Current Report — Form 8-K
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4: EX-99 Miscellaneous Exhibit 12 28K
EX-99 — Miscellaneous Exhibit
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EXHIBIT 99.1
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO.: CIV-01-016931
XPEDIAN, INC.,
Plaintiff,
vs.
COMMERCE CAPITAL GROUP, LLC., a
South Carolina Limited Liability
Company, ROBERT EVAN HUGHES
a/k/a VAN HUGHES, GLENN EVANS,
P. DAVIS, SUMNER STROUT, AGIS
VENTURES, a Cayman Island corporation,
PRIMARY ASSET HOLDING CORP.
(PRIMARY), and TRIDENT CAPITAL
PARTNERS (TRIDENT ), AND DOES 1
THROUGH 10,
Defendants.
--------------------------------/
VERIFIED COMPLAINT
Plaintiff XPEDIAN, INC. (XPEDIAN), a Florida corporation sues
Defendants COMMERCE CAPITAL GROUP, LLC., a South Carolina Limited Liability,
Company (CCG), ROBERT EVAN HUGHES a/k/a VAN HUGHES (HUGHES), GLENN EVANS
(EVANS), P. DAVIS (DAVIS), SUMNER STROUT (STROUT), AGIS VENTURES (AGIS) PRIMARY
ASSET HOLDING CORP. (PRIMARY) and TRIDENT CAPITAL PARTNERS (TRIDENT), and DOES
1 THROUGH 10, and alleges the following:
12
GENERAL ALLEGATIONS
1. Plaintiff at all times was a material to this action is a Florida
corporation.
2. Defendant CCG is a South Carolina Limited Liability corporation.
3. Defendant EVANS is an individual believed to be residing in North
Carolina.
4. Defendant DAVIS is an individual believed to be residing in North
Carolina.
5. Defendant STROUT is an individual believed to be residing in North
Carolina.
6. Defendant AGIS is believed to be a Cayman Island corporation.
7. Defendant PRIMARY is believed to a corporation whose place of
incorporation is presently unknown.
8. Defendant TRIDENT is believed to be a partnership whose whereabouts is
presently unknown.
9. Upon information and belief, HUGHES had at all times relevant to the
causes of action asserted herein, acted as Managing Member and controlling
owner of CCG and is resident of North Carolina.
10. Plaintiff is unaware of the true names and identities of the
Defendants sued herein as Does 1 through 10, inclusive and therefore sues said
Defendants by such fictitious names. Plaintiff will amend this Complaint, by
leave of court if necessary, to allege the true names and capacities of
Defendants Does 1 through 10, inclusive, when the same have been ascertained.
11. Plaintiff, upon information and belief, alleges that from time to time
Defendants and each of them, were the agents, partners, principals, employees
or representatives of each other and otherwise participated, directly or
indirectly in, or accepted the benefits of
the conduct hereinafter alleged and by reason of such fact have become
directly liable to Plaintiff for the wrong doings alleged.
12. Plaintiff, upon information and belief, alleges that all Defendants
knowingly and willfully conspired and agreed among themselves to act as more
specifically alleged herein in Count V herein. Defendants and each of them
furthered the conspiracy by rendering cooperation and encouragement to each
other's acts as set forth below.
13. On or about July 30, 1999, Plaintiff entered into an "Agreement for
Purchase and Assignment of License Agreement" (hereinafter referred to as the
"License Agreement") (Exhibit A) with Defendant CCG pertaining to certain
technology (hereinafter referred to as the "Software") wherein Defendant CCG
agreed to deliver the Software and perform various other services for
Plaintiff.
14. Paragraph 13.2 of Exhibit A states "This Agreement shall be governed
by the laws of the State of Florida without reference to conflict of laws and
the venue for any action, claim or dispute in respect of this Agreement shall
be such court of competent jurisdiction as is located in Broward County,
Florida."
