SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 11)(1)
PHOTOCOMM, INC.
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(Name of issuer)
Common Stock, par value $.10 per share
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(Title of class of securities)
719319-10-5
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(CUSIP number)
ILAN K. REICH, ESQUIRE
OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP
505 Park Avenue
New York, New York 10022
(212) 753-7200
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(Name, address and telephone number of person
authorized to receive notices and communications)
SEPTEMBER 16, 1996
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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
/ /.
Check the following box if a fee is being paid with the statement / /.
(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 less than five percent 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.
(Continued on following pages)
(Page 1 of 26 Pages)
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(1) 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 disclosures provided in a prior cover page.
<PAGE>
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1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
The New World Power Corporation
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
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6 CITIZENSHIP OR PLACE OR ORGANIZATION
Delaware
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 8,112,442
OWNED BY -----------------------------------------------------------------
EACH
REPORTING
PERSON WITH
8 SHARED VOTING POWER
-0-
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
8,112,442
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,112,442
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
50.7%
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14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
This Amendment No. 11 to Schedule 13D (the "Amendment") amends
the Schedule 13D filed with respect to an event on November 10, 1993, as
previously amended by Amendment No. 1 ("Amendment No. 1") filed with respect to
an event on August 30, 1994; Amendment No. 2 ("Amendment No. 2") filed with
respect to an event on October 19, 1994; Amendment No. 3 ("Amendment No. 3")
filed with respect to an event on December 30, 1994; Amendment No. 4 ("Amendment
No. 4") filed with respect to an event on February 10, 1995; Amendment No. 5
("Amendment No. 5") filed with respect to an event on March 10, 1995; Amendment
No. 6 with respect to an event on August 15, 1995; Amendment No. 7 with respect
to an event on January 1, 1996 ("Amendment No. 7") and Amendment No. 8 with
respect to an event on April 11, 1996 ("Amendment No. 8") and Amendment No. 9
with respect to an event on July 31, 1996 ("Amendment No. 9") and Amendment No.
10 with respect to an event on August 16, 1996 ("Amendment No. 10")
(collectively, the "Statement").
Item 2. IDENTITY AND BACKGROUND.
Item 2 is amended by amending Schedule 1, hereto.
Item 4. PURPOSE OF TRANSACTION.
Item 4 is amended by adding the following:
At a Board of Directors meeting of the Issuer held on the
shortest possible notice on September 16, 1996, the Board purported to pass a
series of resolutions approving the following: (1) a 1996 Stock Option Plan; (2)
the grant of stock options to officers, directors, and employees of the Issuer;
(3) Executive Compensation Agreements for certain employees of the Issuer; (4)
an amendment to the By-Laws of the Issuer; (5) the issuance of a "Series E"
Preferred Stock; (6) the acquisition of a new business; and (7) a Shareholder
Rights Plan.
The Directors appointed to the Board by New World dissented from
each of these resolutions and subsequently delivered to the Issuer, within 24
hours, letters of dissent and objection. At the meeting, the Board declined to
permit one of New World's nominees to the Board to participate by a conference
call and as a result, his votes, which would have dissented from each of the
above resolutions, were not counted at the meeting. The Directors appointed by
New World also objected to this decision by the Board.
At the meeting, the Board purported to amend the Issuer's By-Laws
to eliminate the right of a shareholder owning 10% or more of the issued and
outstanding shares to call a special meeting of shareholders. At the meeting,
New World orally requested such a special meeting of shareholders and after the
meeting, delivered a written request that such a meeting be scheduled on
November 20, 1996 for the purpose of removing the four directors who voted in
favor of the foregoing resolutions.
<PAGE>
On September 19, 1996, New World and Golden Technologies filed an
action in the United States District Court for the District of Arizona naming as
defendants the Issuer, Programmed Land, Inc., Robert R. Kauffman and others,
seeking, among other things, to enjoin and set aside the Board actions described
above as a violation of, among other things, the Issuer's Stock Purchase
Agreement with New World and its Waiver Agreement with New World as well as a
breach of fiduciary duty. A copy of the Complaint is annexed as exhibit K and
incorporated herein by reference. On September 20, 1996, the District Court
granted New World's application for a temporary restraining order. A copy of
this Order is annexed as Exhibit L and incorporated herein by reference.
