations and their support of the proposed Deed so that
we can be comfortable that a refinance is still being negotiated and that the Deed has
a realistic prospect of success. The Directors own proposal recognises those
negotiations have previously ceased and that they are seeking confirmation of the HKR's support by 23 September 2013.
In light of the issues raised above we do not consider that at the time of
writing this report that a Deed proposal exists that is capable of being
recommended to creditors.
On that basis, the Administrators recommendation remains as per our initial
Section 439A Report that the Company be placed into liquidation.
We do however note that should the Directors be able to clarify the issues raised in
this report and obtain confirmation of the support for the proposed Deed of the
secured creditor and HKR ahead of the reconvened second meeting of creditors then we believe it would be appropriate for creditors to consider a further
adjournment to enable the Administrators to properly investigate, analyse and report
Proxies lodged for the second meeting of creditors commenced on 16 September
2013 are valid for this meeting. However, as there has been an update to the motions to be put to the reconvened meeting, it would be preferable if creditors re-
submitted proxies to confirm their voting intentions.
Please ensure that the proxies are signed under seal, where appropriate (if you are a Company) and if the proxy is executed by a power of attorney, that a copy of the
power of attorney is enclosed with the proxy form. The proxy form is enclosed as
Appendix F.
Proxies for the meeting can be lodged in the following ways:
� Post: to arrive no later than 5.00pm on the business day prior to the meeting,
being Friday, 27 September 2013.
� Facsimile: to no later than 5.00pm on the business day prior to the meeting,
being Friday, 27 September 2013.
� In Person: by person with a person attending the meeting; or
business day prior to the meeting, being Friday, 27 September 2013.
If proxies are lodged by facsimile or email, the Act requires that the original proxy
must be lodged with the Voluntary Administrators within 72 hours of lodging the
faxed or emailed copy.
Contact details
Should you have any queries in relation to any matter raised in this report then
please do not hesitate to contact Lyle Fernandes on (07) 3222 0394.
Yours faithfully
Shaun McKinnon Michael McCann
Joint and Several Administrator Joint and Several Administrator
Second meeting of creditors
The reconvened second meetings of creditors is to be held at the Pullman Reef
Hotel Casino, 35-41 Wharf Street, Cairns QLD 4870 at 11:00am on Monday, 30 September 2013. Please arrive 30 minutes before hand to allow sufficient time for
registration.
The notice in regards to the meeting is enclosed as Appendix D.
The meeting will be open to creditors for questions and general discussion. Should
you wish to have us address any issue in detail please advise us prior to the meeting
date. This will allow sufficient time to prepare a detailed response to your question.
Please note that attendance at the meeting is not compulsory.
Telephone attendance
Should you not be able to attend the second meeting of creditors in person,
creditors are invited to attend via telephone. In order to do so, you will be required
to submit a proof of debt and proxy in favour of the party attending via telephone as
detailed below.
Please contact Lyle Fernandes of this office at [email protected] no later
than 5.00pm on the business day prior to the meeting, being Friday, 27 September
2013 to obtain dial in details.
Lodging of proofs of debt
Should you not have already lodged a proof of debt, you are required to complete
Various Companies Within the H & S Vision Group (Receivers & Managers Appointed)(In Administration) ("the Companies") – Proposal For A Possible Scheme of Company Arrangement
We refer to your letter of the 18 September 2013.
It is our clients' belief that there is a genuine willingness at high levels of ANZ and the Hong Kong based proposed refinancer, to finalise and execute the Trade Confirmation and assignment of securities. Our clients gather there are impediments to the progress of that deal, that might best be described as "communication problems". Our clients understand these should not provide a fundamental barrier to finalisation of the agreement and that top down steps are being taken on both sides to resolve these impediments, but this is yet to be resolved.
We have instructions to put to the Administrators the enclosed draft DOCA proposal. In essence, that proposal involves:
(a) a residential unit owned by Mr Ross Straguszi (worth approximately $2,500,000.00) being released from ANZ securities pursuant to the Trade Confirmation, without fresh security being over it by the financier, so that the unit can be offered as security for the payment mentioned below;
(b) A trust fund being created for the benefit of unsecured creditors in a similar form to that which was the subject of approval of a DOCA by the Supreme Court of NSW, in the matter of Bevillesta Pty Ltd [2011] NSWSC 417;
(c) First Mortgage security would be granted over Mr Straguszi's unit to be held by the current Administrators as security for performance by our clients of their obligations under the DOCA mentioned below;
(d) Group companies would be released from administration and the receivers would retire, upon completion of the Trade Confirmation and assignment of securities and the grant of security in favour of the Bevillesta style Trust Fund;
(e) on sale of property by H & S Group entities, some of those funds would be released to satisfy the terms of the DOCA and the Bevillesta style Trust Fund, with a total of
MacDonnells Law 20 September 2013
Page 2
Mr. D. Monaghan Senior Associate Allens
SAN_113644_1473723
$1,500,000.00 to be paid into the trust;
(f) unsecured creditors will be paid by a distribution from the Bevellista Style Trust Fund, from those funds; and
(g) in the event that unsecured creditors do not receive the intended distribution in full, within 12 months, the current Administrators as trustees of the Bevillesta style Trust Fund, could exercise security over Mr Straguszi's unit to make payment to them.
