1
1 UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF FLORIDA
2
3 Judge Steven H. Friedman
4
5
In Re:
6
Case No. 04-35435-BKC-SHF
7
8 eCom eCom.com, Inc.,
9 Debtor.
_______________________________
10
11
12 CONFIRMATION HEARING
13
14 March 12, 2007
15
16
The above entitled cause came on for hearing before the
17 HONORABLE STEVEN H. FRIEDMAN, one of the Judges in the
UNITED STATES BANKRUPTCY COURT, in and for the SOUTHERN
18 DISTRICT OF FLORIDA, at 1515 N. Flagler Drive, West Palm
Beach, Palm Beach County, Florida, on March 12, 2007,
19 commencing on or about 1:30 p.m., and the following
proceedings were had:
20
21
22
23
24 Reported By: Jacquelyn Ann Jones, Court Reporter
25 OUELLETTE & MAULDIN COURT REPORTERS
(305) 358-8875
2
1
APPEARANCES:
2
3 KLUGER PERETZ KAPLAN & BERLIN, P.L.
By: MICHAEL D. SEESE, ESQUIRE
4 On behalf of the Debtor
5
SCHIFF HARDEN
6 By: MARK FISHER, ESQUIRE
On behalf of American Capital Holdings
7
8 OFFICE OF THE UNITED STATES TRUSTEE
By: DENYSE HEFFNER, ESQUIRE
9
10 SECURITIES AND EXCHANGE COMMISSION
By: GORDON ROBINSON, ESQUIRE
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
3
1 THE COURT: Thank you for your patience. eCom
eCom.com, Inc. I'm going to attempt to set up a
2 conference call on the computer.
3 (The Court contacted Ms. Heffner and Mr. Robinson by
4 telephone.)
5 THE COURT: Ms. Heffner, good afternoon. This
6 is Judge Friedman calling you from West Palm Beach on
7 eCom eCom.com, Inc. I will ask you to hold on so that I
8 can conference in Mr. Gordon Robinson with the Security
9 and Exchange Commission.
10 Mr. Robinson, good afternoon. This is
11 bankruptcy Judge Friedman calling from West Palm Beach on
12 the matter of eCom eCom.com, Inc. I'm going to
13 conference you in with Denyse Heffner, and then from
14 there we'll proceed with the individuals who are in
15 court. If somehow I should lose you, please bear with
16 me.
17 Then we are ready to proceed. Mr. Seese.
18 MR. SEESE: Yes, sir. Thank you.
19 THE COURT: You are representing --
20 MR. SEESE: eCom, the debtor.
21 THE COURT: The debtor.
22 MR. FISHER: My name is Mark Fisher, Your
23 Honor, from Schiff Harden in Chicago. I'm pro hac vice
24 and for American Capital Holdings, the co-plan proponent.
25 THE COURT: Very well. Thank you. Nice to
4
1 have you here, Mr. Fisher.
2 MR. FISHER: It's a pleasure to be here, Your
3 Honor.
4 THE COURT: Mr. Seese, are you ready to
5 proceed?
6 MR. SEESE: I am, Your Honor.
7 THE COURT: I have reviewed the certificate of
8 attorney for debtor on acceptance of the first amended
9 plan of reorganization. Unless I am misreading the
10 certificate and the attachments, it would appear that the
11 requisite numbers of votes in each class were received
12 approving the plan. In fact, in class 4, which was the
13 only class, I believe impaired --
14 MR. SEESE: There was one other class, class
15 3.
16 THE COURT: Class 3 and class 4 were both
17 impaired. Class 3 accepted 100 percent, and class 4,
18 which is equity, accepted to the extent of 99.57
19 percent.
20 MR. SEESE: That's correct, Your Honor. And
21 there were over 15 million shares voted.
22 THE COURT: Over 15 million shares voted. So
23 it would appear as though, at least in terms of the
24 votes, the requisite numbers were received.
