STATE OF FLORIDA OFFICE OF THE ATTORNEY GENERAL DEPARTMENT OF LEGAL AFFAIRS ECONOMIC CRIMES SUBPOENA DUCES TECUM WITHOUT APPEARANCE IN THE INVESTIGATION OF: POWDERZ MEDICAL APOTHECARY POWDERZ, INC TOXIN RESEARCH INTERNATIONAL Z SPA, INC. CHAD LIVDAHL TO: POWDERZ, INC. 3975 S. Evans Blvd. #101 Tucson, AZ 85714 YOU ARE HEREBY COMMANDED to produce to Senior Assistant Attorney Rafael S. Garcia, Economic Crimes Division, South Florida Region, Florida Department of Legal Affairs, on or before Monday, December 27, 2004, at the Office of the Attorney General, Department of Legal th Affairs, Economic Crimes Division 110 S. E. 6th Street, 9 Floor Ft. Lauderdale, FL 33301, then and there, documents and information deemed necessary in connection with the enforcement of Section 501 Part II, et seq. Florida Statutes. DEFINITIONS AND INSTRUCTIONS Unless otherwise defined in this Subpoena, the following terms shall have these meanings: 1. "YOU" or "YOUR" means the organization and/or individual to whom this Subpoena is addressed and includes any merged or acquired predecessors, successors, divisions, parents, subsidiaries, representatives, affiliates, and any other organization in which you have a management
or controlling interest. The term "YOU" or "YOUR" also includes present and former directors, officers, employees, custodians of record and agents of the organization to whom this Subpoena is addressed. 2. The term "document" is intended to be comprehensive and to include, without limitation, all original writings of any nature whatsoever, copies and drafts, which, by reason of notes, changes, initials or identification marks are not identical to the original and/or identification marks are not identical to the original and/or non-identical copies are not available. Document shall mean any written or graphic matter or other means of preserving thought or expressions and all tangible things from which information can be processed transcribed, including the originals and all non-identified copies, whether different from the original by reason of any notation made on such copy or otherwise. Document, documents or documentation means any written, printed, typed or visually or aurally reproduced material of any kind, whether or not privileged, in your possession or control and includes, but is not limited to: deal jackets, correspondence, contracts, advertisements, invoices, agreements, offers, responses, letters, telegrams, memoranda, reports, bills, receipts, orders, films, microfilm, minutes, projections, testimonies, directives, calendar or diary entries, publications, day books, minutes, agenda, pamphlets, brochures, questionnaires, advertisements, newspaper articles, releases to newspaper or magazine entities, investigations, maps, sketches, transparencies, messages, notes, notices, graphs, confirmations, magazines, inventories or inventory reports, cables, inter-office or intra-office communications, circulars, comparisons, bulletins, directives, instructions, analyses, summaries, reviews, magnetic tape, video tapes (including but not limited to video tapes or video discs of conferences, presentations or meetings), worksheets, bids, charts, informational presentations, tabulations, maps, price lists, videotapes, price books, e-mails, ledgers and records of -2-
meetings, conferences, telephone and other conversations. The term "DOCUMENT", DOCUMENTS or DOCUMENTATION also includes any other means by which information is recorded or transmitted, including any and all electronic messages, e-mails, optical characters, recognition characters, punched paper tapes, cassettes, discs or other electronically generated or stored information. All designated documents are to be considered as including all attachments and enclosures. All drafts, preliminary versions, alterations, modifications, revisions, changes and amendments of and to the foregoing shall also be included within this definition. Any document relating or referring only in part to the subjects within this schedule must be produced. 3. "PERSON" means any natural person, or any corporation, partnership, firm, committees or association of persons. 4. "IDENTIFY", when used in reference to: a. a natural person, means to state his/her full name and present or last known address, and his/her present or last known business position, job title, responsibilities and affiliation; b. a corporation, partnership, or other business entity, means to state the full corporate name, including any d/b/a and last known address of the entity; and c. a document or other tangible thing, means to state its date, its author, its recipient and his/her address, its description and content and the names of each of its present custodians in such detail as to allow them to be identified by subpoena duces tecum. If said document was dated as to date of preparation, draft, final draft, sending, receipt, review or filing, said dates should be provided. 5. POWDERZ means POWDERZ, INC. and /or POWDERZ MEDICAL -3-
