SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
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Date of Report (Date of earliest event reported) October 20, 1999
AQUAGENIX, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-24490 65-0419263
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(State or other jurisdiction (Commission (IRS Employer
or incorporation) File Number) Identification No.)
6500 Northwest 15th Avenue, Fort Lauderdale, Florida 33309
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(Address of principal executive offices, including zip code)
Registrant's telephone number, including area code (954) 975-7771
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Not Applicable
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(Former name or former address, if changed since last report)
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Item 5. Other Events.
On October 20, 1999, the United States Bankruptcy Court for the
Southern District of Florida ("Bankruptcy Court"), in furtherance of the Chapter
11 Proceedings for Aquagenix, Inc. and Aquagenix Land Water Technologies, Inc.
(collectively "Aquagenix"), entered an Order entitled "Order Granting Debtors in
Possessions' Emergency Motion for Order Approving Certain Provisions of Letter
of Intent; Competitive Bid Procedures in Connection with Sale of Debtors'
Assets; Shortening Notice Period and Setting Date and Procedure for Hearing to
Authorize Sale of Debtors' Assets." (Exhibit 99.2).
Pursuant to the terms of the above Order, the Bankruptcy Court ordered that the
Company issue a "Notice to Equity Security Holders of Proposed Sale of Assets."
(Exhibit 99.1). Pursuant to the terms of this Order, there will be a sale of
substantially all Aquagenix assets conducted on November 9, 1999, at 1:30 p.m.
at the United States Bankruptcy Court, 299 East Broward Boulevard, Fort
Lauderdale, Florida or such adjacent location as may be announced in the Court.
This sale will be to Rodney Longman, or assigns, for the purchase price of
$1,600,000; or for such higher or better offer as may be received at the time of
the aforesaid sale.
These actions stem from an order granting emergency motion to approve
post-petition financing by the Bankruptcy Court on October 13, 1999, where the
Bankruptcy Court approved Aquagenix's emergency motion to approve post-petition
financing, post-petition financing by Rodney Longman and other matters
consistent with the motion to grant emergency post-petition financing. (Exhibit
99.3).
Item 7. Financial Statements and Exhibits
The following exhibits are filed with this report:
Exhibit No. Title
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99.1 Notice to Equity Security Holders of
proposed Sale of Assets
99.2 Order Granting Debtors-In-Possession
Emergency Motion For Order Approving Certain
Provisions Of Letter Of Intent; Competitive
Bid Procedures In Connection W\with Sale Of
Debtors' Assets; Shortening Notice Period
And Setting Date And Procedure For Hearing
To Authorize Sale Of Debtors' Assets
99.3 Order Granting Emergency Motion to Approve
Post-Petition Financing
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AQUAGENIX, INC.
By: /s/ Russell Thompson
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Russell Thompson, President
DATED: October 22, 1999
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UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF FLORIDA
In Re:
AQUAGENIX, INC., Case No. 99-24534-BKC-RBR
AQUAGENIX LAND Case No. 99-24535-BKC-RBR
WATER TECHNOLOGIES, INC., Chapter 11 Proceedings
Jointly Administered
Debtors.
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NOTICE OF EQUITY SECURITY HOLDERS OF PROPOSED SALE OF ASSETS
COME NOW the Debtors-in-Possession, AQUAGENIX, INC., and AQUAGENIX LAND
WATER TECHNOLOGIES, INC., (hereinafter collectively referred to as "AQUAGENIX"),
by and through their undersigned counsel, and in accordance with the provisions
of Bankruptcy rule 2002 (d)(3) notifies the equity security holders of AQUAGENIX
of the proposed sale of all or substantially all of the Debtors' assets as
follows:
1. On October 20, 1999, the United States Bankruptcy Court for the
Southern District of Florida in the above-referenced cases entered an Order
entitled Order Granting Debtors-In-Possessions' Emergency Motion For Order
Approving Certain Provisions Of Letter Of Intent; Competitive Bid Procedures In
Connection With Sale Of Debtors' Assets; shortening Notice Period And Setting
Date and Procedure For Hearing To Authorize Sale of Debtors' Assets.