25 Ms. Heffner, do you have any thoughts on that?
5
1 MS. HEFFNER: Your Honor, it certainly appears
2 as though the creditors, as well as whatever equity is
3 left, has voted to accept the plan.
4 THE COURT: And Mr. Robinson, do you have any
5 comment on that?
6 MR. ROBINSON: Yes, I would like to speak, if I
7 could, for just a moment about the uniqueness of this
8 case. Your Honor has noted, and the reason I'm appearing
9 is that the SEC generally frowns on the trafficking in
10 public company shells such as this.
11 THE COURT: Yes.
12 MR. ROBINSON: This particular case is unique,
13 and that is why we've not filed an objection to
14 confirmation. The gravamen of Federal securities law is
15 full disclosure, and here counsel has cooperated fully.
16 They have included by way of disclosure everything we
17 have asked for, including the fact that the shares may
18 not be transferable, because this is a blank check
19 company.
20 Under the circumstances, we still might have an
21 objection, because most companies that come into the
22 bankruptcy courts at this stage are delinquent in their
23 periodic public reports. eCom is not, it is current,
24 which is extraordinarily unique.
25 In fact, I checked this morning and found that
6
1 all their filings were in order, and that they are still
2 trading on Big Sheets, LLC. They are trading within a
3 narrow band of value and very low volume, none of which
4 particularly bothers us. There are not great big spikes
5 in their trading, big spikes in volume. So even though
6 the commission is not terribly fond of blank checks,
7 sometimes we just have to hold our nose and let them go.
8 THE COURT: And this would be such a case.
9 MR. ROBINSON: This would be one of those
10 unique cases. Again, counsel here has done absolutely
11 everything we've asked for, and we're confident that they
12 are highly sophisticated and understand the requirements
13 going forward.
14 THE COURT: Thank you very much. Mr. Seese, do
15 you have anything to add on the issue of confirmation?
16 MR. SEESE: Well, I thank Mr. Robinson for his
17 comments. I can tell Your Honor, I appreciate what Mr.
18 Robinson has said, and we have represented to the Court
19 on several occasions that we have attempted to fully
20 cooperate with the SEC and address all of their concerns,
21 and have included them in the disclosure statement
22 process and have circulated for review to make sure that
23 we had all of their issues addressed.
24 Your Honor, I know it's approaching 3:00 and we
25 were set for 1:30, and there are other people in the
7
1 courtroom. There are two ways that we can proceed. If
2 Your Honor is okay with that, I can give you the long
3 version, or I can give you the short version that just
4 proffers the elements that are necessary to comply with
5 1129. Your Honor has already addressed the fact that we
6 have the required acceptances under the Code, I think
7 overwhelming acceptances, both for the plan and the
8 releases contained therein.
9 We have the confirmation affidavit, which is
10 what I would proffer to the Court. Mr. Richmond, who is
11 in court today, he is the acting CEO by order of this
12 Court. I would proffer his testimony through the
13 confirmation affidavit, ask Your Honor to take judicial
14 notice of the affidavit as compliance with the elements
15 under 1129(a) for purposes of confirmation, and then
16 conclude with the matters that are outstanding and how
17 that impacts the effective date of the plan under the
18 plan.
19 MR. FISHER: I believe the confirmation
20 affidavit is attached to Mr. Seese's certificate, Your
21 Honor.
22 THE COURT: I just don't remember where I saw
23 it. I have it.
24 MR. SEESE: I simply don't want to
25 unnecessarily take up your time, Judge.
8
1 THE COURT: No. And Mr. Fisher, you're
2 comfortable with this?
3 MR. FISHER: I believe, Your Honor, that it
4 covers all the requirements of 1129.
5 THE COURT: I reviewed the affidavit, and it
6 does seem to touch upon all the elements under 1129.
7 If no one is taking issue with the confirmation
8 affidavit filed by Mr. Richmond, then I suppose I should
9 hear from other parties who are in the courtroom. Are
10 there any parties on eCom eCom.com who wish to be heard?
11 There being none to come forward, I will then confirm the
12 debtor's first amended Chapter 11 plan.
