OQ60i9i8 LTD.; AJW QUALIFIED PARTNERS 11, LLC; To the Above Named Defendant: 111, LLC; and AJW MASTER FUND 11, LTD.,

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK AJW PARTNERS, LLC; AJW OFFSHORE, LTD.; AJW QUALIFIED PARTNERS, LLC; NEW MILLENNIUM CAPITAL PARTNERS 11, LLC; AJW MASTER FUND, LTD.; AJW PARTNERS 11, LLC; AJW OFFSHORE 11, LTD.; AJW QUALIFIED PARTNERS 11, LLC; NEW MILLENNIUM CAPITAL PARTNERS 111, LLC; and AJW MASTER FUND 11, LTD., Plaintiffs, Index No.: Purchase Date: SUMMONS OQ60i9i8 Plaintiffs designate New York County as the place of trial. The bases of venue are CPLR $0 501 and against- INGEN TECHNOLOGIES, INC., Defendant. To the Above Named Defendant: YOU ARE HEWBY SUMMONED and required to serve upon plaintiffs attorneys an answer to plaintiffs complaint in this action within twenty (20) days after the service of this summons, exclusive of the day of sewice (or within thirty (30) days after the service is complete if this summons is not personally delivered to you within the State of New York), and in the case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. br, Supreme Court Records OnLine Library - page 1 of 15

2 Dated: New York, New York June 19,2009 OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP By: Thomas J. Fleming Herbert C. Ross Attorneys for Plaintifs Park Avenue Tower 65 East 55th Street New York, New York Supreme Court Records OnLine Library - page 2 of 15

3 , - SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORJS AJW PARTNERS,&LC; AJW OFFSHORE, LTD.; AJW QUALIFIED PARTNERS, LLC; NEW MILLENNIUM CAPITAL PARTNERS 11, LLC; AJW MASTER FUND, LTD.; AJW PARTNERS 11, LLC; AJW OFFSHORE 11, LTD.; AJW QUALIFIED PARTNERS 11, LLC; NEW MILLENNIUM CAPITAL PARTNERS 111, LLC; and AJW MASTER FUND 11, LTD., Index No. COMPLAINT Plaintiffs, -against- INGEN TECHNOLOGIES, INC., Defendant. Plaintiffs, by their attorneys, Olshan Grundman Frome Rosenzweig & Wolosky LLP, for their Complaint, allege: The Parties 1, Plaintiff AJW Partners, LLC ( AJW Partners or AJW ) is a limited liability company organized under the laws of the State of Delaware, with its principal office in Roslyn, New York. 2. Plaintiff AJW Offshore, Ltd. ( AJW Offshore or AJWO ) is a corporation organized under the laws of the Cayman Islands, which is managed from Roslyn, New York. 3. Plaintiff AJW Qualified Partners, LLC ( AJW Qualified or AJWQP ) is a hv-? limited liability company organized under the laws of New York, with its principal office in Roslyn, New York Supreme Court Records OnLine Library - page 3 of 15

4 4. Plaintiff New Millennium Capital Partners 11, LLC ( New Millennium or NMCP ) is a limited liability company organized under the laws of the State of New York, with its principal office in Roslyn, New York. 5. Plaintiff AJW Master Fund, Ltd. ( AJW MF ) is a corporation organized under the laws of the Cayman Islands, which is managed from Roslyn, New York. 6. Plaintiff AJW Partners 11, LLC ( AJW Partners 11 or AJWP II ) is a limited liability company organized under the laws of the State of Delaware, with its principal office in Roslyn, New York. 7. Plaintiff AJW Offshore 11, Ltd. ( AJW Offshore 11 ) is a corporation organized under the laws of the Cayman Islands, which is managed from Roslyn, New York. 8. AJW Qualified Partners 11, LLC ( AJW Qualified 11 or AJWQPII ) is a limited liability company organized under the laws of New York, with its principal office in Roslyn, New York. 9. Plaintiff New Millennium Capital Partners 111, LLC ( New Millennium 111 or NMCP 111 ) is a limited liability company organized under the laws of the State of New York, with its principal office in Roslyn, New York. 10, Plaintiff AJW Master Fund 11, Ltd. ( AJW MF 11 ) is a corporation organized under the laws of the Cayman Islands, which is managed from Roslyn, New York. 11. Defendant Ingen Technologies, Inc. ( Ingen or Defendant ) is a corporation organized under the laws of the State of Georgia, with its principal place of business in Yucaipa, California. Ingenls common stock was registered with the United States Securities and Exchange Commission (the SEC ), but Ingen terminated such registration by filing a Form Supreme Court Records OnLine Library - page 4 of 15