2. Pursuant to the terms of said Order, there will be a sale of
substantially all of the Debtors' assets conducted on November 9, 1999, at 1:30
p.m. at the United States
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Bankruptcy Court, 299 E. Broward Boulevard, Room 308, Fort Lauderdale, Florida,
or such adjacent location as may be announced in Court at that time.
3. The sale will be to Rodney Longman, or assigns, for the purchase
price of $1,600,000; or for such higher or better offer as may be received at
the time of the aforesaid sale. The sale may ultimately be to Rodney Longman or
assigns or to a third party making a higher or better offer in accordance with
the terms of the Court's Order.
4. Written objections to the sale, if any, must be filed with the
Court, and served so as to be actually received by counsel to the Debtors and
the purchaser by hand delivery or facsimile no later than 5:00 p.m., Fort
Lauderdale, Florida time on November 4, 1999, as follows:
CHAD P. PUGATCH, ESQUIRE PAUL STEVEN SINGERMAN, ESQUIRE
CHAD P. PUGATCH, P.A. BERGER, DAVIS & SINGERMAN, P.A.
Counsel for the Debtors Counsel for Longman
Northmark Building, Suite 101 200 S. Biscayne Blvd., Suite 2950
33 N.E. 2nd Street Miami, FL 33131-5308
Fort Lauderdale, FL 33301 Telephone: (305) 755-9500
Telephone: (954) 462-8000 Facsimile: (305) 714-4340
Facsimile: (954) 462-4300
5. Copies of the proposed Asset Acquisition Agreement and/or the
Court's Order of October 20, 1999, may be received from the undersigned counsel
upon written request.
I HEREBY CERTIFY that I am admitted to the Bar of the United States
District Court for the Southern District of Florida and I am in compliance with
the additional qualifications to practice in this court set forth in Local Rule
2090-1(A).
I HEREBY CERTIFY that a true copy of the foregoing has been furnished
to all Equity Security Holders; Susan R. Sherrill, Senior Bankruptcy counsel,
Securities & Exchange Commission, Branch of Reorganization, Atlanta Regional
Office, Suite 1000, 3475 Peachtree Street, NE Atlanta, GA 30326; Office of the
U.S. Trustee, 51 S.W. First Avenue, Room 1204, Miami, FL 33130.
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CHAD P. PUGATCH, P.A.
Northmark Building, Suite 1201
33 NE 2nd Street
Fort Lauderdale, Florida 33301
Telephone: 954-462-8000
Telecopier: 954-462-4300
By: /s/ Chad P. Pugatch, Esq.
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CHAD P. PUGATCH, ESQUIRE
Florida Bar No.: 220582
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UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF FLORIDA
In Re:
AQUAGENIX, INC., Case No. 99-24534-BKC-RBR
AQUAGENIX LAND Case No. 99-24535-BKC-RBR
WATER TECHNOLOGIES, INC., Chapter 11 Proceedings
Jointly Administered
Debtors.
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ORDER GRANTING DEBTORS-IN-POSSESSIONS' EMERGENCY MOTION FOR
ORDER APPROVING CERTAIN PROVISIONS OF LETTER OF INTENT;
COMPETITIVE BID PROCEDURES IN CONNECTION WITH SALE OF DEBTORS'
ASSETS; SHORTENING NOTICE PERIOD AND SETTING DATE AND
PROCEDURE FOR HEARING TO AUTHORIZE SALE OF DEBTORS' ASSETS
THIS CAUSE having come on to be heard on Wednesday, October 13, 1999,
at 9:30 a.m. upon the Debtors-In-Possessions' Emergency Motion for Order
Approving Certain Provisions of Letter of Intent; Competitive Bid Procedures in
Connection with Sale of Debtors' Assets; Shortening Notice Period and Setting
Date and Procedure for Hearing to Authorize Sale of Debtors' Assets and the
Court having heard argument of counsel, considered the objections both filed and
made at the time of the hearing, taken testimony, considered the record and
being otherwise fully advised in the premises, it is therefore
ORDERED and ADJUDGED:
1. The Debtors-In-Possessions' Emergency Motion for Order Approving
Certain Provisions of Letter of Intent; Competitive Bid procedures in connection
with Sale of Debtors' Assets; Shortening Notice Period and Setting Date and
Procedure for Hearing to Authorize Sale of Debtors' Assets (hereinafter "the
Motion") is hereby granted.