13 Mr. Seese, you'll submit the appropriate
14 order.
15 MR. SEESE: Yes, I will, Your Honor.
16 THE COURT: Now then according to my calendar,
17 that leaves for consideration the final fee application
18 and reimbursement of expenses filed by Kluger, Peretz,
19 Kaplan and Berlin as counsel for the debtor.
20 MR. SEESE: Yes, Your Honor. Before we address
21 the fee application, there are a couple of outstanding
22 matters that I would like to bring to Your Honor's
23 attention.
24 THE COURT: Very well.
25 MR. SEESE: There are a couple of pending
9
1 matters. Both the debtor and American Capital Holdings,
2 the co-proponent of the plan had filed a joint objection
3 to claims. The deadline to respond to those objections
4 has expired within the meaning of the Code and the local
5 rules. We filed a certificate of no response last week
6 and have submitted the order to Your Honor, and I believe
7 that was Thursday or Friday that we did that.
8 There were three claims for which creditors and
9 or equity security holders responded. One is a security
10 holder, a shareholder named Patricia Finch-Junk
11 (phonetic), and she simply filed an objection saying that
12 she wanted her money back. The amount of money is
13 $584.88. We have reserved for that sum.
14 Clinton Partners filed a claim that was a
15 letter, it was addressed to Your Honor. They had
16 original claim, I think it was about $34,000, that had
17 been reduced down to about $21,000. We have settled with
18 them. They will have an allowed claim and will be
19 permitted to convert to equity under the plan as the
20 other unsecured creditors, and we will file a 9019 motion
21 this week with the court in order to attain approval
22 of that.
23 And then lastly, Barbara Pania had filed a
24 claim with the court. We had objected. They had
25 responded. And they are represented by Mr. Abrams, Tom
10
1 Abrams, if Your Honor will recall. We have settled with
2 them.
3 The 9019 motion was filed with the court, and
4 the objection period expires today. We don't anticipate
5 any objections being filed. The settlement was fully
6 discussed in the disclosure statement, and so we will be
7 submitting a certificate of no response and a proposed
8 order to Your Honor.
9 Lastly, class 1 is the unsecured priority
10 claims. There was one claimant, Mr. Rick Turner, who is
11 in court today, who has a claim for $4,650. We would
12 like to amend the plan on the record to provide, it was
13 inadvertence on my behalf, that the class 1 holder has
14 the right to elect to receive stock under the plan, and
15 he has elected to do so and can affirm that with Your
16 Honor. And so we are seeking to make a modification to
17 the plan to provide that class 1, like class 3, has the
18 ability to elect or receive stock, and we did include
19 that as part of the confirmation order.
20 THE COURT: And Mr. Turner is here?
21 MR. SEESE: Yes. He's in the courtroom, Your
22 Honor.
23 THE COURT: And Mr. Turner, that is an accurate
24 statement that you wish to convert your claim to an
25 equity claim?
11
1 MR. TURNER: That's correct.
2 MR. SEESE: Lastly, Your Honor, I know I said
3 lastly before, one more time, the effective date was
4 originally slated under the plan to be when the
5 confirmation order goes final.
6 What I would like to do is just simply modify
7 on the record to provide that the effective date of the
8 plan will go final once we have the order on the Pania
9 settlement, once we have the order on the Partners
10 settlement, and then we again will reserve for the
11 shareholder who objected, so I don't think that that
12 needs to hold anything up. But that should take maybe 20
13 or 25 days. So we would simply modify the plan to
14 provide instead of 11 days, it would be 20 or 25 days at
15 the most.
16 As far as U.S. Trustee fees, the debtor is
17 current on all DIP reports through 12/31/06. They are
18 current on U.S. Trustee fees through 12/31/06. We have a
19 check for the first quarter '07 payment for $250, which
20 is not yet due.
