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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 5)*
Aquagenix, Inc.
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(Name of Issuer)
Common Stock, $.01 par value
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(Title of Class of Securities)
03838R 102
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(CUSIP Number)
Nicolas Berggruen
499 Park Avenue
New York, NY 10022
212-421-0110
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
October 27, 1997
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(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 [ ].
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).
Page 1 of 6 Pages
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SCHEDULE 13D
CUSIP NO. 03838R 102
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 399,671
Shares
Beneficially 8 Shared Voting Power
Owned By -0-
Each
Reporting 9 Sole Dispositive Power
Person 399,671
With
10 Shared Dispositive Power
-0-
11 Aggregate Amount Beneficially Owned by Each Reporting Person
399,671
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain
Shares* [X]
13 Percent of Class Represented By Amount in Row (11)
8.6%
14 Type of Reporting Person*
IN
Page 2 of 6 Pages
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The first two paragraphs of Item 2 are hereby amended and restated as follows:
"ITEM 2. IDENTITY AND BACKGROUND
Amendment No. 5 to the Schedule 13D relating to the Common Stock
(hereinafter, the "Fifth Amendment") 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., a Panama corporation, which is an affiliate of Alexander Enterprise
Holding Corp. ("Alexander"), a British Virgin Islands corporation. Alpha acts as
an investment adviser to Alpha Atlas Holdings, LDC ("Alpha Atlas"), a Cayman
Islands limited duration company. The business address of the Reporting Person
is 499 Park Avenue, New York, NY 10022. The address of the principal office of
Alpha is 499 Park Avenue, New York, NY 10022. The address of the principal
office of Tarragona is 31st Street, Number 3-80 P.O. Box 7412, Panama 5,
Republic of Panama. The address of the principal office of Alexander is c/o
Midocean Management, Ltd., 9 Columbus Centre, Pelican Drive, Road Town, Tortola,
British Virgin Islands. The address of the principal office of Alpha Atlas is
c/o International Fund Administration, Ltd., 48 Par La Ville Road, Suite 464,
Hamilton HM11 Bermuda."
Item 3 is hereby amended and restated as follows:
"ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Of the 399,671 shares of Common Stock deemed beneficially held by the
Reporting Person, (i) 171,643 shares of Common Stock were purchased by Alexander
with the working capital of Alexander, (ii) 95,528 Shares of Common Stock were
purchased by Tarragona with the working capital of Tarragona and (iii) 132,500
shares of Common Stock were purchased by Alpha Atlas with the working capital of
Alpha Atlas."
Item 5 is hereby amended and restated as follows:
"ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) The Fifth Amendment relates to 399,671 shares of Common Stock of the
Issuer deemed beneficially owned by the Reporting Person, which
constitute approximately 8.6% of the issued and outstanding shares of
Common Stock. Of the 399,671 shares of Common Stock deemed beneficially
owned by the Reporting Person, 171,643 shares are held in the form of
warrants and delayed exercise rights pursuant to a Subscription
Agreement between Alexander and the Issuer dated as of October 27, 1997
(the "Subscription Agreement") attached hereto as Exhibit A.
(b) The Reporting Person has sole voting and dispositive power with respect
to 399,671 shares of Common Stock.
(c) The following is a list of the transactions which were effected since
the filing of the Fourth Amendment:
Page 3 of 6 Pages
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(i) Effective on October 27, 1997, pursuant to the Subscription
Agreement, Alexander has acquired, at an aggregate purchase price of
$700,000: (a) 60,000 warrants, each to purchase one share of Common
Stock at an exercise price of $8.00 per share, exercisable until
October 27, 1999 and (b) the right to acquire $700,000 worth of shares
of Common Stock from January until December 1998 at a purchase price
per share equal to 85% of the average closing bid price of the Common
Stock over a ten day period immediately prior to the date of exercise.