APOTHECARY, any subdivision thereof, under any d/b/a or fictitious name, including any division and any authorized affiliate or representative thereof. 6. T.R.I. means TOXIN RESEARCH INTERNATIONAL, any subdivision thereof, under any d/b/a or fictitious name, including any division and any authorized affiliate or representative thereof. 7. Z SPA, INC., means Z SPA, INC., any subdivision thereof, under any d/b/a or fictitious name, including any division and any authorized affiliate or representative thereof.. 8. COMMUNICATION means any statement or utterance, whether written or oral, made by one person to another, or in the presence of another, and any document delivered or sent from one person to another, or any other meaning listed under DOCUMENT or DOCUMENTS above. 9. The words and and or shall be construed disjunctively or conjunctively to give these requests their broadest scope and include rather than exclude documents. 10. It is requested that computer data be produced in Microsoft Access 95 through Microsoft Access 2002 (MDB) format, Dbase (DBF) format, Excel (xls) format or ASCII comma delimited or fixed length format (txt), or comma separated value (csv) and shall include all file, record and field format definitions and the instructions, codes or information necessary to retrieve the data. Such electronic data should be provided on one of the following media: CD- ROM or DVD. INSTRUCTIONS 1. Whenever appropriate, the singular form of a word should be interpreted in the plural, and the plural form should be interpreted in the singular. -4-
2. Copies of documents requested may be submitted in lieu of originals, provided that all originals are preserved until written notice from this Office of the completion of this investigation. 3. In responding to this Subpoena, preface each document by the subpoena paragraph in which it is addressed. 4. For each requested document that is no longer in existence or which cannot be located: a) Fully identify and describe the document. b) Fully explain when and how the document passed out of existence and/or why it cannot be located. c) State whether the document was lost, destroyed, discarded, or provided to a third party. Identify any such third party. d) Identify each person having knowledge concerning such document and state any additional information that you have concerning the documents current location. 5. For the purposes of this subpoena, a document is in your possession, custody or control if that document is: a) in your physical custody; b) in the physical custody of any other person and you i) own the document in whole or in part; ii) have the right by contract, statute or otherwise to use, inspect, examine or copy the requested document on any terms; iii) have an expressed or implied understanding or agreement that you may use, inspect, examine or copy the requested document or iv) are able to lawfully use, inspect, examine or copy the requested document. -5-
6. Should any documents be withheld pursuant to any claim of privilege, provide a list of any such documents and identify same in the following manner: a) Name the person(s) who currently have custody of the document(s). b) Name, where applicable, the person(s) to whom the document(s) is or were addressed. c) Name, where applicable, the person(s) by whom the document(s) was (were) created or prepared. d) If the document was signed, name the person who signed the document(s). e) Name all persons to whom the document(s) was (were) sent. f) Provide any date(s) appearing on the document(s). g) Describe the document as to length (number of pages) and subject matter with sufficient specificity to allow for a ruling on any claim of privilege. h) State the specific alleged privilege upon which you base the withholding to the document(s). YOU ARE HEREBY COMMANDED to produce at said time and place all documents as defined above, and other records including: SCHEDULE OF DOCUMENTS 1. A copy of any and all advertisements for botulinum toxin, in any form, including but not limited to internet sites, newspaper advertisements, brochures, faxes and electronic mail solicitations that have been distributed to consumers (including businesses) from December 1, 2003 to the present date. -6-
2. Any and all purchase records and/or invoices relating to your purchase of botulinum toxin from any person or entity from December 1, 2003 to the present date. 3. Any and all documents evidencing payment by you to any person or entity for botulinum toxin from December 1, 2003 to the present date. 4. Any and all bank statements for accounts in the name of or under control of POWDERZ, T.R.I., and/or Z SPA for the period from December 1, 2003 to the present date. 5. Any and all shipping records relating to the shipment of botulinum toxin to or from POWDERZ, T.R.I., and/or Z SPA for the period from December 1, 2003 to the present date. 6. Any and all corporate documents including but not limited to Articles of Incorporation, By-Laws, Shareholder Agreements, Minutes of Board Meetings, Annual Reports, Name Change Requests and Fictitious Name applications. 7. Any and all identifying information (e.g., names, addresses and phone numbers) of purchasers of botulinum toxin from POWDERZ, T.R.I., and/or Z SPA from December 1, 2003 to the present date. 8. The names and addresses of any and all employees of POWDERZ, T.R.I., and/or Z SPA for the period of December 1, 2003 to the present date. 9. Any and all documents evidencing that POWDERZ, T.R.I., and/or Z SPA is a licensed dealer of pharmaceuticals. 10. Any and all communications with the FDA or other federal or state regulatory agencies concerning the sale of botulinum toxin. 11. Any and all occupational or professional licenses in the name of POWDERZ, T.R.I., and/or Z SPA. -7-
