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That decision was appealed and reversed on the ground that Panex, Duplan and Laga were dissolved and lacked the capacity to be sued.
Likewise, no action could lie against Gal and Lazare in their capacities as former directors of the dissolved corporations. (March 28, 1995)(court authorizes termination of liquidating trust and establishment of a Successor Trust for the benefit of the creditor plaintiffs); In re Heizer Corp., Del.
The Claimants below, Appellees are Esso Virgin Islands, Inc. (collectively “Esso”), Texaco Inc., Texaco Caribbean Inc. Certain beneficiaries of the Panex Trust filed a motion to enforce the Final Decree and permanent injunction.
and Vernon Morgan (collectively “Texaco”), and Western Auto Supply Co. In 1997, the Bankruptcy Court denied the motion on the grounds that the final decree discharged only claims that arose prior to the filing of the petition for relief.
The Trust was created “for the limited purpose of discharging any ․ liabilities of the Trust of Panex which the Trustees have reasonable grounds to believe may be asserted.” Panex had no known or suspected liabilities at the time it created the Trust except potential liabilities for additional taxes.
Stockholders' Liquidating Trust, and Norman Halper and Oliver Lazare, co-executors for the Estate of Paul Lazare, former Trustee of the Panex Industries, Inc. (also referred to as the “Liquidating Trust”) as part of its 1984 liquidation plan implemented prior to its 1985 dissolution.
Once aware of this potential liability, the Trustees postponed any further distributions and extended the life of the Panex Trust beyond its three-year term. The Proxy Statement for Panex's Liquidation Plan informed stockholders: It is possible that the entire amount which will be held in the Liquidating Trust to cover contingent and other liabilities of Panex will be used to discharge such liabilities ․ Moreover, although the Board of Directors believes that the amount of approximately million which will be deposited in the Liquidating Trust will be sufficient to cover any liabilities which may arise during or after the Liquidation Period, there can be no assurance that this will be the case.
If the amount held in the Liquidating Trust is insufficient to discharge fully all liabilities which arise, or if liabilities arise after the Liquidating Trust is terminated, each Panex stockholder may be liable for any unpaid portion of such liabilities to the extent of the liquidating distributions paid to him․ 5Each year from 1985 through 1991, the audited financial statements prepared by the Panex Trust's independent auditors reminded the former shareholders of the Proxy Settlement's earlier condition that “[i]f the amount held in the Trust is insufficient to discharge fully all liabilities which may arise, or if such liabilities arise after the Trust is terminated, each beneficiary may be liable for any unpaid portion of such liabilities to the extent of liquidating distributions paid to such beneficiary by the Company and the Trust.”In 1987, the Environmental Protection Agency (“EPA”) found that several wells in the east-central portion of St. Esso and Texaco had service stations in the area, and were called upon by the EPA to enter into an Administrative Order of Consent that required them to undertake an investigation of the Tutu site.
In July 1985, pursuant to the liquidation plan, Wundies, Inc, the wholly owned subsidiary and last remaining operating asset of Panex, was sold.
Liquidating distributions, aggregating approximately million, were made to Panex's stockholders in September and December of 1984 and September of 1985. Also pursuant to the liquidation plan, Gal and Rosenbloom, both of whom had been officers and directors of Panex, were designated Trustees.