SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
AGP and COMPANY INC.
________________________________________________________________________________
(Name of Issuer)
Common Stock, No Par Value
________________________________________________________________________________
(Title of Class of Securities)
001230-02-0
________________________________________________________________________________
(CUSIP Number)
Joseph Drucker, Esq. Peter H. Ehrenberg, Esq.
16 Stuyvesant Place Lowenstein, Sandler, Kohl,
Elberon, New Jersey 07740 with a copy to Fisher & Boylan, P.A.
(908) 229-4329 65 Livingston Avenue
Roseland, New Jersey 07068
(201) 992-8700
(Name, Address and Telephone Number
of Person Authorized to Receive
Notices and Communications)
July 1, 1996
________________________________________________________________________________
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule l3G 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 this 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 l3d-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
disclosures 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) Names of Reporting Persons (S.S. or I.R.S. Identification Nos. of Above
Persons):
Omar L. Peraza, as Trustee of Peraza Trust u/i/t dated May 18, 1989 (the
"Peraza Trust")
________________________________________________________________________________
(2) Check the Appropriate Box if a Member of a Group (See Instructions): (a) [X]
(b) [ ]
________________________________________________________________________________
(3) SEC Use Only
________________________________________________________________________________
(4) Source of Funds (See Instructions): OO (securities exchanged in merger:
See Item 3)
________________________________________________________________________________
(5) Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e): [ ]
(6) Citizenship or Place of Organization: New Hampshire
Number of Shares (7) Sole Voting Power: 1,600,000
Beneficially Owned (8) Shared Voting Power: 0*
by Each Reporting (9) Sole Dispositive Power: 1,600,000
Person With: (10) Shared Dispositive Power: 0*
________________________________________________________________________________
(11) Aggregate Amount Beneficially Owned by Each Reporting Person: 1,600,000*
________________________________________________________________________________
(12) Check if the Aggregate Amount in Row (11) Excludes
Certain Shares (See Instructions): [X]
________________________________________________________________________________
(13) Percent of Class Represented by Amount in Row (11): 12.1%*
________________________________________________________________________________
(14) Type of Reporting Person (See Instructions): OO
________________________________________________________________________________
*Excludes 43,746 shares of Common Stock held by the Joseph Drucker 1995 Trust
(the "Drucker Trust") and 300,000 shares beneficially owned by Joseph Drucker.
As described herein, the Peraza Trust, Mr. Peraza, the Drucker Trust, Mr. Joseph
Drucker, Mr. Robert Drucker and Ms. Mindy Fortin may be deemed to constitute a
"group" pursuant to Rule 13d-5. The Peraza Trust hereby disclaims beneficial
ownership of the shares held by the Drucker Trust and the shares beneficially
owned by Mr. Joseph Drucker.
<PAGE>
________________________________________________________________________________
(1) Names of Reporting Persons (S.S. or I.R.S. Identification Nos. of
Above Persons):
Omar L. Peraza
________________________________________________________________________________
(2) Check the Appropriate Box if a Member of a Group (See Instructions): (a) |X|
(b) [ ]
________________________________________________________________________________
(3) SEC Use Only
________________________________________________________________________________
(4) Source of Funds (See Instructions): OO (securities exchanged in merger:
See Item 3)
________________________________________________________________________________
(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
________________________________________________________________________________
Number of Shares (7) Sole Voting Power: 1,600,000
Beneficially Owned (8) Shared Voting Power: 0*
by Each Reporting (9) Sole Dispositive Power: 1,600,000
Person With: (10) Shared Dispositive Power: 0*
________________________________________________________________________________
(11) Aggregate Amount Beneficially Owned by Each Reporting Person: 1,600,000*
________________________________________________________________________________
(12) Check if the Aggregate Amount in Row (11) Excludes
Certain Shares (See Instructions): [X]
________________________________________________________________________________
(13) Percent of Class Represented by Amount in Row (11): 12.1%*
________________________________________________________________________________
(14) Type of Reporting Person (See Instructions): IN
________________________________________________________________________________
*Excludes 43,746 shares of Common Stock held by the Drucker Trust and 300,000
shares beneficially owned by Joseph Drucker. As described herein, the Peraza
Trust, Mr. Peraza, the Drucker Trust, Mr. Joseph Drucker, Mr. Robert Drucker and
Ms. Mindy Fortin may be deemed to constitute a "group" pursuant to Rule 13d-5.
Mr. Peraza hereby disclaims beneficial ownership of the shares held by the
Drucker Trust and the shares beneficially owned by Mr. Joseph Drucker.