We are instructed that the two key elements of the DOCA proposal that require the refinancer's agreement, have been discussed and they have been agreed to in principle. These are:-
(a) the refinancer not requiring a fresh mortgage over Mr Straguszi's unit when it is released by the ANZ from their securities; and
(b) allowing some of the proceeds of sale of some of the H & S Group assets, to be used to pay unsecured creditors.
We understand that the release of Mr Straguszi's unit to allow it to be put up as security for the DOCA has been agreed to by the refinancer and will not be controversial.
Whilst further discussion will be required around details of how the release of funds from asset sales, (to pay unsecured creditors) would work, that should not be an impediment to acceptance of the DOCA proposal, it Mr Straguszi's unit is available to be provided as security.
We have requested Corrs Chambers Westgarth to confirm that their client will agree to this by Monday.
Yours faithfully MacDonnells Law
Writer: Ian Conrad ½ Senior Counsel Direct: + 61 7 4722 0247 Email: [email protected] Liability limited by a scheme approved under professional standards legislation.
DOCA Proposal
SAN_113644_1440118
Parties: The Administered Companies The Deed Administrators Ross Straguszi, Peter Hopkins and Rose-Marie Dash (the Proponents)
DEFINITIONS
1. Definitions:-
a. Administered Companies means the companies listed in the Report to Creditors dated 13th August, 2013;
b. Completion Date means the date upon which Completion of the Trade Confirmation occurs;
c. Completion of the Trade Confirmation means ANZ either:- i. releasing; or
ii. unconditionally assigning, transferring or novating to GN each of the Debts and each of the Securities;
d. Conditional Mortgage means the Conditional Mortgage referred to in paragraph 9;
e. Confirmation Date means the date that is 10 business days after execution of the DOCA or such later date as is agreed to in writing between the Deed Administrators and the Proponents;
f. Debt Restructure Agreement means a proposed agreement between the Proponents and GN under which the terms applicable to the Debts are renegotiated,
g. Debts means the debts owing under the facilities being assigned or novated under the Trade Confirmation;
h. Effectuation of the DOCA means effectuation of the DOCA under paragraph 15;
i. GN means [full name etc]; j. Creditors Trust means the trust referred to in paragraphs 14 and 15; k. The Mortgage Conditions Precedent are:-
i. Completion of the Trade Confirmation ii. Execution of the Debt Restructure Agreement
l. Property means [description of Ross Straguzsi's unit]; m. Securities means the securities being assigned or novated under the Trade
Confirmation; n. Sunset Date means the date that is 60 Business days after execution of the
DOCA or such later date as is agreed to in writing between the Deed Administrators and the Proponents;
o. Trade Confirmation means [complete details].
DOCA PROCESS 2. The DOCA will include terms typically provided for in a trading DOCA, consistent with
the terms of this Proposal. The terms of the DOCA will be negotiated between the Proponents and the Administrators and the DOCA must be executed within 21 days of approval of this Proposal at the 2nd meeting of creditors of the Administered Companies.
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3. The Administrators of the Administered Companies will be appointed as Deed
Administrators under the DOCA.
4. The Deed Administrators will cause the Administered Companies to continue to trade until the DOCA is effectuated or terminated.
5. Continuation of the DOCA beyond the Confirmation Date will be conditional upon:-
a. The establishment of the Creditors Trust; b. Ross Straguszi executing and delivering to the Deed Administrators the
Conditional Mortgage; and c. the Trade Confirmation remaining on-foot as at that date.
6. The Proponents will endeavour to negotiate the terms of a Debt Restructure
Agreement with GN. That agreement will be conditional upon, and will come into effect on Completion of the Trade Confirmation. The Proponents will notify the Deed Administrators in writing when the Debt Restructure Agreement is executed.
7. Upon the Deed Administrators being notified in writing of both:-
a. execution of the Debt Restructure Agreement by the parties thereto; and
b. Completion of the Trade Confirmation,
the Deed Administrators shall forthwith:
c. pay into the fund created by the Creditors Trust the balance cash funds held by the Administered Companies after payment of their proper fees and outlays incurred in the DOCA administration;
d. release the Administered Companies to the control of the directors thereof; and
e. take such steps as are required under the Corporations Act to confirm the Effectuation of the DOCA.
8. If the conditions mentioned:-
a. in paragraph 5 are not satisfied by the Confirmation Date; or
b. in paragraph 7a&b are not satisfied by the Sunset Date, the DOCA shall be
terminated and the Administered companies shall be placed in liquidation.
THE CONDITIONAL MORTGAGE
9. The Conditional Mortgage will be negotiated between the Proponents and the Deed Administrators and will include the following terms:
a. The mortgage will provide a first registered charge over the Property;
b. The obligations secured under the mortgage will be the obligations of the mortgagor Proponent to procure the payment referred to in paragraph 10b and 14eii below;
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c. The rights of the mortgagee shall be conditional upon and arise only upon
satisfaction of the following conditions precedent: i. Execution of the Creditors Trust Deed; ii. Execution of the Debt Restructure Agreement; iii. Completion of the Trade Confirmation; and iv. Effectuation of the DOCA.
