FILED: NEW YORK COUNTY CLERK 10/13/ :40 PM INDEX NO /2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/13/2017

Transcription

1 FILED NEW YORK COUNTY CLERK 10/13/ PM INDEX NO /2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF 10/13/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In The Matter of the Application of ERIKA MILCZEK, holder of 50% of the shares of Index No. AGEM SOLUTIONS INC., VERIFIED PETITION Petitioner, for the Dissolution of AGEM SOLUTIONS INC., a Domestic Corporation, Respondent. The Verified Petition of Erika Milczek ( Petitioner ), by and through her undersigned counsel, Duane Morris LLP, respectfully shows to this Court, as follows PARTIES, JURISDICTION AND VENUE 1. Petitioner resides at 64 Thompson Street #19, New York, NY 10012, in the County of New York, State of New York. 2. Petitioner is President and Chief Executive Officer of Agem Solutions Inc. ( Agem Solutions ), a New York S Corporation organized under the Business Corporation Law of the State of New York. Solutions. 3. Petitioner is the holder of one-half interest of the issued voting shares of Agem 4. Agem Solutions Certificate of Incorporation dated January 4, 2016 designates 50 Murray Street, #2011, New York, New York, County of New York, State of New York as the location of its office. (A true and correct copy of Agem Solutions Certificate of Incorporation is annexed hereto as Exhibit A.) 1 of 7

2 FILED NEW YORK COUNTY CLERK 10/13/ PM INDEX NO /2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF 10/13/ This Court has venue pursuant to New York Business Corporation Law 1112 in that the office of Agem Solutions is located in the County of New York, State of New York. 6. The purpose for which Agem Solutions was organized was to engage in the manufacture, marketing and sale of BuzzBite, which is a topical dermatological preparation formulated by Petitioner from FDA-approved ingredients to stop the itch and irritation associated with insect bites and stings. 7. Agem Solutions is not registered as an investment company under an act of congress entitled Investment Company Act of 1940 and no shares of Agem Solutions are listed on a national securities exchange or regularly quoted in an over-the-counter market by one or more members of a national or an affiliated securities association. 8. The aggregate number of shares which Agem Solutions has authority to issue is 200 shares of no par value, of which no shares are outstanding. The names and residences of the shareholders and the number of shares owned by each is as follows a. Erika Milczek 64 Thompson Street #19 New York, NY shares owned b. Alejandra Garcia Garcia 50 Murray St. #2011 New York, NY shares owned 9. On or about April 1, 2016, Petitioner and Alejandra Garcia Garcia ( Garcia Garcia ), the other 50% shareholder in Agem Solutions, formed a limited liability company BuzzBite LLC ( BuzzBite ), formerly known as Agem Holdings LLC. BuzzBite is the successor to Agem Solutions, and was formed to continue in the same purpose as originally set 2 2 of 7

3 FILED NEW YORK COUNTY CLERK 10/13/ PM INDEX NO /2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF 10/13/2017 forth for Agem Solutions. Petitioner has simultaneously filed a related proceeding in this Court seeking judicial dissolution of BuzzBite pursuant to New York Limited Liability Law 702. PETITION FOR DISSOLUTION 10. Petitioner repeats the allegations set forth in paragraphs 1 through 9 of the Verified Petition. 11. In August 2015, Petitioner and Respondent Alejandra Garcia Garcia entered into an agreement setting forth that they were each 50% shareholders of Agem Solutions. 12. On January 4, 2016, Petitioner and Alejandra Garcia Garcia, formed Agem Solutions. 13. The purpose for which Agem Solutions was organized was to engage in the manufacture, marketing and sale of BuzzBite, which is a topical dermatological preparation formulated by Petitioner from FDA-approved ingredients to stop the itch and irritation associated with insect bites and stings. 14. It was agreed between Petitioner and Garcia Garcia that Petitioner would be responsible for all aspects of the day-to-day management of Agem Solutions, including by way of example, formulating and testing an anti-itch treatment; identifying manufacturers and securing quotes for production of an anti-itch treatment; securing a third-party FDA testing facility for FDA compliance; and leading the manufacture and FDA compliance process for BuzzBite. Additionally, Petitioner identified prospective branding agencies and public relations firms, and developed the go to market strategy for BuzzBite. 15. Garcia Garcia agreed that her contribution to the Company would be to provide the necessary capital in the amount of $250, to support the business in its efforts to manufacture, market and sell BuzzBite. 3 3 of 7

