-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OReeOeEDChPHrbJ3MaAUIM13gxXwL+X/PRyrRyDAUzI0vW8tMeOjsQl6U9quRm5j 98e6S6pQ/0y1XjZE+e2KVw== 0001042910-98-000342.txt : 19980505 0001042910-98-000342.hdr.sgml : 19980505 ACCESSION NUMBER: 0001042910-98-000342 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 19980417 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19980504 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: AQUAGENIX INC/DE CENTRAL INDEX KEY: 0000923604 STANDARD INDUSTRIAL CLASSIFICATION: SANITARY SERVICES [4950] IRS NUMBER: 650419263 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-24490 FILM NUMBER: 98609740 BUSINESS ADDRESS: STREET 1: 6500 NW 15TH AVE CITY: FORT LAUDERDALE STATE: FL ZIP: 33309 BUSINESS PHONE: 9549757771 MAIL ADDRESS: STREET 1: 6500 NORTHWEST 15 AVE CITY: FORT LAUDERDALE STATE: FL ZIP: 33309 FORMER COMPANY: FORMER CONFORMED NAME: AQUATERRA INC DATE OF NAME CHANGE: 19940523 8-K 1 CURRENT REPORT 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 --------------- Date of Report (Date of earliest event reported) April 17, 1998 AQUAGENIX, INC. --------------- (Exact name of registrant as specified in its charter) Delaware 0-24490 65-0419263 -------- ------- ---------- (State or other jurisdiction (Commission (IRS Employer or incorporation) File Number) Identification No.) 6500 Northwest 15th Avenue, Fort Lauderdale, Florida 33309 ---------------------------------------------------------- (Address of principal executive offices, including zip code) Registrant's telephone number, including area code (954) 975-7771 -------------- Not Applicable -------------- (Former name or former address, if changed since last report) Item 5. Other Events. On April 17, 1998, the Company entered into a Termination Agreement with Thomas Terry, Jr. ("Terry") (the "Termination Agreement"). Under the terms of the Termination Agreement, the Company and Terry agreed to (i) terminate the Stock Purchase Agreement, dated November 30, 1997, as amended (the "Stock Purchase Agreement"); (ii) terminate the Amended and Restated Escrow Agreement, dated November 30, 1997, as amended and (iii) the distribution of $1,250,000 of the funds held in escrow (the "Escrowed Funds"), pursuant to the Stock Purchase Agreement, to Terry and the balance of the Escrowed Funds to the Company. The Termination Agreement also provided for the mutual release and indemnification by the Company, Terry and Lewis Tree Service, Inc. of any and all claims, demands, proceedings, causes of action, orders, obligations, contracts, agreements, debts and liabilities. The information herein is qualified in its entirety by reference to the Termination Agreement filed as part of this Form 8-K. Item 7. Financial Statements, Pro Forma Financial Information and Exhibits. Exhibits 10.1 Termination Agreement, dated April 17, 1998 between the Company and Thomas Terry, Jr. 2 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/ Frederick E. Barone ----------------------- Frederick E. Barone Chief Financial Officer DATED: May 4, 1998 3 EX-10.1 2 TERMINATION AGREEMENT TERMINATION AGREEMENT This Termination Agreement is made as of April 17, 1998, between Aquagenix, Inc., a Delaware Corporation ("Aquagenix"), and Thomas Terry, Jr. ("Terry"). BACKGROUND. Aquagenix and Terry are parties to a Stock Purchase Agreement, dated as of November 30, 1997, as amended (the "Purchase Agreement"), with respect to the stock of Lewis Tree Service, Inc., a New York corporation (the "Company"). Aquagenix, Terry and Harris Beach & Wilcox, LLP, as escrow agent ("Escrow Agent") are parties to an Amended and Restated Escrow Agreement, dated November 30, 1997, as amended (the "Escrow Agreement"). Aquagenix and Terry have agreed to terminate the Purchase Agreement and the Escrow Agreement and agreed upon the distribution of the Escrow Amount (as defined in the Escrow Agreement). Capitalized terms used in this agreement without definition shall have the respective meanings given to them in the Purchase Agreement. The parties, intending to be legally bound, agree as follows: 1. Termination of Purchase Agreement. The Purchase Agreement is hereby terminated pursuant Section 9.1(c) of the Purchase Agreement. As provided in Section 9.2 of the Purchase Agreement, the obligations of the parties under Section 11.3 of the Purchase Agreement survive this termination. Aquagenix agrees to return, or cause its Representatives to return, promptly to the Company all information, regardless of the form in which it was communicated or maintained (whether prepared by the Company or otherwise) that contains or otherwise reflects information concerning the Company that Aquagenix or its Representatives were furnished by or on behalf of the Company ("Furnished Material") and to destroy, or cause to be destroyed, all reports, analyses, notes or other information, whether prepared by Aquagenix, its Representatives, or others, that are based on, contain or reflect any Furnished Material ("Notes"). Notwithstanding the return or destruction of Furnished Material and Notes, Aquagenix and its Representatives will continue to be bound by its obligations of confidentiality and other obligations under Section 11.3 of the Purchase Agreement. 2. Distribution of Escrow Agreement. Escrow Agent is hereby directed to liquidate any portion of the Escrow Amount consisting of investments as promptly as reasonably practicable, to remit $1,250,000 of the Escrow Amount to Terry by wire transfer of immediately available funds to an account to be designated in writing by Terry, and to remit the balance of the Escrow Amount to Aquagenix by wire transfer of immediately available funds to an account to be designated in writing by Aquagenix. 3. Termination of Escrow Agreement. The Escrow Agreement is hereby terminated effective upon consummation of the wire transfers referred to in Section 2 of this Agreement. As provided in Section 2.5 of the Escrow Agreement, the provisions of Sections 2.2 and 2.5 of the Escrow Agreement survive this termination. 4. Aquagenix Release. 