THE DEBT RESTRUCTURE AGREEMENT
10. The Debt Restructure Agreement will be negotiated between the Proponents and
GN, will be executed by the Confirmation Date and will:-
a. permit the orderly sale of certain assets of the Administered Companies; and
b. permit the payment of the Proponents Contribution to the Creditors Trust fund after agreed debt reduction targets are met.
11. The Deed Administrators shall have the discretion to waive any of the requirements
of paragraph 7 if they consider it is in the interests of Creditors to do so.
12. The terms of the Debt Restructure Agreement will be confidential and the final document will be provided to the Deed Administrators in strict confidence, for the sole purpose of verifying compliance with paragraphs 7 and 8.
THE CREDITORS TRUST
13. The Creditors Trust will be established after the DOCA is executed and before the Confirmation Date.
14. The Deed constituting the Creditors Trust will be negotiated between the Proponents and the Deed Administrators and include the following terms:
a. the trust will be constituted upon payment by the Settlor of the initial sum of $10 to the Trustees;
b. The Trustees will be the current Administrators; c. The Beneficiaries will be the creditors of the Administered Companies; d. The Trustees will have typical powers required to properly manage the trust
fund; e. The trust fund will include:-
i. any funds paid into the trust fund under the DOCA; and ii. subject to the satisfaction of the conditions listed in paragraphs 5a&b:
A. the Proponents Contribution of $1,500,000 which is to be paid within 12 months from execution of the DOCA; or
B. if the Proponents fail to cause the Proponents Contribution to be paid, the proceeds of sale of the properties subject to the Conditional Mortgage.
f. Upon receipt of those funds, the trustees will pay the trust fund: i. firstly in payment of the Trustees reasonable fees and expenses of
administering the trust; and ii. then to the creditors of the Administered Companies in shares
equivalent to the respective dividends they would receive on a winding up, were that trust fund divided between the Administered Companies
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in liquidation pro rata to those companies' respective net balance sheet deficiencies.
EFFECTUATION OF THE DOCA
15. Upon satisfaction of the conditions precedent to the Conditional Mortgage other than effectuation of the DOCA, the DOCA shall be effectuated and come to an end and the creditors of the Administered Companies whose rights are compromised under the DOCA shall from that time on arise solely under the Creditors Trust.
H & S Vision Holdings Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed)
Remuneration Request Approval Report Page 1 of 19
Part 1: Declaration
We, Shaun McKinnon and Michael Gerard McCann, of Grant Thornton Australia Limited have undertaken a proper assessment of this remuneration claim for our appointment as Grant Thornton Australia Limited, of H & S Vision Holdings Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed), in accordance with the law and applicable professional standards. We are satisfied that the remuneration claimed is in respect of necessary work, properly performed, or to be properly performed, in the conduct of the Administration.
Part 2: Executive Summary To date the following Administrators’ remuneration has been approved: (a) For the period 12 August 2013 to 4 September 2013 in the amount of $17,402.00 (excluding GST); and (b) For the period 5 September 2013 to 16 September 2013 in the amount of $3,500.00 (excluding GST). No remuneration approved by creditors has been drawn as at the date of this report. This remuneration report details approval sought for the following fees:
Less: Fees previously approved: 05/09/2013 – 16/09/2013 ($3,500.00) Total Resolution 1 $6,345.50 Liquidation (if applicable) Resolution 2a: Commencement of liquidation to finalisation* Section 4 $7,500.00
H & S Vision Holdings Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed)
Remuneration Request Approval Report Page 2 of 19
Period Report Reference
Amount (ex GST)
Voluntary Administration (if a Deed is approved by creditors) (if applicable)
Resolution 2b: From meeting of creditors to execution of the Deed*
Section 4 $5,000.00
Deed (if approved) (if applicable) Resolution 3: From execution of the Deed to execution of the Creditors’ Trust Deed*
Section 4 $3,000.00
* Approval for the future remuneration sought is based on an estimate of the work necessary to the completion of the administration. Should additional work be necessary beyond what is contemplated, further approval may be sought from creditors. Please refer to report section references detailed above and on the previous page for full details of the calculation and composition of the remuneration approval sought. The remuneration for the period 5 September 2013 to 16 September 2013 was more than the estimate of costs provided in report to Creditors dated 5 September 2013. This increase of $3,845.50 is attributable to the time spent dealing with the following:
- Preparing reports to creditors; and
- Preparing for the first meeting of creditors.
H & S Vision Holdings Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed)
Remuneration Request Approval Report Page 3 of 19
Part 3: Description of work completed
Resolution 1
“The remuneration of the Administrators, their partners and staff, incurred in relation to the Administration of H & S Vision Holdings Pty Ltd for the period 12 August 2013 to 16 September 2013, not previously approved, and for the period 17 September 2013 to 30 September 2013, be hereby calculated on a time basis and by reference to the hourly rates of Grant Thornton – Recovery & Reorganisation Services (plus GST). Such remuneration is to be capped at $6,345.50, plus GST and should be drawn to the extent of available funds.”
