DISTRICT COURT, DENVER COUNTY
STATE OF COLORADO
1437 Bannock Street
Denver, Colorado 80202
COURT USE ONLY
BROADWAY HOLDINGS, INC. f/k/a FRIEDLAND GLOBAL CAPITAL MARKETS LLC, a Colorado corporation,
Plaintiff,
v.
SUNGAME CORPORATION, a Delaware corporation,
Defendant.
Case Number
2011CV4907
Division
275
Attorneys for Plaintiff:
G.W. MERRICK & ASSOCIATES, LLC
Glenn W. Merrick, No. 10042
Joseph T. Bernstein, No. 37753
Suite 912, 5445 DTC Parkway
Greenwood Village, Colorado 80111
(303) 831-9400
(303) 771-5803 fax
[email protected]
[email protected]
VERIFIED COMPLAINT
Plaintiff, Broadway Holdings, Inc., through its undersigned counsel, G.W. MERRICK & ASSOCIATES, LLC, for its Verified Complaint against Defendant, Sungame Corporation, alleges as follows:
Parties, Jurisdiction and Venue
1. Broadway Holdings, Inc. (Broadway) is a Colorado corporation in good standing with a principal place of business in Denver, Colorado. Broadway was formerly known as Friedland Global Capital Markets LLC (FGCM).
2. Sungame Corporation (Sungame) is a Delaware corporation with a principal place of business in Wilmington, Delaware.
3. This Court possesses subject matter jurisdiction to adjudicate the claims for relief alleged herein pursuant to Article VI, Section 9(1) of the Colorado Constitution.
4. Venue is proper in this Court pursuant to C.R.C.P. 98(c).
General Allegations
5. Broadway incorporates each of the allegations contained in the foregoing paragraphs of this Verified Complaint as if fully set forth here.
6. Brodway, f/k/a FGCM, is a well-regarded corporate finance and business consulting firm with substantial expertise in the process of converting privately-held business entities into publicly-traded companies and coordinating the process of those companies becoming publicly traded.
7. In approximately June 2008, Sungame requested FGCMs assistance and services in connection with Sungames process of becoming publicly traded. Sungame requested that FGCM advise and consult in respect of Sungames corporate finance strategy, the coordination of professionals and the assistance with the preparation of necessary disclosure documents and financial statements to become a publicly traded company.
8. FGCM agreed to provide the requested services, and in June 2008 Sungame and FGCM entered into an agreement for the provision of such services by FGCM. The parties expressly agreed that in exchange for FGCMs valuable business consulting and corporate finance advisory services, Sungame would pay FGCM an aggregate fee of two hundred fifty thousand dollars ($250,000) and would issue to FGCM a substantial number of shares in Sungame, representing approximately ten percent (10%) of the outstanding shares of Sungame. The parties expressly agreed that FGCM would have the option and authority to allocate those shares to third-parties.
9. Between approximately June 2008 and December 2009, FGCM provided business consulting and corporate finance advisory services to Sungame. FGCM developed and prepared a corporate finance strategy for Sungame in respect of Sungames initial offering of shares to the public. FGCM authored and structured a business plan for Sungame which formed the basis of the disclosure document prepared by Sungames securities counsel, as well as a document that was used in connection with obtaining a substantial financing commitment from a third-party institutional investor. FGCM assisted Sungame with the preparation by its legal counsel, auditors and other professionals of the documents, forms and applications required by the Securities and Exchange Commission (SEC) for the registration of Sungames shares with the SEC.
10. Sungame accepted and realized a substantial benefit from the assistance, guidance and services of FGCM. As a result of the FGCMs business consulting and advisory services, on February 16, 2010, the Securities and Exchange Commission issued a Notice of Effectiveness in respect of Sungame, and the resale of Sungames shares were registered with the SEC.
11. Contrary to its express agreements and representations, Sungame failed to fully compensate FCGM as the parties had agreed. Despite receiving the benefit of FGCMs valuable business consulting and advisory services, Sungame consistently failed to make the required payments to FGCM as the parties had agreed and consistently failed to fully compensate FGCM. Rather, Sungame only partially compensated FGCM by issuing shares of Sungame to FGCM as the parties had agreed. Pursuant to the parties express agreement, FGCM allocated those Sungame shares to third-parties.
12. In late 2009/early 2010, FGCM and Sungame mutually determined to terminate their prior agreement. On March 21, 2010, after lengthy discussions respecting the termination, FGCM and Sungame entered into a Termination of Advisory Services Agreement and Mutual Release (the Release).