4.1 Aquagenix, on behalf of itself and each of its Related Persons, hereby releases and forever discharges Terry, the Company and the Escrow Agent, and each of their respective individual, joint or mutual Representatives, affiliates, stockholders, partners, controlling persons, successors and assigns (individually, an "Aquagenix Releasee" and collectively "Aquagenix Releasees") from any and all claims, demands, Proceedings, causes of action, Orders, obligations, contracts, agreements, debts and liabilities whatsoever, whether known or unknown, suspected or unsuspected, both at law and in equity, which Aquagenix or any of its Related Persons now has, have ever had or may hereafter have against the respective Aquagenix Releases on account of, or arising out of any matter, cause or event relating to, the Purchase Agreement or the Escrow Agreement or the transactions contemplated thereby, whether pursuant to contract or otherwise; provided, however, that nothing contained herein shall operate to release any obligations or Terry under this Agreement or any provision of the Purchase Agreement or the Escrow Agreement that survives this Agreement. 4.2 Aquagenix hereby irrevocably covenants to refrain from, directly or indirectly, asserting any claim or demand, or commencing, instituting or causing to be commenced, any proceeding or any kind against any Aquagenix Releasee, based upon any matter purported to be released hereby. 4.3 Without in any way limiting any of the rights and remedies otherwise available to any Aquagenix Releasee, Aquagenix shall indemnify and hold harmless each Aquagenix Releasee from and against all loss, liability, claim, damage or expense (including costs of investigation and defense and reasonable attorney's fees) whether or not involving third party claims, arising directly or indirectly from or in connection with (i) the assertion by or on behalf of Aquagenix or any of its Related Persons of any claim or other matter purported to be released pursuant to this Section 4 and (ii) the assertion by any third party of any claim or demand against any Aquagenix Releasee which claim or demand arises directly or indirectly from, or in connection with, any assertion by or behalf of Aquagenix or any of its Related Persons against such third party of any claims or other matters purported to be released pursuant to this Section 4. 5. Terry Release. 5.1 Terry, on behalf of himself and each of his Related Persons, hereby releases and forever discharges Aquagenix and the Escrow Agent, and of each their respective individual , joint or mutual Representatives, affiliates, stockholders, partners, controlling person, successors and assigns (individually, a "Terry Releasee" and collectively, "Terry Releasees") from any and all claims, demands, Proceedings, causes 2 of action, Orders, obligations, contracts, agreements, debts and liabilities whatsoever, whether known or unknown, suspected or unsuspected, both at law and in equity, which Aquagenix or any of its Related Persons now has, have ever had or may hereafter have against the respective Terry Releasees on account of, or arising out of any matter, cause or event relating to, the Purchase Agreement or the Escrow Agreement or the transactions contemplated thereby, whether pursuant to contract or otherwise; provided, however, that nothing contained herein shall operate to release any obligations of Terry under this Agreement or any provision of the Purchase Agreement or the Escrow Agreement that survives this Agreement. 5.2 Terry hereby irrevocably covenants to refrain from, directly or indirectly, asserting any claim or demand, or commencing, instituting or causing to be commenced, any proceeding of any kind against any Terry Releasee, based upon any matter purported to be released hereby. 5.3 Without in any way limiting any of the rights and remedies otherwise available to any Terry Releasee, Terry shall indemnify and hold harmless each Terry Releasee from and against all loss, liability, claim, damage or expense (including costs of investigation and defense and reasonable attorney's fees) whether or not involving third party claims, arising directly or indirectly from or in connection with (i) the assertion by or on behalf of Terry or any of his Related Persons of any claim or other matter purported to be released pursuant to this Section 5 and (ii) the assertion by any third party of any claim or demand against any Terry Releasee which claim or demand arises directly or indirectly from, or in connection with, any assertion by or on behalf of Terry or any of his Related Persons against such third party of any claims or other matters purported to be released pursuant to this Section 5. 6. Public Announcements. Any public announcement or similar publicity with respect to this Agreement shall be subject to the approval of both Aquagenix and Terry, which shall not be unreasonably withheld. Except for such public announcement, unless consented to by Terry in advance or required by Legal Requirements, Aquagenix shall, and shall cause its Related Persons to, keep this Agreement strictly confidential and may not make any disclosure of this Agreement to any Person. 7. Entire Agreement and Modification. This Agreement supersedes all prior agreements between the parties with respect to its subject matter and constitutes a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. This Agreement may not be amended except by a written agreement executed by the party to be charged with the amendment. 8. Assignments, Successors, and Third-Party Rights. Neither party may assign any of its rights under this Agreement without the prior consent of the other party, except that Terry may assign any of his rights under this Agreement to the Company. Subject to the preceding sentence, this Agreement will apply to, be binding in all 3 respects upon, and inure to the benefit of the successors and permitted assigns of the parties, the Escrow Agent, the Aquagenix Releasees and the Terry Releasees. 9. Severability. If any provisions of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable. 10. Governing Law. This Agreement will be governed by the laws of the State of New York without regard to conflicts of laws principles. 11. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. IN WITNESS WHEREOF, the parties have executed and delivered this Amendment as of the date first written above. AQUAGENIX, INC. By:/s/ Andrew Chesler ------------------- Andrew P. Chesler Chairman /s/ Thomas Terry, Jr. ---------------------- THOMAS TERRY, JR. 4 -----END PRIVACY-ENHANCED MESSAGE-----