0000950138-05-000161.txt : 20120725 0000950138-05-000161.hdr.sgml : 20120725 20050215125227 ACCESSION NUMBER: 0000950138-05-000161 CONFORMED SUBMISSION TYPE: SC 13G/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20050214 DATE AS OF CHANGE: 20050215 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ROTH MICHAEL CENTRAL INDEX KEY: 0001010207 FILING VALUES: FORM TYPE: SC 13G/A BUSINESS ADDRESS: BUSINESS PHONE: 4142411810 MAIL ADDRESS: STREET 1: 10556 N PORT WASHINGTON RD CITY: MEQUON STATE: WI ZIP: 53092 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AXM PHARMA INC CENTRAL INDEX KEY: 0001113643 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 200745214 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13G/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-79182 FILM NUMBER: 05615965 BUSINESS ADDRESS: STREET 1: 3960 HOWARD HUGHES PARKWAY STREET 2: SUITE 500 CITY: LAS VEGAS STATE: NV ZIP: 89109 BUSINESS PHONE: 7029903659 MAIL ADDRESS: STREET 1: 3960 HOWARD HUGHES PARKWAY STREET 2: SUITE 500 CITY: LAS VEGAS STATE: NV ZIP: 89109 FORMER COMPANY: FORMER CONFORMED NAME: AXIOM PHARMACEUTICALS INC DATE OF NAME CHANGE: 20030321 FORMER COMPANY: FORMER CONFORMED NAME: WICKLIFFE INTERNATIONAL CORP DATE OF NAME CHANGE: 20010511 FORMER COMPANY: FORMER CONFORMED NAME: WHOLE SALE ON THE NET INC DATE OF NAME CHANGE: 20000505 SC 13G/A 1 feb13ga-axm.txt ROTH-STARK\2005\FEB 13GAS\FEB 13GA-AXM SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 SCHEDULE 13G (Rule 13d-102) INFORMATION TO BE INCLUDED IN THE STATEMENTS FILED PURSUANT TO RULES 13d-1(b)(c), AND (d) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(b) (Amendment No. 1)* AXM Pharma, Inc. ------------------------------------ (Name of Issuer) Common Stock, $.001 par value -------------------------------------------------------------------------------- (Title of Class of Securities) 002457109 ------------------ (CUSIP Number) December 31, 2004 -------------------------------------------------------------------------------- (Date of Event Which Requires Filing of this Statement) Check the appropriate box to designate the rule pursuant to which this Schedule is filed: [ ] Rule 13d-1(b) [X] Rule 13d-1(c) [ ] Rule 13d-1(d) *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 the disclosures provided in a prior cover page. The information required in 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). SCHEDULE 13G CUSIP NO. 002457109 2 of 6 _____________________________________________________________________________ 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (Entities Only) Michael A. Roth and Brian J. Stark, as joint filers pursuant to Rule 13d-1(k) _____________________________________________________________________________ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [x] (b) [ ] _____________________________________________________________________________ 3 SEC USE ONLY _____________________________________________________________________________ 4 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America _____________________________________________________________________________ NUMBER OF 5 SOLE VOTING POWER SHARES 0 ______________________________________________________________ BENEFICIALLY 6 SHARED VOTING POWER OWNED BY 917,720 (See Item 4) ______________________________________________________________ EACH 7 SOLE DISPOSITIVE POWER REPORTING 0 ______________________________________________________________ PERSON 8 SHARED DISPOSITIVE POWER WITH 917,720 (See Item 4) _____________________________________________________________________________ 9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 917,720 (See Item 4) _____________________________________________________________________________ 10 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [x] _____________________________________________________________________________ 11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 5.7% (See Item 4) _____________________________________________________________________________ 12 TYPE OF REPORTING PERSON* IN _____________________________________________________________________________ SCHEDULE 13G CUSIP NO. 002457109 3 of 6 Item 1(a). Name of Issuer: AXM Pharma, Inc., a Nevada corporation (the "Issuer"). Item 1(b). Address of Issuer's Principal Executive Offices: 4695 Macarthur Court Newport Beach, CA 92660 Items 2(a), (b) and (c). Name of Persons Filing, Address of Principal Business Office and Citizenship: This Amendment No. 1 to Schedule 13G is being filed on behalf of Michael A. Roth and Brian J. Stark, as joint filers (collectively, the "Reporting Persons"). The Reporting Persons have entered into a Joint Filing Agreement, a copy of which is filed with this Amendment No. 1 to Schedule 13G as Exhibit 1, pursuant to which the Reporting