5 with the SEC on December 4,2008. Ingen s shares are publicly traded under the symbol IGNT.PK Jurisdiction and Venue 12. Ingen has consented to be sued in this County. Ingen also has had sufficient contacts for such jurisdiction, from which contacts the claims asserted herein kse. The June 2008 Securities Purchase Agreement 13. On June 16,2008, plaintiffs AJWP, NMCP, and AJMF entered into a Securities Purchase Agreement (the June 2008 SPA ) and related agreements with Ingen. Pursuant to the June 2008 SPA, as amended, those plaintiffs purchased certain Callable Secured Convertible Notes (the Notes ) from Ingen in the aggregate principal amount of $300,000, among other securities. 14. A key provision in the June 2008 SPA assured plaintiffs that Ingen would not engage in any future financings without notice to, or consent from, plaintiffs. Section 4(E) of the SPA provides in pertinent part: E. FUTURlE OFFERINGS. Subject to the exceptions described below, the Company will not, without the prior written consent of a majority-in-interest of the Buyers, not to be unreasonably withheld, negotiate or contract with any party to obtain additional equity financing (including debt financing with an equity component) that involves (A) the issuance of Common Stock at a discount to the market price of the Common Stock on the date of issuance (taking into account the value of any warrants or options to acquire Common Stock issued in connection therewith) or (B) the issuance of convertible securities that are convertible into an indeterminate number of shares of Common Stock,,.. In addition, subject to the exceptions described below, the Company will not conduct any equity financing (including debt with an equity component) ( FUTURE OFFERINGS ) during the period beginning on the Closing Date and ending two (2) years after the end of the Lock-up Period unless it shall have first delivered to each Buyer, at least twenty (20) business days prior to the closing of such Future Offering, written notice describing the proposed Future Offering, including the terms and conditions thereof and proposed definitive documentation to be entered into in connection Supreme Court Records OnLine Library - page 5 of 15

6 I, therewith, and providing each Buyer an option during the fifteen (1 5) day period following delivery of such notice to purchase its pro rata share (based on the ratio that the aggregate principal amount of Notes purchased by it hereunder bears to the aggregate principal amount of Notes purchased hereunder) of the securities being offered in the Future Offering on the same terms as contemplated by such Future Offering (the limitations referred to in this sentence and the preceding sentence are collectively referred to as the CAPITAL RAISING LIMITATIONS ) These protections were and are vital to plaintiffs, who had previously loaned, along with their affiliates, in excess of $2 million to Ingen. 16. Plaintiffs have learned that Ingen is currently conducting equity financings in violation of Section 4(E) of the June 2008 SPA. According to Ingen s SEC filings, it conducted offerings of common stock on April 16 and April 28,2009. Ingen failed, however, to give plaintiffs written notice of these financings, depriving them of their right of first refusal. Because no notice was given, and these offerings are being made under a questionable exemption from registration, plaintiffs believe that Ingen is selling securities below market. 17. These sales will likely continue, since Ingen is cash starved and, as set forth below, is blocking plaintiffs from receiving shares pursuant to their Notes. The Original Securities Purchase Agreement and the Notes Issued to Plaintiffs 18. The June 2008 SPA was one of several offerings of Notes by Ingen to plaintiffs. On July 25,2006, Ingen first entered into a Securities Purchase Agreement with plaintiffs, under which it agreed to issue, for good and valuable consideration, Notes. Pursuant to this offering, plaintiffs purchased Notes in the aggregate principal amount of $1,500,000. All of these Notes are in substantially similar form as those under the June 2008 SPA. 19. At this time, plaintiffs also entered into a Security Agreement, Intellectual Property Security Agreement, and other agreements with Ingen Supreme Court Records OnLine Library - page 6 of 15

7 20. On March 15,2007, plaintiffs AJWP, AJWQP, AJWO, and NMCP entered into another Securities Purchase Agreement and related agreements with Ingen, pursuant to which they purchased Notes in the aggregate principal amount of $450,000 from Ingen. 21. On July 30,2007, under the same terms as Ingen issued the Notes referred to in paragraph 20 herein, Ingen issued to plaintiffs AJWP, NMCP, AJW MF, and AJW MF I1 a callable secured convertible note in the principal amount of $1 10,000 in consideration of their payment of that amount to Ingen. 22. In lieu of paying, in cash, interest accrued through November 30,2007 on those of the Notes, which were issued prior to December 1,2007, Ingen issued on or about January three additional Notes to plaintiffs AJWP, NMCP, and AJW MF in the aggregate principal amount of $132, Additionally, Ingen owed, as of June 15,2009, and still owes to plaintiffs over $354,000 in interest which has accrued on the Notes after December 31,2007. The Security Agreements 23. Pursuant to the Security Agreements and Intellectual Property Security Agreements, Ingen granted plaintiffs a first priority security interest in all of Ingen s goods, inventory, contract rights, general intangibles, patents, trademarks, copyrights, receivables, and documents. The Security Agreements and Intellectual Property Security Agreements provide that if an Event of Default under the Notes occurs, plaintiffs shall have all rights available under the Uniform Commercial Code, plus the right to immediate possession of the collateral and the right to operate Ingen s business using the collateral. 24. Plaintiffs duly perfected their security interests under the Security Agreements and Intellectual Property Security Agreements in connection with each of the transactions Supreme Court Records OnLine Library - page 7 of 15