As of the date of filing the Fifth Amendment, Alexander would have the
right to acquire approximately 111,643 shares of Common Stock, as
determined by the average closing bid price of the Common Stock over
the previous ten day period on the Nasdaq NMS;
(ii) Pursuant to open market transactions, Tarragona disposed of the
following shares of Common Stock: (a) 10,000 shares of Common Stock on
July 23, 1997 at a purchase price of $6.61 per share, (b) 1,000 shares
of Common Stock on July 24, 1997 at a purchase price of $6.63 per
share, (c) 9,000 shares of Common Stock on July 25, 1997 at a purchase
price of $6.56 per share and (d) 20,000 shares of Common Stock on July
29, 1997 at a purchase price of $6.56 per share; and
(iii) From October 27th to October 30th, 1997, Tarragona transferred
150,528 shares of Common Stock to Alexander. Pursuant to open market
transactions, Alexander disposed of the following shares of Common
Stock: (a) 20,000 shares of Common Stock on October 28, 1997 at a
purchase price of $7.50 per share, (b) 10,000 shares of Common Stock on
October 28, 1997 at a purchase price of $7.63 per share, (c) 20,000
shares of Common Stock on October 29, 1997 at a purchase price of $7.63
per share and (d) 5,000 shares of Common Stock on October 30, 1997 at a
purchase price of $7.50 per purchase.
(d) Not applicable.
(e) Not applicable."
The first two sentences of Item 6 are hereby amended and restated as follows:
"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, an affiliate of Alexander, which owns 267,171 shares of
Common Stock. The Reporting Person is the Chief Executive Officer, President and
sole shareholder of Alpha, which acts as the investment adviser to Alpha Atlas,
which owns 132,500 shares of Common Stock."
Item 7 is hereby amended and restated as follows:
"ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit A: Subscription Agreement between Alexander Enterprise
Holdings Corp. and the Issuer dated as of October 27,
1997"
Page 4 of 6 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: November 6, 1997
By: /s/Nicolas Berggruen
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Nicolas Berggruen
Page 5 of 6 Pages
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EXHIBIT INDEX
Exhibit Exhibit Name Page
- ------- ------------ ----
A Subscription Agreement between 7
Alexander Enterprise Holdings Corp. and
the Issuer dated as of October 27, 1997
Page 6 of 6 Pages
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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 Alexander Enterprise Holdings Corp., a British Virgin
Islands corporation (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 shares ("Shares") of the
Company's Common Stock, par value $.01 per share, in an amount to be determined
pursuant to Section 2(a) hereof, and Sixty Thousand (60,000) warrants
("Warrants") at an aggregate purchase price of $700,000.
1. Subscription. Subject to the terms and conditions hereinafter set forth
in this Subscription Agreement, the Undersigned hereby offers to purchase the
Shares and Warrants for an aggregate purchase price of $700,000.
If the Offer is accepted, the Shares and Warrants shall be paid for by the
delivery of $700,000 by wire transfer payable to Aquagenix, Inc., BankAtlantic,
1750 East Sunrise Boulevard, Fort Lauderdale, Florida, 33304; ABA #267083763,
Account #0055937302, and the certificates evidencing the Shares and Warrants
shall be delivered to the Undersigned Immediately thereafter.