<PAGE>
________________________________________________________________________________
(1) Names of Reporting Persons (S.S. or I.R.S. Identification Nos. of Above
Persons):
Robert Drucker and Mindy Fortin, as Trustees of the Joseph Drucker 1995 Trust
________________________________________________________________________________
(2) Check the Appropriate Box if a Member of a Group (See Instructions): (a) [X]
(b) [ ]
________________________________________________________________________________
(3) SEC Use Only
________________________________________________________________________________
(4) Source of Funds (See Instructions): OO (irrevocable trust deposit:
See Item 3)
________________________________________________________________________________
(5) Check Box if Disclosure of Legal Proceedings is Required Pursuant
to Items 2(d) or 2(e): [ ]
________________________________________________________________________________
(6) Citizenship or Place of Organization: New Jersey
________________________________________________________________________________
Number of Shares (7) Sole Voting Power: 0
Beneficially Owned (8) Shared Voting Power: 43,746*
by Each Reporting (9) Sole Dispositive Power: 0
Person With: (10) Shared Dispositive Power: 43,746*
________________________________________________________________________________
(11) Aggregate Amount Beneficially Owned by Each Reporting Person: 43,746*
________________________________________________________________________________
(12) Check if the Aggregate Amount in Row (11) Excludes
Certain Shares (See Instructions): [X]
________________________________________________________________________________
(13) Percent of Class Represented by Amount in Row (11): 0.3%*
________________________________________________________________________________
(14) Type of Reporting Person (See Instructions): OO
________________________________________________________________________________
*Excludes 1,600,000 shares of Common Stock beneficially owned by Omar L. Peraza
and 300,000 shares beneficially owned by Joseph Drucker. As described herein,
the Drucker Trust, the Peraza Trust, Mr. Peraza, Mr. Joseph Drucker, Mr. Robert
Drucker and Ms. Mindy Fortin may be deemed to constitute a "group" pursuant to
Rule 13d-5. The Drucker Trust hereby disclaims beneficial ownership of the
shares beneficially owned by Mr. Peraza and the shares beneficially owned by
Joseph Drucker.
<PAGE>
________________________________________________________________________________
(1) Names of Reporting Persons (S.S. or I.R.S. Identification Nos. of Above
Persons):
Robert Drucker
________________________________________________________________________________
(2) Check the Appropriate Box if a Member of a Group (See Instructions):(a) [X]
(b) [ ]
________________________________________________________________________________
(3) SEC Use Only
________________________________________________________________________________
(4) Source of Funds (See Instructions): OO (irrevocable trust deposit:
See Item 3)
________________________________________________________________________________
(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
________________________________________________________________________________
Number of Shares (7) Sole Voting Power: 0
Beneficially Owned (8) Shared Voting Power: 43,746*
by Each Reporting (9) Sole Dispositive Power: 0
Person With: (10) Shared Dispositive Power: 43,746*
________________________________________________________________________________
(11) Aggregate Amount Beneficially Owned by Each Reporting Person: 43,746*
________________________________________________________________________________
(12) Check if the Aggregate Amount in Row (11) Excludes
Certain Shares (See Instructions): [X]
________________________________________________________________________________
(13) Percent of Class Represented by Amount in Row (11): 0.3%*
________________________________________________________________________________
(14) Type of Reporting Person (See Instructions): IN
________________________________________________________________________________
*Excludes 1,600,000 shares of Common Stock beneficially owned by Omar L. Peraza
and 300,000 shares beneficially owned by Joseph Drucker. As described herein,
the Drucker Trust, the Peraza Trust, Mr. Peraza, Mr. Joseph Drucker, Mr. Robert
Drucker and Ms. Mindy Fortin may be deemed to constitute a "group" pursuant to
Rule 13d-5. Mr. Robert Drucker hereby disclaims beneficial ownership of the
shares beneficially owned by Mr. Peraza and the shares beneficially owned by Mr.
Joseph Drucker.
<PAGE>
________________________________________________________________________________
(1) Names of Reporting Persons (S.S. or I.R.S. Identification Nos. of Above
Persons):
Mindy Fortin
________________________________________________________________________________
(2) Check the Appropriate Box if a Member of a Group (See Instructions):(a) [X]
(b) [ ]
________________________________________________________________________________
(3) SEC Use Only
________________________________________________________________________________
(4) Source of Funds (See Instructions): OO (irrevocable trust deposit:
See Item 3)
________________________________________________________________________________
(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
________________________________________________________________________________
Number of Shares (7) Sole Voting Power: 0
Beneficially Owned (8) Shared Voting Power: 43,746*
by Each Reporting (9) Sole Dispositive Power: 0
Person With: (10) Shared Dispositive Power: 43,746*
________________________________________________________________________________
________________________________________________________________________________
(11) Aggregate Amount Beneficially Owned by Each Reporting Person: 43,746*
________________________________________________________________________________
(12) Check if the Aggregate Amount in Row (11) Excludes
Certain Shares (See Instructions): [X]
________________________________________________________________________________
(13) Percent of Class Represented by Amount in Row (11): 0.3%*
________________________________________________________________________________
(14) Type of Reporting Person (See Instructions): IN
________________________________________________________________________________
*Excludes 1,600,000 shares of Common Stock beneficially owned by Omar L.
Peraza and 300,000 shares beneficially owned by Joseph Drucker. As described
herein, the Drucker Trust, the Peraza Trust, Mr. Peraza, Mr. Joseph Drucker, Mr.
Robert Drucker and Ms. Mindy Fortin may be deemed to constitute a "group"
pursuant to Rule 13d-5. Ms. Fortin hereby disclaims beneficial ownership of the
shares beneficially owned by Mr. Peraza and the shares beneficially owned by Mr.
Joseph Drucker.
