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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment ____)*
Aquagenix, Inc.
----------------------------------
(Name of Issuer)
Common Stock, $.01 par value
----------------------------------
(Title of Class of Securities)
03838R 10 2
--------------------------
(CUSIP Number)
Nicolas Berggruen
499 Park Avenue
New York, NY 10022
212-421-0110
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 30, 1996
----------------------------------
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1 (b)(3) or (4), check the following box | |.
Check the following box if a fee is being paid with the statement |X|. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are
to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter disclosure
provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Exhibit Index: Page 6
Page 1 of 20 Pages
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SCHEDULE 13D
CUSIP No. 038383R 10 2 Page 2 of 20 Pages
------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Nicolas Berggruen
2 Check the Appropriate Box If a Member of a Group*
a. / /
b. /X/
3 SEC Use Only
4 Source of Funds*
WC
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) / /
6 Citizenship or Place of Organization
United States
7 Sole Voting Power
Number of 250,000
Shares
Beneficially 8 Shared Voting Power
Owned By -0-
Each
Reporting 9 Sole Dispositive Power
Person 250,000
With
10 Shared Dispositive Power
-0-
11 Aggregate Amount Beneficially Owned by Each Reporting Person
250,000
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain
Shares* / /
13 Percent of Class Represented By Amount in Row (11)
7.75
14 Type of Reporting Person*
IN
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Item 1. Security and Issuer
This statement on Schedule 13D relates to shares of common stock, par
value $.01 per share (the "Common Stock"), of Aquagenix, Inc., a Delaware
corporation (the "Issuer"). The principal executive offices of the Issuer are
located at 6500 Northwest 15th Avenue, Fort Lauderdale, Florida 33309.
Item 2. Identity and Background
This statement on Schedule 13D is being filed by Nicolas Berggruen (the
"Reporting Person").
The Reporting Person is the Chief Executive Officer, President and sole
shareholder and director of Alpha Investment Management, Inc., a Delaware
corporation ("Alpha") which is registered as an investment adviser under the
Investment Advisers Act of 1940.
The Reporting Person acts as an investment adviser to Tarragona Fund
Inc. ("Tarragona"), a Panama corporation. Alpha acts as an investment adviser to
Alpha Atlas Holdings, LDC ("Alpha Atlas"), a Cayman Islands LDC. The business
address of the Reporting Person is 499 Park Avenue, New York, NY 10022. The
business and principal office of Alpha is 499 Park Avenue, New York, NY 10022.
The address of the principal business and principal office of Tarragona is 31st
Street, Number 3-80 P.O. Box 7412, Panama 5, Republic of Panama. The address of
the principal business and principal office of Alpha Atlas is c/o International
Fund Administration, Ltd., 48 Par La Ville Road, Suite 464, Hamilton Hill HM11
Bermuda.
The present principal occupation or employment of the Reporting Person
is President and Chief Executive Officer of Alpha. During the last five years,
the Reporting Person has not been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) and was not a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction
resulting in a judgment, decree or final order enjoining future violations of,
or prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws. The Reporting Person is
a citizen of the United States.
Item 3. Source and Amount of Funds or Other Consideration
Of the 250,000 shares of Common Stock beneficially held by the
Reporting Person, 125,000 shares of Common Stock were purchased by Tarragona
with the working capital of Tarragona and 125,000 shares of Common Stock were
purchased by Alpha Atlas with the working capital of Alpha Atlas.
Item 4. Purpose of Transaction
The purpose of the acquisition by Alpha Atlas and Tarragona of the
shares of Common Stock is for investment. The Reporting Person may consider
making additional purchases of shares of Common Stock of the Issuer on behalf of
clients in open-market or private transactions, the extent of which purchases
would depend upon prevailing market and other conditions. Alternatively, the
Reporting
Page 3 of 20 Pages
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Person may cause all or a portion of the shares of Common Stock to be sold in
open-market or private transactions, depending upon prevailing market conditions
and other factors.