8 .. Assiments 25. Plaintiffs AJWP, AJWQP, AJWO, NMCP, AJWMF have assigned certain of their rights under the Notes, Securities Purchase Agreements, Security Agreements, and related agreements to plaintiffs AJWP 11, AJW Offshore 11, AJW Qualified n, NMCP III, and AJMF 11. Default of the Notes 26. Each of the Notes is convertible into Ingen common stock at plaintiffs election. Section 3.2 of the Notes defines as an Event of Default, inter alia, hgen s failure to honor its obligations regarding plaintiffs conversion rights under the Notes and its failure to retract any threat to not honor such obligations, after ten days notice to cure. 27. On May 29, June 8, June 10, and June 11,2009, plaintiffs submitted conversion notices to convert some of the debt owed to them under the Notes to shares of Ingen s common stock, which Ingen did not honor. On June 3, 2009, plaintiffs provided Notice of Default to Ingen under Section 3.2 of the Notes. Ingen has failed to cure its default regarding plaintiffs conversion rights and has indicated that it will not honor future conversions. 28. Pursuant to Section 3.10 of the Notes, upon an Event of Default under any Note, an Event of Default occurs under every other Note. 29. As a result of the foregoing defaults, plaintiffs have exercised their rights under the Notes to accelerate and demand payment in full of the Default Sum or Default Amount, as defined in Section 3.10 of the Notes, plus appropriate interest and penalties. Attorneys Fees 30, In addition to the foregoing, upon a default of the Notes or breach of the Securities Purchase Agreements, plaintiffs are entitled to their costs of collection, including an award of attorneys fees, pursuant to Section 4.5 of the Notes and Section 8(a) of the Securities Purchase Agreements Supreme Court Records OnLine Library - page 8 of 15

9 First Claim for Relief (Specific Performance/ Preliminary and Permanent Injunction) 3 1, Plaintiffs restate the allegations in paragraphs 1 through Based upon the foregoing, Ingen has breached its covenants and contractual obligations to plaintiffs under the June 2008 SPA by offering shares in violation of Section 4(E). 33. Plaintiffs have fully performed their obligations under the June 2008 SPA. 34. Plaintiffs are therefore entitled to an order directing Ingen to comply with Section 4(E) and enjoining any offering by Ingen that does not comply with Section 4(E). 35, Plaintiffs have no adequate remedy at law. 36. Plaintiffs will suffer irreparable harm without the aforesaid order. Second Claim for Relief 37. Plaintiffs restate the allegations in paragraphs 1 through Based upon the foregoing, Ingen has breached its obligations to AJW Partners under the Notes, As a direct, approximate and foreseeable result of Ingen s breach, AJW Partners is entitled to recover from Ingen an amount to be determined at trial, representing the Default Sum or Default Amount as defined in Section 3.10 of the Notes, plus all interest and Third Claim for Relief 39. Plaintiffs restate the allegations in paragraphs 1 through Based upon the foregoing, Ingen has breached its obligations to AJW Offshore under the Notes. As a direct, approximate and foreseeable result of Ingen s breach, AJW Offshore is entitled to recover from Ingen an amount to be determined at trial, representing the Supreme Court Records OnLine Library - page 9 of 15

10 Default Sum or Default Amount as defined in Section 3.10 of the Notes, plus all interest and Fourth Claim for Relief 41. Plaintiffs restate the allegations in paragraphs 1 through Based upon the foregoing, Ingen has breached its obligations to AJW Qualified under the Notes. As a direct, approximate and foreseeable result of Ingen s breach, AJW Qualified is entitled to recover fkom hgen an amount to be determined at trial, representing the Default Sum or Default Amount as defined in Section 3.10 of the Notes, plus all interest and FiRh Claim for Relief Plaintiffs restate the allegations in paragraphs 1 through 30. Based upon the foregoing, Ingen has breached its obligations to New Millennium under the Notes, As a direct, approximate and foreseeable result of Ingen s breach, New Millennium is entitled to recover from Ingen an amount to be determined at trial, representing the Default Sum or Default Amount as defined in Section 3.10 of the Notes, plus all interest and Sixth Claim for Relief 45. Plaintiffs restate the allegations in paragraphs 1 through Based upon the foregoing, Ingen has breached its obligations to AJW Master Fund under the Notes. As a direct, approximate and foreseeable result of Ingen s breach, AJW Master Fund is entitled to recover from Ingen an amount to be determined at trial, representing Supreme Court Records OnLine Library - page 10 of 15