<PAGE>
________________________________________________________________________________
(1) Names of Reporting Persons (S.S. or I.R.S. Identification Nos. of Above
Persons):
Joseph Drucker
________________________________________________________________________________
(2) Check the Appropriate Box if a Member of a Group (See Instructions): (a) [X]
(b) [ ]
________________________________________________________________________________
(3) SEC Use Only
________________________________________________________________________________
(4) Source of Funds (See Instructions): PF
________________________________________________________________________________
(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
________________________________________________________________________________
Number of Shares (7) Sole Voting Power: 300,000
Beneficially Owned (8) Shared Voting Power: 0*
by Each Reporting (9) Sole Dispositive Power: 300,000
Person With: (10) Shared Dispositive Power: 0*
________________________________________________________________________________
(11) Aggregate Amount Beneficially Owned by Each Reporting Person: 300,000*
________________________________________________________________________________
(12) Check if the Aggregate Amount in Row (11) Excludes
Certain Shares (See Instructions): [X]
________________________________________________________________________________
(13) Percent of Class Represented by Amount in Row (11): 2.2%*
________________________________________________________________________________
(14) Type of Reporting Person (See Instructions): IN
________________________________________________________________________________
* Consists of presently exercisable options acquire 300,000 shares of common
Stock at $.20 per share. Excludes 1,600,000 shares of Common Stock beneficially
owned by Omar L. Peraza and 43,746 shares of Common Stock beneficially owned by
Robert Drucker and Mindy Fortin. As described herein, the Drucker Trust, the
Peraza Trust, Mr. Peraza, Mr. Joseph Drucker, Mr. Robert Drucker and Ms. Mindy
Fortin may be deemed to constitute a "group" pursuant to Rule 13d-5. Mr. Joseph
Drucker hereby disclaims beneficial ownership of the shares beneficially owned
by Mr. Peraza and the shares beneficially owned by Mr. Robert Drucker and Ms.
Fortin.
<PAGE>
Item 1. Security and Issuer.
This Amendment No. 1 (the "Amendment") to Schedule 13D (the "Schedule
13D") relates to the Common Stock, no par value (the "Common Stock"), of AGP
and Company, Inc., a New Jersey corporation (the "Company"), and is being filed
pursuant to Rule 13d-2 under the Securities Exchange Act of 1934, as amended.
The principal executive offices of the Company are located at 551 Fifth Avenue,
New York, New York 10017.
Item 2. Identity and Background.
(a)-(c) The Schedule 13D is filed on behalf of Omar L. Peraza,
individually and as sole trustee of the Peraza Trust u/i/t dated May 18,
1989 (the "Peraza Trust"), Robert Drucker and Mindy Fortin, individually and
as co-trustees of the Joseph Drucker 1995 Trust (the "Drucker Trust") and
Joseph Drucker (each, a "Filing Entity" and, collectively, the "Filing
Entities").
Mr. Peraza's business address is One Treasure Lane, Derry, New
Hampshire 03038. Mr. Peraza's present principal occupation is President
and Chief Executive Officer of Robmar Corporation, a wholly owned subsidiary
of the Company. The Company is a holding company, whose principal operating
subsidiary, TMC Group, Inc. ("TMC"), engages in the assembly and sale of
various consumer products. The Company's principal address is 551 Fifth Avenue,
New York, New York 10017.
Mr. Joseph Drucker's business address is 551 Fifth Avenue, Suite
1625, New York, New York 10017. Mr. Joseph Drucker's present principal
occupation is Secretary, General Counsel and a director of the Company. Mr.
Joseph Drucker is the father of Mr. Robert Drucker and Ms. Fortin.
Mr. Robert Drucker's business address is 160 Mt. Vernon Street,
Room 157, Dorchester, Massachusetts 02125. Mr. Robert Drucker's present
principal occupation is self-employed sales representative. Mr. Robert
Drucker is the son of Mr. Joseph Drucker and the brother of Ms. Fortin.
Ms. Fortin's home address is 21 Fence Row Drive, Fairfield,
Connecticut 06430. Ms. Fortin's present principal occupation is homemaker. Ms.
Fortin is the daughter of Mr. Joseph Drucker and the sister of Mr. Robert
Drucker.
(d)-(e) During the past five years, no Filing Entity has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors), and no Filing Entity has been a party to a civil proceeding of
a judicial or administrative body of competent jurisdiction as a result of
which it was or is subject to 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.
(f) Each individual Filing Entity is a citizen of the United States.
The Peraza Trust was organized pursuant to the laws of the State of New
Hampshire. The Drucker Trust was organized pursuant to the laws of the State
of New Jersey.
As a result of the transactions described in Item 4 below, the Filing
Entities may be deemed to constitute a "group" pursuant to Rule 13d-5(b) with
respect to the shares of Common Stock covered by this Schedule 13D.
Item 3. Source and Amount of Funds or Other Consideration.
The shares of Common Stock owned by the Peraza Trust were acquired in
consideration for the merger of Robmar Corporation, a Delaware corporation
("Robmar"), into Robmar Acquisition Corp., a Delaware corporation and
wholly owned subsidiary of the Company ("RAC"), pursuant to an Agreement and
Plan of Merger, dated December 31, 1993, between and among the Peraza Trust, the
Company, RAC and Robmar.
The shares of Common Stock owned by the Drucker Trust were irrevocably
transferred to the Drucker Trust by Mr. Joseph Drucker. Mr. Joseph Drucker
acquired such shares in exchange for the cancellation of certain indebtedness
owed to him by the Company in the aggregate amount of $43,746. The source of
funds for the acquisition of the related indebtedness was Mr. Drucker's personal
funds.
The shares of Common Stock beneficially owned by Mr. Joseph Drucker
are issuable upon the exercise of currently exercisable options held by Mr.
Joseph Drucker. The options were acquired from the Company in exchange for
services provided by Mr. Joseph Drucker.
Item 4. Purpose of the Transaction.
The shares of Common Stock held by the Filing Entities were acquired
by them solely for investment purposes. Depending upon the Company's business
and prospects, future developments, market conditions and other factors, each
Filing Entity may, from time to time, purchase additional shares of Common
Stock or dispose of all or a portion of the shares of Common Stock owned by
them, either in the open market or in privately negotiated transactions.