Company H & S Vision Holdings Pty Ltd (Administrators Appointed)
Practitioner(s) Shaun McKinnon and Michael Gerard McCann Firm Grant Thornton Australia Limited
Administration Type Voluntary Administration
Period From 05/09/2013 To 16/09/2013
Task Area General Description Includes
Assets (1.6 hours) ($584.00)
Forecasting Prepare cash flow forecast
Creditors (15.7 hours) ($5,506.50)
Creditor Enquiries Receive and follow up creditor enquiries via telephone
Maintaining creditor enquiry register
Review and prepare correspondence to creditors and their representatives via facsimile, email and post
Secured creditor reporting
Preparing update to secured creditor
Responding to secured creditor’s queries
Creditor reports Preparing 439A report, investigation, meeting and general reports to creditors
Dealing with proofs of debt
Receipting and filing Proofs of Debt when not related to a dividend
Corresponding with OSR and ATO regarding Proofs of Debt when not related to a dividend
H & S Vision Holdings Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed)
Remuneration Request Approval Report Page 4 of 19
Task Area General Description Includes
Meeting of Creditors Preparation meeting notices, proxies and advertisements
Forward notice of meeting to all known creditors
Preparation of meeting file, including agenda, certificate of postage, attendance register, list of creditors, reports to creditors, advertisement of meeting and draft minutes of meeting
Preparation and lodgement minutes of meetings with ASIC
Responding to stakeholder queries and questions immediately following meeting
Investigation (0.1 hours) ($23.00)
Conducting investigation
Preparation of comparative financial statements
Employees (0.2 hours) ($54.00)
Calculation of entitlements
Receive and follow up employee enquiries via telephone
Maintain employee enquiry register
Administration (3.0 hours) ($1,178.00)
Correspondence
Document maintenance/file review/checklist
Filing of documents
Updating checklists
Insurance Correspondence with Insurance Brokers regarding ongoing insurance requirements
Planning/Review Discussions regarding status of administration
Bank account administration
Bank account reconciliation
H & S Vision Holdings Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed)
Remuneration Request Approval Report Page 5 of 19
Company H & S Vision Holdings Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed)
Practitioner(s) Shaun McKinnon and Michael Gerard McCann Firm Grant Thornton Australia Limited
Administration Type Voluntary Administration
Period From 17/09/2013 To 30/09/2013
Task Area General Description Includes
Creditors ($1,500.00)
Creditor Enquiries Receive and follow up creditor enquiries via telephone
Maintaining creditor enquiry register
Review and prepare correspondence to creditors and their representatives via facsimile, email and post
Secured creditor reporting
Preparing updates to secured creditor
Responding to secured creditor’s queries
Dealing with proofs of debt
Receipting and filing Proofs of Debt when not related to a dividend
Meeting of Creditors Preparation of circular to creditors to advise of adjourned meeting of creditors
Consider any Deed of Company Arrangement proposed
Preparation of adjourned meeting file, including agenda, certificate of postage, attendance register, list of creditors, reports to creditors, advertisement of meeting and draft minutes of meeting
Employees ($500.00)
Employees enquiry
Receive and follow up employee enquiries via telephone
Maintain employee enquiry register
Review and prepare correspondence to creditors and their representatives via facsimile, email and post
Administration ($500.00)
Correspondence
Document maintenance/file review/checklist
Filing of documents
Updating checklists
H & S Vision Holdings Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed)
Remuneration Request Approval Report Page 6 of 19
Task Area General Description Includes
Planning/Review Discussions regarding status of administration
H & S Vision Holdings Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed)
Remuneration Request Approval Report Page 7 of 19
Part 4: Calculation of Remuneration Please find below a calculation of remuneration by staff and task area.
H & S Vision Holdings Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed)
Part 4 Calculation of remuneration by staff and task area - 5 September 2013 to 16 September 2013
H & S Vision Holdings Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed)
Remuneration Request Approval Report Page 8 of 19
Part 5: Description of work from the commencement of liquidation to finalisation
Resolution 2
“That should the Company be wound up, that the remuneration of the Liquidators, their partners and staff for work carried out in relation to H&S Vision Holdings Pty Ltd be hereby calculated by reference to the current and future hourly rates of Grant Thornton – Recovery and Reorganisation Services. Such remuneration is to be capped at $7,500.00 excluding GST and disbursements, and should be drawn to the extent of available funds. In respect to remuneration calculated by reference to future hourly rates, any increase to hourly rates charged will not exceed 10% of the current hourly rates of Grant Thornton – Recovery and Reorganisation Service.”
