SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
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)
August 8, 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>
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") hereby amend their Schedule 13D (as previously amended as of
the date hereof, the "Schedule 13D") relating to the shares of Common Stock, no
par value ("Common Stock"), of AGP and Company, Inc. (the "Company") as follows:
Item 4. Purpose of the Transaction.
Item 4 of the Schedule 13D is hereby amended by adding thereto the
following:
On August 8, 1996, Mr. Peraza, individually and on behalf of the
Peraza Trust, filed an action against the Company in the Superior Court of New
Jersey, Chancery Division, Hudson County. The verified complaint (the
"Complaint") seeks an order calling a special meeting of the shareholders of the
Company (the "Special Meeting") pursuant to N.J.S.A.14A:5-3 for the purpose of
voting upon a proposal to remove Steven W. Bingaman and James F. Howard as
directors of the Company. The Complaint also requests that the Court set a
record date for the Special Meeting and seeks an order giving Mr. Peraza access
to a list of the Company's shareholders and certain related information.
In the event that the Court orders that the Special Meeting be held,
Messrs. Peraza and Joseph Drucker intend to solicit proxies from the
shareholders of the Company for use at the Special Meeting in favor of the
removal of Messrs. Bingaman and Howard as directors of the Company. The Filing
Entities intend to vote all shares of Common Stock held by them in favor of such
removal. Such proxy solicitation will be made only pursuant to a proxy statement
complying with the requirements of the federal securities laws.
In the event that the shareholders vote to remove Messrs. Bingaman and
Howard as directors at the Special Meeting, Mr. Joseph Drucker will be the sole
remaining director of the Company. Under applicable New Jersey law and the
Company's by-laws, Mr. Drucker would have the right to fill the vacancies
created by the removal of Messrs. Bingaman and Howard.
A copy of the Complaint has been filed as an Exhibit to this Amendment and
is herein incorporated by reference. The description of the Complaint is a
summary only, is not intended to be complete, and is qualified in its entirety
by reference to the full text of such Exhibit.
Item 7. Material to be Filed as Exhibits.
Exhibit Number Description of Exhibit
1 Verified Complaint, dated August 8, 1996
<PAGE>
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: August 9, 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).
<PAGE>
Exhibit Index
Exhibit
Number Description Page No.
1 Verified Complaint, dated August 8, 1996 5
Lowenstein, Sandler, Kohl,
Fisher & Boylan
A Professional Corporation
65 Livingston Avenue
Roseland, New Jersey 07068
(201) 992-8700
Attorneys for Plaintiff
Omar L. Peraza, Individually and
as Trustee for the Peraza Trust
SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION: HUDSON COUNTY
DOCKET NO.: C-99-96
OMAR L. PERAZA, Individually and on Behalf
of THE PERAZA TRUST,
Plaintiff, Civil Action
vs. VERIFIED COMPLAINT
AGP AND COMPANY, INC., A New Jersey
Corporation,
Defendant.
- ---------------------------------------------
Plaintiff, Omar L. Peraza, individually and on behalf of the Peraza Trust,
by way of verified complaint against the defendant, AGP and Company, Inc. ("AGP"
or the "Company"), states as follows:
PARTIES
1. Mr. Peraza is an individual with his principal place of business at One
Treasure Lane, Derry, New Hampshire. Mr. Peraza is also the sole trustee of the
Peraza Trust, under instrument of trust dated May 18, 1989 (the "Peraza Trust").
On information and belief, the Peraza Trust is the largest holder of the
outstanding stock of AGP, and is currently the beneficial owner of approximately
12% of the issued and outstanding common stock of AGP. Through this proceeding,
Mr. Peraza, individually and as the trustee of the Peraza Trust, seeks to
exercise his statutory right, under applicable New Jersey law to convene a
special meeting of the shareholders of AGP for the purpose of allowing them to
vote on the removal of two directors. Under New Jersey law and the bylaws of the
Company, directors may be removed with or without cause. This is the first and
only petition that has been filed to compel AGP to have a special shareholders'
meeting.
2. AGP is a corporation organized under existing laws of the State of New
Jersey. AGP's registered office in the State of New Jersey is at Corporation
Trust Company, 820 Bear Tavern Road, West Trenton, New Jersey. The transfer
agent for the Company's common stock during the relevant period has been Trust
Company of New Jersey, 35 Journal Square, Jersey City, New Jersey 07306.