Except as indicated above, the Reporting Person has no plans or
proposals which relate to or would result in any of the events, actions or
conditions specified in paragraphs (a) through (j) of Item 4 of this Schedule
13D.
Item 5. Interest in Securities of the Issuer
(a) This statement on Schedule 13D relates to 250,000 shares of Common
Stock beneficially owned by the Reporting Person, which c onstitute
approximately 7.75% of the issued and outstanding Shares.
(b) The Reporting Person has sole voting and dispositive power with respect
to 250,000 shares of Common Stock.
(c) Effective as of June 28, 1996, Tarragona and Alpha Atlas each acquired
125,000 shares of Common Stock directly from the Issuer in private
transactions at a purchase price of $4.00 per share.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
As discussed in Item 2 above, the Reporting Person acts as investment
adviser to Tarragona, which owns 125,000 Shares. The Reporting Person is the
Chief Executive Officer, President and sole shareholder of Alpha, which acts as
investment adviser to Alpha Atlas, which owns 125,000 shares of Common Stock.
Tarragona and Alpha Atlas each entered into a Subscription Agreement with the
Issuer dated June 28, 1996 relating to the purchase of shares. Except as set
forth above, there exist no contracts, arrangements, understandings or
relationships (legal or otherwise) among the persons named in Item 2 and between
such persons and any persons with respect to any securities of the Issuer,
including but not limited to transfer or voting of any securities, finders'
fees, joint ventures, loan or option agreements, put or calls, guarantees of
profits, division of profits or loss, or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits
Exhibit A: Subscription Agreement between Issuer and Tarragona.
Exhibit B: Subscription Agreement between Issuer and Alpha Atlas.
Page 4 of 20 Pages
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: July 9, 1996
/s/ Nicolas Berggruen
Nicolas Berggruen
Page 5 of 20 Pages
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EXHIBIT INDEX
Exhibit Exhibit Name Page
A Subscription Agreement between Issuer and Tarragona 7
B Subscription Agreement between Issuer and Alpha Atlas 14
Page 6 of 20 Pages
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EXHIBIT A
SUBSCRIPTION AGREEMENT
Aquagenix, Inc.
6500 N.W. 15th Avenue
Fort Lauderdale, Florida 33309
Gentlemen:
Pursuant to the discussion between Aquagenix, Inc., a Delaware
corporation (the "Company") and Tarragona Fund, Inc. (the "Undersigned"), the
Undersigned is writing to advise you of the following terms and conditions under
which the Undersigned hereby offers to subscribe (the "Offer") for the purchase
of One Hundred Twenty-Five Thousand (125,000) shares ("Shares") of Common Stock,
par value $.01 per share, at a purchase price of $4.00 per Share for an
aggregate amount of $500,000.
1. Subscription. Subject to the terms and conditions
hereinafter set forth in this Subscription Agreement, the Undersigned hereby
offers to purchase the Shares for an aggregate purchase price of $500,000.
If the Offer is accepted, the Shares shall be paid for by the
delivery of $500,000 by wire transfer payable to Aquagenix, Inc. BankAtlantic,
1750 East Sunrise Boulevard, Fort Lauderdale, Florida 33304; ABA #267083763,
Account #0055937302 and the certificate evidencing the Shares shall be delivered
to the Undersigned immediately thereafter.