Other than as indicated herein, New World has no present plans or
proposals which relate to or would result in any of the following (although New
World reserves the right to develop such plans or proposals): (i) the
acquisition of additional securities of the Issuer; (ii) an extraordinary
corporate transaction, such as a merger, reorganization or liquidation,
involving the Issuer or any of its subsidiaries; (iii) a sale or transfer of a
material amount of assets of the Issuer or any of its subsidiaries; (iv) any
change in the present board of directors or management of the Issuer, including
any plans or proposals to change the number or term of directors or to fill any
existing vacancies on the Issuer's board of directors; (v) any material change
in the present capitalization or dividend policy of the Issuer; (vi) any other
material change in the business or corporate structure of the Issuer; (vii) any
other material change in the Issuer's articles of incorporation or by-laws or
other actions which may impede the acquisition of control of the Issuer by any
person; (viii) causing a class of securities of the Issuer to be delisted from a
national securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities association;
(ix) a class of equity securities of the Issuer becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Exchange Act; or
(x) any action similar to any of those enumerated above.
Item 7. MATERIAL TO BE FILED AS EXHIBITS.
A. Stock Purchase Agreement, dated as of October 15, 1993, by and
among New World, Photocomm, Westinghouse, PLI and Mr. Kauffman
(submitted with the initial filing).
B. Voting Agreement, dated as of October 7, 1994, by and between New
World and Mr. Kauffman (submitted with Amendment No. 2).
C. First Amendment to Voting Agreement, dated as of December 30,
1994, by and between New World and Mr. Kauffman (submitted with
Amendment No. 3).
<PAGE>
D. Stock Pledge Agreement, dated as of December 30, 1994, by and
among New World, Sundial and Gilmartin, Poster & Shafto, as escrow
holder (submitted with Amendment No. 3).
E. Option Extension Agreement, dated as of December 30, 1994, by and
between New World and PLI (submitted with Amendment No. 3).
F. Stock Pledge Agreement, dated as of March 10, 1995, by and among
New World, J.A. Jones Construction Company and Control y
Aplicaciones Mexicana, S.A. (submitted with Amendment No. 5).
G. Stock Pledge Agreement, dated as of August 15, 1995, by and
between New World and Robert Fleming & Co., Ltd., as agent
(submitted with Amendment No. 6).
H. Press Release dated August 6, 1996. (Submitted with Amendment No.
9).
I. Stock Purchase Agreement between New World and Golden
Technologies, Company, Inc. dated August 16, 1996. (Submitted with
Amendment No. 10).
J. Waiver Agreement between New World, the Issuer, Mr. Kauffman and
PLI, dated August 16, 1996. (Submitted with Amendment No. 10).
K. Complaint in THE NEW WORLD POWER CORPORATION, ET ANO. V.
PHOTOCOMM, INC., ET AL; Civ. 96 - 2162 PHX PGR (D.Ariz.) (the
"Action"), dated September 19, 1996.
L. Temporary Restraining Order in the Action, dated September 20,
1996.
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.
THE NEW WORLD POWER CORPORATION
Dated: September 24, 1996 By: /S/ FREDERIC MAYER
------------------------------
Frederic Mayer
Acting Chief Financial Officer
<PAGE>
Schedule 1 - Certain Information Regarding Each Executive Officer and
Director of New World
Item 2. IDENTITY AND BACKGROUND (CONT'D)
<TABLE>
<CAPTION>
Position with New
World and Principal
Occupation or
Name Business Address Employment Citizenship
---- ---------------- ---------- -----------
<S> <C> <C> <C>
John D. Kuhns The New World Power Chairman of the United States
Corporation Board and a Director
558 Lime Rock Road of New World
Lime Rock, CT 06039
Robert. W. McDonald William W. Simon & Vice Chairman and a United States
Sons Director of New
10990 Wilshire Boulevard World, and a
Suite 1750 managing director of
Los Angeles, CA 90024 William E. Simon &
Sons, a merchant
banking firm
Gerald Cummins Mancum Graphics Director of New United States
1270 Broadway, Rm. 803 World and private
New York, NY 10001-3211 investor
Nazir Memon, M.D. 504 North Harvard Avenue Director of New United States
Ventnor, NJ 08406 World and a
pulmonologist in
private practice
Herbert L. Oakes, Jr. Oakes, Fitzwilliams & Director of New United States
Co. Limited World and a managing
Byron House director of Oakes
7-9 St. James's Street Fitzwilliams & Co.,
London, SW1A 1EE, England Limited, an
investment banking
firm
Lucien Ruby Quest Ventures Director of New United States
126 South Park World, and Managing
San Francisco, CA 94107 General Partner of
Quest Venturers, a
venture capital firm
Vitold Jordan The New World Power Interim Chief Canada
Corporation Executive Officer of
558 Lime Rock Road New World
Lime Rock, CT 06039
</TABLE>
EXHIBIT K
William J. Maledon, #003670
OSBORN MALEDON, P.A.