21 The funds that were provided for under the
22 plan, ACH is in court, Mr. Richmond is here, and we
23 believe that there are sufficient funds on hand to meet
24 the expenses contemplated under the plan, and I believe
25 that covers everything that I wanted to address with Your
12
1 Honor.
2 And now I'm prepared to get into the fee
3 application if Your Honor is ready.
4 THE COURT: Before I do, let me inquire, Ms.
5 Heffner, is there anything you would like to add or
6 inquire about?
7 MS. HEFFNER: Your Honor, I'm blown away by Mr.
8 Seese. No, I do not object to the continuance of the
9 effective date for what would be probably about two
10 weeks. We do need reports for, I think January and
11 February, but I'm not worried about that at this time.
12 The case isn't actually closing, it is the firm, and
13 I think we're ready to go on to the fee applications.
14 THE COURT: Very well. Mr. Fisher, do you wish
15 to add anything?
16 MR. FISHER: I do not, Your Honor. I believe
17 that we've made a record for feasibility here. I have in
18 my pocket the cashier's checks that have to be
19 distributed that we'll give over for that once the plan
20 becomes effective, so we're ready to go with respect to
21 that distribution.
22 THE COURT: And Mr. Robinson?
23 MR. ROBINSON: Your Honor, I think they have
24 covered everything. Thank you.
25 THE COURT: Then I will confirm the debtor's
13
1 Chapter 11 plan. Congratulations, Mr. Seese.
2 MR. SEESE: Thank you, Your Honor.
3 THE COURT: And you'll submit the confirmation
4 order.
5 MR. SEESE: Yes, sir.
6 THE COURT: That confirmation order will
7 include the changes in status of Mr. Turner, I believe,
8 and any other changes that you've mentioned.
9 MR. SEESE: Yes, sir. And I'm happy to
10 circulate a draft to Mr. Fisher, as well as Ms. Heffner
11 and Mr. Robinson, for their review.
12 THE COURT: Very well. That's fine. Then we
13 can move on to the fee application.
14 MR. SEESE: Yes, sir.
15 Your Honor, my firm filed a, it's the only fee
16 application that was filed in this case, it's for the
17 period ending January 31, 2007. The fees were
18 approximately $124,000. We have agreed with the debtor
19 to reduce our fee application to $120,000. We hold a
20 $65,000 retainer. American Capital Holdings, in
21 accordance with the plan, is putting up another $35,000.
22 We will accept a payment of $100,000, with the balance to
23 be paid over the next four months, $5,000 per month. And
24 we reserve the right to file a supplement fee application
25 to capture our fees for February 1 through the
14
1 confirmation hearing, although I don't suspect they're
2 much, the last I checked it was about $3500, but that was
3 for the month of February. So maybe that will double the
4 hearing up for confirmation. And then those will be paid
5 in the fifth month following the effective date.
6 There were no objections filed to the fee
7 application, and therefore, we would ask Your Honor to
8 approve same. I do not have an order with me today, I
9 apologize, but I will be happy to upload it in the near
10 future.
11 THE COURT: So then the fee would be allowed
12 for $120,000.
13 MR. SEESE: Yes, sir.
14 THE COURT: Your firm received a $65,000
15 retainer.
16 MR. SEESE: Yes, sir.
17 THE COURT: So then the fee order will provide
18 that your firm will receive an additional $35,000, and
19 the source of those funds will be --
20 MR. SEESE: American Capital Holdings, the
21 co-proponent of the plan.
22 MR. FISHER: This is all part of the exit
23 financing was provided for in the plan, in essence they
24 put it up and it will be turned into equity at the same
25 rate that the unsecured creditors are getting.
15
1 THE COURT: Very well. And then the order will
2 further provide that the remaining $20,000 would be paid
3 how?
4 MR. SEESE: $5,000 per month in each of the
5 next four months following the effective date, with any
6 supplemental fees awarded to be tacked on at the end.
7 THE COURT: Plus reimbursement of expenses in
8 the amount of $364.74.
9 MR. SEESE: I think that's correct, Your Honor,
10 it's a few hundred dollars. I did not bring my binder up
11 with me.