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2. The Court notes the disclosures made by the Debtors and Longman,
through their respective counsel regarding the prior business relationships
between Longman and Russell Thompson, the President of the Debtors, as well as
Longman's prior tenure on the Debtors' Board of Directors, and hereby determines
that the prospective purchaser pursuant to the Letter Agreement attached to the
Motion as Exhibit "A", Rodney Longman, or his wholly owned assignee entity is a
good faith purchaser with the meaning of and entitled to the protections of 11
U.S. C. Section 363 (m).
3. The Court specifically approves the provisions of Paragraphs 2.3,
2.4, 2.5, 2.8, 3.1, and 3.2 of the aforesaid Letter Agreement attached to the
Motion as Exhibit "A", as modified herein.
4. Paragraph 3.1 of the Letter Agreement is modified by this Order to
provide that the repayment of reasonable, actual, out-of-pocket expenses is
subject to Court approval, with an absolute cap of $50,000.
5. The provisions of Paragraph 3.2 of the Letter Agreement attached to
the Motion as Exhibit "A" are modified by this Order to reduce the overbid fee
described therein to the amount of $50,000, and the amount of $50,000, and the
amount of the initial overbid to be $75,000 over the purchase price offered in
the Letter Agreement attached to the Motion as Exhibit "A".
6. Pursuant to the Motion, and with the Letter Agreement attached to
the Motion as Exhibit "A" constituting the initial bid at the price of
$1,600,000, a sale of all of the assets of Aquagenix, free and clear of all
liens, claims, encumbrances and interests of any kind or nature, which liens and
encumbrances will be transferred to the proceeds of sale, save and except only
the security interest of Union Planters Bank, if the indebtedness
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secured thereby is assumed by the successful purchaser, with the exception of
the assets to be retained by AQUAGENIX in the Letter Agreement attached to the
Motion as Exhibit "A" will be held on November 8, 1999, at 9:30 a.m., at the
United States Bankruptcy Court, 299 E. Broward Boulevard, Room 308, Fort
Lauderdale, Florida, subject to the procedures established and set forth herein.
a. Sale to occur on November 9, 1999 at 1:30 p.m., at the
United States Bankruptcy Court, 299 E. Broward Boulevard, Room 308, Fort
Lauderdale, Florida, or such adjacent location as may be announced in Court at
that time, subject to higher and better offers which may be received at that
time in increments of $5,000 after the initial $75,000 overbid;
b. Initial overbid increment to be $75,000;
c. In order to qualify and bid at the auction, all prospective
bidders must put up a good faith deposit of no less than $200,000 in the form of
a cashier's check to be made payable to Chad P. Pugatch, P.A. Trust Account at
or before 5:00 p.m., Fort Lauderdale, Florida time, on Monday, November 8, 1999
(or earlier if the prospective bidder wishes access to due diligence and
confidential business information pursuant to subparagraph (d) hereof). Said
deposit will be at risk if the bidder is determined to be the high bidder at the
sale;
d. No interested bidder will be entitled to financial
disclosure or due diligence without putting up the aforesaid $200,000 good faith
deposit and signing an appropriate confidentiality Agreement in the form
designated by debtors' counsel;
e. On or before October 22, 1999, the Debtors-In-Possession
will file an Asset Acquisition Agreement, as executed by them, as sellers, and
Rodney Longman
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individually or his wholly owned assignee, as buyer. All competing bids to be
received at the auction sale will be pursuant to the terms and conditions of
said Asset Acquisition Agreement. The successful bidder at the sale will be
deemed to have bid in accordance with the terms and provisions of the Asset
Acquisition Agreement and will be bound by and subject to the provisions of said
Agreement, with the exception of any modification as to price which occurs as a
result of the auction sale;
f. Closing will be as soon as possible subsequent to the
November 9, 1999, sale date, but in no event later than November 30, 1000;
7. Notice of this Order will be provided to all creditors and
interested parties, as well as shareholders of the Debtors. Notice of this sale
in accordance with the provisions of Bankruptcy Rule 2002 is hereby shortened in
accordance with the aforesaid sale date. Further, notice to shareholders is
hereby approved to be limited to a one page summary of the terms of the initial
bid; time, date and place of the sale; and a reference to the terms of the Asset
Acquisition Agreement which will be made available by Debtors' counsel upon
request.