2929 N. Central
Phoenix, AZ 85012-2798
Telephone: (602) 640-9000
Attorneys for Plaintiff
The New World Power Corporation
Michael W. Sillyman #004259
KUTAK ROCK
Sixteenth Floor
3300 North Central Avenue
Phoenix, AZ 85012-2516
Telephone: (602) 285-1700
Attorneys for Plaintiff
Golden Technologies Company, Inc.
IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF ARIZONA
THE NEW WORLD POWER CORPORATION, a )
Delaware corporation, and GOLDEN )
TECHNOLOGIES COMPANY, INC., a Colorado )
corporation, ) No. Civ. 96-2162 PHX PG
)
Plaintiffs, ) COMPLAINT FOR TEMPORARY
) RESTRAINING ORDER, PRELIMINARY
vs. ) AND PERMANENT INJUNCTIONS
) (BREACH OF CONTRACT,
PHOTOCOMM, INC., an Arizona ) DECLARATORY RELIEF, 28 U.S.C.,
Corporation; PROGRAMMED LAND, INC., a ) SECTION 2201; BREACH OF FIDUCIARY
Minnesota corporation; ROBERT R. ) DUTY)
KAUFFMAN, an individual; DONALD E. )
ANDERSON, an individual; THOMAS C. )
LaVOY, an individual; and WALTER M. )
BAKER, an individual, )
)
Defendants. )
I. PARTIES AND JURISDICTION
1. Plaintiff The New World Power Corporation ("New World") is a
Delaware corporation with its principal place of business in Lime Rock,
Connecticut.
<PAGE>
2. Plaintiff Golden Technologies Company, Inc. ("Golden") is a
Colorado corporation with its principal place of business in Golden, Colorado.
3. Defendant Photocomm, Inc. ("Photocomm") is an Arizona corporation
with its principal place of business in Scottsdale, Arizona.
4. Defendant Programmed Land, Inc. ("PLI") is a Minnesota corporation
with its principal place of business in Scottsdale, Arizona.
5. Defendant Robert R. Kauffman ("Kauffman") is a resident of
Arizona.
6. Defendant Donald E. Anderson is a resident of Arizona.
7. Defendant Thomas C. LaVoy is a resident of Arizona.
8. Defendant Walter M. Baker is a resident of Minnesota.
9. Complete diversity of citizenship exists between both New World
and Golden and all defendants.
10. The amount in controversy, exclusive of interests and costs,
exceeds the sum of $50,000.00.
11. This court has diversity jurisdiction over the matter in
controversy pursuant to 28 U.S.C. Section 1332.
II. INTRODUCTORY ALLEGATIONS
12. On or about October 15, 1993 New World entered into a Stock
Purchase Agreement with Photocomm, Kauffman, PLI and Westinghouse Electric
Corporation (the "New World/Photocomm Agreement") pursuant to which, among other
things, New World has over the past three years acquired 6,612,447 shares of
Photocomm
<PAGE>
stock, as well as options and rights of first refusal to acquire additional
shares of Photocomm stock.
13. In the New World/Photocomm Agreement, Photocomm, Kauffman and PLI
entered into post-closing covenants with New World effective during the period
in which New World and its affiliates own 20% or more of the outstanding shares
of common stock of Photocomm. New World currently owns approximately 44% of the
outstanding shares of common stock of Photocomm, and thus, such post-closing
covenants are still in effect. Those covenants include, without limitation, the
following:
a. a limitation on Photocomm's right to issue new securities,
except with certain restrictions, as part of an Employee Stock Option Plan or
pursuant to Section 9.2(b); [Section 9.2(a)]
b. a right of first refusal granted to New World to purchase all
or any portion of New Securities that Photocomm may, from time to time, propose
to issue. The term "New Securities" is defined therein as "any shares of any
class of [Photocomm's] capital stock or any securities convertible into or
exercisable or exchangeable for any such shares, or any warrants, calls,
options,stock appreciation rights or other rights calling for the issuance, sale
or delivery of any such shares of convertible, exercisable or exchangeable
securities;" [Section 9.2.(b)]
c. a restriction against Photocomm or any subsidiary purchasing
or otherwise acquiring, in excess of $250,000 in any one transaction or $500,000
in any twelve-month period, the assets or business of any person or other
entity; [Section 9.4.]