2. Representations and Warranties.
(i) In order to induce the Company to accept this subscription, the
Undersigned hereby represents and warrants to, and covenants with, the Company
as follows:
(a) The Undersigned has received and reviewed the Company's
Annual Reports on Form 10-KSB for the years ended December 31, 1994 and
December 31, 1995 and the Form 10-QSB for the quarter ended March 31,
1996 and the Proxy for the fiscal year ended December 31, 1995
(collectively the "Disclosure Documents");
(b) The Undersigned has had a reasonable opportunity to ask
questions of and receive answers from the Company concerning the
Company and the Shares, and all such questions, if any, have been
answered to the full satisfaction of the Undersigned;
(c) The Undersigned has such knowledge and expertise in
financial and business matters that the Undersigned is capable of
evaluating the merits and risks involved in an investment in the
Company;
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(d) Except as set forth herein and in the Disclosure
Documents, no representations or warranties have been made to the
Undersigned by or on behalf of the Company or any agent, employee or
affiliate of the Company and in entering into this transaction the
Undersigned is not relying upon any information, other than that
contained in the Disclosure Documents and the results of independent
investigation by the Undersigned;
(e) The Undersigned understands that (A) the Shares have not
been registered under the Act or the securities laws of any state,
based upon an exemption from such registration requirements for
non-public offerings pursuant to an exemption under the Act; (B) the
Shares are and will be "restricted securities", as said term is defined
in Rule 144 of the Rules and Regulations promulgated under the Act; (C)
the Shares may not be sold or otherwise transferred unless they have
been first registered under the Act and all applicable state securities
laws, or unless exemptions from such registration provisions are
available with respect to said resale or transfer; (D) other than as
set forth in the Disclosure Documents and this Subscription Agreement,
the Company is under no obligation to register the Shares under the Act
or any state securities laws, or to take any action to make any
exemption from any such registration provisions available; (E) the
certificates for the Shares will bear a legend to the effect that the
transfer of the securities represented thereby is subject to the
provisions hereof; and (F) stop transfer instructions will be placed
with the transfer agent for the Shares;
(f) The Undersigned is acquiring the Shares solely for
the account of the Undersigned, for investment purposes only, and not
with a view towards the resale or distribution thereof;
(g) The Undersigned will not sell or otherwise transfer any of
the Shares, or any interest therein, unless and until (i) said Shares
shall have first been registered under the Act and all applicable state
securities laws; or (ii) the Undersigned shall have first delivered to
the Company a written opinion of counsel (which counsel and opinion (in
form and substance) shall be reasonably satisfactory to the Company),
to the effect that the proposed sale or transfer is exempt from the
registration provisions of the Act and all applicable state securities
laws;
(h) The Undersigned is a corporation duly organized under the
laws of Panama; has full power and authority to execute and deliver
this Subscription Agreement and to perform the obligations of the
Undersigned hereunder, and this Subscription Agreement is a legally
binding obligation of the Undersigned in accordance with its terms;
(i) The Undersigned is an "accredited investor," as such term
is defined in Regulation D of the Rules and Regulations promulgated
under the Act and the Undersigned understands that the Company has
determined that the exemption from the registration provisions of the
Securities Act of 1933, as amended (the "Act"), which is
2
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based upon non-public offerings are applicable to the offer and sale
of the Shares, based, in part, upon the representations, warranties
and agreements made by the Undersigned herein and in the this
Subscription Agreement.
(j) Funding of this Subscription Agreement shall be
made by wire transfer of funds on or before 2:30 P.M. on Friday,
June 28, 1996.
(ii) In order to induce the undersigned to enter into this Subscription
Agreement, the Company hereby represents and warrants to, and covenants with the
Company, as follows:
(a) The Company is a corporation duly organized under the laws of
Delaware; has full power and authority to execute and deliver
this Subscription Agreement and perform its obligations
hereunder, and this Agreement is a legally binding obligation
of the Company in accordance with its terms.
(b) The Shares when issued and paid for in accordance with the
terms of this Subscription Agreement will be validly issued
and fully paid and non-assessable; the holders thereof will
not be subject to any personal liability as such holders; all
corporate action required to be taken for the authorization,
issuance sale of the Shares has been duly and validly taken.
(c) The execution and delivery of the Subscription Agreement does
not (i) conflict with or will conflict with, result in a
material breach of, or constitute a default under (x) the
articles or bylaws of the Company; (y) any material contract,
indenture mortgage, deed of trust or other material agreement
or instrument to which the Company is a party or by which any
of the properties or assets of the Company may be bound.