13. FGCM and Sungame expressly agreed that the Release shall be construed in accordance with the laws of the State of Colorado and that any dispute arising under the Release shall be subject to exclusive jurisdiction in the courts of the State of Colorado. The parties also agreed that in any such dispute, the prevailing party shall be entitled to recover its reasonable attorney fees.
14. Under the Release, FGCM and Sungame expressly released any and all claims they held, or may have held, against each other in respect of any prior transactions or agreements. FGCM and Sungame further expressly agreed that FGCM, and the third-parties to whom Sungame shares had been transferred (collectively, the Shareholders), would retain those shares. Accordingly, subsequent to the execution of the release, the shares held by the Shareholders were as follows:
Name of Shareholder Number of Shares
Global Investment Advisors, LLC 132,875
Philadelphia New York Investors 132,875
Lafayette 543, LLC 70,000
Jill L. Throckmorton 50,000
Michael D. Throckmorton 35,000
Rhett T. Throckmorton 20,000
Robbi D. Throckmorton 20,000
Ryan M. Throckmorton 20,000
Lorin Cohen for Lily Cohen 20,000
Steven Cohen 10,000
Nancy Baltimore 10,000
15. Sungame expressly represented to FGCM that the shares retained by the Shareholders would be fully, properly and lawfully transferable and negotiable shares of Sungame. In reliance upon this representation, FGCM executed the Release and reasonably believed that the shares retained by the Shareholders were fully and property transferable and negotiable instruments.
16. At the time Sungame represented that the shares would be freely transferable and negotiable, Sungame knew this representation to be false. In truth, Sungame did not intend for the shares to be transferable or negotiable. Sungame knowingly concealed this fact from FGCM in order to induce FGCM to execute the Release.
17. In July 2011, one of the Shareholders -- Global Investment Advisors, LLC -- placed its shares in a brokerage account maintained at Charles Schwab, a well-known brokerage house and investment holdings firm. At approximately the same time, another of the Shareholders -- Philadelphia New York Investors (PNYI) -- also attempted to place its shares in a brokerage account.
18. Between approximately June 1, 2011 and July 1, 2011, the price per share of Sungame on the open market dropped sharply, from approximately $20 per share to approximately $7.50 per share. To manipulate the price of its stock and prevent the price of its stock from slipping further, Sungame sought to prevent the sale of its stock by wrongfully and unlawfully freezing trading on the shares that had been issued to PNYI.
19. Accordingly, on July 18, 2011, Sungame (through its counsel, Marshal Shictman & Associates, P.C.) instructed Sungames stock transfer agent, Globex Transfer, LLC, to chill the stock certificate of PNYI. In contravention of the Release, Sungame represented to its stock transfer agent that the shares owned by PNYI were not paid for or otherwise supported by consideration.
20. Sungames instruction to chill the shares issued to PNYI and the other Shareholders is contrary to Sungames representations to the SEC. In Sungames S-1 registration statement, filed with the SEC on August 7, 2009 (and declared effective by the SEC on February 16, 2010), Sungame represented publicly that the shares issued to PNYI and the other Shareholders were fully paid for or otherwise supported by consideration. Sungame has also made this representation to the SEC and to the public on numerous other occasions, including but not limited to Sungames 2010 annual 10-K report filed with the SEC, numerous 10-Q quarterly reports filed with the SEC, and audited financial statements for 2008, 2009 and 2010.
21. As a result of Sungames representations to its stock transfer agent, PNYI was unable to place its shares into a brokerage account and, therefore, unable to transfer, sell or negotiate those shares to any third-party.
22. As a result of Sungames representations, the shares now owned by the Shareholders are non-negotiable and non-transferable. Sungame has knowingly clouded title on those shares by instructing its stock transfer agent to chill the shares now held by the Shareholders. Contrary to its repeated representations to FGCM, the SEC, and the public, Sungame has stripped those shares of any real value.
23. PNYI has diligently and in good faith attempted to contact Sungame to request that the Shareholders be permitted to transfer and negotiate their shares through one or more brokerage firms. Sungame has steadfastly refused.
24. Subsequent to the execution of the Release, FGCM changed its name to Broadway. Broadway is the successor in interest to FGCM and to any and all claims FGCM may have against Sungame.
25. PNYI, Global Investment Advisors, LLC, Lafayette 543, LLC, Lorin Cohen and Steven Cohen (collectively, the Plaintiff Shareholders) have each assigned to Broadway that Shareholders right to initiate and maintain any and all suits and civil actions necessary to restore the transferability and negotiability of that Shareholders shares in Sungame.
26. As a direct and proximate consequence of Sungames actions and omissions, the shares owned by the Shareholders are not transferable or negotiable and, accordingly, have been stripped of value. As a further direct and proximate consequence of Sungames actions and omissions, the Shareholders have suffered substantial damages, losses and injuries. As a further direct and proximate consequences of Sungames actions and omissions, Broadway (as the assignee of the Shareholders claims and causes of action) has been required to retain counsel and to incur substantial legal fees in respect of the redress of the damages and injuries suffered by the Shareholders.