SUMMARY OF CASE
3. AGP is a publicly traded company that has not had an annual meeting in
almost five years. In direct violation of existing laws, it has not supplied its
public shareholders with audited financial statements for more than two years,
and at present, the shareholders of AGP are left to speculate as to what audited
financial statements would reveal about the Company's financial performance
since 1994 or its current financial condition.
4. The United States Securities and Exchange Commission ("SEC") has
commenced an investigation of the Company and its Chief Executive Officer on the
basis of accounting irregularities, securities fraud and the filing of false and
misleading financial statements. As a result of the SEC investigation, the
Company's (now-resigned) auditor has said that it will not reissue its reports
on the audits of the Company's financial statements for the years ended December
31, 1993 and 1992. Accordingly, today the financial statements relating to the
past four years of AGP's operations are either not released, not in existence or
are of questionable reliability.
5. The small amount of reliable and publicly available information about
AGP suggests that the Company may well be on the brink of a complete financial
collapse. According to the Company's former independent auditor, Coopers and
Lybrand, L.L.P., it is "unlikely" that the Company can continue as a going
concern. The interdealer prices bid for the Company's common stock have
precipitously declined to one-tenth of their value, from $4.625 in late 1992 to
47cents as of March 31, 1995. Today, the bid for the Company's common stock is
approximately 6cents. The Company's common stock is no longer permitted to trade
on the NASDAQ Small-Cap Market. In order to provide AGP's shareholders with
their statutory right to direct the management of AGP during this period of
financial crisis, Peraza has exercised his statutory right to petition this
Court for an application for a special shareholders' meeting.
BACKGROUND
6. Mr. Peraza is the founder of a company known as Robmar Corporation
("Robmar"), which through its wholly-owned subsidiary, TMC Group, Inc. ("TMC"),
is in the business of manufacturing and distributing wedding and bridal
accessories and juvenile gifts to retailers nationwide. TMC maintains
manufacturing, administrative and selling facilities in Derry, New Hampshire.
7. Pursuant to an Agreement and Plan of Merger dated December 31, 1993 (the
"Acquisition"), AGP acquired the assets and business of Robmar. In exchange, the
Peraza Trust acquired, inter alia, 1,600,000 shares of the common stock of AGP
and, on information and belief, became its largest outstanding shareholder.
Based upon public information provided to the Peraza Trust, as of July 15, 1996
there were approximately 13,221,023 shares of common stock issued and
outstanding.
8. There are presently three directors of the Company: Mr. Stephen W.
Bingaman (the subject of the SEC's securities fraud investigation), Mr. Joseph
Drucker and Mr. James F. Howard. According to the Company's public filings, each
of these directors were elected by the shareholders at the last annual meeting,
which occurred almost five years ago in September of 1991. Pursuant to the
Company's bylaws and the applicable provisions of the New Jersey Business
Corporation Act, each of the directors may serve until either the next annual
meeting of shareholders or until they resign or are removed by the shareholders.
Pursuant to New Jersey law and AGP's bylaws, the directors may be removed by the
shareholders with or without cause. In the event that any directors are removed
pursuant to a vote of the shareholders, the vacancies are filled by a majority
vote of the remaining directors on the board or, if necessary, by the sole
remaining director.
THE FINANCIAL DETERIORATION OF AGP
9. Over the past several years, management has caused the Company to suffer
substantial operating losses, resulting in a precipitous decline in the value
and liquidity of the Company's outstanding common stock. The Company's common
stock previously traded in the over-the-counter market and was quoted on the
NASDAQ under the symbol AGPC. During this period, the stock was bid as high as
$4.625 in interdealer price quotations. After substantial losses were incurred,
the bids in interdealer price quotations for AGP's common stock decreased to a
range between $2.25 and $3.375. Today, the Company's common stock is no longer
traded on NASDAQ, and is quoted only in the National Quotation Bureau, Inc.
"pink sheets". On March 31, 1995, the closing bid price for the common stock was
47 cents a share or only about one-tenth of the prices bid in 1992. Since then,
the price bid for the Company's common stock has dropped further to
approximately 6 cents a share. The Company has not paid any cash dividends on
its common stock and incumbent management has said that it does not anticipate
that it will do so in the foreseeable future.
AGP'S DISCLOSURE OF ACCOUNTING IRREGULARITIES
10. As a publicly-held company, AGP is required to file annual and other
periodic reports pursuant to the Securities and Exchange Act of 1934. One report
of particular value to the shareholders of AGP is the Form 10-K, which contains
the Company's annual report and audited financial statements.