(d) The Company has filed with the Securities and Exchange
Commission ("SEC") Disclosure Documents which reports were
timely filed and which reports do not contain any material
misstatements of facts or omit to state any material facts.
Since the date of filing of the last such report there has
been no material adverse change in the business or financial
condition of the Company. Except as disclosed in the
Disclosure Documents, there are no pending or threatened
litigations or other proceedings which could have a material
adverse effect on the business or financial condition of the
Company, except as described on Schedule 1 hereto.
3. Undertaking to Register Shares. The Company shall file a
registration statement for the Shares within thirty days from the date hereof
and will use its best efforts to cause such registration statement to become
effective six (6) months from the date of this Subscription Agreement.
3
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Notwithstanding anything to the contrary contained herein, if the
Registration Statement for the Shares shall not have become effective within the
time period specified in this Paragraph 3 (the "Registration Date"), the
Company shall for no consideration issue an additional 9,375 Shares of Common
Stock to the Undersigned on the Registration Date and an additional 1, 562.5
Shares of Common Stock each month thereafter until the Registration Statement
shall become effective.
The Undersigned agrees that the Shares are subject to restriction as to
their disposition until the effective date of the Registration Statement. In
particular, the Undersigned agrees that it will not, without the prior written
consent of the Company, sell, assign, pledge, hypothecate, transfer or otherwise
dispose of, directly or indirectly, the Shares prior to termination of such six
month period. The Undersigned will permit all certificates evidencing the Shares
to be endorsed with the appropriate restrictive legends, and will consent to the
placement of appropriate stock transfer instructions with the transfer agent of
the Company relating to this restriction.
4. The Undersigned understands that this subscription is not binding
upon either party unless and until accepted by both parties, which acceptance is
at the sole discretion of each party and is to be evidenced by each party's
execution of this Subscription Agreement where indicated.
5. Each party agrees to indemnify the other and hold it harmless from
and against any and all losses, damages, liabilities, costs and expenses which
it may sustain or incur in connection with the breach by the other party of any
representation, warranty or covenant made by the other party herein.
6. Neither this Subscription Agreement nor any of the rights
of the Undersigned hereunder may be transferred or assigned by the Undersigned.
7. This Subscription Agreement (i) may only be modified by a written
instrument executed by the Undersigned and the Company; and (ii) sets forth the
entire agreement of the Undersigned and the Company with respect to the subject
matter hereof; (iii) shall be governed by the laws of the State of Florida
applicable to contracts made and to be wholly performed therein; and (iv) shall
inure to the benefit of, and be binding upon the Company and the Undersigned and
its respective successors and assigns.
8. All notices or other communications hereunder shall be in writing
and shall be deemed to have been duly given if delivered personally or mailed by
certified or registered mail, return receipt requested, postage prepaid, as
follows: if to the Undersigned, to Tarragona, Inc., c/o Maitland & Co., Skardia
House, Finch Road, Box 75, Douglas, Isle of Man, IM99 IEP, with a copy to Alpha
Investment Management, Inc., 499 Park Avenue, New York, New York 10022, and if
to the Company, to Aquagenix, Inc., 6500 N.W. 15th Avenue, Fort Lauderdale,
Florida 33309 or to such other address as the Company or the Undersigned shall
have designated to the other by like notice.