First Claim for Relief
(Securities Fraud C.R.S. 11-51-501)
27. Broadway incorporates each of the allegations contained in the foregoing paragraphs of this Verified Complaint as if set forth in full here.
28. In connection with the offer, sale or purchase of ownership shares in Sungame, Sungame knowingly made crucial statements of fact to Broadway and the Plaintiff Shareholders which were untrue at the time the statements were made. At a minimum, Sungame misrepresented that the shares held by the Plaintiff Shareholders would be freely transferable and negotiable subsequent to the execution of the Release.
29. These misrepresentations were made by Sungames corporate officers and directors, namely Guy Robert, Sungames chief executive officer. The misrepresentations were made through written communications as well as verbally during telephonic conversations that occurred during the time period of December 2009 through March 2010.
30. At the time Sungame made these statements of fact, the statements were untrue, and Sungame knew them to be untrue. Sungame intended that Broadway and the Plaintiff Shareholders would rely upon the misrepresentations in considering whether to enter into and execute the Release.
31. Broadway and the Plaintiff Shareholders justifiably relied, to their detriment, upon Sungames misrepresentations. Specifically, Broadway entered into and execute the Release and the Plaintiff Shareholders accepted the Sungame shares falsely believing that those shares would be fully transferable and negotiable.
32. Sungames misrepresentations of fact were made in connection with the sale, purchase and/or transfer of Sungame stock to the Plaintiff Shareholders.
33. As a result of Sungames misrepresentations, Broadway and the Plaintiff Shareholders have incurred substantial damages, losses and injuries.
34. Sungames misrepresentations were attended by circumstances of fraud, recklessness and willful and wanton misconduct within the meaning of C.R.S. 13-21-102.
35. All conditions precedent and subsequent to Broadways right to initiate and maintain this claim on its own behalf, and on behalf of the Plaintiff Shareholders, have been performed, waived or otherwise have occurred.
Second Claim for Relief
(Intentional Misrepresentation)
36. Broadway incorporates each of the allegations contained in the foregoing paragraphs of this Verified Complaint as if set forth in full here.
37. Sungame knowingly and repeatedly made crucial representations of fact to Broadway and the Plaintiff Shareholders that were false at the time the representations were made. At a minimum, Sungame misrepresented that the shares held by the Plaintiff Shareholders would be freely transferable and negotiable subsequent to the execution of the Release.
38. These misrepresentations were made by Sungames corporate officers and directors, namely Guy Robert, Sungames chief executive officer. The misrepresentations were made through written communication as well as verbally during telephonic conversations that occurred between the time period of December 2009 through March 2010.
39. At the time Sungame made these representations of fact, the representations were untrue, and Sungame knew them to be untrue. Sungame intended that Broadway and the Plaintiff Shareholders would rely upon the misrepresentations in considering whether to enter into and execute the Release.
40. Broadway and the Plaintiff Shareholders justifiably relied, to their detriment, upon Sungames misrepresentations. Specifically, Broadway entered into and executed the Release and the Plaintiff Shareholders accepted the Sungame shares falsely believing that those shares would be fully transferable and negotiable.
41. As a direct, proximate and foreseeable result of Sungames intentional misrepresentations, Broadway and the Plaintiff Shareholders have incurred substantial damages, losses and injuries.
42. Sungames intentional misrepresentations were attended by circumstances of fraud, recklessness and willful and wanton misconduct within the meaning of C.R.S. 13-21-102.
43. All conditions precedent and subsequent to Broadways right to initiate and maintain this claim on its own behalf, and on behalf of the Plaintiff Shareholders, have been performed, waived or otherwise have occurred.
Third Claim for Relief
(Negligent Misrepresentation)
44. Broadway incorporates each of the allegations contained in the foregoing paragraphs of this Verified Complaint as if set forth in full here.
45. Sungame made crucial representations of fact to Broadway and the Plaintiff Shareholders that were false at the time the representations were made. At a minimum, Sungame misrepresented that the shares held by the Plaintiff Shareholders would be freely transferable and negotiable subsequent to the execution of the Release.
46. These misrepresentations were made by Sungames corporate officers and directors, namely Guy Robert, Sungames chief executive officer. The misrepresentations were made through written communication as well as verbally during telephonic conversations that occurred during the time period of December 2009 through March 2010.
47. At the time Sungame made these representations of fact, the representations were untrue, and Sungame should have known them to be untrue. Sungame intended that Broadway and the Plaintiff Shareholders would rely upon the misrepresentations in considering whether to enter into and execute the Release.