15. Pursuant to the terms of the License Agreement, Defendant CCG was
issued Twenty One Million (21,000,000) shares of common stock in Plaintiff,
resulting in Plaintiff owning in excess of 50% of the issued and outstanding
shares of Plaintiff. Later, CCG was also issued fifteen million 15,000,000
additional shares ostensibly for additional territories under the License
Agreement.
16. Plaintiff asserts that this court has jurisdiction over CCG in that
CCG specifically agreed, as alleged herein in Exhibit A to this court's
jurisdiction as well as pursuant to Florida Statute 48.193(1)(g) in that it
breached a contract in this state by failing to perform, acts required by the
contract to be performed in this State. The remaining Defendants in this action
are subject to this court's jurisdiction pursuant to Florida Statutes
48.193(1)(b) in that they committed a tort in the State of Florida.
17. That all of the conditions precedent in this cause of action have been
asserted herein, have been performed, occurred, been waived or have been
tendered or excused.
COUNT I - BREACH OF CONTRACT
18. Plaintiff realleges and incorporates paragraphs 2, 13 through 15, 17
of this Complaint, as if fully set forth herein.
19. This is a cause of action for breach of the License Agreement.
20. That pursuant to License Agreement entered into with IRT Industries,
Inc. now known as Plaintiff herein, CCG agreed to license proprietary
technology and software for estate planning which permits professionals and
non-professional users to access forms, instructions, assistance, on-line
through the Internet, to develop estate planning and related documentation,
which is more specifically identified in documentation delivered to Licensee.
21. Pursuant to paragraph 2.I of the License Agreement, Defendant CCG
licensed Plaintiff the right to market and use the Software in a defined
territory.
22. That Defendant CCG has breached the contract in that it has not
delivered Software as represented in this contract that would enable Plaintiff
to market and use it in the designated territory.
23. CCG also agreed as set forth on page 7, in paragraphs (ii), and (iii),
that it would soon have a high-quality multi-link Internet site established and
that it had close ties to investors that could provide funding for CCG and for
the benefit of Plaintiff.
24. Defendant CCG has further breached this contract in that it failed to
provide high-quality multi-link Internet sites, nor has it provided directly or
indirectly, funding to Plaintiff corporation.
25. That the Defendant CCG's failure to provide Software and comply with
its obligations in paragraphs (ii) and (iii) contained on page 7 of the License
Agreement, constitutes breach of License Agreement.
26. Plaintiff has suffered damages as a result of this breach.
WHEREFORE, Plaintiff XEPEDIAN, INC. demands judgment for damages against
COMMERCE CAPITAL GROUP, LLC., a South Carolina Limited Liability Company,
together with interest, costs and any such other further relief as the court
deems just and proper.
COUNT II - FRAUD AGAINST DEFENDANTS HUGHES AND CCG
27. Plaintiff realleges and incorporates paragraphs 1, 2, 9, 13, 15, and
17, of this Complaint, as if fully set forth herein.
28. HUGHES and CCG, prior to the execution of the License Agreement made
oral representations to Plaintiff and in the License Agreement made written
representations that CCG "has the rights to certain proprietary technology and
software, for estate planning, which permits professional and non-profession
users, to access forms, instructions, assistance, on-line through the Internet,
to develop estate planning and related documentation." (i.e. Software).
29. HUGHES, individually and on behalf of CCG, made such representations
for the purpose of inducing Plaintiff to enter into the License Agreement.
30. Plaintiff reasonably relied on such representations in entering into
the License Agreement.
31. The Software which "permits professionals and non-professional users,
to access forms, instructions, assistance, on-line through the Internet, to
develop estate planning and related documentation" did not exist at the time
the License was executed and has never since existed.
32. HUGHES and CCG made representations to Plaintiff that CCG would provide
additional value and certain services (see hand-numbered page 7, items (ii) and
(iii) in Exhibit A to Plaintiff as Licensee.
33. HUGHES and CCG made such representations for the purpose of inducing
Plaintiff to enter into the License Agreement.