11. In early January 1995, the Company began to prepare its annual report
and its audited financial statements for the fiscal year ended December 31,
1994. Within a month, however, on February 2, 1995, the management of AGP
released a cryptic statement disclosing accounting irregularities in connection
with the Company's financial statements. The Company revealed that Coopers and
Lybrand, L.L.P. ("Coopers and Lybrand") its principal outside accountant and a
"Big Six" accounting firm, had advised the Company that there were "material
control weaknesses" which they believed might affect the Company's ability to
develop "reliable financial statements". Specifically, AGP made the following
public disclosure:
"In connection with their audit of the financial statements of AGP
and Company, Inc. for the year ended December 31, 1993, Coopers and
Lybrand, L.L.P. advised the Company that there existed certain
material control weaknesses, which may effect one or more of the
internal control structure elements necessary to the Company to
develop reliable financial statements." (Form 8-K, dated February 2,
1995, Rolnick Cert. Exhibit A.)
The Company further disclosed that Coopers and Lybrand had made statements
"concerning [AGP's] continuation as a going concern" and that "the client
auditor relationship" between Coopers and Lybrand and AGP had "ceased". (Id.)
12. Two weeks later, by letter dated February 16, 1996, Coopers and Lybrand
wrote directly to the United States Securities and Exchange Commission ("SEC")
to reveal additional information that it said "should have been reported by the
Company". Specifically, Coopers and Lybrand indicated that the client-auditor
relationship between AGP and Coopers and Lybrand had not just "ceased", but had
"ceased as a result of [Coopers and Lybrand's] resignation" (Form 8-K-A, filed
February 22, 1996, Rolnick Cert. Exhibit B; emphasis added). No information was
disclosed to the shareholders about why the Company's prestigious outside
accounting firm had resigned.
13. The Company did not suggest that the resignation of Coopers and Lybrand
would affect the Company's ability to provide its shareholders with audited
financial statements, which were due at the end of March 1995. Nevertheless, in
April 1995, the Company filed a materially incomplete Form 10-K that simply
failed to include any report from the Company's auditors certifying AGP's
financial statements. The 10-K went so far as to state that it contained a
report of independent accountants. (Form 10-K filed April 14, 1995 at 21,
Rolnick Cert. Exhibit C). However, the 10-K filing did not contain the
referenced page and no report of an independent accountant was included. In
discussing selected financial data, management misleadingly claimed that the
financial data contained in the report was derived from audited consolidated
financial statements. Id. at 11
14. Two weeks later, on April 26, 1995, AGP announced that it had retained
the accounting firm of Shapiro Weiss and Company ("Shapiro Weiss") in connection
with the audit for the year ended December 31, 1994. (Form 8-K-A-2, dated April
26, 1995, Rolnick Cert. Exhibit D). Promptly thereafter, AGP filed an amended
10-K with an audit report from the newly retained accountants. However, the new
audit report, when read carefully, revealed that Shapiro Weiss was not prepared
to render an opinion on the Company's financial statements. Instead, careful
review of the auditor's report rendered by Shapiro Weiss, revealed that it
expressed an opinion only on the financial statements of one of the Company's
wholly-owned subsidiaries. (Form 10-K/A #1, filed May 10, 1995 at F-1, Rolnick
Cert. Exhibit E). Shapiro Weiss did not render any opinion whatsoever on the
consolidated financial statements of AGP. 15. Shapiro Weiss also did not comment
on the accounting irregularities previously revealed by Coopers & Lybrand.
However, it did issue significant warnings about the financial condition of the
Company's primary subsidiary and opined that it might not be able to continue as
a going concern:
"As shown in the Company's consolidated financial statements, the
Company continues to incur operating losses and has an accumulated
deficit of approximately $1,552,000 as of December 31, 1994. The
continued losses have resulted in the Company's inability to meet
certain financial performance and ratio covenants under its revolving
credit facility. The bank has indicated that it will not grant a
waiver of these defaults . . . These conditions raise substantial
doubt about the Company's ability to continue as a going concern.
The accompanying consolidated financial statements do not include
any adjustments that might result from the outcome of these
uncertainties." (Form 10-K/A #1, filed May 10, 1995 at F-1, Rolnick
Cert. Exhibit E).