48. Broadway and the Plaintiff Shareholders, justifiably relied, to their detriment, upon Sungames misrepresentations. Specifically, Broadway entered into and executed the Release and the Plaintiff Shareholders accepted the Sungame shares falsely believing that those shares would be fully transferable and negotiable.
49. As a direct, proximate and foreseeable result of Sungames negligent misrepresentations, Broadway and the Plaintiff Shareholders have incurred substantial damages, losses and injuries.
50. All conditions precedent and subsequent to Broadways right to initiate and maintain this claim on its own behalf, and on behalf of the Plaintiff Shareholders, have been performed, waived or otherwise have occurred.
Fourth Claim for Relief
(Civil Theft C.R.S. 18-4-405)
51. Broadway incorporates each of the allegations contained in the foregoing paragraphs of this Verified Complaint as if set forth in full here.
52. Through its actions, words, conduct and omissions, Sungame knowingly and intentionally took, stole and/or exercised dominion and control over property belonging to the Shareholders.
53. Through its actions, words, conduct and omissions, Sungame deprived the Plaintiff Shareholders of the lawful and proper use, enjoyment and benefit of their property.
54. At the time of its actions, words, conduct and omissions, Sungame did not have authority from any of the Plaintiff Shareholders to exercise control or dominion over any property belonging to the Shareholders.
55. Sungame exercised dominion and control over the Plaintiff Shareholders property, without authorization, intending to keep, use and/or spend that property for Sungames own benefit.
56. As a direct, proximate and foreseeable result of Sungames theft, Broadway and the Plaintiff Shareholders have incurred substantial damages, losses and injuries.
57. Sungames theft was attended by circumstances of fraud, recklessness and willful and wanton misconduct within the meaning of C.R.S. 13-21-102.
58. All conditions precedent and subsequent to Broadways right to initiate and maintain this claim on its own behalf, and on behalf of the Plaintiff Shareholders, have been performed, waived or otherwise have occurred.
Fifth Claim for Relief
(Unjust Enrichment)
59. Broadway incorporates each of the allegations contained in the foregoing paragraphs of this Verified Complaint as if set forth in full here.
60. Broadway conferred a substantial benefit to Sungame, at Sungames request, by providing valuable consulting and advisory services to Sungame.
61. Sungame accepted, realized and retained the benefit provided by Broadway without reasonably compensating Broadway for the benefit Sungame received.
62. It would be unjust, under the prevailing circumstances, to allow Sungame to retain the benefit conferred upon it by Broadway without requiring Sungame to provide reasonable compensation therefor to Broadway.
63. As a result of Sungames refusal and failure to reasonably compensate Broadway, Broadway and the Plaintiff Shareholders have incurred substantial damages, losses and injuries.
64. Sungames refusal and failure to reasonably compensate Broadway was attended by circumstances of fraud, recklessness and willful and wanton misconduct within the meaning of C.R.S. 13-21-102.
65. All conditions precedent and subsequent to Broadways right to initiate and maintain this claim on its own behalf, and on behalf of the Plaintiff Shareholders, have been performed, waived or otherwise have occurred.
Request for Relief
WHEREFORE, Broadway respectfully requests that this Court enter judgment in favor of Broadway, and against Sungame, for the following relief:
A. An award of monetary damages, including actual damages and full compensatory, special, consequential, incidental and non-consequential damages, in an amount to be proven at trial, to fully compensate Broadway and the Shareholders for their damages, losses and injuries;
B. Exemplary damages in the amount of actual damages pursuant to C.R.S. 13-21-102;
C. Exemplary damages in treble the amount of actual damages pursuant to C.R.S. 13-21-102(3)(a);
D. Pre-judgment and post-judgment interest, costs, expert witness fees, attorney fees and costs of suit; and,
E. All other and further relief to which Broadway may be entitled under the prevailing circumstances.
Dated: August 2, 2011 Respectfully submitted,
G.W. MERRICK & ASSOCIATES, LLC
By: /s/ Joseph T. Bernstein
Joseph T. Bernstein
ATTORNEYS FOR PLAINTIFF
Plaintiffs Address:
789 Sherman Street, Suite 550
Denver, Colorado 80203
In accordance with C.R.C.P. 121 1-26(9) a printed copy of this document with original signatures is being maintained by the filing party and will be made available for inspection by other parties or the court upon request.
VERIFICATION
The undersigned declares and states that he has read the foregoing Verified Complaint and that the allegations and other matters set forth therein are true and correct to the best of his knowledge, information and belief.
Jeffrey Friedland
President, Broadway Holdings, Inc. |