Persons have agreed to file this Amendment No. 1 to Schedule 13G jointly in accordance with the provisions of Rule 13d-1(k) of the Securities Exchange Act of 1934, as amended. The principal business office of the Reporting Persons is 3600 South Lake Drive, St. Francis, WI 53235. Item 2(d). Title of Class of Securities: Common Stock, $.001 par value, of the Issuer (the "Common Stock") Item 2(e). CUSIP Number: 002457109 Item 3. Not applicable. Item 4. Ownership. (a) Amount beneficially owned: 917,720 shares of Common Stock* (b) Percent of class: Based on 16,066,789 shares of Common Stock of the Issuer outstanding as of September 30, 2004 (as set forth in the Issuer's 10-QSB for the quarter ended September 30, 2004), the Reporting Persons hold approximately 5.7%* of the issued and outstanding Common Stock of the Issuer. (c) Number of shares to which such Reporting Persons have: SCHEDULE 13G CUSIP NO. 002457109 4 of 6 (i) Sole power to vote or direct the vote: 0 (ii) Shared power to vote or direct the vote: 917,720 * (iii) Sole power to dispose or to direct the disposition of: 0 (iv) Shared power to dispose of or direct the disposition of: 917,720 * *The Reporting Persons beneficially own an aggregate of 917,720 shares of Common Stock. The foregoing amount of Common Stock and percentage ownership represent the combined indirect holdings of Michael A. Roth and Brian J. Stark. The shares of Common Stock reported in this Schedule 13G do not include certain shares of Common Stock issuable upon the exercise of warrants held by the Reporting Persons. Such warrants held by the Reporting Persons are subject to conversion caps that preclude the holder thereof from utilizing its exercise rights to the extent that it would beneficially own (determined in accordance with Section 13(d) of the Securities Exchange Act of 1934) in excess of 4.999% of the Common Stock, giving effect to such exercise. All of the foregoing represents an aggregate of 917,720 shares of Common Stock held directly by SF Capital Partners Ltd. ("SF Capital"). The Reporting Persons are the Managing Membrs of Stark Offshore Management, LLC ("Stark Offshore"), which acts as investment manager and has sole power to direct the management of SF Capital. Through Stark Offshore, the Reporting Persons possess voting and dispositive power over all of the foregoing shares. Therefore, for the purposes of Rule 13d-3 under the Exchange Act, the Reporting Persons may be deemed to be the beneficial owners of, but hereby disclaim such beneficial ownership of, the foregoing shares. Item 5. Ownership of Five Percent or Less of a Class. Not Applicable. Item 6. Ownership of More than Five Percent on Behalf of Another Person. Not Applicable. Item 7. Identification and Classification of the Subsidiary Which Acquired the Security Being Reported By the Parent Holding Company. Not Applicable. Item 8. Identification and Classification of Members of the Group. Not Applicable. Item 9. Notice of Dissolution of a Group. SCHEDULE 13G CUSIP NO. 002457109 5 of 6 Not Applicable. Item 10. Certification. By signing below I certify that, to the best of my knowledge and belief, the securities referred to above were not acquired and are not held for the purpose of or with the effect of changing or influencing the control of the issuer of the securities and were not acquired and are not held in connection with or as a participant in any transaction having that purpose or effect. SCHEDULE 13G CUSIP NO. 002457109 6 of 6 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: February 14, 2005 /s/ Michael A. Roth ----------------------- Michael A. Roth /s/ Brian J. Stark ----------------------- Brian J. Stark SCHEDULE 13G CUSIP NO. 002457109 Exhibit 1 JOINT FILING AGREEMENT In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, the undersigned agree to the joint filing on behalf of each of them of a statement on Schedule 13G (including amendments thereto) with respect to certain shares of Common Stock, $.001 par value of AXM Pharma, Inc. and further agree that this Joint Filing Agreement shall be included as an exhibit to such joint filings. The undersigned further agree that each party hereto is responsible for the timely filing of such Schedule 13G and any amendments thereto, and for the completeness and accuracy of the information concerning such party contained therein; provided, however, that no party is responsible for the completeness or accuracy of the information concerning any other party making the filing, unless such party knows or has reason to believe that such information is inaccurate. IN WITNESS WHEREOF, the parties have executed this Joint Filing Agreement on February 14, 2005. /s/ Michael A. Roth ----------------------- Michael A. Roth /s/ Brian J. Stark ----------------------- Brian J. Stark