16. In the same filing, AGP submitted a report from Coopers and Lybrand.
However, like the Shapiro Weiss report, the Coopers and Lybrand report failed to
render any opinion on the consolidated financial statements of the Company for
the year ended December 31, 1994. (Id.) Instead, the report stated only that the
financial statements for the years ended December 31, 1992 and December 31, 1993
fairly presented the financial position of AGP. Finally, the Coopers and Lybrand
report issued the opinion that it was "unlikely" that the Company could continue
as a going concern:
"It is unlikely that the consolidated entity, as presented in the
accompanying financial statements, will continue as a going concern.
Additionally, as discussed in note 2 to the accompanying financial
statements, the Company's history of loss from continuing operations
over the past three years and its financial position as December 31,
1993 raises substantial doubt about the Company's ability to
continue as a going concern . . . The Company's financial statements
do not include any adjustments that may be required as a result of
this uncertainty." (Form 10-K/A #1, filed May 10, 1995 at F-1,
Rolnick Cert. Exhibit E).
One week later, on May 17, 1996, and without explanation, the Company amended
its 10-K to omit the Coopers and Lybrand report. (See Form 10-K/A #2, filed May
17, 1995 at 20, Rolnick Cert. Exhibit F).
17. Despite the absence of audited financial statements--and without ever
informing the shareholders of AGP that it could not produce audited financial
statements--the Company's management continued to release financial information.
In May 1995, management filed a report relating to its first quarter in 1995.
Although not expressly admitting that there were not audited financial
statements for year-end 1994 (and that neither Shapiro Weiss nor Coopers and
Lybrand had expressed an opinion with respect to the consolidated financial
statements for 1994), management compared the first quarter of 1995 with a
balance sheet for 1994. Buried in a footnote to the financial statements,
management conceded that the financial statements did not include disclosures
required to be made pursuant to generally acceptable accounting principals:
"The year end balance sheet was derived from audited consolidated
financial statements but does not include all disclosures required by
generally accepted accounting principles." Form 10-q, dated may 20,
1995 at 4, rolnick cert. Exhibit g, emphasis added.
Thereafter, management continued its practice of issuing financial information
which admittedly did not include disclosures required to be made under generally
accepted accounting principals. (See Form 10-Q dated August 20, 1995 at 5,
Rolnick Cert. Exhibit H) ("The year end balance sheet data was derived from
audited consolidated financial statements but does not included all disclosures
required by generally accepted accounting principles").
18. In December 1995, almost one year after the disclosure of accounting
irregularities and the resignation of Coopers and Lybrand, AGP led its
shareholders to believe that it was now in the position to provide the
long-awaited audited financial statements for 1994. On December 1, 1995,
management filed a Form 10-K which included a report from Shapiro Weiss
expressing an opinion that the consolidated financial statements for AGP for the
year ended December 31, 1994 fairly presented, in all material respects, the
consolidated financial position of the Company and were prepared in accordance
with generally accepted accounting principles. (Form 10-K/A #3, filed December
1, 1995 at F-1, Rolnick Cert. Exhibit I). Although concerned about the Company's
financial condition, shareholders were relieved to know that the 1994 financial
statement was audited and approved and that the accounting irregularities
revealed by Coopers and Lybrand were no longer of concern.
19. No sooner were the audited financial statements released, than AGP
management announced that the report of the independent auditors that had been
included in the December filing had not been signed by its independent
accountants and that they had not authorized its release. Suggesting that the
inclusion of the unsigned report was some sort of technical omission, AGP's
management issued a press release asserting that it had filed an "incomplete"
Form 10-K:
"[AGP] announced today that on December 1, 1995 it filed with the
Securities and Exchange Commission a Form 10-K/A #3 . . . which was
incomplete in that, among other things, it included an unsigned
Report of its independent accountants which had not been authorized
for release by such Independent Accountants." Form 8-K, dated December
22, 1995, Rolnick Cert. Exhibit J.
Since this disclosure, the Company has made no public filings whatsoever. It
has not filed an annual report for year-end 1995 and has not filed audited
financial statements for year-end 1995. It has also failed to file any quarterly
reports required to be filed by the SEC.
20. The SEC has now commenced a formal investigation of AGP and its Chief
Executive Officer and director, Stephen W. Bingaman, relating to alleged
accounting irregularities, securities fraud and the filing of false and
misleading financial statements. The results of the investigation will not be
known until the SEC completes its work. As a result of the SEC investigation,
the Company's (now-resigned) auditor has said that it will not reissue its
reports on the audits of the Company's financial statements for the years ended
December 31, 1993 and 1992. Accordingly, today the financial statements relating
to the past four years of AGP's operations are either not released, not in
existence or are of questionable reliability. 21. In these circumstances, Peraza
wishes to provide the shareholders with their statutory right to remove
directors, with or without cause, at a special shareholders' meeting. It is
hoped that the removal of two directors will allow AGP to bring itself into
compliance with the law, and allow the shareholders to have access to accurate,
reliable information about the financial condition of their investment in AGP.