2. Description of Shares and Warrants.
(a) Shares. "Shares" that the Undersigned shall receive pursuant to this
Subscription Agreement shall mean that number of shares of the Company's Common
Stock equal to $700,000 divided by the Fair Market Value (as defined herein) of
the Company's shares of Common Stock on the date of the Notice (as defined
herein). Notice to receive all or any portion of the amount of Shares shall be
determined at the option of the Undersigned any time commencing ninety (90) days
from the date hereof and ending on December 31, 1998. The Undersigned shall
deliver written notice ("Notice") to the Company via telecopy on the day of
exercising its right to receive the Shares and delivering the original Notice to
the Company by express courier within three (3) business days of exercise, which
Notice shall indicate the amount of Shares to be received pursuant to that
Notice and the calculation of the purchase price. Each such conversion shall
reduce the principal amount of the Undersigned's initial
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investment by the amount stated in the Notice. The term "Fair Market Value" of
the Company's shares of Common Stock shall mean 85% of the average closing bid
price of the Company's Common Stock, as reported by the principal exchange on
which the Common Stock is traded, the Nasdaq National Market System or the
National Quotation Bureau, Incorporated, as the case may be, for ten consecutive
trading days immediately prior to the date of the Notice. Notwithstanding
anything contained herein to the contrary, the maximum amount of Shares that the
Undersigned can receive pursuant to this Subscription Agreement shall not exceed
19.99% of the Company's currently issued and outstanding shares of Common Stock.
(b) Warrants. Each Warrant entities the Undersigned to purchase one share
of Common Stock at $8.00 per share (the "Warrant Exercise Price") commencing on
the date hereof and continuing for a period of two years from the date hereof.
The Warrants shall be in substantially the same form as attached hereto as
Exhibit A.
3. Representations and Warranties.
(i) In order to induce the Company to accept this Subscription Agreement,
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, 1995 and 1996
and the Form 10-QSB for the quarter ended June 30, 1997 (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, the Shares
and Warrants, 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;
(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 and Warrants 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 and
Warrants are and will be "restricted
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securities", as said term is defined in Rule 144 of the Rules and
Regulations promulgated under the Act; (C) the Shares and Warrants 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 or Warrants 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 and
Warrants 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 and Warrants;
(f) The Undersigned is acquiring the Shares and Warrants 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 Warrants, or any interest therein, unless and until (i) said
Shares and Warrants 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 British Virgin 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 based upon non-public offerings are
applicable to the offer and sale of the Shares and Warrants, based, in
part, upon the representations, warranties and agreements made by the
Undersigned herein and in this Subscription Agreement; and
(j) Funding of this Subscription Agreement shall be made by wire
transfer of funds on or before 2:30 P.M. on _________, October __, 1997.
(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:
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(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 and Warrants 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 and sale of the Shares and Warrants 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; and
(d) The Company has filed with the Securities and Exchange Commission
("SEC") the Disclosure Documents 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.
4. 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 as
soon as reasonably possible.
5. Neither the Undersigned, nor the Undersigned's representatives,
administrators, successors or assigns will offer. sell, transfer, assign,
pledge, hypothecate, encumber or otherwise attempt to directly or indirectly
dispose of any of the Shares, Warrants or shares of Common Stock receivable upon
exercise of the Warrants either pursuant to Rule 144 of the Securities Act of
1933, a registration Statement or otherwise, or dispose of any beneficial
interest therein for a period of ninety (90) days following the date of this
Subscription Agreement without the prior written consent of the Company.
6. The Undersigned understands that this Subscription Agreement is not
binding upon either party unless and until accepted by both parties, which
acceptance is at the sole discretion
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of each party and is to be evidenced by each party's execution of this
Subscription Agreement where indicated.
7. 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.
8. Neither this Subscription Agreement nor any of the rights of the
Undersigned hereunder may be transferred or assigned by the Undersigned.
9. 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.
10. 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, Falcon Cliff Palace Road, Douglas, Isle of Man,
IM99 1EP, 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.
11. 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 MOINES 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
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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.
12. 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.
13. 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.
14. 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.
(b) The provisions of this Subscription Agreement shall survive the
execution thereof.
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IN WITNESS WHEREOF, the Undersigned has executed this Subscription
Agreement on the date indicated below.
ALEXANDER ENTERPRISE HOLDINGS
CORP., a British Virgin Islands corporation
By: /s/ Jared Bluestein
___________________________________
Jared Bluestein
Dated: October 27, 1997
________________________________
Accepted as of the __ day
of October, 1997.
AQUAGENIX, INC.
By: /s/ Andrew P. Chesler
_________________________________
Andrew P. Chesler, President
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