4
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9. JURISDICTIONAL NOTICE
FOR FLORIDA RESIDENTS: EACH FLORIDA RESIDENT WHO SUBSCRIBES FOR THE PURCHASE OF
SECURITIES HEREIN HAS THE RIGHT, PURSUANT TO SECTION 517.061(11)(A)(5) OF THE
FLORIDA SECURITIES ACT, TO WITHDRAW HIS SUBSCRIPTION FOR THE PURCHASE AND
RECEIVE A FULL REFUND OF ALL MONIES PAID WITHIN THREE (3) BUSINESS DAYS AFTER
THE EXECUTION OF THE SUBSCRIPTION AGREEMENT OR PAYMENT FOR THE PURCHASE HAS BEEN
MADE, WHICHEVER IS LATER. WITHDRAWAL WILL BE WITHOUT ANY FURTHER LIABILITY TO
ANY PERSON. TO ACCOMPLISH THIS WITHDRAWAL, A SUBSCRIBER NEED ONLY SEND A LETTER
OR TELEGRAM TO THE COMPANY AT THE ADDRESS SET FORTH IN THIS CONFIDENTIAL TERM
SHEET INDICATING HIS INTENTION TO WITHDRAW.
FOR RESIDENTS OF ALL STATES: THE SHARES OFFERED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF CERTAIN
STATES AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE SHARES ARE SUBJECT IN
VARIOUS STATES TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT
TO REGISTRATION OR EXEMPTION THEREFROM. THE SHARES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES
COMMISSION OR OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING
AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY
OF ADEQUACY OF THE CONFIDENTIAL TERM SHEET. ANY REPRESENTATION TO THE CONTRARY
IS UNLAWFUL.
10. No Waiver. Notwithstanding any of the representations,
warranties, acknowledgements or agreements made herein by the Undersigned, the
Undersigned does not thereby or in any manner waive any rights granted to the
Undersigned under federal or state securities laws.
11. Revocation. The Undersigned agrees that he shall not cancel,
terminate or revoke this Subscription Agreement or any agreement of the
Undersigned made hereunder other than as set forth under Section 9 above, and
that this Subscription Agreement shall survive the death or disability of the
Undersigned.
12. Miscellaneous.
(a) This Subscription Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
may be amended only by a writing executed by all parties.
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(b) The provisions of this Subscription Agreement shall
survive the execution thereof.
IN WITNESS WHEREOF, the Undersigned has executed this Subscription
Agreement on the date his signature has been subscribed and sworn to below.
TARRAGONA FUND, INC.
By: /s/ P.J. Wentzel
---------------------
P.J. Wentzel
Director
By: /s/ R.L. Worsdale
---------------------
R.L. Worsdale
Director
Accepted as of the 28 day
of June, 1996
AQUAGENIX, INC.
By: /s/ Andrew P. Chesler
-------------------------
Andrew P. Chesler
President
6
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SCHEDULE 1
NASDAQ, by letter dated April 3, 1996, advised the Company that as of
December 31, 1995 they had failed to maintain the requisite net worth for
listing on the NASDAQ National Market System. The Company was granted until July
1, 1996, to correct the deficiency. With the funding of this Subscription
Agreement, together with other financing, obtained by the Company and the
disposition of certain assets relating to the remediation business, the Company
will have complied with the requirements of NASDAQ National Market System.
Filing will be made with NASDAQ to evidence compliance.
If for any reason the Company had failed to comply with their listing
requirements, the Company would be moved to the SmallCap rather than National
Market System.
<PAGE>
EXHIBIT B
SUBSCRIPTION AGREEMENT
Aquagenix, Inc.
6500 N.W. 15th Avenue
Fort Lauderdale, Florida 33309
Gentlemen:
Pursuant to the discussion between Aquagenix, Inc., a Delaware
corporation (the "Company") and Alpha Atlas Holdings, LDC (the "Undersigned"),
the Undersigned is writing to advise you of the following terms and conditions
under which the Undersigned hereby offers to subscribe (the "Offer") for the
purchase of One Hundred Twenty-Five Thousand (125,000) shares ("Shares") of
Common Stock, par value $.01 per share, at a purchase price of $4.00 per Share
for an aggregate amount of $500,000.
1. Subscription. Subject to the terms and conditions
hereinafter set forth in this Subscription Agreement, the Undersigned hereby
offers to purchase the Shares for an aggregate purchase price of $500,000.