Company H & S Vision Holdings Pty Ltd (Administrators Appointed)
Practitioner(s) Shaun McKinnon and Michael Gerard McCann Firm Grant Thornton Australia Limited
Administration Type Voluntary Administration
Period From 01/10/2013 To Finalisation
Task Area General Description Includes
Creditors ($1,500.00)
Creditor Enquiries Receive and follow up creditor enquiries via telephone
Maintaining creditor enquiry register
Review and prepare correspondence to creditors and their representatives via facsimile, email and post
Correspondence with committee of inspection members if appointed
Secured creditor reporting
Preparing updates to secured creditor
Responding to secured creditor’s queries
Creditor reports Preparing reports to creditors
Dealing with proofs of debt
Receipting and filing Proofs of Debt when not related to a dividend
Corresponding with OSR and ATO regarding Proofs of Debt when not related to a dividend
Final Meeting of Creditors
Preparation meeting notices, proxies and advertisements
Forward notice of meeting to all known creditors
H & S Vision Holdings Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed)
Remuneration Request Approval Report Page 9 of 19
Task Area General Description Includes
Preparation of meeting file, including agenda, certificate of postage, attendance register, list of creditors, reports to creditors, advertisement of meeting and draft minutes of meeting.
Preparation and lodgement minutes of meetings with ASIC
Responding to stakeholder queries and questions immediately following meeting
Employees ($2,000.00)
Employees enquiry
Receive and follow up employee enquiries via telephone
Maintain employee enquiry register
Review and prepare correspondence to creditors and their representatives via facsimile, email and post
Preparation of letters to employees advising of their entitlements and options available
Receive and prepare correspondence in response to employees objections to leave entitlements
FEG Correspondence with DEEWR in respect to FEG
Preparing notification spreadsheet
Preparing DEEWR quotations
Preparing DEEWR distributions
Calculation of entitlements
Calculating employee entitlements
Reviewing employee files and company’s books and records
Reconciling superannuation accounts
Reviewing awards
Employee dividend Correspondence with employees regarding dividend
Correspondence with ATO regarding SGC proof of debt
Calculating dividend rate
Preparing dividend file
Advertising dividend notice
Preparing distribution
Receipting Proofs of Debt
Adjudicating Proofs of Debt
Ensuring PAYG is remitted to ATO
H & S Vision Holdings Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed)
Remuneration Request Approval Report Page 10 of 19
Task Area General Description Includes
Investigation ($1,000.00)
Conducting investigation
Reviewing company’s books and records
Review of specific transactions and liaising with Directors regarding certain transactions
Liaising with Directors regarding certain transactions
Preparation of investigation file
Lodgement of investigation with the ASIC
Preparation and lodgement of supplementary report if required
Litigation / Recoveries (if applicable)
Internal meetings to discuss status of litigation
Preparing brief to solicitors
Liaising with solicitors regarding recovery actions
H & S Vision Holdings Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed)
Remuneration Request Approval Report Page 12 of 19
Part 6: Description of work from the meeting of creditors to execution of the Deed
Resolution 2b
“That should the Company’s creditors vote in favour of a Deed of Company Arrangement, that the remuneration of the Administrators, their partners and staff for work carried out in relation to H & S Vision Holdings Pty Ltd for the period 1 October 2013 to 21 October 2013, being the period to execution of the Deed, be hereby calculated by reference to the current and future hourly rates of Grant Thornton – Recovery and Reorganisation Services. Such remuneration is to be capped at $5,000.00 excluding GST and disbursements, and should be drawn to the extent of available funds. In respect to remuneration calculated by reference to future hourly rates, any increase to hourly rates charged will not exceed 10% of the current hourly rates of Grant Thornton – Recovery and Reorganisation Service.”
Company H & S Vision Holdings Pty Ltd (Administrators Appointed)
Practitioner(s) Shaun McKinnon and Michael Gerard McCann Firm Grant Thornton Australia Limited
Administration Type Voluntary Administration
Period From 01/10/2013 To 21/10/2013
Task Area General Description Includes
Creditors ($1,500.00)
Creditor Enquiries Receive and follow up creditor enquiries via telephone
Maintaining creditor enquiry register
Review and prepare correspondence to creditors and their representatives via facsimile, email and post
Correspondence with committee of inspection members if appointed
Secured creditor reporting
Preparing updates to secured creditor
Responding to secured creditor’s queries
Creditor reports Preparing reports to creditors
Dealing with proofs of debt
Receipting and filing Proofs of Debt when not related to a dividend
Corresponding with OSR and ATO regarding Proofs of Debt when not related to a dividend
H & S Vision Holdings Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed)
Remuneration Request Approval Report Page 13 of 19
Task Area General Description Includes
Employees ($500.00)
Employees enquiry
Receive and follow up employee enquiries via telephone
Maintain employee enquiry register
Review and prepare correspondence to creditors and their representatives via facsimile, email and post Administration ($500.00)
Correspondence
Document maintenance/file review/checklist
Filing of documents
Updating checklists
Bank account administration
Bank account reconciliations
Correspondence with bank regarding specific transfers
Planning/Review Discussions regarding status of administration
Statutory ($2,500.00)
Deed of Company Arrangement
Various correspondence to stakeholders and solicitors relating to the Deed and Creditors’ Trust Deed preparation
Review of draft Deed and Creditors’ Trust Deed
Execution of Deed
Compliance monitoring of the requirements of the Deed
ATO & other statutory reporting
Preparing BAS’
H & S Vision Holdings Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed)
Remuneration Request Approval Report Page 14 of 19
Part 7: Description of work from execution of the Deed to execution of the Creditors’ Trust Deed / Effectuation of the Deed
Resolution 3
“That the remuneration of the Deed Administrators, their partners and staff for work carried out in relation to H & S Vision Holdings Pty Ltd for the period 22 October 2013 to the date of execution of the Creditors’ Trust Deed / effectuation of the Deed, be hereby calculated by reference to the current and future hourly rates of Grant Thornton – Recovery and Reorganisation Services. Such remuneration is to be capped at $3,000.00 excluding GST and disbursements, and should be drawn to the extent of available funds. In respect to remuneration calculated by reference to future hourly rates, any increase to hourly rates charged will not exceed 10% of the current hourly rates of Grant Thornton – Recovery and Reorganisation Service.”