8. Any objections to the sale must be filed with the Court, and served
so as to be actually received by counsel to the Debtors and the Purchaser by
hand delivery or facsimile no later than 5:00 p.m., Fort Lauderdale, Florida
time on November 4, 1999, as follows:
CHAD P. PUGATCH, ESQUIRE
CHAD P. PUGATCH, P.A.
counsel for the Debtors
Northmark building, Suite 101
33 N.E. 2nd Street
Fort Lauderdale, FL 33301
Telephone: (954) 462-8000
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Facsimile: (954) 462-4300
PAUL STEVEN SINGERMAN, ESQUIRE
BERGER, DAVIS & SINGERMAN, P.A.
counsel for Longman
200 S. Biscayne Boulevard, Suite 295
Miami, FL 33131-5308
Telephone: (305) 755-9500
Facsimile: (305) 714-4340
9. The oral objections to the Debtors-in-Possessions' aforesaid
Emergency Motion raised by the U.S. Trustee and (Mr. Guadeno) are hereby
overruled. The objection raised in writing and orally by the Equitable Life
Assurance Society of the United States (hereinafter "Equitable") is
conditionally withdrawn, subject to the Debtors-In-Possession promoting a
spirited, competitive bidding and sale process by, without limitation: (i) using
their best efforts promptly to retain Kahn Consulting, Inc. who shall assist in
maximizing exposure of the sale and in targeting prospective bidders; (ii)
advertising the sale in appropriate publications; (iii) cooperating with any and
all prospective bidders who sign an appropriate Confidentiality Agreement and
wish to conduct a due diligence investigation; and (iv) filing with this Court,
on or before October 22, 1999, an Asst Acquisition Agreement in substantially
the form of the final agreement, the terms of which are consistent with an open
and competitive bidding and sale process. Equitable reserves the right to
rescind its conditional withdrawal of its objection to the sale of the
Debtors-In- Possession fail to met these conditions or otherwise discourage or
fail to promote a spirited, competitive bidding process. Equitable furthermore
reserves the right (a) to object to the Asset Acquisition Agreement if its terms
are inconsistent with an open and competitive bidding and sale process and (b)
to object to the closing of the sale if the
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actual conduct of the sale is in any way inconsistent with an open and
competitive bidding and sale process.
DONE AND ORDERED in the Southern District of Florida this ____ day of
October, 1999.
/s/ Raymond B. Ray
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HONORABLE RAYMOND B. RAY
U.S. Bankruptcy Judge
Copies to:
Chad P. Pugatch, Esquire
Paul Singer, Esquire
Bingham, Dana LLP
Office of the U.S. Trustee
All creditors and interested parties
(with limited notice to shareholders)
(ATTORNEY CHAD P. PUGATCH SHALL MAIL A CONFORMED COPY OF THIS ORDER IMMEDIATELY
UPON RECEIPT TO ALL PARTIES LISTED ABOVE, AND SHALL FILE A CERTIFICATE OF
MAILING WITH THE COURT)
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UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF FLORIDA
IN RE:
AQUAGENIX, INC., CASE NO. 99-24534-BKC-RBR
AQUAGENIX LAND
WATER TECHNOLOGIES, INC., CASE NO. 99-24535-BKC-RBR
In Proceedings Under Chapter 11
Debtors. (Jointly Administered)
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ORDER GRANTING EMERGENCY MOTION TO APPROVE
POST-PETITION FINANCING
THIS CAUSE having come on to be heard on Wednesday, October 13, 1999,
at 9:30 a.m. upon the Emergency Motion to Approve Post-Petition Financing filed
by the Debtors-In-Possession, AQUAGENIX, INC. and AQUAGENIX LAND WATER
TECHNOLOGIES, INC., (hereinafter collectively referred to as "AQUAGENIX"), and
the Court having heard argument of counsel, considered the record and being
otherwise fully advised in the premises, it is therefore
ORDERED AND ADJUDGED:
1. The Emergency Motion to Approve Post-Petition Financing is approved.
2. The Secured Lenders of AQUAGENIX, UNION PLANTERS BANK OF FLORIDA and
EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES have consented to this
Motion and the terms contained therein.
3. Pursuant to the provisions of Paragraph 4.1 of the Letter Agreement
which is attached to the Emergency Motion to Approve Post-Petition Financing as
Exhibit "A", Rodney Longman or an entity wholly owned by him, as the proposed
purchaser, has
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agreed to provide Post-petition Financing to AQUAGENIX by advancing the amount
of $200,000 which was previously posted as a good faith deposit pursuant to the
aforesaid Letter Agreement. The terms of said Post-Petition Financing are
approved as follows:
a. Post-Petition loan in the amount of up to $200,000, with
interest to accrue at the rate of two points over the prime rate established
from time to time by Citibank, N.A.;
b. Post-Petition loan to mature and be due and payable upon
the earlier of (1) the closing of the transactions contemplated by the letter
agreement attached hereto as Exhibit "A", (2) conversion of the AQUAGENIX
bankruptcy cases to cases under Chapter 7 of the Bankruptcy Code; (3) dismissal
of the AQUAGENIX bankruptcy cases; (4) the appointment of a Chapter 11 Trustee;
or (5) breach by AQUAGENIX of its obligations pursuant to the Letter Agreement
or the Acquisition Agreement (as defined in the "Letter Agreement").
Notwithstanding the above, Asset Acquisition Corporation (hereinafter "AAC")
must obtain Court approval before seeking to enforce its rights subsequent to
any of the events set forth above. The Court will hear any such motion on short
notice.
c. In the event that AAC is deemed a successful bidder
pursuant to the Letter Agreement and proceeds to a Closing Date as contemplated
by said Letter Agreement, the Post Petition Loan would be repaid through a
credit toward the purchase price in the amount of the Post-Petition loan,
including accrued and unpaid interest;
d. AAC is hereby granted collateral security in the form of
first-priority liens upon all the tangible and intangible assets of AQUAGENIX
pursuant to 11 U.S.C.
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Section 364(d) (other than Post-Petition cause of action available to AQUAGENIX
pursuant to Section 542, 544, 547, 548, 550 and 51;
e. AAC is further granted a super-priority administrative
expense claim pursuant to 11 U.S.C. Section 364(c)(1), Section 503(b) and
Section 507(b);
f. The liens and claims established hereby are deemed
perfected without further documentation or any recordation;
g. Notwithstanding the priority of the liens and claims
securing the Post- petition loan secured hereby, such liens and claims shall be
subordinate to the payment of fees due to the office of the U.S. Trustee and the
Clerk of the Court;
h. AAC is hereby determined to be a good faith lender entitled
to the protections of 11 U.S.C. Section 364(e).
DONE AND ORDERED in the Southern District of Florida this ___ day of
October, 1999.
/s/ Raymond B. Ray
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HONORABLE RAYMOND B. RAY
U.S. Bankruptcy Judge
Copies to:
Chad P. Pugatch, Esquire
Paul Singer, Esquire
Bingham, Dana LLP
Office of the U.S. Trustee
All creditors and interested parties
(with limited notice to shareholders)
(ATTORNEY CHAD P. PUGATCH SHALL MAIL A CONFORMED COPY OF THIS ORDER IMMEDIATELY
UPON RECEIPT TO ALL PARTIES LISTED ABOVE, AND SHALL FILE A CERTIFICATE OF
MAILING WITH THE COURT)
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