<PAGE>
d. a restriction against taking or recommending any action, by
charter amendment, board resolution or otherwise, "which is intended to make the
acquisition of the Company [Photocomm] more expensive, more difficult or
undesirable (so called 'golden parachutes' and 'poison pills') or to "take any
action which would impose limitations on the legal rights of the Buyer [New
World];" [Section 9.7.]
e. a restriction against entering into any employment contracts
with any of its employees which are not terminable at will, except for an
employment agreement with its Chief Executive Officer with the consent of
directors holding a majority of the directorships; [Section 9.14(b)] and
f. a restriction against amending or altering the By- Laws of
Photocomm or of any of its subsidiaries, except for "small administrative
matters." [Section 9.17]
14. In the New World/Photocomm Agreement New World also gave Photocomm,
Kauffman and PLI a right of first refusal to purchase New World's shares of
Photocomm should New World decide to sell them.
15. On or about August 16, 1996 Golden, which is currently a
shareholder of Photocomm, entered into a Stock Purchase Agreement with New World
(the "Golden/New World Agreement") pursuant to which Golden agreed to buy the
6,612,447 shares of Photocomm from New World for $11,292,500. Pursuant to
Section 6.2 of that agreement, the obligation of Golden to close the purchase of
such shares is contingent upon, among other things, there having been "no
material adverse change in the condition,
<PAGE>
financial or otherwise of Pcomm [Photocomm] . . . or any material change in
[its] capitalization or capital structure."
16. On or about August 16, 1996 New World entered into a Waiver
Agreement with Photocomm, Kauffman and PLI (the "Waiver Agreement") whereby
Photocomm, Kauffman and PLI agreed to, among other things:
a. waive their rights of first refusal on New World's shares of
Photocomm stock in exchange for the payment by New World of $600,000, which
money was to be paid to Kauffman and PLI, rather than Photocomm; and
b. "use all reasonable efforts to make or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or
advisable to consummate and make effective as promptly as practicable the
proposed sale of shares by New World to GTC [Golden] in connection with the
foregoing."
17. The Board of Directors of Photocomm are comprised of Kauffman,
Anderson, LaVoy and Baker (collectively the "Company Directors") as well as
three designees of New World, The designees of New World are John D. Kuhns
("Kuhns"), Gerald R. Cummins ("Cummins") and Robert W. MacDonald ("MacDonald")
(collectively the "New World Directors"). Anderson also sits on the Board of
Directors as a representative and agent of PLI, which owns in excess of 11% of
the common stock of Photocomm.
18. By notice given on September 12, 1996 Kauffman, as President and
Chief Executive Officer of Photocomm, called a special meeting of the Board of
Directors of Photocomm on September 16, 1996 for the purported purpose of:
<PAGE>
1. Considering proposals by ACX Technologies [the parent
corporation of Golden] to acquire a majority interest in the
Corporation [Photocomm], and matters related thereto.
2. Transacting such other business as may properly come before
said meeting.
19. All directors other than MacDonald were physically present at the
meeting in Scottsdale, Arizona. Because of the short notice MacDonald, who
resides in California, was unable to be physically present. However, he was
available to participate by telephone and desired to do so. Kauffman, in
contravention of Photocomm's By-Laws, refused to allow MacDonald to participate
by telephone.
20. At the special meeting Kauffman presented the directors with a
meeting agenda which included the following items as to which the New World
directors had been given no prior notice:
a. 1996 Stock Option Plan;
b. Executive Compensation Agreements;
c. Bylaw - Amendment;
d. Authorization - "Series E" Preferred Stock;
e. Acquisition for Stock; and
f. Shareholder Rights Plan.
21. At the special meeting the New Wold Directors, other than
MacDonald who was barred from participating, were given the following documents
for the first time:
a. Photocomm, Inc. 1996 Stock Option Plan;
<PAGE>
b. Stockholders Rights Plan SUMMARY OF RIGHTS (the Plan itself
was not given to New World Directors); and
c. Executive Compensation Agreements for Anderson, Kauffman,
Myron Anduri ("Anduri"), Ronald Kenedi ("Kenedi"), LaVoy and Robert Spotts
("Spotts").