11 *. -. the Default Sum or Default Amount as defined in Section 3.10 of the Notes, plus all interest and Seventh Claim for Relief 47. Plaintiffs restate the allegations in paragraphs 1 through Based upon the foregoing, Ingen has breached its obligations to AJW Partners I1 under the Notes. As a direct, approximate and foreseeable result of Ingen s breach, AJW Partners I1 is entitled to recover from Ingen an amount to be determined at trial, representing the Default Sum or Default Amount as defined in Section 3.10 of the Notes, plus all interest and Eighth Claim for Relief 49. Plaintiffs restate the allegations in paragraphs 1 through Based upon the foregoing, Ingen has breached its obligations to AJW Offshore I1 under the Notes. As a direct, approximate and foreseeable result of Ingen s breach, AJW Offshore I1 is entitled to recover from Ingen an amount to be determined at trial, representing the Default Sum or Default Amount as defined in Section 3.10 of the Notes, plus all interest and Ninth Claim for Relief 5 1. Plaintiffs restate the allegations in paragraphs 1 through Based upon the foregoing, Ingen has breached its obligations to AJW Qualified 11 under the Notes. As a direct, approximate and foreseeable result of Ingen s breach, AJW Qualified I1 is entitled to recover from Ingen an amount to be determined at trial, representing Supreme Court Records OnLine Library - page 11 of 15

12 I-.. * the Default Sum or Default Amount as defined in Section 3.10 of the Notes, plus all interest and Tenth Claim for Relief 53. Plaintiffs restate the allegations in paragraphs 1 through Based upon the foregoing, Ingen has breached its obligations to New Millennium I11 under the Notes. As a direct, approximate and foreseeable result of Ingen s breach, New Millennium I11 is entitled to recover from Ingen an amount to be determined at trial, representing the Default Sum or Default Amount as defined in Section 3.10 of the Notes, plus all interest and Eleventh Claim for Relief 55. Plaintiffs restate the allegations in paragraphs 1 through Based upon the foregoing, Ingen has breached its obligations to AJW Master Fund I1 under the Notes. As a direct, approximate and foreseeable result of Ingen s breach, AJW I I I Master Fund I1 is entitled to recover fiom Ingen an amount to be determined at trial, representing the Default Sum or Default Amount as defined in Section 3.10 of the Notes, plus all interest and Twelfkh Claim for Relief (Marshalling of Assets) 57. Plaintiffs restate the allegations in paragraphs 1 through Based upon the foregoing, plaintiffs are entitled to an Order directing Ingen to marshal, in preparation for foreclosure, all of its assets in which Plaintiffs have a security interest under the Security Ajgeements and Intellectual Property Security Agreements, and deliver promptly to plaintiffs a list of those assets and their locations Supreme Court Records OnLine Library - page 12 of 15

13 59. Plaintiffs have no adequate remedy at law. WHEREFORE, plaintiffs pray that judgment be entered against Defendant: A. Awarding plaintiffs all sums due under the Notes, plus prejudgment interest, attorneys fees, costs and disbursements, in an amount to be determined at trial but believed to be in excess of $2,500,000. B. Ordering that Ingen, in preparation for foreclosure, marshal all of the assets in which plaintiffs have a security interest under the Security Agreements and Intellectual Property Security Agreements, and deliver promptly to plaintiffs a list of those assets and their location. C. Preliminarily and permanently enjoining Ingen from: (1) negotiating or contracting for any equity financing which includes (a) the issuance of shares of Defendant s common stock at a discount to its market price on the date of issuance or (b) the issuance of convertible securities that are convertible into an indeterminate number of shares of Defendant s common stock without first securing the written consent of the majority-in-interest of plaintiffs; and (2) conducting any equity financing (including debt with an equity component), during the period extending two years and 180 days after the Closing Date under the June Supreme Court Records OnLine Library - page 13 of 15

14 SPA, Without (i) delivering to plaintiffs at least twenty (20) business days' prior written notice describing the financing, including its terms and conditions and the proposed definitive documentation to be entered into in connection with the financing, and (ii) providing each of plaintiffs an option, during the fifteen days following delivery of such notice, to purchase its pro rata share of the securities being offered in the future financing on the same terms as contemplated by such future financing. D. Granting such other and further relief as the Court deems just and proper. Dated: New, York, New York June 19,2009 OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP Thomas J. Fleming Herbert C. Ross Attorneys for Park Avenue Tower 65 East 5Sth Street New York, New York (212) Supreme Court Records OnLine Library - page 14 of 15

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