FILED: NEW YORK COUNTY CLERK 03/11/2013 INDEX NO. 650841/2013 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/11/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK GEM HOLDCO, LLC, -against- Plaintiff, Index No. 650841/2013 CHANGING WORLD TECHNOLOGIES, L.P., CWT CANADA II LIMITED PARTNERSHIP, and RESOURCE RECOVERY CORPORATON. Defendants. MEMORANDUM OF LAW OF PLAINTIFF GEM HOLDCO, LLC IN SUPPORT OF MOTION FOR PRELIMARY INJUNCTION AND TEMPORARY RESTRAINING ORDER March 11, 2013 VENTURINI & ASSOCIATES 230 Park Avenue, Suite 545 New York, NY 10169 Tel: (212) 826-6800 Attorneys for Plaintiff GEM Holdco, LLC
TABLE OF CONTENTS PRELIMINARY STATEMENT... 1 FACTS... 1 ARGUMENT... 2 I. GEM IS LIKELY TO SUCCEED ON THE MERITS... 3 A. TORTIOUS INTERFERENCE WITH CONTRACT AND TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS... 3 B. FRAUD AND FRAUDULENT INDUCEMENT... 5 C. MANDATORY INJUNCTION... 6 D. BREACH OF CONTRACT... 7 II. GEM WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF A PRELIMINARY INJUNCTION... 8 III. THE EQUITIES CLEARLY BALANCE IN FAVOR OF GEM... 10 CONCLUSION... 11
PRELIMINARY STATEMENT Plaintiff GEM Holdco, LLC ( GEM or Plaintiff ) respectfully submits this memorandum of law in support of its motion for a temporary restraining order and preliminary injunction (1) enjoining and restraining defendants Changing World Technologies, L.P. ( CWT ), CWT Canada II Limited Partnership ( CWT Canada ), and Resource Recovery Corporation ( Resource ) (together with CWT and CWT Canada, Defendants ) from taking any further action regarding the Proposed Financing noticed via a Memorandum, dated March 7, 2013, (the Proposed Financing ) and from offering to sell, selling, or issuing any securities or ownership interest in CWT; (2) enjoining and restraining CWT Canada and Resource from offering to sell, selling, agreeing to sell, or issuing either of their ownership interest in CWT; (3) enjoining and restraining Defendants from selling any ownership interest in CWT to Ridgeline Energy Service Inc., a publicly traded company in Canada ( Ridgeline ); (4) directing Defendants to undo CWT s purported replacement of RES Management, Inc. as the General Partner of CWT, and reinstating RES Management, Inc. as the General Partner of CWT; and (5) voiding any sale of partnership interest in CWT made after CWT purportedly removed RES Management, Inc. as the General Partner of CWT. FACTS For purposes of efficiency, the relevant facts are set forth in the Affidavit of Edward Tobin, sworn to March 11, 2013 and the Emergency Affirmation of August C. Venturini, Esq. submitted in support of Plaintiff s Motion for Preliminary Injunction and Temporary Restraining Order. Such facts are incorporated herein by reference. 1
ARGUMENT Defendants have drastically changed the terms under which GEM began investing in CWT. Desperate for cash and with no other investors willing to provide financing, defendants agreed to give GEM a 60% ownership interest in CWT plus management control over CWT s operations by giving management control over CWT s newly formed general partner in exchange for funding. In the middle of GEM s funding, and in violation of the agreements between the parties, defendants (1) have removed the general partner and replaced it with an entity they control, (2) have made an offer of CWT s interest that would dilute GEM down from 60% to an insignificant minority, and (3) on March 11, 2013 announced that defendants agreed to sell all of CWT to the company that GEM brought in to manage CWT. Only a temporary restraining order and preliminary injunction can preserve the status quo and prevent further irreparable harm from inuring to GEM pending the outcome of this litigation. A preliminary injunction should be granted where the movant shows (1) the likelihood of success on the merits, (2) the possibility of irreparable injury in the absence of a preliminary injunction, and (3) the balance of the equities in its favor. Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860,862, 552 N.Y.S.2d 918 (1990); Joseph v. Solow Building Co., L.L.C., 284 A.D.2d 214, 214, 726 N.Y.S.2d 642,642 (1st Dep t 2001). 1 Here, GEM satisfies each of these elements. 1 CPLR 6301 provides: A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff s rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendants from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff. 2