22. In addition, at the special meeting the New World Directors, other
than MacDonald, were given for the first time pre-prepared "Resolutions To Be
Adopted By The Board of Directors of Photocomm, Inc." which (1) adopted the 1996
Stock Option Plan; (2) gave 1996 Stock Option Grants of 1,100,000 shares of
common stock to, among others, the Company Directors all at a price below the
market value; (3) adopted the Officer Employment Agreements, including those of
all Company Directors other than Baker; (4) adopted a Bylaw Amendment
eliminating the right of holders of 10%or more of all issued and outstanding
shares of stock of Photocomm (I.E., New World) to call a shareholders meeting;
(5) authorized the purchase of a separate business for shares of common stock of
Photocomm; and (6) adopted a Shareholder Rights Plan (I.E., a "poison pill").
23. No written resolution was prepared authorizing the issuance of
"Series E" Preferred Stock, but such issuance was voted upon and purportedly
approved at the special meeting.
24. At the special meeting on September 16, 1996 all Company Directors
voted for each of the resolutions itemized in paragraphs 22 and 23 above. Thus,
each Company Director, other than Baker who is not employed by Photocomm, voted
in favor of his own Officer Employment Agreement and each Company Director
<PAGE>
voted in favor of the grant to himself of 1996 Stock Option Grants exercisable
at less than the market value. Kuhns and Cummins voted against each such
resolution and MacDonald was unable to vote, having been barred from
participating in the meeting.
25. Had each Company Director not voted on resolutions as to which they
had an interest (I.E., their own Officer Compensation Agreements and the grant
to themselves of 1996 Stock Options) and had MacDonald not been improperly
barred from participating in the meeting, the Officer Compensation Agreements
with Kauffman, Anderson and LaVoy and the 1996 Stock Option Grants to Kauffman,
Anderson, LaVoy and Baker, would not have the support of the majority of the
Board of Directors.
26. During the special meeting and before the Bylaw was purportedly
changed Kuhn informed the Board of Director that New World, as a holder of in
excess of 10% of Photocomm's issued shares of stock, demanded a shareholders
meeting on November 20, 1996. At the close of the meeting Kuhn delivered a
written request for the same to the Board of Directors.
27. On September 17, 1996 the New World Directors all gave written
notice to Photocomm of their opposition to each and every resolution passed at
the special meeting.
III. FIRST CLAIM FOR RELIEF
(Breach of New World/Photocomm Agreement -
Injunctive Relief Against Photocomm)
28. New World incorporates herein by reference the allegations set
forth in paragraphs 1-27.
<PAGE>
29. Kauffman and PLI, acting through Anderson, each breached the
covenants made by them in New World/Photocomm Agreement by voting in favor of
the resolutions described in paragraphs 22 and 23 above which are purportedly
adopted by the Board of Directors of Photocomm at the special meeting held on
September 16, 1996.
30. Photocomm breached the New World/Photocomm Agreement by purportedly
adopting the resolutions set forth in paragraphs 22 and 23 above the special
meeting held on September 16, 1996.
31. As a direct and foreseeable result of the breaches by Kauffman, PLI
and Photocomm on the covenants made to New World in the New World/Photocomm
Agreement, Golden has asserted a right to terminate the Golden/New World
Agreement and, upon information and belief, will seek to do so if the
resolutions purportedly adopted by Photocomm at the special meeting are not set
aside or declared to be invalid. Any such failure may place New World in default
under its lending agreements, triggering an immediate obligation to pay more
than $20 million in debt. In such an event, New World would be compelled to file
bankruptcy. In addition, if such resolutions are not set aside or declared to be
invalid the value of New World's stock in Photocomm will fall dramatically and
will, as practical matter, be unmarketable as a block.
32. The New World/Photocomm Agreement provides in Section
29 that:
The parties agree that the remedies at law for any
breach of the terms of this Agreement are
inadequate. Accordingly, the parties consent and
<PAGE>
agree that an injunction may be issued to restrain
any breach or alleged breach of such provisions.
The parties agree that the terms of this Agreement
shall be enforceable by a decree of specific
performance. Such remedies shall be cumulative and
not exclusive, and shall be in addition to any
other remedies which the parties may have at law or
in equity.