By letter dated July 1, 1996 (the "Offer Letter"), Social Expressions
Acquisition Corporation, a Delaware corporation controlled jointly by Mr.
Peraza and Mr. Joseph Drucker ("SEAC"), proposed to the Company that SEAC
acquire TMC, the Company's principal operating subsidiary, in exchange for
a combination of 500,000 shares of SEAC's common stock (valued by SEAC at
$2.5 million) and a royalty arrangement pursuant to which SEAC would pay
the Company an amount equal to 0.75% of TMC's annual net collected revenues
for a period of three years (the "Proposal").
By letter dated July 3, 1996 (the "First Response"), the Company
acknowledged receipt of the Offer Letter and sought further information from
SEAC regarding the Proposal.
By letter dated July 8, 1996 (the "Supplemental Letter"), SEAC
provided certain additional information relative to the Proposal. In the
Supplemental Letter, SEAC indicated that it proposed to fund a portion of the
purchase of TMC with the proceeds of the sale of shares of a public company into
which TMC and SEAC would be merged. In addition, in the Supplemental Letter SEAC
indicated that it would assume TMC's liabilities as part of the Proposal. SEAC
also asked the Company to call a special meeting of shareholders to vote on
whether to accept the Proposal.
On July 8, 1996, the Company sent to SEAC a second letter (the "Second
Response") seeking certain additional information regarding the Proposal. By
letter dated July 11, 1996 (the "Second Supplemental Letter"), SEAC provided
certain additional information regarding the Proposal in response to the
Company's request and asked for information relating to the timing of any
proposed shareholders meeting to consider the Proposal.
By letter dated July 12, 1996 (the "Third Response"), the Company
advised SEAC that it would not call a special meeting to consider the Proposal
until the Company could comply with the proxy requirements of the Securities
Exchange Act of 1934, as amended. The Third Response includes a letter from
counsel to the Company in which, among other things, such counsel expresses the
view that neither the Company nor Messrs. Peraza and Drucker would be able to
solicit proxies for such a special meeting because the Company does not have
audited financial statements for the years ended December 31, 1994 and 1995.
Copies of the Offer Letter, the First Response, the Supplemental
Letter, the Second Response, the Second Supplemental Letter and the Third
Response have been filed as Exhibits to this Amendment and are herein
incorporated by reference. The descriptions of the Offer Letter, the First
Response, the Supplemental Letter, the Second Response, the Second Supplemental
Letter and the Third Response are summaries only, are not intended to be
complete, and are qualified in their entirety by reference to the full text of
such Exhibits.
Messrs. Peraza and Joseph Drucker anticipate that they will continue
to have additional discussions with the Company regarding the Proposal. However,
there can be no assurance that the Proposal will be accepted by the Company, or
that if the Proposal is accepted by the Company that the transactions
contemplated thereby will be consummated and, if so, on what terms. Further,
Messrs. Peraza and Joseph Drucker expressly reserve the right to amend or modify
the Proposal or to withdraw it at any time.
Although Messrs. Peraza and Joseph Drucker are not currently seeking
the removal of any officer or director of the Company, depending upon the
Company's financial condition, results of operations, future prospects and other
factors, including but not limited to, the outcome of the above-described
discussions with the Company, Messrs. Peraza and Joseph Drucker may, and hereby
reserve the right to, (i) communicate with other shareholders of the Company or
persons who may desire to become shareholders of the Company regarding the
replacement of the Company's executive officers, members of the Board of
Directors of the Company, and/or other matters regarding the management and
operation of the Company, (ii) seek the removal of one or more members of the
Company's Board of Directors and/or executive officers, (iii) seek to amend the
Certificate of Incorporation or By-laws of the Company to increase the size of
the Board of Directors, elect one or more designees (including Mr. Peraza and/or
one or more of the designees of Messrs. Peraza and Joseph Drucker) to fill any
resulting vacancies, facilitate the removal of one or more directors and/or
executive officers of the Company, and/or for any other purpose, (iv) solicit
proxies, to be used at either the Company's regular annual meeting or at a
special meeting, for the purposes described in (ii) and/or (iii) above or for
the election of one or more nominees of Messrs. Peraza and Joseph Drucker and/or
such other shareholders (which may include Messrs. Peraza and Joseph Drucker
and/or one or more of the designees of Messrs. Peraza and Joseph Drucker) to the
Board of Directors of the Company, (v) seek to cause the Company to hold an
annual or special meeting of shareholders for the purpose of electing directors
of the Company or for such other purposes as Messrs. Peraza and Joseph Drucker
may determine, (vi) seek to cause the Company to merge with or into, consolidate
with, transfer all or substantially all of its assets to, or otherwise engage in
any business combination with, one or more other parties (whether or not
affiliated with or otherwise related to Messrs. Peraza and Joseph Drucker), or
(vii) take such other action as Messrs. Peraza and Joseph Drucker may determine.
Item 5. Interest in Securities of the Issuer.
Based on a review of publicly available information, the Filing
Entities believe that the Company is not currently in compliance with its
periodic reporting requirements under the Securities Exchange Act of 1934 and,
therefore, that accurate information regarding the number of shares of Common
Stock outstanding is not publicly available. Based upon information provided to
the Filing Entities, the Filing Entities believe there were 13,221,023 shares of
Common Stock outstanding as of July 15, 1996. As of July 15, 1996, the Peraza
Trust owned 1,600,000 of such shares, or 11.2% of the total outstanding. Under
the instrument of trust pursuant to which the Peraza Trust was created, Mr.