I. GEM IS LIKELY TO SUCCEED ON THE MERITS As to the likelihood of success on the merits, a prima facie showing of a right to relief is sufficient; actual proof of the case should be left to further court proceedings. McLaughlin v. W.J. Nolan & Co., 14 A.D.2d 165, 172-73, 498 N.Y.S.2d 146, 152 (2d Dep t 1986). Here, Plaintiff has asserted causes of action for tortious interference with contract and tortious interference with business relations, fraudulent inducement, fraud, mandatory injunction, and breach of contract. As discussed below, GEM is likely to succeed on each of these causes of action and can make a prima facie showing of right to relief. A. Tortious Interference With Contract and Tortious Interference With Business Relations The elements of a tortious interference with contract claim are well established the existence of a valid contract, the tortfeasor's knowledge of the contract and intentional interference with it, the resulting breach and damages. Hoag v. Chancellor, Inc., 246 A.D.2d 224, 677 N.Y.S.2d 531 (1st Dep t 1998). 2 GEM is likely to succeed on this cause of action as it is able to prove each of the required elements. First, on February 27, 2013, Gem Group and GEM s parent, GEM Global Yield Fund Limited ( GEM Global ) entered into a Letter of Intent ( LOI ) agreeing to the principal terms of a sale of GEM s 60% share capital in CWT to Ridgeline for $15 Million payable in Ridgeline s stock (the Sale ). (ET Aff. 39) 3 The LOI created contractual obligations for both 2 New York law will apply to the cause of action for tortious interference of contract and tortious interference with business relations as the situs of the injury is in the State of New York. 3 Plaintiff s Motion for Preliminary Injunction and Temporary Restraining Order is supported by and will be referenced as follows: Affidavit of Edward J. Tobin, dated March 11, 2013 ( ET Aff. ). The 3
GEM and Ridgeline. (Ex. G). Second, Defendants were aware of the LOI. (Ex. D; Ex. E, 11(c); ET Aff. 38-40). Indeed, Ridgeline publicly announced that it was engaged to manage CWT s subsidiary s operations in Carthage, MO and that such position also allowed Ridgeline to obtain knowledge as part of its due diligence in assessing and negotiating a potential acquisition. (ET Aff. 38). Defendants intentionally interfered with the LOI by attempting to oust RES Management 4 as the General Partner of CWT and offering to sell ownership interest in CWT to further dilute GEM s control. (Exs. H and I; ET Aff. 40-41). Finally, after learning about the actions taken by defendants CWT Canada and Resource to purportedly remove RES Management as the General Partner of CWT and Defendants offering to sell securities which would dilute GEM s interest in CWT, Ridgeline informed GEM that it now does not want to proceed with its obligations under the LOI to purchase GEM s ownership and management interest in CWT. (ET Aff. 44). Such breach of the LOI is resulting in clear damages to GEM. (Ex. G). Moreover, Defendants also tortiously interfered with GEM s business relations with Ridgeline. To establish a claim for tortious interference with prospective business relations under New York law, a plaintiff must demonstrate that: it had a business relationship with a third party; the defendant knew of that relationship and intentionally interfered with it; the defendant acted solely out of malice, or used dishonest, unfair, or improper means; and the defendant's complaint in this action is attached to ET Aff. as Ex. 1. Any numbers or letters preceded by Ex. or Exs. refer to the Exhibits attached to the complaint in this action. 4 Any capitalized terms used herein and not otherwise defined have the same meaning ascribed to them as in the ET Aff. RES Management was formed by Defendants and GEM has stock and control of the 4
interference caused injury to the relationship. Software AG Inc. v. Consist Software Solutions, Inc., 2008 WL 563449 (S.D.N.Y. 2008). GEM had a business relationship with Ridgeline, and Defendants knew that GEM was going to sell its controlling 60% stake in CWT to Ridgeline. (Ex. D; Ex. B, p.9, 3.1(h); Ex. C, 2.2). Defendants intentionally interfered with GEM s business relationship with Ridgeline, and Defendants acted solely out of malice and used dishonest, unfair, and improper means, going as far as breaching its obligations under various contracts. (Ex. B, 2.1; Ex. C p.1 Whereas clause, 1.1, and 2.2; Ex. E, Art. IV). Accordingly, GEM is likely to succeed on the merits. B. Fraud and Fraudulent Inducement The elements required to be set forth in a viable fraud action are well established. In order to recover for fraud, plaintiffs must show a representation of material fact, the falsity of that representation, knowledge by the party who made the representation that it was false when made, justifiable reliance by the plaintiff, and resulting injury. Pope v. Saget, 29 A.D.3d 437, 817 N.Y.S.2d 1 (1st Dep t 2006). 5 GEM is likely to succeed on the merits of its cause of action for fraud and fraudulent inducement. GEM agreed to provide financing for CWT based on the misrepresentations of Defendants that GEM would receive a 60% ownership interest in CWT once it invested the full $4 Million. (Ex. B, 2.1). Defendants also misrepresented GEM s control over CWT through its control of the board of directors of RES Management. (Ex. C 1.1). Defendants used such misrepresentations to induce GEM to sign various contracts whereby GEM agreed to invest a Board of Directors as GEM has a right to elect three out of five directors. ET Aff. 5-6. 5 New York law will apply to the cause of action for fraud and fraudulent inducement as the injury of the 5