12. Any and all written communications, including but not limited to, electronic, computer generated e-mails regarding botulinum toxin sent to any and all consumers both inside and outside the State of Florida from December 1, 2003 to the present date. 13. Any and all written communications, including but not limited to, electronic, computer generated e-mails regarding botulinum toxin between POWDERZ, T.R.I., and/or Z SPA from December 1, 2003 to the present date. 14. Any and all written communications, including but not limited to, electronic, computer generated e-mails regarding botulinum toxin between you and/or manufacturers, dealers, and/or sellers of botulinum toxin. 15. Any and all documents evidencing the pedigree of botulinum toxin sold by you. 16. Any and documents in which POWDERZ, T.R.I., and/or Z SPA states, implies or infers that it is a licensed dealer of botulinum toxin. 17. Any and all complaints received by POWDERZ, T.R.I., and/or Z SPA regarding botulinum toxin. 18. Any and all current orders for botulinum toxin from consumers both inside and outside the State of Florida. Said documentation should include the names, addresses and phone numbers of the persons or entities that had submitted said orders. 19. Any and all internal documents and communications regarding the type or nature of consumers that were or were to be solicited by you to purchase botulinum toxin. 20. Any and all documents relating to marketing or marketing strategy regarding botulinum toxin, whether internal or in the current possession of any in-house or outside marketing entity. -8-
21. Any and all documents related to the use(s) of botulinum toxin purchased and/or sold by POWDERZ, T.R.I., and/or Z SPA. 22. Copies of any and all information contained in or on any box or other packaging materials used in the packaging and/or shipment of botulinum toxin purchased and/or sold by you. This would include copies of any labeling of said packaging which would convey the name of the product, the quantity of toxin contained therein, directions for use, warnings, and indications and contraindications for use. This request would include any and all inserts placed with the product inside any such packaging. 23. Any and all documents related to the method of storage of botulinum toxin while in your possession. 24. Any and all checks, money orders or wire transfers reflecting the transfer of money or assets between POWDERZ, T.R.I., and/or Z SPA from December 1, 2003 to the present date. WITNESS the FLORIDA DEPARTMENT OF LEGAL AFFAIRS at Fort Lauderdale, Florida, this day of, 2004. CHARLES J. CRIST, JR. ATTORNEY GENERAL By: Rafael S. Garcia Senior Assistant Attorney General 110 Southeast Sixth Street Tenth Floor Fort Lauderdale, FL 33301 (954) 712-4600 -9-
AUTHORITY 501.206 Investigative powers of enforcing authority. (1) If, by his own inquiry or as a result of complaints, the enforcing authority has reason to believe that a person has engaged in, or is engaging in, an act or practice that violates this part, he may administer oaths and affirmations, subpoena witnesses or matter, and collect evidence. Within 5 days excluding weekends and legal holidays, after the service of a subpoena or at any time before the return date specified therein, whichever is longer, the party served may file in the circuit court in the county in which he resides or in which he transacts business and serve upon the enforcing authority a petition for an order modifying or setting aside the subpoena. The petitioner may raise any objection or privilege which would be available under this chapter or upon service of such subpoena in a civil action. The subpoena shall inform the party served of his rights under this subsection. (2) If matter that the enforcing authority seeks to obtain by subpoena is located outside the state, the person subpoenaed may make it available to the enforcing authority or his representative to examine the matter at the place where it is located. The enforcing authority may designate representatives, including officials of the state in which the matter is located, to inspect the matter on his behalf, and he may respond to similar requests from officials of other states. (3) Upon failure of a person without lawful excuse to obey a subpoena and upon reasonable notice to all persons affected, the enforcing authority may apply to the circuit court for an order compelling compliance. (4) The enforcing authority may request that an individual who refuses to comply with a subpoena on the ground that testimony or matter may incriminate him be ordered by the court to provide the testimony or matter. Except in a prosecution for perjury, an individual who complies with a court order to provide testimony or matter after asserting a privilege against self-incrimination to which he is entitled by law shall not have the testimony or matter so provided, or evidence derived therefrom, received against him in any criminal investigation or proceeding. (5) Any person upon whom a subpoena is served pursuant to this section shall comply with the terms thereof unless otherwise provided by order of the court. Any person who fails to appear with the intent to avoid, evade, or prevent compliance in whole or in part with any investigation under this part or who removes from any place, conceals, withholds, mutilates, alters, or destroys, or by any other means falsifies any documentary material in the possession, custody, or control of any person subject to any such subpoena, or knowingly conceals any relevant information with the intent to avoid, evade, or prevent compliance shall be liable for a civil penalty of not more than $5,000, reasonable attorney's fees, and costs. -10-