Peraza is the sole trustee of the Peraza Trust and has the right, during his
lifetime, to distribute in his sole discretion the trust property entirely for
his benefit. Accordingly, Mr. Peraza possesses sole power to vote or direct the
disposition of all 1,600,000 of the shares owned by the Peraza Trust and shares
voting or dispositive power with respect to none of such shares. As of July 15,
1996, the Drucker Trust owned 43,746 of such shares, or 0.3% of the total
outstanding. Under the instrument of trust pursuant to which the Drucker Trust
was created, Mr. Robert Drucker and Ms. Mindy Fortin are the co-trustees of the
Drucker Trust, as well as the beneficiaries thereof, and share the right to vote
and dispose or direct the disposition of such shares. Accordingly, Mr. Robert
Drucker and Ms. Mindy Fortin share the power to vote or direct the disposition
of all 43,746 of the shares owned by the Drucker Trust and have sole voting or
dispositive power with respect to none of such shares. As of July 15, 1996, Mr.
Drucker owned no shares of Common Stock directly but held currently exercisable
options giving him the right to acquire 300,000 shares of Common Stock, or 2.2%
of the total outstanding (after giving effect to the exercise of the options).
Mr. Joseph Drucker possesses sole power to vote or direct the disposition of all
300,000 of the shares issuable upon the exercise of the options held by him and
shares voting or dispositive power with respect to none of such shares. Because
of the events described in Item 4 above, the Filing Entities may be deemed to
constitute a "group" under Rule 13d-5(b), and thereby to have acquired
beneficial ownership over the shares of Common Stock owned by each member of the
group. Each of the Peraza Trust and Mr. Peraza hereby expressly disclaims
beneficial ownership of the shares of Common Stock owned by the Drucker Trust,
Mr. Robert Drucker, Ms. Fortin and Mr. Joseph Drucker and each of the Drucker
Trust, Mr. Robert Drucker, Ms. Fortin and Mr. Joseph Drucker hereby expressly
disclaims beneficial ownership of the shares of Common Stock beneficially owned
by the Peraza Trust and Mr. Peraza. Mr. Joseph Drucker hereby expressly
disclaims beneficial ownership of the shares of Common Stock beneficially owned
by the Drucker Trust, Mr. Robert Drucker and Ms. Fortin. Mr. Robert Drucker and
Ms. Fortin hereby expressly disclaim beneficial ownership of the shares of
Common Stock beneficially owned by Mr. Joseph Drucker. No Filing Entity has
effected any transactions in the Common Stock during the past 60 days.
No other person is known to the Filing Entities to have the right to
receive or power to direct dividends from, or proceeds from the sale of, shares
beneficially owned by the Filing Entities, other than as described herein.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer.
Not Applicable.
Item 7. Material to be Filed as Exhibits.
Exhibit Number Description of Exhibit
1 Offer Letter, dated July 1, 1996
2 First Response, dated July 3, 1996
3 Supplemental Letter, dated July 8, 1996
4 Second Response, dated July 8, 1996
5 Second Supplemental Letter, dated July 11, 1996
6 Third Response, dated July 15, 1996
Signatures
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 15, 1996
/s/ Omar L. Peraza
Omar L. Peraza, as Trustee of
the Peraza Trust u/i/t dated May 18, 1989
/s/ Omar L. Peraza
Omar L. Peraza, Individually
/s/ Robert Drucker
Robert Drucker, as Co-trustee of
the Joseph Drucker 1995 Trust
/s/ Mindy Fortin
Mindy Fortin, as Co-trustee of
the Joseph Drucker 1995 Trust
/s/ Robert Drucker
Robert Drucker, Individually
/s/ Mindy Fortin
Mindy Fortin, Individually
/s/ Joseph Drucker
Joseph Drucker
ATTENTION: INTENTIONAL MISSTATEMENTS OR OMISSIONS OF FACT CONSTITUTE FEDERAL
CRIMINAL VIOLATIONS (SEE 18 U.S.C. 1001).
Exhibit Index
Exhibit
Number Description Page No.
1 Offer Letter, dated July 1, 1996 13
2 First Response, dated July 3, 1996 14
3 Supplemental Letter, dated July 8, 1996 15
4 Second Response, dated July 8, 1996 16
5 Second Supplemental Letter, dated July 11, 1996 18
6 Third Response, dated July 12, 1996 20
EXHIBIT 1
SOCIAL EXPRESSIONS ACQUISITION CORPORATION
42 Oak Drive
Bedford, Hew Hampshire 03110
July 1, 1996
The Board of Directors
AGP & Company, Inc.
551 Fifth Avenue
Suite 1625
New York, NY 10176
Gentlemen:
Social Expressions Acquisition Corporation ("SEAC"), a Delaware Corporation, has
entered into an agreement with an investment banking firm to provide the capital
for SEAC to acquire companies in the consumer products industry. The agreement
provides SEAC with funding through a private placement and a subsequent public
offering. SEAC proposes to purchase TMC Group, Inc. ("TMC") in accordance with
the terms generally outlined as follows:
In consideration of the purchase of TMC, SEAC proposes to issue 500,000 shares
of its common stock (valuation at public offering of $2.5 million) and, in
addition, a royalty in the amount of 0.75% of TMC's annual net (collected)
revenues, paid quarterly for a period of three (3) years, in exchange for all of
TMC's issued and outstanding common stock.