minimum of $2.5 Million. (Ex. B 3.2(a)). GEM justifiably relied on Defendants various assurances that it would be able to obtain the full 60% ownership interest once it invested $4 Million. By purporting to remove all of GEM s management control, Defendants have effectively diluted GEM s interest, destroyed GEM s reasons for agreeing to make the investment and caused GEM to suffer damages as a result. C. Mandatory Injunction While ordinarily the function of a preliminary injunction is to preserve the status quo until a final determination upon the merits can be made, [t]here is no question that in a proper case the Supreme Court has power as a court of equity to grant a temporary injunction which mandates specific conduct... CanWest Global Commc n Copr. v. Mirkai Tikshoret Ltd., 9 Misc.3d 845, 804 N.Y.S.2d 549 (2005)(citing McCain v. Koch, 70 N.Y.2d 109, 116, 517 N.Y.S.2d 918, 920, 511 N.E.2d 62 (1987). Here, GEM seeks a mandatory injunction (1) directing Defendants to undo the unauthorized removal of RES Management as general partner of CWT, and (2) voiding the unauthorized sale of any partnership interest in CWT sold after the removal of RES Management as general partner of CWT. Regarding the first demand for mandatory injunction, the removal of RES Management was improper as it is contrary to the terms of the various agreements signed by the parties. (Ex. B, 2.1; Ex. C p.1 Whereas clause, 1.1, and 2.2; Ex. E, Art. IV). Further, the Securities Purchase Agreement defines General Partner as RES Management. (Ex. B, p.2). The second demand for mandatory injunction also seeks to undo another unauthorized act, the sale of any partnership interest without GEM s approval. Pursuant to both the Purchase fraud occurred in New York. 6
Agreement and the Limited Partnership Agreement, GEM has minority holder protections, including approval rights over transactions regarding partnership interest. (Ex. B, p.9, 3.1(g); Ex. E, Art. VI(11)). Moreover, GEM invested with the agreement that GEM controlled the general partner. Only the general partner can issue and sell partnership interests in CWT. (Ex. E Art IV 3). Thus, GEM invested in CWT with the understanding that it alone would determine if further partnership interests were offered or sold. By this motion, GEM seeks to return to the point prior to Defendants breach of the contracts. A heightened standard applies to the issuance of mandatory injunctions as opposed to prohibitory injunctions, yet GEM can show its likelihood of success on the merits, the irreparable harm it will suffer, and that the equities tip in its favor as it is merely seeking proper performance of multiple agreements signed by defendants. D. Breach of Contract Under Delaware law, the elements of a breach of contract claim are: 1) a contractual obligation; 2) a breach of that obligation by the defendant; and 3) a resulting damage to the plaintiff. H-M Wexford LLC v. Encorp, Inc., 832 A.2d 129, Ct. of Chancery of Delaware (2003). 6 GEM has shown a likelihood of success on this cause of action and Defendants breach of the contracts can cause irreparable harm to GEM. GEM has been performing all of its obligations under the Limited Partnership Agreement, the Stockholders Agreement, and the Purchase Agreement. Defendants CWT Canada and Resource have breached both the Limited 6 The Limited Partnership Agreement, Stockholders Agreement, and Purchase Agreement each contains a provision stating that each such agreement will be interpreted in accordance with the laws of the State of 7
Partnership Agreement and the Stockholders Agreement, both of which state that RES Management will manage CWT, by improperly removing RES Management as the General Partner of CWT and offering to sell ownership interest in CWT that would dilute GEM s ownership interest in the company. (ET Aff. 40-42; Ex. C p.1 Whereas clause, 1.1, and 2.2; Ex. E, Art. IV). CWT breached the Purchase Agreement, which states that RES Management is the general partner of CWT, by intentionally removing RES Management without cause and attempting to dilute GEM s interest in CWT. (Ex. B, p.2) GEM has been damaged by Defendants breach in that GEM is not receiving what it bargained for under the agreements and has lost a business deal with Ridgeline. II. GEM WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF A PRELIMINARY INJUNCTION If the injunctions are not granted, GEM will be unable to manage CWT and Defendants will continue to dilute GEM s interest in CWT. Since learning that GEM agreed to sell its ownership and management interest in CWT to Ridgeline, Defendants purportedly removed RES Management as General Partner and made an unauthorized offering to sell partnership interest in CWT. On March 11, 2013, Ridgeline announced that it had agreed to purchase all of CWT s ownership for $35 Million in stock and debt. GEM has been harmed by Defendants blatant scheme and will continue to suffer irreparable harm if the injunctions are not granted. Time is of the essence as GEM only has until April 30, 2013 to complete its purchase of the 60% ownership and the sale to Ridgeline could be completed imminently. Accordingly, the injunctions are needed to allow GEM to exercise its Delaware. (Ex. E, Art. XV(5); Ex. C, 4.11; Ex. B, 5.9). 8