COUNT I
(DEMAND FOR A SPECIAL SHAREHOLDERS'
MEETING PURSUANT TO N.J.S.A. 14A:5-3.)
22. As a corporation organized under New Jersey law, AGP is required to
hold annual shareholders' meetings. Pursuant to the New Jersey Business
Corporation Act, if AGP fails to hold an annual meeting, the court is empowered
to enter a summary order directing that such meetings take place.
23. In addition, AGP has adopted by laws, which, among other things,
require that an annual meeting be convened on the 15th of April every year.
24. Pursuant to AGP's bylaws and the governing law of the State of New
Jersey, AGP was required to hold annual shareholders' meetings in 1992, 1993,
1994, 1995 and 1996. However, AGP has not held any such meeting in any of those
years. Indeed, AGP has not held a shareholders' meeting at which directors were
elected since September 1991, almost 5 years ago.
25. As a result of its failure to hold annual meetings over the past five
years, AGP's shareholders, including its largest shareholder, the Peraza Trust,
have been deprived of their fundamental corporate right to vote to elect new
members of the board.
26. Over the same period, AGP has suffered substantial losses. Its stock
has been de-listed from NASDAQ, thereby depriving shareholders of any liquidity
for the stock, and the stock is trading at a small fraction of its price two
years ago. The stockholders have suffered through the preparation and filing of
materially false filings, a revolving door of accountants, the resignation of
the Company's independent accountants, the revelation of accounting
irregularities and the failure to produce audited financial statements for over
two years. Over the same period, independent accountants have expressed the
opinion that the Company will no longer be able to continue as a going concern.
In these circumstances, AGP is losing its lifeblood and may well collapse
entirely, thereby eliminating all shareholders' equity.
27. Section 14A:5-3 of the New Jersey Business Corporation Act ("BCA")
authorizes the Superior Court to summarily order a special meeting of the
shareholders of a corporation when petitioned to do so by holders of 10% or more
of the outstanding shares. Specifically, the law provides:
upon the application of the holder or holders of not less than 10% of all
the shares entitled to vote at a meetings, the Superior Court, in an action
which the court may proceed in a summary manner, for good cause shown, may
order a special meeting of the shareholders to be called and held at such
time and place, and upon such notice and for the transaction as such
business as may be designated in such order." N.J.S.A. 14A:5-3
28. The petitioner, Omar L. Peraza individually and on behalf of the Peraza
Trust beneficially owns 1,600,000 shares of common stock of AGP, an amount
constituting substantially more than 10% of the issued and outstanding shares of
AGP. Accordingly, Peraza has the statutory right to petition the court to
convene a special meeting of the shareholders.
29. The purpose of the special meeting will be to remove two of the
directors currently serving on the AGP Board of Directors, Mr. Bingaman and Mr.
Howard. With the removal of these directors, it is hoped that AGP will be able
to bring its filings into compliance with federal securities laws, issue audited
financial statements for the years 1994 and 1995 and bring an end to the
enormous losses that have been sustained by the Company over the past several
years.
WHEREFORE, Peraza, individually and as Trustee for the Peraza Trust,
petitions this Court to grant an order awarding summary relief on his behalf and
against the defendant, AGP, in accordance with N.J.S.A. 14A:5-3 as follows:
A. That a special meeting of "Shareholders" within the meaning of N.J.S.A.
14A:5-3 ("the meeting") be scheduled upon notice to all AGP shareholders to be
held on the 20th day of September, 1996, at the Radisson Hotel, 128 Frontage
Road, Newark, New Jersey 07106, beginning at 10 a.m. for the purpose of,
considering and acting upon a proposal to remove Mr. Bingaman and Mr. Howard as
directors for AGP, and
B. That a "record date" within the meaning of N.J.S.A. 14A:5-7 be
established as the close of business on August 8, 1996 or as soon thereafter as
practicable (the "Record Date"), for the purpose of identifying each shareholder
of record entitled to notice and to vote at the special shareholders' meeting
described in paragraph (a) above.
C. That the petitioner be awarded attorneys fees, costs of suit and such
other relief deems equitable and just.