Since the sale of TMC effectively represents the transfer of AGP's only
substantial asset, we understand it is required by law that AGP obtain
shareholder approval for this transaction. Whereas AGP's by-laws provide the
legal mechanism for shareholders to call a Special Meeting without Board
approval, we feel it would be in our mutual best interest to have the Board's
endorsement and assistance in implementing the proposed transaction. In light of
AGP's precarious financial position, its current regulatory problems, and the
growing dissatisfaction amongst its shareholders, it is appropriate, and in the
best interest of all parties concerned, to immediately effect a transaction
which will save as much of AGP's underlying asset value as possible. Thus, as
time is of the essence, please communicate with me directly in writing by July
8, 1996 so that we may coordinate our work together.
Thank you in advance for your consideration.
Sincerely,
/s/ Omar L. Peraza
Omar L. Peraza
President
EXHIBIT 2
AGP and Company, Inc.
July 3, 1996
Social Expressions Acquisition Corporation
42 Oak Drive
Bedford, New York 03110
Dear Omar:
I am in receipt of your letter dated July 1, 1996. I thank you for your
interest in purchasing the common stock of TMC Group, Inc. and I hope that we
can work to complete a transaction that will benefit all parties involved.
I have asked, on behalf of the Company, Steven Dreyer, of Hall Dickler
Kent Friedman and Wood to review your proposal and to work with the
disinterested Board Members in assessing the proposal and developing a course of
action that could lead to a successful conclusion. Mr. Dryer will clearly
outline the legal steps required for the Board and shareholder actions relating
to any approval process or procedure necessary to consummate your proposed
transaction. We will require, however, additional information regarding the
details of your proposed offer in order to proceed to the next step. We will be
forwarding to you a list of additional information required. In the meantime, to
move the process ahead efficiently, it would be helpful for you to expand the
information contained in your offer, such as the who and what firms, if any, are
involved, what is the new capitalization, how can have the securities been
valued, what happens to the Company's existing debt, etc.?.
We shall be in contact with you shortly. If you have any questions,
feel free to contact Mr. Dreyer at (212) 399 5580. Thank you for your proposal.
Sincerely,
/s/ Steven W. Bingaman
Steven W. Bingaman
CC: James Howard
Steven Dreyer, Esq.
551 Fifth Avenue, New York, New York 10017
(212) 682-6168 Fax (212) 682-6217
EXHIBIT 3
SOCIAL EXPRESSIONS ACQUISITION CORPORATION
42 Oak Drive
Bedford, New Hampshire 03110
July 8, 1996
The Board of Directors
AGP & Company, Inc.
551 Fifth Avenue
Suite 1625
New York, NY 10176
Attn: Mr. Steven Bingaman
Dear Steve:
Thank you for your response to our letter dated July 1, 1996, and for your
indication of interest on behalf of AGP in evaluating the possibility of
implementing our proposed course of action. As you suggested, the following is
in answer to your request that we expand the information contained in our
letter:
1. Argent Securities, Inc., Atlanta, Georgia, is the investment banking firm
with which Social Expressions Acquisition Corporation (SEAC) has entered into
agreements for the following:
a. A private placement offering (PPM) of Five Hundred Thousand to One
Million Five Hundred Thousand dollars ($500,000 - 1,500,000).
b. A secondary public offering of no less than Three Million Five
Hundred Thousand dollars ($3,500,000). The offering price shall be at a minimum
of Five dollars ($5.00) per share.
2. The expected capitalization will be a minimum of Three Million Five Hundred
Thousand (3,500,000) shares issued and outstanding, including the completion of
the private placement, a secondary offering, and the acquisition of TMC.
3. As to the existing debt, we offer to purchase all the issued and outstanding
common stock of TMC, which will include TMC's assets and liabilities.
Due to the extremely time-sensitive nature of the opportunity being presented to
us by our investment bankers and appreciating your need to evaluate the proposed
transaction prior to proceeding along to the next step; I would submit to AGP's
Board that the most responsible and sensible approach to deciding this matter
would require that the Board immediately call for a Special Meeting of
Shareholders regarding the proposal. This process will avoid delays and still
allow the Board to evaluate the offer and decide whether to endorse it, oppose
it, or remain neutral.
Please provide a written response by July 11, 1996 as to:
1. calling a Special Shareholder's Meeting (date and time)
2. course of action provided by Steven Dreyer, Esq.
3. list of additional information you may require.
Thank you in advance for your prompt response.
Sincerely,
/s/ Omar L. Peraza
Omar L. Peraza
cc: James Howard
Joseph Drucker
EXHIBIT 4
AGP and Company, Inc.
July 8, 1996
Social Expressions Acquisition Corporation
42 Oak Drive
Bedford, New Hampshire 03110
Dear Omar:
I am in receipt of your letter dated July 8, 1996. We have further
questions regarding your proposal.
1.) Who are the principals of "Social Expressions Acquisition
Corporation"? What are the percentage ownership of the individual
principals of Social Expressions Acquisition Corp. prior to any
financing or transactions with AGP? (Including any commitments to sell
stock or grant options to individuals or other entities.) Does Social
Expressions Acquisition Corp. own (or have contracted to own) any
other assets other than those contemplated by your proposal to AGP?
2.) Please, explain how TMC and /or Social Expressions Acquisition
Corporation plan to deal with the "change of control" covenants that
the Debt Agreements contain.