Company H & S Vision Holdings Pty Ltd (Administrators Appointed)
Practitioner(s) Shaun McKinnon and Michael Gerard McCann Firm Grant Thornton Australia Limited
Administration Type Deed of Company Arrangement
Period From 22/10/2013 To Execution of the Creditors’ Trust Deed / Effectuation of the Deed
Task Area General Description Includes
Creditors ($500.00)
Creditor Enquiries Receive and follow up creditor enquiries via telephone
Secured creditor reporting
Preparing updates to secured creditor
Responding to secured creditor’s queries
Creditor reports Preparing reports to creditors
Employees ($500.00)
Employees enquiry
Receive and follow up employee enquiries via telephone
Maintain employee enquiry register
Review and prepare correspondence to creditors and their representatives via facsimile, email and post Statutory ($2,000.00)
Deed of Company Arrangement
Various correspondence to stakeholders and solicitors relating to the monitoring of the Deed terms and Creditors’ Trust Deed preparation
Review of draft Creditors’ Trust Deed
H & S Vision Holdings Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed)
Remuneration Request Approval Report Page 15 of 19
Task Area General Description Includes
Execution of the Creditors’ Trust Deed
Filing of Deed and Creditors’ Trust Deed with ASIC
Compliance monitoring of the requirements of the Deed
Any other tasks associated with facilitating the transition from Deed to the Creditors’ Trust Deed
ATO & other statutory reporting
Preparing BAS’
H & S Vision Holdings Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed)
Remuneration Request Approval Report Page 16 of 19
Part 8: Schedule of remuneration methods and hourly rates
Remuneration Methods
There are four basic methods that can be used to calculate the remuneration charged by an Insolvency Practitioner. They are:
a. Time based / hourly rates This is the most common method. The total fee charged is based on the hourly rate charged for each person who carried out the work multiplied by the number of hours spent by each person on each of the tasks performed.
b. Fixed Fee The total fee charged is normally quoted at the commencement of the administration and is the total cost for the administration. Sometimes a Practitioner will finalise an administration for a fixed fee.
c. Percentage The total fee charged is based on a percentage of a particular variable, such as the gross proceeds of assets realisations.
d. Contingency The practitioner’s fee is structured to be contingent on a particular outcome being achieved.
Method chosen
Given the nature of this administration we propose that our remuneration be calculated on a time based / hourly rated basis. This is because:
• It ensures that creditors are only charged for work that is performed. Our time is recorded and charged in six minute increments.
• We will be required to perform a number of tasks that do not specifically relate to asset realisation.
Explanation of Hourly Rates
The rates for our remuneration calculation are set out in the attached table together with a general guide showing the qualifications and experience of staff engaged in the administration and the role they take in the administration. The hourly rates charged encompass the total cost of providing professional services and should not be compared to an hourly wage. Refer Appendix C.
H & S Vision Holdings Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed)
Remuneration Request Approval Report Page 17 of 19
Part 9: Statement of Remuneration Claim Resolution 1 “The remuneration of the Administrators, their partners and staff, incurred in relation to the Administration of H & S Vision Holdings Pty Ltd for the period 12 August 2013 to 16 September 2013, not previously approved, and for the period 17 September 2013 to 30 September 2013, be hereby calculated on a time basis and by reference to the hourly rates of Grant Thornton – Recovery & Reorganisation Services (plus GST). Such remuneration is to be capped at $6,345.50, plus GST and should be drawn to the extent of available funds.” Resolution 2 (whichever is applicable) (a) Description of work from the commencement of liquidation to finalisation “That should the Company be wound up, that the remuneration of the Liquidators, their partners and staff for work carried out in relation to H&S Vision Holdings Pty Ltd be hereby calculated by reference to the current and future hourly rates of Grant Thornton – Recovery and Reorganisation Services. Such remuneration is to be capped at $7,500.00 excluding GST and disbursements, and should be drawn to the extent of available funds. In respect to remuneration calculated by reference to future hourly rates, any increase to hourly rates charged will not exceed 10% of the current hourly rates of Grant Thornton – Recovery and Reorganisation Service.”