COUNT II
(DEMAND FOR CERTAIN CORPORATE BOOKS
AND RECORDS PURSUANT TO N.J.S.A. 14A:5-28)
30. The New Jersey Business Corporation Act provides at N.J.S.A. 14A:5-28
that "the Corporation shall keep at its principal office, its registered office,
or at the office of its transfer agent, a record or records containing the names
and addresses of all shareholders, the number, class and series of shares held
by each and the dates that they respectively became the owners."
31. N.J.S.A. 14A:5-28(3) provides a pertinent part:
3. Any person who shall have been a shareholder of record of a
corporation for at least six months, immediately preceding
his demand, or any person holding . . . at least 5% of the
outstanding shares of any class, upon at least five days
written demand shall have the right for any proper purpose
to examine in person or by agent or attorney during usual
business hours, its . . . record of shareholders and to make
extracts therefrom, at the places where the same are kept
pursuant to 14A:5-28(1).
32. On August 8, 1996, Peraza and the Peraza Trust delivered to AGP a
written demand that Peraza be afforded the opportunity to examine AGP's
shareholders' list and other related information.
33. Pursuant to N.J.S.A. 14A:5-28 and applicable law, Peraza is entitled to
inspect the shareholders list and other relevant books and records of the
Company, and AGP is required to produce such documents to Peraza is for
inspection and copying.
WHEREFORE, plaintiff Peraza and the Peraza Trust request that this court
grant an order awarding summary relief on behalf of Peraza and against the
defendant AGP in accordance with N.J.S.A. 14A:5-28(3) as follows:
a. That the following of AGP's corporate "books and records" within the
meaning of N.J.S.A. 14A:5-28 be made available for examination and copying by
Peraza or its duly authorized agents on or before August 13, 1996 in the State
of New Jersey at Lowenstein, Sandler, Kohl, Fisher & Boylan, 65 Livingston
Avenue, Roseland, new Jersey, at 10:00 a.m.:
(i) A complete record or list of holders of shares, certified by AGP's
transfer agent, identifying the name and address of each such holder,
and the number of shares registered in the name of each such holder, as
of the Record Date;
(ii) A magnetic computer tape list of holders of shares as of the
Record Date, showing the name, address and number of shares held by each
such holder, such computer processing data as is necessary to make use of
such magnetic computer tape, including, but not limited to, data which
will enable Peraza to use such magnetic computer tape for the purpose of
printing mailing labels for use in communication with AGP's shareholders,
and print-out of such magnetic computer tape for verification purposes;
(iii) All transfer sheets showing changes in the list of holders of
shares referred to above which are in or which come into the possession
of AGP or its transfer agent from the date of the list referred to above
to the date of AGP's special meeting of shareholders;
(iv) All information in AGP's possession or control or which can
reasonably be obtained from nominees of any central certificate
depository system concerning the number and identity of the actual
beneficial owners of shares, including a breakdown of any holdings in
the name of Cede & Co., Philadep and any other similar depository, nominee
or clearing agency;
(v) All information in AGP's possession concerning the identity and
share positions of beneficial (or "street name") holders of shares,
including a list of non-objecting beneficial owners ("NOBO's") available
under Securities and Exchange Commission Rules 14b-1(c) and 14b-2(e);
(vi) Any additional information which modifies or updates any materials
requested pursuant to paragraphs (i) through (v) above to the date of
AGP's next special meeting of shareholders; and
B. That petitioner be awarded attorneys' fees, costs of suit and such other
and further relief as this Court deems equitable and just.
Lowenstein, Sandler, Kohl,
Fisher & Boylan
A Professional Corporation
Attorneys for Plaintiff
Omar L. Peraza, Individually and
as Trustee for the Peraza Trust
By:/s/Lawrence M. Rolnick
____________________________
Lawrence M. Rolnick
Dated: August 8, 1996
VERIFICATION
I have reviewed the within Complaint and hereby verify and certify each of
the factual allegations contained herein. I am aware that if the foregoing
statements are willfully false I am subject to punishment.
/s/Omar Peraza
_____________________
Omar Peraza
Dated: August 8, 1996
CERTIFICATION PURSUANT TO R.1:4-4(c)
I hereby certify pursuanto R.1:4-4(c). that the affiant on the annexed
verification, Omar L. Peraza, acknowledged the genuineness of the facsimile
signature to this verification and that the document or a copy with an original
signature annexed will be filed if requested by the Court or a party.
/s/Lawrence M. Rolnick
____________________________
Lawrence M. Rolnick, Esq.
Dated: August 8, 1996