33. The New World/Photocomm Agreement further provides in Section 28
that:
In any action brought to enforce the provisions of
this Agreement, the prevailing party shall be
entitled to recover its attorneys' fees and costs.
34. Unless Photocomm is preliminarily and permanently enjoined from
effectuating, carrying out or acting pursuant to any or all of the resolutions
described in paragraphs 22 and 23 above, New World will be irreparably harmed.
35. New World is entitled to: (a) a preliminary and permanent
injunction enjoining Photocomm from effectuating, carrying out or acting
pursuant to any or all of the resolutions described in paragraphs 22 and 23
above and purportedly approved by Board of Directors of Photocomm are in
violation of the New World/Photocomm Agreement and are invalid and
unenforceable.
IV SECOND CLAIM FOR RELIEF
(Breach of New World/Photocomm Agreement
- Declaratory Relief Against Photocomm)
36. New World incorporates herein by reference the allegations set
forth in paragraphs 1-35.
37. New World is entitled to a declaratory judgment pursuant to
F.R.C.P. 57 and the Declaratory Judgment Act, 28
<PAGE>
U.S.C. ss.2201 declaring that each and every resolution described in paragraphs
22 and 23 above and purportedly approved by the Board of Directors of Photocomm
are in violation of the New World/Photocomm Agreement and are invalid and
unenforceable.
V. THIRD CLAIM FOR RELIEF
(Breach of New World/Photocomm Agreement -
Damages Against Kauffman and PLI)
38. New world incorporates herein by reference the allegations set
forth in paragraphs 1-37.
39. As a direct and foreseeable result of Kauffman's and PLI's breaches
of contract, New World has incurred, and will continue to incur damages,
including payment of interest on debt which would be repaid from the proceeds of
the sale to Golden, legal fees and the possible diminution of the value of its
shares of Photocomm.
40. If an injunction as requested in the First Claim for Relief is not
issued and made permanent, New World is entitled to an award of such damages,
jointly and severally, against Kauffman and PLI, plus its attorneys fees
incurred in enforcing its rights under the New World/Photocomm Agreement.
VI. FOURTH CLAIM FOR RELIEF
(Breach of Waiver Agreement -
Damages against Kauffman and PLI)
41. New World incorporates herein by reference the allegations set
forth in paragraphs 1-40.
42. Kauffman and PLI breached their obligations under the Waiver
Agreement. Those obligations are described in paragraph 16(b) above.
<PAGE>
43. As a direct and foreseeable result of Kauffman's and PLI's breaches
of contract, New World has incurred, and will continue to incur damages,
including payment of interest on debt which would be repaid from the proceeds of
the sale to Golden, legal fees and the possible diminution of the value of its
shares of Photocomm.
44. New World is entitled to an award of such damages, jointly and
severally, against Kauffman and PLI.
VII. FIFTH CLAIM FOR RELIEF
(Breach of Fiduciary Duty -
Injunctive Relief and Damages Against Photocomm
and the Individual Defendants)
45. New World incorporates herein by reference the allegations set
forth in paragraphs 1-44.
46. Photocomm instituted the Shareholder Rights Plan for the purpose of
entrenching the existing management and the Company Directors. It was not in
response to any perceived or realistic threat to the corporation.
47. The Company Directors granted themselves options to purchase 1.1
million shares (in excess of 5 percent of the outstanding shares) pursuant to
options priced below the fair market value of the shares. This is in addition to
substantial option grants made in the past. Upon information and belief,
Kauffman now has options for approximately 1 million shares.
48. The Company Directors, with full knowledge of the demand of a
shareholder to call a shareholders' meeting, amended it bylaws to provide
thereafter that shareholders could not call
<PAGE>
a meeting, thus threatening the rights of the shareholders to vote for director.
49. The Company Directors approved substantial management contracts
providing themselves with compensation that is excessive and unnecessary to
retain qualified personnel.
50. All of the foregoing were done with the full participation of
interested directors of the Company, have not been ratified by the shareholders,
and were not, under the circumstances at the time they were approved, fair to
the corporation.
51. As a direct and proximate result of Kauffman's Anderson's, LaVoy's
and Baker's breach of their fiduciary duties, New World have incurred and will
continue to incur actual and irreparable damages.