34. Plaintiff reasonably relied on such representations in entering into
the License Agreement.
35. Neither HUGHES nor CCG had the ability to provide such services nor did
either HUGHES or CCG have any reasonable belief that CCG would have such
capabilities.
36. HUGHES and CCG made representations to Plaintiff that CCG had "expended
hundreds of thousands of dollars and approximately 15 years of development to
create the Software." (Page 6, paragraph II.D, Exhibit A).
37. HUGHES and CCG made such representations for the purpose of
exaggerating the value of the Software and inducing Plaintiff to enter into the
License Agreement.
38. Plaintiff reasonably relied on such representations in entering into
the License Agreement.
39. HUGHES and CCG made the false representations described herein above
with full knowledge of their falsehood, intending that the Plaintiff rely upon
these representations to its detriment.
40. Plaintiff suffered actual damages in excess of the jurisdictional
limits of this court.
41. Plaintiff reserves the right to amend this count to assert claim for
punitive damages upon a proper showing to this court.
WHEREFORE, Plaintiff XPEDIAN, INC. demands judgment against ROBERT EVANS
HUGHES and COMMERCE CAPITAL GROUP, LLC., jointly and severally for damages,
interest and costs.
COUNT III - RECISSION OF LICENSE AGREEMENT
42. Plaintiff realleges and reavers the foregoing allegations contained in
paragraphs 1, 2, 9, 13, 14, 15, 20 through 25, 28 through 39, as if fully set
forth herein.
43. The Plaintiff hereby tenders to Defendant the "Software" received by
Plaintiff pursuant to the License Agreement and the License Agreement in return
for 36,000,000 shares of restrictive common stock of Plaintiff corporation
issued to Defendant CCG as and in consideration of the License Agreement and
expansion of the Licensed Territories. 44.As a result of the breach of contract
and as a result of the fraud Plaintiff is entitled to rescind the contract and
receive back from the Defendant CCG, 36,000,000 shares of restrictive common
stock of Plaintiff paid to Defendant as and for consideration for the License
for use of the non-existent Software.
WHEREFOR, Plaintiff XPEDIAN, INC. requests this court enter relief
rescinding the License Agreement and requiring, as a condition of said
rescission, that the Defendant CCG be required to return to Plaintiff 36,000,000
shares of restrictive common stock, and further relief that the court deems just
and proper.
COUNT IV - INJUNCTIVE RELIEF
45. Plaintiff realleges and reavers the foregoing allegations contained in
paragraphs 1, 2, 9, 17, 29 to 38, as if fully set forth herein.
46. This is an action for injunctive relief in that the Plaintiff has no
adequate remedy at law and, further, unless this court enters an injunction as
requested herein, Plaintiff will suffer immediate irreparable harm and damage.
47. That as a result of the fraudulent conduct of Defendant CCG, Defendant
obtained 21,000,000 shares of restrictive common stock of the Plaintiff
corporation. Defendant also received additional shares of stock in the amount of
15,000,000, which was also for the same non-existent software by virtue of
extending licensed territories for CCG's Software pursuant to Exhibit A.
48. That upon information and belief, Defendant has threatened to sell,
transfer or convey its shares of stock either in open market (since Plaintiff is
a publicly traded company) or through a private transaction
49. Plaintiff will not have the ability to obtain the return of these
shares if an injunction is not issued and will suffer irreparable harm if the
shares are not returned.
WHEREFORE, Plaintiff XPEDIAN, INC. requests this court enter an injunction
against the Defendant COMMERCE CAPITAL CORP, LLC. and against their officers,
agents, servants, employees and attorneys, and those persons who have acted in
concert or participation with Defendant from transferring, trading, selling,
disposing or encumbering shares of Plaintiff's corporation received by COMMERCE
CAPITAL GROUP, LLC.
COUNT V - DECLARATORY RELIEF
50. Plaintiff realleges and reavers the foregoing allegations contained in
paragraphs 1 through 12, and 17, as if fully set forth herein.