rights under the Purchase Agreement. Irreparable injury in [the preliminary injunction] context means any injury for which money damages are insufficient. Klein, Wagner & Morris v. Lawrence A. Klien, P.C., 186 A.D.2d 631, 633 (2d Dep t 1992). Here, GEM would not be made whole with money damages. Indeed, the parties recognize their performance under the various agreements between the parties is unique and monetary damages do not provide sufficient relief. For instance, in the Purchase Agreement, the parties agreed as follows: In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchaser and the LP will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby agree to waive and not to assert in any action for specific performance of any such obligation the defense that a remedy at law would be adequate. (Ex. B, 5.14)(emphasis added). Further, in the Stockholder s Agreement, the parties agreed that: The rights of the parties under this Agreement are unique and, accordingly, the parties shall, in addition to such other remedies as may be available to any of them at law or in equity, have the right to enforce their rights hereunder by actions for specific performance to the extent permitted by law. (Ex. C, 4.2). Accordingly, Defendants are prohibited from arguing that GEM will not suffer irreparable harm, as Defendants concede that the rights of the parties under both the Stockholder s Agreement and the Purchase Agreement are unique and money damages would be insufficient. Moreover, GEM s loss of right to participate in the management of CWT by removing RES Management as the General Partner in and of itself constitutes irreparable harm. See 9
CanWest, 9 Misc. at 872 (finding irreparable harm where plaintiff lost right to participate in management; see also Wisdom Import Sales Co. v. Labatt Brewing Co., 339 F.3d 101 (2d Cir. 2003) (holding same). GEM relied on its ability to manage CWT in agreeing to finance CWT as it wanted to ensure its money was used properly. Indeed, pursuant to the Purchase Agreement, restrictions are placed on the use of proceeds provided by GEM. (Ex. B at 4.2). If the injunctions are not granted, GEM will be unable to manage CWT and the use of its money. Inasmuch as CWT s predecessor company emerged from a Chapter 11 bankruptcy in 2010 only to have CWT in dire financial trouble again at the end of 2012, GEM has legitimate concerns regarding Defendants ability to manage CWT without its oversight. Further, GEM will be irreparably harmed if Defendants are not enjoined and restrained from taking further steps to dilute GEM s ownership interest in and management of CWT and ordered to undo any unauthorized acts Defendants have committed as GEM will be unable to mend its business relationship and agreement with Ridgeline. GEM s sale of its interest in CWT to Ridgeline is jeopardized by Defendants attempt to oust GEM. If GEM is unable to complete the sale to Ridgeline, it will be irreparably harmed as monetary damages will not constitute sufficient relief. III. THE EQUITIES CLEARLY BALANCE IN FAVOR OF GEM [B]alancing of the equities usually simply requires the court to look to the relative prejudice to each party accruing from a grant or a denial of the requested relief. Ma v. Lien, 198 A.D.2d 186, 186-87, 604 N.Y.S.2d 84, 85 (1st Dep t 1993), leave to appeal dismissed, 83 N.Y.2d 847, 612 N.Y.S.2d 110 (1994). A motion for a preliminary injunction may only be granted if the harm the movant would suffer absent the injunction is greater than the harm to be 10
imposed upon the opponent by the injunction. City of New York v. Andrews, 186 Misc.2d 533, 543, 719 N.Y.S.2d 442, 450 (S.Ct. Queens Cty. 2000) (citing Fischer v. Deitsch, 168 A.D.2d 599, 563 N.Y.S.2d 836 (2d Dept. 1990)). Here, the balance of the equities heavily tips in plaintiff s favor. First, there can be no harm to Defendants. GEM merely requests that Defendants stop any further action which is in breach of the contracts between the parties. GEM seeks only to preserve the status quo until this action is finally decided. The harm to GEM if the injunctions are not granted overwhelmingly outweighs whatever minimal harm may come to Defendants if this application is granted. CONCLUSION Based upon the foregoing, it is respectfully requested that the Court grant Plaintiff s Motion for a Temporary Restraining Order and Preliminary Injunction, and award such other and further relief as this Court deems just and proper. Dated: March 11, 2013 New York, NY On the Brief: Valerie L. Hooker, Esq. VENTURINI & ASSOCIATES By: /S/ August C. Venturini August C. Venturini 230 Park Avenue, Suite 545 New York, NY 10169 Tel: (212) 826-6800 Attorneys for Plaintiff GEM Holdco, LLC 11