If the Offer is accepted, the Shares shall be paid for by the
delivery of $500,000 by wire transfer payable to Aquagenix, Inc. BankAtlantic,
1750 East Sunrise Boulevard, Fort Lauderdale, Florida 33304; ABA #267083763,
Account #0055937302 and the certificate evidencing the Shares shall be delivered
to the Undersigned immediately thereafter.
2. Representations and Warranties.
(i) In order to induce the Company to accept this subscription, the
Undersigned hereby represents and warrants to, and covenants with, the Company
as follows:
(a) The Undersigned has received and reviewed the Company's
Annual Reports on Form 10-KSB for the years ended December 31, 1994 and
December 31, 1995 and the Form 10-QSB for the quarter ended March 31,
1996 and the Proxy for the fiscal year ended December 31, 1995
(collectively the "Disclosure Documents");
(b) The Undersigned has had a reasonable opportunity to ask
questions of and receive answers from the Company concerning the
Company and the Shares, and all such questions, if any, have been
answered to the full satisfaction of the Undersigned;
(c) The Undersigned has such knowledge and expertise in
financial and business matters that the Undersigned is capable of
evaluating the merits and risks involved in an investment in the
Company;
<PAGE>
(d) Except as set forth herein and in the Disclosure
Documents, no representations or warranties have been made to the
Undersigned by or on behalf of the Company or any agent, employee or
affiliate of the Company and in entering into this transaction the
Undersigned is not relying upon any information, other than that
contained in the Disclosure Documents and the results of independent
investigation by the Undersigned;
(e) The Undersigned understands that (A) the Shares have not
been registered under the Act or the securities laws of any state,
based upon an exemption from such registration requirements for
non-public offerings pursuant to an exemption under the Act; (B) the
Shares are and will be "restricted securities", as said term is defined
in Rule 144 of the Rules and Regulations promulgated under the Act; (C)
the Shares may not be sold or otherwise transferred unless they have
been first registered under the Act and all applicable state securities
laws, or unless exemptions from such registration provisions are
available with respect to said resale or transfer; (D) other than as
set forth in the Disclosure Documents and this Subscription Agreement,
the Company is under no obligation to register the Shares under the Act
or any state securities laws, or to take any action to make any
exemption from any such registration provisions available; (E) the
certificates for the Shares will bear a legend to the effect that the
transfer of the securities represented thereby is subject to the
provisions hereof; and (F) stop transfer instructions will be placed
with the transfer agent for the Shares;
(f) The Undersigned is acquiring the Shares solely for
the account of the Undersigned, for investment purposes only, and not
with a view towards the resale or distribution thereof;
(g) The Undersigned will not sell or otherwise transfer any of
the Shares, or any interest therein, unless and until (i) said Shares
shall have first been registered under the Act and all applicable state
securities laws; or (ii) the Undersigned shall have first delivered to
the Company a written opinion of counsel (which counsel and opinion (in
form and substance) shall be reasonably satisfactory to the Company),
to the effect that the proposed sale or transfer is exempt from the
registration provisions of the Act and all applicable state securities
laws;
(h) The Undersigned is a corporation duly organized under the
laws of the Cayman Islands; has full power and authority to execute and
deliver this Subscription Agreement and to perform the obligations of
the Undersigned hereunder, and this Subscription Agreement is a legally
binding obligation of the Undersigned in accordance with its terms;
(i) The Undersigned is an "accredited investor," as such term
is defined in Regulation D of the Rules and Regulations promulgated
under the Act and the Undersigned understands that the Company has
determined that the exemption from the registration provisions of the
Securities Act of 1933, as amended (the "Act"), which is
2
<PAGE>
based upon non-public offerings are applicable to the offer and sale of
the Shares, based, in part, upon the representations, warranties and
agreements made by the Undersigned herein and in the this Subscription
Agreement.