51. This is an action for declaratory relief pursuant to Chapter 86 of the
Florida Statutes, and is brought against Defendants DAVIS, EVANS, STROUT, AGIS,
PRIMARY TRIDENT and CCG.
52. That Defendant AGIS is a recipient of 1,000,000 shares of Plaintiff's
common stock received by it on March 3, 2000 represented by certificate no.
XP2649.
53. That Defendant PRIMARY is a recipient of 450,000 shares of Plaintiff's
common stock received by him on March 3, 2000 represented by certificate no.
XP2646.
54. That Defendant EVANS is a recipient of 200,000 shares of Plaintiff's
common stock received by him on July 13, 2001 represented by certificate no.
XP2876.
55. That Defendant DAVIS is a recipient of 100,000 shares of Plaintiff's
common stock received by him on July 13, 2001 represented by certificate no.
XP2879.
56. That Defendant STROUT is a recipient of 1,000,000 shares of Plaintiff's
common stock received by him on July 13, 2001 represented by certificate no.
XP2892.
57. That CCG is the recipient of 15,000,000 million shares received on July
13, 2001 represented by stock certificate no. XP2887; 6,000,000 shares received
on March 3, 2000 represented by stock certificate no. XP2641; additional 6
million shares received on March 3, 2000 represented by stock certificate no.
XP2642; and 5,000,000 shares also received on March 3, 2000 represented by stock
certificate no. XP2643.
58. No consideration was paid or rendered by any of the above named
Defendants for the issuance of the stock.
59. HUGHES was capable of controlling the Board of Directors and the
officers of the Plaintiff corporation through CCG and convinced the Board to
issue shares of stock to these Defendants without consideration (not including
the original 21,000,000) to CCG.
60. Plaintiff, upon information and belief, believes that each of the
Defendants will assert that they are entitled to receive the shares of stock by
them in Plaintiff's corporation in spite of the fact that they paid no
consideration for said shares, and in spite of their explicit collusion with
HUGHES and CCG to obtain the shares without any consideration.
61. Plaintiff desires to cancel these shares issued to each of the
Defendants.
62. Plaintiff is in doubt or is uncertain as to its right to cancel these
shares.
WHEREFORE, Plaintiff XPEDIAN, INC. requests this court enter a
declaratory relief by declaring that the shares received by the Defendants,
GLENN EVANS, P. DAVIS, SUMNER STROUT, AGIS VENTURES, COMMERCE CAPITAL GROUP,
LLC, PRIMARY ASSET HOLDING CORP., and TRIDENT CAPITAL PARTNERS, were issued
without consideration and that said shares should be canceled, and that the
court exercise its equitable jurisdiction herein and grant any and other relief.
XPEDIAN, INC., a corporation
--------------
By:
-----------------------------------------
Print Name:
-----------------------------------------
Title:
-----------------------------------------
Date::
-----------------------------------------
STATE OF )
COUNTY OF )
The foregoing instrument was acknowledged before me this ____ day of
October, 2001, by , President on behalf of XPEDIAN, INC. who is personally known
to me or who has produced ______________________ as identification who asserts
that the above allegations are true and correct to his knowledge and belief.
------------------------------
NOTARY PUBLIC
Print name:
Commission No:
My commission Expires:
Dated this day of October, 2001.
--------
LAW OFFICES OF MARK C. PERRY, P.A.
Attorney for Plaintiff
2455 E. Sunrise Boulevard, #905
Fort Lauderdale, FL 33304
Tel: (954) 564-6616
By:_____________________
MARK C. PERRY
cc: Client Florida Bar No: 251941
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
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| This ‘8-K’ Filing | | Date | | First | | Last | | | Other Filings |
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| |  |
| Filed on: | | 10/9/01 |
| For Period End: | | 9/25/01 | | | | | | | 8-K/A |
| | 7/13/01 | | 10 |
| | 3/3/00 | | 10 |
| | 7/30/99 | | 3 | | | | | S-8 |
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