52. New World are entitled to: (a) a preliminary and permanent
injunction enjoining Photocomm from effectuating, carrying out or acting
pursuant to any or all of the resolutions described in paragraphs 22 and 23
above; (b) or alternatively an award of their actual damages; and (c) an award
of their attorneys fees and costs incurred.
VIII. SIXTH CLAIM FOR RELIEF
(Breach of Waiver Agreement -
Third party beneficiary claim by Golden -
Damages against Photocomm, Kauffman and PLI)
53. Golden incorporates herein by reference the allegations set forth
in paragraphs 1-52.
54. The Waiver Agreement provides, among other things, the following:
<PAGE>
(a) "New World desires to sell all of its stock to Golden";
(b) "the Waiving Party [Photocomm, Kauffman, and PLI] . . .
agree to waive all of their rights relative to those shares
which New World proposes to sell to GTC [Golden] upon
payment of the consideration";
(c) "In consideration for the waiver from the Waiving Party
[Photocomm, Kauffman, and PLI], New World shall pay to the
Waiving Party the sum of $600,000 cash at the Closing of the
contemplated purchase of New World's Photocomm shares by GTC
[Golden]"; and
(d) "The Waiving Party [Photocomm, Kauffman, and PLI] agrees to
use all reasonable efforts to take or cause to be done, all
things necessary, proper or advisable to consummate and make
effective as promptly as practicable the proposed sale of
shares by New World to GTC [Golden] and to cooperate with
New World and GTC [Golden] in connection with the
foregoing."
55. The above language of the Waiver Agreement illustrates the parties'
intention that the Waiver Agreement intentionally and directly benefit Golden as
a third-party beneficiary and the primary party in interest.
56. Photocomm, Kauffman, and PLI breached their obligations under the
Waiver Agreement.
57. As a direct and foreseeable result of Photocomm's, Kauffman's and
PLI's breaches of contract, Golden has incurred, and will continue to incur
damages, including its right to purchase New World's stock in Photocomm and
legal fees.
58. Golden is entitled to an award of such damages, jointly and
severally, against Photocomm, Kauffman and PLI.
<PAGE>
IX. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court issue:
1. A Temporary Restraining Order and Order to Show Cause Why Defendants
and all of their officers, directors, stockholders, agents, partners, employees,
representatives, and all other persons in active concert or participating with
them, should not be preliminarily and permanently enjoined from engaging in the
acts and practices alleged in this Complaint.
2. A Temporary Restraining Order and Order to Show Cause why
Defendants, and all of their officer, directors, stockholders, agents, partners,
employees, representatives, and all other person in active concert or
participation with them, should not be preliminarily and permanently enjoined
from adopting, carrying out and/or implementing the Resolutions improperly
adopted by the Board of Directors of Photocomm, Inc. on September 16, 1996
including the 1996 Stock Option Plan, the Executive Compensation Agreements for
Anderson, Kauffman, Anduri, Kenedi, LaVoy and Spotts; the Bylaw Amendment which
purported to eliminate the right of holders of 10% or more of all issued and
outstanding shares of stock of Photocomm from calling a shareholders' meeting;
authorizing issuance of "Series E" Preferred Stock; the acquisition of any
separate business for stock of Photocomm and the adoption of a Shareholders
Rights Plan.
3. An Order setting a Photocomm shareholders meeting for November 20,
1996 at the law offices of Kutak Rock, 3300 N. Central Avenue, 16th Floor,
Phoenix, Arizona at 9:00 a.m.
<PAGE>
4. An Order awarding damages to New World and Golden for breach of the
Photocomm Agreement and Waiver Agreement and to New World for breach of
fiduciary duties owed to it by Defendants Kauffman, Anderson, LaVoy and Baker.
5. An Order requiring Defendants to pay Plaintiffs' costs, attorneys'
fees, and expenses incurred in enforcing its right under the New World/Photocomm
Agreement and pursuant to Ariz.
Rev. Stat. Section 12-341.01.
<PAGE>
6. Order such other and further relief as the Court deems just and
proper.
Respectfully submitted this 19th day of September, 1996.
OSBORN MALEDON, P.C.