3.) Please explain how your proposal deals with the 'collateralized' loan
agreement between 'New England Capital Corp.' and Robmar Corporation.
4.) Please explain how your proposal treats the loan owed by TMC Group to
Robmar Corporation.
5.) At what price per share is the Private Placement to be sold ?
6.) How does your proposal treat the intercompany accounts between
AGP/Robmar/and TMC? How does your proposal treat the other off balance
sheet obligations between AGP/Robmar/and TMC?
7.) Where is the stock of 'Social Expression' proposed to be traded? Do
the proposed listing, if any?
8.) Does your proposal contemplate a 'tax free' exchange of stock for AGP?
9.) Does your proposal contemplate any 'lock up provisions' for
AGP's stock?
10.) How does one, equate a $17,500,000 post IPO valuation with AGP's
representative 14 % interest? Or how does one equate a $12,500,000
valuation, net of new money, with AGP's representative 20% interest?
11.) When does your proposal call for a change of control? Is it at the
completion of the Private Placement or at the IPO?
12.) What protections will be afforded to AGP in an event of default;
unsatisfactory performance; change control; or other issues.
13.) Has a Private Placement Document been drafted? If so, please forward a
copy to me.
The answers to the above questions will give the Bord members and
their advisors a more inclusive outline of the proposal that you have offered. I
cannot commit at this time to any other action other than investigating further
the proposal which you have offered. However, you should recognize that your
proposal will be reviewed with careful due diligence to insure that its is fair
to all parties involved. We will respond to you as quickly as possible. If you
have further issues regarding the actions that we are taking at this time,
please consult Steven Dreyer.
Sincerely,
/s/ Steven Bingaman
Steven Bingaman
CC: J. Howard
S. Dreyer
551 Fifth Avenue, New York, New York 10017
(212) 682 6168 Fax (212) 682 6217
EXHIBIT 5
SOCIAL EXPRESSIONS ACQUISITION CORPORATION
42 Oak Drive
Bedford, New Hampshire 03110
July 11, 1996
The Board of Directors
AGP & Company, Inc.
551 Fifth Avenue
Suite 1625
New York, NY 10176
Attn: Steven Bingaman
Dear Steve:
Thank you for the prompt response to our letter dated July 8 1996. Enclosed
hereto please find responses to the questions you raised in your letter,
also dated July 8, 1996.
However, the primary issue raised in our July 8, 1996 letter has not been
addressed, namely the calling of a Special Shareholders Meeting to consider our
proposed offer. We cannot emphasize strongly enough the critical nature of
the Board's addressing this issue promptly.
Please understand the importance, placed by our Investment Bankers, of a formal
contract between Social Expressions Acquisition Corporation (SEAC) and AGP for
the proposed Private Placement and Secondary Public Offerings. In the event
we are stalled in our effort to proceed expediently, we may have to pursue
alternative opportunities.
Please advise what issues, if any, impede the setting of a firm date for a
Special Shareholders Meeting to allow the shareholders to vote on the SEAC
proposal. Note that due diligence on the part of the Board can proceed in the
interim while the Shareholders Meeting is set in motion. Time is of the essence!
Please reply in writing by July 15, 1996.
Sincerely,
/s/ Omar Peraza
Omar Peraza
Enclosure
cc: James Howard
Joseph Drucker
Answers to questions raised in AGP's letter to SEAC dated July 8, 1996:
1. Principals of SEAC are Omar Peraza and Joseph Drucker. There are no
commitments to sell stock or grant options to any other parties at this
time.
2. We intend to obtain prior consent of the creditors.
3. We will negotiate directly with creditors if, in fact, there was any
collateral involved of TMC with New England Capital and Robmar.
4. Please provide a copy of the documentation regarding this loan so we may
indicate how we will suggest addressing it.
5. To be determined between SEAC and underwriters at a future date.
6. Kindly produce documentation related to "inter-company accounts" and
"of-balance sheet obligations" so we may determine how we might proceed in
addressing this question.
7. Yes, NASDAQ.
8. We suggest you consult your tax counsel.
9. Yes.
10. Please clarify this question!
11. At closing of IPO.
12. The formal agreements between AGP and SEAC will provide adequate unwinding
and settlement provisions to the satisfaction of all parties.
13. A Private Placement document has been drafted by the underwriter and is now
under legal review.
EXHIBIT 6
AGP and Company, Inc.
July 12, 1996
Social Expressions Acquisition Corporation
42 Oak Drive
Bedford, New Hampshire 03110
Dear Omar:
This is a response to your letter dated July 11, 1996.
I recognized your request to call for a Special Shareholders' Meeting.
In order to act in a logical and prudent manner, I asked corporate counsel, Mr.
Steven Dreyer, to advise the Board of Directors as to how to proceed with your
requests. He has drafted to the Board an opinion relative to the issue and has
provided a course of action to for the Board to adopt. Mr. Howard and I will
follow Mr. Dreyer's advise. (I have attached a copy of his letter for your
review.) The Board will not call for a Special Shareholders' Meeting until AGP &
Company, Inc. can comply with the proxy requirements of the Securities and
Exchange Act of 1934, as amended.
We continue to welcome with interest your proposal to purchase TMC,
Group, Inc. We will have additional questions regarding your proposal and
forward them to your attention.