(b) Description of work from the meeting of creditors to execution of the Deed “That should the Company’s creditors vote in favour of a Deed of Company Arrangement, that the remuneration of the Administrators, their partners and staff for work carried out in relation to H & S Vision Holdings Pty Ltd for the period 1 October 2013 to 21 October 2013, being the period to execution of the Deed, be hereby calculated by reference to the current and future hourly rates of Grant Thornton – Recovery and Reorganisation Services. Such remuneration is to be capped at $5,000.00 excluding GST and disbursements, and should be drawn to the extent of available funds. In respect to remuneration calculated by reference to future hourly rates, any increase to hourly rates charged will not exceed 10% of the current hourly rates of Grant Thornton – Recovery and Reorganisation Service.”
H & S Vision Holdings Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed)
Remuneration Request Approval Report Page 18 of 19
Resolution 3 (if applicable) Description of work from execution of the Deed to execution of the Creditors’ Trust Deed / Effectuation of the Deed
“That the remuneration of the Deed Administrators, their partners and staff for work carried out in relation to H & S Vision Holdings Pty Ltd for the period 22 October 2013 to the date of execution of the Creditors’ Trust Deed / effectuation of the Deed, be hereby calculated by reference to the current and future hourly rates of Grant Thornton – Recovery and Reorganisation Services. Such remuneration is to be capped at $3,000.00 excluding GST and disbursements, and should be drawn to the extent of available funds. In respect to remuneration calculated by reference to future hourly rates, any increase to hourly rates charged will not exceed 10% of the current hourly rates of Grant Thornton – Recovery and Reorganisation Service.”
Part 10: Disbursements Disbursements are divided into three types: A, B1, B2.
A disbursements are all externally provided professional services. These are recovered at cost. An example of an A disbursement is legal fees.
B1 disbursements are externally provided non-professional costs such as travel, accommodation and search fees. B1 disbursements are recovered at cost.
B2 disbursements are internally provided non-professional costs such as photocopying, printing and postage. B2 disbursements, if charged to the Administration, would generally be charged at cost; though some expenses such as telephone calls, photocopying and printing may be charged at a rate which recoups both variable and fixed costs.
I have undertaken a proper assessment of disbursements claimed for the Company, in accordance with the law and applicable professional standards. I am satisfied that the disbursements claimed are necessary and proper.
H & S Vision Holdings Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed)
Remuneration Request Approval Report Page 19 of 19
All disbursements are claimed at cost except for faxing which is charged as follows:
- Local - $1 per page
- National - $2 per page
- International - $3 per page.
Creditors have the right to question the incurring of disbursements and can challenge disbursements in court.
Part 11: Report on Progress of the Administration Please refer to the attached report and the Report to Creditors dated 16 September 2013 for an update on the progress of the Administration.
Part 12: Queries Arrangements can be made to inspect the time and costs records which give greater detail of the work performed by contacting Lyle Fernandes of this office on (07) 3222 0394. We would appreciate it if this could be done no later than 2:00pm on Thursday, 26 September 2013 to allow sufficient time for a review of the information.
Part 13: Information Sheet The ASIC Creditors Information Sheet (INFO 85) that outlines further information regarding the remuneration approval and payment process can be obtained from the following web address: www.asic.gov.au/insolvencyinfosheets. This document was also attached to the previous two circulars to creditors. Further information regarding creditors’ trusts can be found in Regulatory Guide 82 and can be obtained from the following web address: http://www.asic.gov.au/asic/pdflib.nsf/lookupbyfilename/creditors_trusts_guide.pdf/$file/creditors_trusts_guide.pdf.
THE LAKES MANGEMENT COMPANY PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (ADMINISTRATORS APPOINTED) ACN 065 156 381 USCON PTY LTD (RECIEVERS AND MANAGERS APPOINTED)
(ADMINISTRATORS APPOINTED) ACN 058 849 479
(“THE COMPANIES”) Notice is given that the reconvened concurrent second meeting of the creditors of the Companies will be held at the Pullman Reef Hotel Casino, 35-41 Wharf Street, Cairns QLD 4870, at 11:00 AM on 30 September 2013.
AGENDA
1. To consider the Voluntary Administrators' update to creditors Companies. 2. To approve the remuneration of the Voluntary Administrators. 3. To consider a proposed Deed of Company Arrangement, if received prior to the commencement of the
reconvened meeting. 4. For creditors to resolve:
a) That the Companies execute a Deed of Company Arrangement; or b) That the administration should end; or c) That the Companies be wound up.
5. If the Companies are to execute a Deed of Company Arrangement, to consider appointing a Committee of Inspection.
6. If the Companies are to be wound up, to consider appointing a Committee of Inspection. 7. To approve future remuneration of the Liquidators (if applicable).
8. To approve future remuneration of the Deed Administrators (if applicable).
9. To approve the early destruction of the Companies’ books and records. 10. Any other business that may be lawfully brought forward. Dated this 23rd day of September 2013.