4 FILED NEW YORK COUNTY CLERK 10/13/ PM INDEX NO /2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF 10/13/ Garcia Garcia was also responsible for review of Company legal documents and contracts. 17. There is present deadlock between Petitioner and Garcia Garcia, as to the following matters, which has created an irreconcilable barrier to the continued functioning and prosperity of Agem Solutions a. The refusal of Garcia Garcia to make good on her commitment to make the necessary capital investment in the amount of $250,000 in order to properly fund the Company; b. Garcia Garcia s unauthorized withdrawal of all Agem Solutions funds from its bank account; and c. Garcia Garcia s unauthorized possession of the Company s inventory. 18. In February 2017, Petitioner and Garcia Garcia had a complete breakdown of communications as a result of Garcia Garcia s refusal to abide by her obligation to fund BuzzBite LLC, the successor to Agem Solutions. 19. Since February 2017, Petitioner and Garcia Garcia have ceased to have any direct contact or any meaningful communications regarding the operation of Agem Solutions or its successor, BuzzBite LLC. 20. Because of the division and internal dissension between the two shareholders, neither wishes to continue to conduct the business of Agem Solutions with the other. 21. No annual meeting for an election of directors has ever been held by Agem Solutions. 22. Petitioner deems it beneficial to the interest of the shareholders that the corporation be dissolved 4 4 of 7

5 FILED NEW YORK COUNTY CLERK 10/13/ PM INDEX NO /2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF 10/13/2017 a. There is no functioning board of directors, and as a consequence, the management of Agem Solutions has become inoperative and sterile. b. The interests of Petitioners and Garcia Garcia, are so discordant and irreconcilable as to prevent management of the affairs and property of the corporation. c. Petitioner and Garcia Garcia have been unsuccessful in their efforts to arrive at an agreement to purchase each other s respective shares and interest in Agem Solutions. 23. Petitioner therefore seeks judicial dissolution of Agem Solutions on the following specified in N.Y. Bus. Corp. Law 1104(a)(3), namely That there is internal dissension and two or more factions of shareholders are so divided that dissolution would be beneficial to the shareholders. 24. Petitioner proceeds by order to show cause in accordance with New York Business Corporation Law No prior application for this relief has been made. WHEREFORE, Petitioner prays for a final order of this Court dissolving Agem Solutions, Inc. and such other and further relief as may seem proper, together with the costs of these proceedings. 5 5 of 7

6 FILED NEW YORK COUNTY CLERK 10/13/ PM INDEX NO /2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF 10/13/2017 Dated New York, New York October 13, 2017 Respectfully submitted, DUANE MORRIS LLP By s/ Evangelos Michailidis Evangelos Michailidis Ralph Carter 1540 Broadway New York, New York Tel (212) emichailidis@duanemorris.com rcarter@duanemorris.com Attorneys for Petitioner Erika Milczek 6 6 of 7

7 FILED NEW YORK COUNTY CLERK 10/13/ PM INDEX NO /2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF 10/13/2017 STATE OF NEW YORK COUNTY OF NEW YORK ) ) ) VERIFICATION S.S. ERIKA MILCZEK, being duly sworn, deposes and says I am the President and Chief Executive Officer of Agem Solutions Inc. ("Agem Solutions"). I have read the foregoing Verified Petition, and know the contents thereof, and the same is true based upon my own personal knowledge and records maintained by Agem Solutions, except as to the matters therein stated to be alleged upon information and belief, and as to those matters I believe them to be true. Sworn to ~ subscribed before me this da f October, 2017 Erika Milczek EVANGELOS MICHAILIDIS Notary Public - State of New York NO. 02Mi63S5527 Oualifi.ed_ in New York County My Cornm1ss1on E.xpires Mar 13, of 7