12 THE COURT: That's what was reflected in the
13 fee application.
14 MR. SEESE: Yes. That would be through the end
15 of January 31, yes, sir.
16 THE COURT: Actually, the fee order should
17 reflect that the gross amount of the fees allowed, less
18 the retainer, and then the same would go for the
19 expenses.
20 MR. SEESE: Yes, sir. And I will circulate
21 that order as well.
22 THE COURT: Very well. Mr. Robinson, any last
23 comments?
24 MR. ROBINSON: Your Honor, I'm just surprised
25 that Mr. Seese doesn't want to elect to accept stock.
16
1 THE COURT: No comment. Ms. Heffner.
2 MS. HEFFNER: Your Honor, I have no objection.
3 I want to point out the comments made by Mr. Robinson
4 earlier about the sophisticated and very good work that
5 the attorney did in complying with difficult SEC
6 regulations, and I think certainly the fees may be
7 deserved.
8 MR. FISHER: There's one other matter which
9 will happen in the same time frame. The auditors
10 that have kept this company reporting currently will file
11 their fee application also, which will be heard within
12 that same period, and so that Your Honor will review
13 their fees.
14 MR. SEESE: The Weisnik (phonetic) firm did not
15 file a final fee application in accordance with the
16 order. There was a provision in the plan that provided
17 that final fee applications would be filed within ten
18 days of the effective date. It was inadvertence when
19 they didn't file it, and so we would only ask that we be
20 permitted to file their fee application as well to
21 encompass the fees that they have incurred during this
22 case, and those too would be paid as part of the new
23 funding by American Capital Holdings in accordance with
24 the plan.
25 THE COURT: I would need to hold a hearing on
17
1 that.
2 MR. SEESE: Yes, sir. And we have advised them
3 on that.
4 THE COURT: So then what I will ask you to do,
5 Mr. Seese, is, when that fee application is filed, to
6 move matters along, please get in touch with my courtroom
7 deputy, Ms. Klopp, to expedite the scheduling of the
8 hearing, at least so it gets set -- it still will need to
9 be set on no less than 20 days notice.
10 MR. SEESE: Yes, Your Honor.
11 MR. FISHER: We'll take care of that.
12 MR. SEESE: Thank you very much for your
13 accommodating us. You've been very patient, and we're
14 finally there, and we thank you very much.
15 THE COURT: If I gave you a quarter, would you
16 call my wife and tell her that.
17 MR. SEESE: Only if I can get a transcript or
18 excerpt of Ms. Heffner's comments on my fees.
19 THE COURT: Ms. Heffner, anything further?
20 MS. HEFFNER: No, nothing further, Your
21 Honor.
22 THE COURT: And nothing from you, Mr. Robinson?
23 MR. ROBINSON: No. Thank you, Your Honor, for
24 accommodating us by telephone today.
25 THE COURT: I thank you all very much. Very
18
1 well done, Mr. Seese, and I appreciate your being here
2 also, and I'm very pleased at the outcome.
3 MR. FISHER: Thank you very much.
4 MR. SEESE: Thank you, Your Honor. It's a
5 pleasure.
6 MS. HEFFNER: Thank you, Your Honor.
7 (The proceedings were concluded.)
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
19
1 C E R T I F I C A T E.
2
3 The State of Florida )
4 County of Palm Beach )
5
6 I, JACQUELYN ANN JONES, Court Reporter, certify
7 that I was authorized to and did stenographically report
8 the foregoing hearing; and that the transcript is a true
9 record of my stenographic notes.
10 I further certify that I am not a relative,
11 employee, attorney or counsel of any of the parties, nor
12 am I a relative or employee of any of the parties'
13 attorney or counsel connected with the action, nor am I
14 financially interested in the action.
15
16 In witness whereof I have hereunto set my hand
17 and seal this 13th day of March, 2007.
18
19 ___________________________
20 JACQUELYN ANN JONES
21 Commission No. CC 995956
22 Expires Feb 18, 2009
23
24
25