(j) Funding of this Subscription Agreement shall be made by
wire transfer of funds on or before 2:30 P.M. on Friday, June 28, 1996.
(ii) In order to induce the undersigned to enter into this Subscription
Agreement, the Company hereby represents and warrants to, and covenants with the
Company, as follows:
(a) The Company is a corporation duly organized under the laws of
Delaware; has full power and authority to execute and deliver
this Subscription Agreement and perform its obligations
hereunder, and this Agreement is a legally binding obligation
of the Company in accordance with its terms.
(b) The Shares when issued and paid for in accordance with the
terms of this Subscription Agreement will be validly issued
and fully paid and non-assessable; the holders thereof will
not be subject to any personal liability as such holders; all
corporate action required to be taken for the authorization,
issuance sale of the Shares has been duly and validly taken.
(c) The execution and delivery of the Subscription Agreement does
not (i) conflict with or will conflict with, result in a
material breach of, or constitute a default under (x) the
articles or bylaws of the Company; (y) any material contract,
indenture mortgage, deed of trust or other material agreement
or instrument to which the Company is a party or by which any
of the properties or assets of the Company may be bound.
(d) The Company has filed with the Securities and Exchange
Commission ("SEC") Disclosure Documents which reports were
timely filed and which reports do not contain any material
misstatements of facts or omit to state any material facts.
Since the date of filing of the last such report there has
been no material adverse change in the business or financial
condition of the Company. Except as disclosed in the
Disclosure Documents, there are no pending or threatened
litigations or other proceedings which could have a material
adverse effect on the business or financial condition of the
Company, except as described on Schedule 1 hereto.
3. Undertaking to Register Shares. The Company shall file a
registration statement for the Shares within thirty days from the date hereof
and will use its best efforts to cause such registration statement to become
effective six (6) months from the date of this Subscription Agreement.
3
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Notwithstanding anything to the contrary contained herein, if the
Registration Statement for the Shares shall not have become effective within the
time period specified in this Paragraph 3 (the "Registration Date"), the
Company shall for no consideration issue an additional 9,375 Shares of Common
Stock to the Undersigned on the Registration Date and an additional 1, 562.5
Shares of Common Stock each month thereafter until the Registration Statement
shall become effective.
The Undersigned agrees that the Shares are subject to restriction as to
their disposition until the effective date of the Registration Statement. In
particular, the Undersigned agrees that it will not, without the prior written
consent of the Company, sell, assign, pledge, hypothecate, transfer or otherwise
dispose of, directly or indirectly, the Shares prior to termination of such six
month period. The Undersigned will permit all certificates evidencing the Shares
to be endorsed with the appropriate restrictive legends, and will consent to the
placement of appropriate stock transfer instructions with the transfer agent of
the Company relating to this restriction.
4. The Undersigned understands that this subscription is not binding
upon either party unless and until accepted by both parties, which acceptance is
at the sole discretion of each party and is to be evidenced by each party's
execution of this Subscription Agreement where indicated.
5. Each party agrees to indemnify the other and hold it harmless from
and against any and all losses, damages, liabilities, costs and expenses which
it may sustain or incur in connection with the breach by the other party of any
representation, warranty or covenant made by the other party herein.
6. Neither this Subscription Agreement nor any of the rights of
the Undersigned hereunder may be transferred or assigned by the Undersigned.
7. This Subscription Agreement (i) may only be modified by a written
instrument executed by the Undersigned and the Company; and (ii) sets forth the
entire agreement of the Undersigned and the Company with respect to the subject
matter hereof; (iii) shall be governed by the laws of the State of Florida
applicable to contracts made and to be wholly performed therein; and (iv) shall
inure to the benefit of, and be binding upon the Company and the Undersigned and
its respective successors and assigns.