Sincerely,
/s/ Steven Bingaman
Steven Bingaman
CC: J. Howard
S. Dreyer
551 Fifth Avenue, New York, New York 100 17
(212) 682 6168 Fax (212) 682 6217
HALL DICKLER KENT FRIEDMAN & WOOD LLP
909 Third Avenue
New York, NY 10022-4731
Telephone 212-339-5400
Telefax 212-935-3121
Steven D. Dreyer
212-339-5580
July 11, 1996
Mr. Steven W. Bingaman, President
AGP and Company, Inc.
551 Fifth Avenue
New York, New York 10036
Re: Social Expressions Acquisition Corp.
Dear Steven:
I am writing in response to the request for advice contained in your
letter of even date herewith.
Assuming for the sake of this discussion that TMC Group, Inc. would
properly be categorized as "substantially all of the assets" of AGP and Company,
Inc., the sale of that asset cannot take place in compliance with the requisites
of Section 14A:10-11 of the New Jersey Business Corporation Act (the BCA")
in the absence of the consent of a majority of all of AGP's shareholders (which
is very different from a majority of the shares present at a meeting).
The BCA provides (at Section 14A:5-3) that special meetings of
the shareholders may be called by the President or the Board, or by such
other officers, directors or shareholders as may be provided by the by-laws.
The BCA further provides that, upon the application of not less than 10% of
the shares entitled to vote, the court, "for good cause shown, may order a
special meeting to be called. . ."
According to the last 10-K filing that I have (December 31, 1994), Mr.
Peraza apparently controls 16% of AGP's common stock. If that is still true, he
would appear to have the power to seek a court order directing the Company to
hold a special meeting.
However, in my opinion, he would be ill-advised to exercise that
power, and Mr. Drucker would be equally ill-advised if he sought to join in such
an endeavor. As you know, by reason of the problems that AGP has encountered in
trying to obtain a set of audited financial statements from Shapiro Weiss & Co.
for the year ended December 31, 1994, the auditing firm it engaged to undertake
an audit for 1995 has been unable to go forward with its assignment. Thus, AGP
has not been able to comply with the obligations imposed upon it under the
Securities and Exchange Act of 1934 (the "Exchange Act") regarding the filing of
its 1994 and 1995 Forms 10-K and its Form 10-Q for the quarter ended March 31,
1996.
If AGP desired to solicit proxies1 from its shareholders at a meeting
called to vote upon a proposal to sell TMC to a purchaser controlled by a
controlling shareholder and a director of AGP, AGP would have to distribute
proxy statements to its shareholders which fully satisfy the requisites of the
Exchange Act's proxy rules. Among other things, those rules require AGP to
provide its shareholders with audited financial statements for its most recently
completed fiscal year, and to disclose all potential conflicts of interest
between AGP and the proposed purchaser.
Moreover, as counsel to the Company, I would advise the Board not to
hold a meeting without soliciting proxies, even if it believed that a majority
of the outstanding shares would show up in person.2 My reason for taking such a
position is that I believe that the Company would be vulnerable to a plethora of
law suits from shareholders who voted on such a proposal without benefit of full
disclosure of the effects of the transaction on the Company. Of course, the
absence of audited financial statements would make such a case quite compelling,
Mr. Peraza's position as a controlling shareholder of AGP who has a
vested interest in the outcome of the proposed transaction, coupled with his
knowledge of AGP's present inability to comply with the Exchange Act's proxy
rules would, in my opinion, place him in a position of extreme vulnerability, if
not liability, for any damages he might cause the Company to suffer if he sought
to force the Company to hold a special meeting at which neither he nor it would
be permitted to solicit proxies. Of course, my opinion would be the same if Mr.
Drucker, who is a director of the Company, sought to assist Mr. Peraza in
forcing the Company to hold a court directed special meeting of shareholders.
In the event that Mr. Peraza decided to proceed in such fashion, the
Company, in the absence of a Board decision to hold the meeting without
soliciting proxies, would be forced to oppose his application to the court by
reason of the Company's inability to comply with the requirements of the proxy
rules, and the possible vulnerability to shareholder suits that might ensue from
the passage of the proposal without complete disclosure of the relevant
information to the shareholders. If such opposition were necessary, I would
further advise the Company to seek damages from Mr. Peraza regarding the costs
it would incur in holding a meeting under such ill-advised circumstances.
Especially in light of the fact that, by waiting a little longer, the need to
seek a court directed meeting may be rendered moot.
Given the fact that we should be hearing from the SEC in about two -
four weeks regarding our application for a no-action letter which, if granted,
will permit the Company to obtain the long-awaited audited 1994 financial
statements from Shapiro Weiss, and to then obtain audited 1995 financial
statements once the 1994 year-end baseline has been fixed, my advice to the
Board would be to try to convince Messrs. Peraza and Drucker to wait, or to seek
some other acquisition candidate if their underwriter is unwilling to wait for
AGP to be in a position to obtain approval of the proposed transaction from its
shareholders.
Please let me know if there is any further information that you may
desire in this regard.
Cordially yours,
/s/ Steven D. Dreyer
Steven D. Dreyer
SDD:rmf
- --------
1 Although it would be highly unusual, and also in my judgment, highly
risky to do so, a special meeting could be called strictly in compliance with
the BCA, if no proxies were solicited from any of the shareholders.
Inasmuch as I do not know whether the Board believes that it could muster a
majority of the outstanding shares at a meeting without resorting to the
solicitation of proxies, I can not determine whether such a course of action
would be feasible.
2 Even if the Board decided to undertake such a course of action, neither
management nor the Board, or Messrs. Peraza or Drucker, would be able to
communicate with shareholders, or respond to any questions from shareholders,
regarding the proposed transaction.