By:/s/ William J. Maledon
-------------------------------------
William J. Maledon
2929 North Central Avenue
Phoenix, Arizona 85012-2798
Telephone: (602) 640-9000
ATTORNEYS FOR PLAINTIFF THE NEW
WORLD POWER CORPORATION
KUTAK ROCK
James C. Ruh
717 17th St., Suite 2900
Denver, CO 80202-3329
Telephone (303) 297-2400
KUTAK ROCK
By: /s/ Michael W. Sillyman
-----------------------------------
Michael W. Sillyman
Sixteenth Floor
3300 North Central Avenue
Phoenix, AZ 85012-2516
Telephone: (602) 285-1700
ATTORNEYS FOR PLAINTIFF GOLDEN
TECHNOLOGIES COMPANY, INC.
EXHIBIT L
IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF ARIZONA
THE NEW WORLD POWER CORPORATION, a )
Delaware corporation, and GOLDEN )
TECHNOLOGIES COMPANY, INC., a Colorado )
corporation, ) TEMPORARY RESTRAINING ORDER AND
) ORDER TO SET HEARING ON
Plaintiffs, ) PRELIMINARY INJUNCTION
)
vs. )
)
PHOTOCOMM, INC., an Arizona )
Corporation; PROGRAMMED LAND, INC., a )
Minnesota corporation; ROBERT R. )
KAUFFMAN, an individual; DONALD E. )
ANDERSON, an individual; THOMAS C. )
LaVOY, an individual; and WALTER M. )
BAKER, an individual, )
)
Defendants. )
The Court has considered the Verified Complaint herein and Application
for Temporary Restraining Order and Order to Show Cause, the Affidavit of Gerald
R. Cummins and arguments and evidence presented in open court. It appears from
the evidence, arguments and materials presented that unless the Court issues a
Temporary Restraining Order granting appropriate relief as prayed for and unless
the status quo is maintained, Plaintiff New World will be substantially and
irreparably harmed by the adopted resolutions of the Board of Directors of
Defendant Photocomm, Inc. ("Photocomm"), as described in paragraphs 22 and 23 of
the Plaintiffs' Verified Complaint, including: (i) the 1996 Stock Option Plan;
(ii) [sic]; (iii) the Bylaw Amendment which purported to eliminate the right of
holders of 10% or more of all issued and outstanding shares of stock of
Photocomm from calling
<PAGE>
a shareholders' meeting; (iv) authorizing issuance of "Series E" Preferred
Stock; (v) acquisition of Sunwize for stock of Photocomm; and (vi) the adoption
of a Shareholders Rights Plan (collectively "the Resolutions"). These injuries
are immediate and irreparable and unless a Temporary Restraining Order is
granted, loss or harm will result to Plaintiffs. Plaintiffs have demonstrated
that serious questions are raised and that the balance of hardships tips sharply
in Plaintiffs' favor,
IT IS ORDERED pursuant to Rule 65(b), Fed. R. Civ. P., that the
Defendants, Photocomm, Inc., Programmed Land, Inc., Robert R. Kauffman, Donald
E. Anderson, Thomas C. LaVoy, and Walter M. Baker (collectively the
"Defendants") their officers, agents, attorneys, servants, employees,
representatives and any and all powers in active concert or participating with
them are hereby enjoined from effectuating, carrying out or acting pursuant to
any or all of the Resolutions until further order of the Court.
IT IS FURTHER ORDERED that this Temporary Restraining Order shall
remain in effect, and in force until such time as a hearing may be held on
Plaintiffs' Application for Preliminary Injunction or until further order of the
Court.
IT IS FURTHER ORDERED, pursuant to Rule 65(c), Fed. R. Civ. P., that
Plaintiff deposit security with the Clerk of this Court in the sum of $10,000 as
of September 23 and $1,000 immediately for the payment of such costs and damages
as may be incurred or suffered by any party found to have been wrongfully
enjoined or restrained by this Order.
<PAGE>
IT IS FURTHER ORDERED that the Defendants, and each of them, shall
appear at the time and place designated below at which time this Court shall
determine whether the foregoing Temporary Restraining Order should continue as a
Preliminary Injunction pending final determination on the merits of this cause.
BEFORE WHOM APPEARANCE IS TO BE MADE: HON. PAUL G. ROSENBLAT DATE AND TIME OF
APPEARANCE: SEPTEMBER 26, 1996, 9:00 A.M.
This Temporary Restraining Order and Order to Set Hearing on
Preliminary Injunction was granted on September 20, 1996, at 3:31 o'clock. DONE
IN OPEN COURT this 20 day of September, 1996.
/S/ ROBERT C. BROOMFIELD, C. J.
-------------------------------
JUDGE OF THE U.S DISTRICT COURT
