As filed with the Securities and Exchange Commission on April 25, 1997
File No. 33-78956-A
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Aquagenix, Inc.
(Exact name of issuer as specified in its charter)
Delaware 65-0419263
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
6500 N.W. 15th Avenue
Fort Lauderdale, Florida 33309
(Address of principal executive offices) (Zip Code)
AQUAGENIX, INC. 1994 EMPLOYEE STOCK OPTION PLAN
AQUAGENIX, INC. AMENDED AND RESTATED DIRECTORS STOCK OPTION PLAN
(Full title of the plan)
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Andrew P. Chesler, President
6500 N.W. 15th Avenue
Fort Lauderdale, Florida 33309
Telephone No.: (407) 994-8585
(Name and address of agent for service)
Copy to:
Roxanne K. Beilly, Esq.
Atlas, Pearlman, Trop & Borkson, P.A.
200 East Las Olas Boulevard, Suite 1900
Fort Lauderdale, FL 33301
(954) 763-1200
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum
offering aggregate Amount of
Title of securities Amount to be price per offering registration
to be registered registered share(1) price(2) fee
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Common Stock
($.01 par value) 700,000 shares $3.88-$6.75 $4,388,213 $1,329.76
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(1) Estimated solely for the purpose of computing the amount of the
registration fee in accordance with Rule 451(c) under the Securities Act
of 1933, as amended (the "Securities Act").
(2) Computed in accordance with Rule 457(h) on the basis of the (i) the actual
exercise price of $5.00 for an aggregate of 110,450 options, respectively,
to purchase Common Stock being registered, which have already been granted
under the Aquagenix, Inc. 1994 Employee Stock Option Plan, (ii) the actual
exercise prices of $3.88, for an aggregate of 50,000 options to purchase
Common Stock being registered, which have already been granted under the
Aquagenix, Inc. Amended and Restated Directors Stock Option Plan, and
(iii) the average of the high and low sale price of the Common Stock on
April 21, 1997, ($6.75) with respect to (a) 389,550 shares of Common Stock
subject to future grants of options under the Aquagenix, Inc. 1994
Employee Stock Option Plan, and (b) 150,000 shares of Common Stock subject
to future grants of options under the Aquagenix, Inc. Amended and Restated
Directors Stock Option Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
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The documents listed in (a) through (c) below are incorporated by
reference in the Registration Statement. All documents subsequently filed by the
Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in the Registration Statement and to be part
thereof from the date of filing of such documents.
(a) The Company's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1996.
(b) The Company's Quarterly Reports on Form 10-QSB for the
quarterly period ended March 31, 1996, June 30, 1996 and September 30, 1996.
(c) The Company's current reports on Form 8-K dated March 8,
1996, April 25, 1996, June 7, 1996, June 12, 1996, December 7, 1996 and December
31, 1996.
(d) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the Registrant's
document referred to in (a) above.
(e) The description of the Common Stock of the Company which is
contained in a Registration Statement filed under the Exchange Act on Form 8-A,
including any amendment or report filed for the purpose of updating and amending
such description.
Item 4. Description of Securities
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Not Applicable.
Item 5. Interests of Named Experts and Counsel
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Not Applicable.
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Item 6. Indemnification of Directors and Officers
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Section 145 of the General Corporation Law of Delaware, under which
jurisdiction the Company is incorporated. empowers a corporation to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative by reason of the fact that he or she
is or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation or enterprise. A corporation may indemnify against
expenses (including attorneys' fees) and, other than in respect of an action by
or in the right of the corporation, against judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with such action, suit
or proceeding if the person indemnified acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. In the case of an
action by or in the right of the corporation, no indemnification of expenses may
be made in respect to any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery or the court in which such action was brought shall
determine that, despite the adjudication of liability, such person is fairly and
reasonably entitled to indemnity for such expenses which the court shall deem
proper. Section 145 of the General Corporation Law of Delaware further provides
that to the extent a director, officer, employee or agent of the corporation has
been successful in the defense of any action, suit or proceeding referred to
above or in the defense of any claim, issue or matter therein, he or she shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection therewith.
The Restated Certificate of Incorporation and By-Laws of the Company
require the Company to indemnify its Directors and officers to the fullest
extent permitted by the General Corporation Law of the State of Delaware.
The Company maintains directors and officers liability insurance, which
covers the Company's subsidiaries and the respective directors and officers.
Item 7. Exemption from Registration Claimed
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Not Applicable
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Item 8. Exhibits
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Exhibit Description
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(4.1) Registrant's 1994 Employee Stock Option Plan
(4.2) Registrant's Amended and Restated Directors Stock Option Plan
(5) Opinion of Atlas, Pearlman, Trop & Borkson, P.A.
(23.1) Consent of Atlas, Pearlman, Trop & Borkson, P.A. included in the
opinion filed as exhibit (5) hereto
(23.2) Consents of independent certified public accountants
(24) Power of Attorney is included in the Signature section of this
Registration Statement
Item 9. Undertakings
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(1) The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offerings or sales are
being made, a post-effective amendment to this Registration Statement to include
any material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement;
(b) That, for the purposes of determining any liability under the
Act, each such post-effective amendment shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; and
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(2) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new Registration Statement
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relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the Act may
be permitted to Directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a Director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
Director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Fort Lauderdale and the State of Florida, on the
24th day of April, 1997.
AQUAGENIX, INC.
By:/s/Andrew P. Chesler
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Andrew P. Chesler
Chairman of the Board and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Andrew P. Chesler, his true and lawful
attorney-in-fact, acting alone, with full powers of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments, including any post-effective
amendments, to this Registration Statement, and to file the same, with exhibits
thereto, and other documents to be filed in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorney-in-fact or his substitute, acting alone, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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Chairman of the Board,
Chief Executive Officer
and President (Principal
/s/Andrew P. Chesler Executive Officer) April 24, 1997
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Andrew P. Chesler
Chief Financial Officer
/s/Helen Chia (Principal Accounting
- ----------------------------- Officer) April 24, 1997
Helen Chia
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/s/Abraham S. Fischler Director April 24, 1997
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Abraham S. Fischler
/s/Fred S. Katz Director April 24, 1997
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Fred S. Katz
/s/Allen H. Stern Director April 24, 1997
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Allen H. Stern
/s/Jeffrey T. Katz Director April 24, 1997
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Jeffrey T. Katz
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