Shaun McKinnon Joint and Several Administrator Grant Thornton Australia Limited Level 18 King George Central 145 Ann Street Brisbane QLD 4000 Tel: (07) 3222 0200 Note: Under the Corporations Regulations, a creditor is not entitled to vote at a meeting unless:
• his/her claim has been admitted, wholly or in part, by the administrator; or
• he/she has lodged with the administrator particulars of the debt or claim (regulation 5.6.23). Furthermore proxies must be made available to the administrator.
A secured creditor may vote for the whole of his debt without deduction for his/her security (reg 5.6.24(4)).
(RECEIVERS AND MANAGERS APPOINTED) (ADMINISTRATORS APPOINTED) ACN 107 554 370
I/We (Note 1)________________________________________________________________ (name of creditor)
Of________________________________________________________________________ address of creditor)
A creditor of H & S Vision Holdings Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed) hereby appoint:
_______________________________________________________________________(name of proxy)(Note 2)
Of__________________________________________________________________________(address of proxy)
Or in his absence,_____________________________________________________(name of alternative proxy)
Of_________________________________________________________________(address of alternative proxy)
As my/our special/general (Note 3) proxy to vote at the concurrent meeting of creditors to be held in the above matter on 30 September 2013 or at any adjournment thereof. If special proxy please select ONE of
the following:
To vote specifically in the following manner: FOR AGAINST ABSTAIN
1. The remuneration of the Administrators, their partners and staff, incurred in relation to the Administration of H & S Vision Holdings Pty Ltd for the period 12 August 2013 to 16 September 2013, not previously approved, and for the period 17 September 2013 to 30 September 2013, be hereby calculated on a time basis and by reference to the hourly rates of Grant Thornton – Recovery & Reorganisation Services (plus GST). Such remuneration is to be capped at $6,345.50 plus GST and should be drawn to the extent of available funds.
2. That should the Company’s creditors vote in favour of a Deed of
Company Arrangement that the remuneration of the Administrators, their partners and staff for work carried out in relation to H & S Vision Holdings Pty Ltd for the period 1 October 2013 to 21 October 2013, being the period prior to execution of the Deed be hereby calculated by reference to the current and future hourly rates of Grant Thornton – Recovery and Reorganisation Services. Such remuneration is to be capped at $5,000.00 excluding GST and disbursements, and should be drawn to the extent of available funds. In respect to remuneration calculated by reference to future hourly rates, any increase to hourly rates charged will not exceed 10% of the current hourly rates of Grant Thornton – Recovery and Reorganisation Service.
3. Please choose one of the below
a) That the Company execute a Deed of Company Arrangement; OR b) That the Company be Wound Up; OR
c) That the Voluntary Administration should end.
FOR AGAINST ABSTAIN
4. Please choose one of the below a) That should the Company execute a Deed of Company
Arrangement, that the Committee of Inspection be appointed; OR
b) That should the Company be wound up, that a Committee of Inspection be appointed.
5. Please choose one of the below
a) That should the Company be wound up, that the remuneration of the Liquidators, their partners and staff for work carried out in relation to H & S Vision Holdings Pty Ltd be hereby calculated by reference to the current and future hourly rates of Grant Thornton – Recovery and Reorganisation Services. Such remuneration is to be capped at $7,500.00 excluding GST and disbursements, and should be drawn to the extent of available funds. In respect to remuneration calculated by reference to future hourly rates, any increase to hourly rates charged will not exceed 10% of the current hourly rates of Grant Thornton – Recovery and Reorganisation Service; OR
b) That the remuneration of the Deed Administrators, their partners and staff for work carried out in relation to H & S Vision Holdings Pty Ltd for the period 22 October 2013 to the date of execution of the Creditors’ Trust Deed / execution of the Deed, be hereby calculated by reference to the current and future hourly rates of Grant Thornton – Recovery and Reorganisation Services. Such remuneration is to be capped at $3,000.00 excluding GST and disbursements, and should be drawn to the extent of available funds. In respect to remuneration calculated by reference to future hourly rates, any increase to hourly rates charged will not exceed 10% of the current hourly rates of Grant Thornton – Recovery and Reorganisation Service.
6. That should the Company be wound up, the Liquidator be authorised
to destroy the books and records of the Company six months after the date of its deregistration, subject to consent of the Regional Commissioner of the Australian Securities and Investments Commission in accordance with Section 542(4) of the Corporations Act 2001.
DATED this day of 2013 Signature ___________________________(Note 4)
CERTIFICATE OF WITNESS (NOTE 5) I, of , certify that the above instrument appointing a proxy was completed by me in the presence of and at the request of the person appointing the proxy and read to him before he attached his signature or mark to the instrument. DATED this day of 2013 Signature of Witness____________________________ Description ___________________________________ Place of Residence ______________________________ NOTE: 1. If a firm, strike our “I” and set out the full name of the firm. 2. Insert the name, address and description of the person appointed. 3. If a special proxy add the words “to vote for” or the words “to vote against” and specify the particular resolution. 4. The signature of the creditor, contributory, debenture holder or member must not be attested by the person nominated as proxy. 5. This certificate is to be completed only where the person giving the proxy is blind or incapable of writing.