8. All notices or other communications hereunder shall be in writing
and shall be deemed to have been duly given if delivered personally or mailed by
certified or registered mail, return receipt requested, postage prepaid, as
follows: if to the Undersigned, c/o International Fund Administration, Ltd., 48
Par La Ville Road, Suite 464, Hamilton HM11 Bermuda, and if to the Company, to
Aquagenix, Inc., 6500 N.W. 15th Avenue, Fort Lauderdale, Florida 33309 or to
such other address as the Company or the Undersigned shall have designated to
the other by like notice.
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9. JURISDICTIONAL NOTICE
FOR FLORIDA RESIDENTS: EACH FLORIDA RESIDENT WHO SUBSCRIBES FOR THE PURCHASE OF
SECURITIES HEREIN HAS THE RIGHT, PURSUANT TO SECTION 517.061(11)(A)(5) OF THE
FLORIDA SECURITIES ACT, TO WITHDRAW HIS SUBSCRIPTION FOR THE PURCHASE AND
RECEIVE A FULL REFUND OF ALL MONIES PAID WITHIN THREE (3) BUSINESS DAYS AFTER
THE EXECUTION OF THE SUBSCRIPTION AGREEMENT OR PAYMENT FOR THE PURCHASE HAS BEEN
MADE, WHICHEVER IS LATER. WITHDRAWAL WILL BE WITHOUT ANY FURTHER LIABILITY TO
ANY PERSON. TO ACCOMPLISH THIS WITHDRAWAL, A SUBSCRIBER NEED ONLY SEND A LETTER
OR TELEGRAM TO THE COMPANY AT THE ADDRESS SET FORTH IN THIS CONFIDENTIAL TERM
SHEET INDICATING HIS INTENTION TO WITHDRAW.
FOR RESIDENTS OF ALL STATES: THE SHARES OFFERED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF CERTAIN
STATES AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE SHARES ARE SUBJECT IN
VARIOUS STATES TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT
TO REGISTRATION OR EXEMPTION THEREFROM. THE SHARES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES
COMMISSION OR OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING
AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY
OF ADEQUACY OF THE CONFIDENTIAL TERM SHEET. ANY REPRESENTATION TO THE CONTRARY
IS UNLAWFUL.
10. No Waiver. Notwithstanding any of the representations,
warranties, acknowledgements or agreements made herein by the Undersigned,
the Undersigned does not thereby or in any manner waive any rights granted to
the Undersigned under federal or state securities laws.
11. Revocation. The Undersigned agrees that he shall not cancel,
terminate or revoke this Subscription Agreement or any agreement of the
Undersigned made hereunder other than as set forth under Section 9 above, and
that this Subscription Agreement shall survive the death or disability of the
Undersigned.
12. Miscellaneous.
(a) This Subscription Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
may be amended only by a writing executed by all parties.
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(b) The provisions of this Subscription Agreement shall
survive the execution thereof.
IN WITNESS WHEREOF, the Undersigned has executed this Subscription
Agreement on the date his signature has been subscribed and sworn to below.
ALPHA ATLAS HOLDINGS, LDC
By: /s/ Douglas Siekierski
--------------------------
Douglas Siekierski
Chief Financial Officer
Alpha Investment Management, Inc.
Accepted as of the 28 day
of June, 1996
AQUAGENIX, INC.
By: /s/ Andrew P. Chesler
--------------------------
Andrew P. Chesler
President
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SCHEDULE 1
NASDAQ, by letter dated April 3, 1996, advised the Company that as of
December 31, 1995 they had failed to maintain the requisite net worth for
listing on the NASDAQ National Market System. The Company was granted until July
1, 1996, to correct the deficiency. With the funding of this Subscription
Agreement, together with other financing, obtained by the Company and the
disposition of certain assets relating to the remediation business, the Company
will have complied with the requirements of NASDAQ National Market System.
Filing will be made with NASDAQ to evidence compliance.
If for any reason the Company had failed to comply with their listing
requirements, the Company would be moved to the SmallCap rather than National
Market System.
