FILED: NEW YORK COUNTY CLERK 12/24/2009 INDEX NO. 603782/2009 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/24/2009 t -1 I *- SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK NEW MILLENNIUM CAPITAL PARTNERS 111, LLC; NEW MILLENNIUM CAPITAL PARTNERS 11, LLC; AJW PARTNERS, LLC; AJW OFFSHORE, LTD.; AJW QUALIFIED PARTNERS, LLC; AJW MASTER FUND, LTD.; AJW PARTNERS 11, LLC; AJW OFFSHORE 11, LTD.; AJW QUALIFIED PARTNERS 11, LLC; and AJW MASTER FUND 11, LTD., Plaintiffs, Index No,: Purchase Date: December -7 2009 SUMMONS Plaintiffs designate New York County as the place of trial, The bases of venue are CPLR $5 501 and S09. -against- JUNIPER GROUP, INC., Defendant, 09603782 To the Above Named Defendant: YOU ARE HEREBY SUMMONED and required to serve upon plaintiffs undersigned attorneys an answer to plaintiffs complaint in this action within twenty (20) days after the service of this summons, exclusive of the day of service (or within thirty (30) days after the service is complete if this summons is not personally delivered to you within the State of New York), and in the case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. 864953- I Supreme Court Records OnLine Library - page 1 of 15
f ' 3, - t Dated: New York, New York December q, 2009 OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOrnY LLP By: ThowJ. Fleming - Christine Wong Attorneys for Plaint$s Park Avenue Tower 65 East 55'h Street New York, New York 10022 2 12.45 1.2300 8 64953-1 2 Supreme Court Records OnLine Library - page 2 of 15
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK NEW MILLENNIUM CAPITAL PARTNERS 111, LLC; AJW PARTNERS, LLC; AJW OFFSHORE, LTD.; AJW QUALIFIED PARTNERS, LLC; AJW MASTER FUND, LTD.; AJW PARTNERS 11, LLC; AJW OFFSHORE 11, LTD.; AJW QUALIFIED PARTNERS 11, LLC; and AJW MASTER FUND 11, LTD., Index No. COMPLAINT Plaintiffs, JUNIPER GROUP, INC., -against- 09603782 Defendant. Plaintiffs, by their attorneys, Olshan Grundman Frome Rosenzweig & Wolosky LLP, for their Complaint, allege: The Parties 1. Plaintiff New Millennium Capital Partners 111, LLC ( 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. NMCP I11 is an assignee of New Millennium Capital Partners 11, LLC ( NMCP 11 ) is a limited liability company organized under the laws of the State of New York, with its principal office in Roslyn, New York. 2. Plaintiff AJW Partners, LLC ( AJWP ) is a limited liability company organized under the laws of the State of Delaware, with its principal office in Roslyn, New York. 3. Plaintiff AJW Offshore, Ltd. ( AJWO ) is a corporation organized under the laws of the Cayman Islands, which is managed fiom Roslyn, New York. Supreme Court Records OnLine Library - page 3 of 15
4. Plaintiff AJW Qualified Partners, LLC ( AJWQP ) 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. C AJWMF ) is a corporation organized under the laws of the Cayman Islands, which is managed from Roslyn, New York. 6. Plaintiff AJW Partners 11, LLC ( AJWP 11 ) 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. ( AJWO 11 ) is a corporation organized under the laws of the Cayman Islands, which is managed from Roslyn, New York. 8. Plaintiff AJW Qualified Partners 11, LLC ( AJWQP 11 ) is a limited liability company organized under the laws of the State of New York, with its principal office in Roslyn, New York. 9. Plaintiff AJW Master Fund 11, Ltd. ( AJWMF 11 ) is a corporation organized under the laws of the Cayman Islands, which is managed from Roslyn, New York. 10. Defendant Juniper Group, Inc. ( Juniper ) is a corporation organized under the laws of the State of Nevada, with its principal place of business in Boca Raton, Florida. Juniper s common stock is registered with the United States Securities and Exchange Commission ( SEC ) and its shares are traded over the counter under the symbol JUNP.OB. Jurisdiction and Venue 11. Under the Security Agreements and Intellectual Property Security Agreements between Juniper and plaintiffs, Juniper has consented to be sued in this State, County and Court for actions, such as this, arising out of or relating to those agreements. Additionally, Juniper has had sufficient contacts with the State of New York such that it has transacted business within this 2 Supreme Court Records OnLine Library - page 4 of 15
State, from which the claims asserted herein arise, and, therefore, this Court also has personal jurisdiction over Juniper under CPLR $302(a)(l). The March 2009 Financing 12. On March 11,2009, AJWP, NMCP 11, AJWQP, and AJWO entered into the last round of financing with Juniper. The Notes from this financing refer to the Securities Purchase Agreement dated December 5,2008 (the December 2008 SPA ). Pursuant to the December 2008 SPA, those plaintiffs purchased callable secured convertible notes (L Notes ) from Juniper in the aggregate principal amount of $50,000. 13. A key provision in the December 2008 SPA assured plaintiffs that Juniper would not (i) enter into convertible notes that were convertible into an indeterminate number of Juniper s shares of common stock, or (ii) engage in any future financings, without notice to, or consent from, plaintiffs. Section 4(e) of the SPA provides in pertinent part: e. Future Offerings. Subject to the exceptions described below, the Company will not, without the prior written consent of the majority-ininterest of the Buyers, not to be unreasonably withheld, (A) negotiate or contact with any party to obtain additional equity financing (including debt financing with an equity component) that involves 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 therewith, and providing each Buyer an option during the fireen (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 ),.,. 3 Supreme Court Records OnLine Library - page 5 of 15
14. These protections were and are vital to plaintiffs, who had previously loaned, along with their affiliates, in excess of $2.4 million to Juniper. Junber s Secret Financing with Redwood 15. Plaintiffs have learned that Juniper has conducted an equity financing in violation of Section 4(e) of the December 2008 SPA, According to a recent filing by Juniper with the SEC, Juniper entered into a $50,000 convertible note with Redwood Management LLC ( Redwood ) on or about August 20,2009. Juniper failed, however, to give plaintiffs written advance notice of that financing. Because no notice was given to plaintiffs, Juniper is in breach of its contractual agreement with plaintiffs. Juniper is also in breach of its contractual agreement with plaintiffs because the convertible note with Redwood is convertible into an indeterminate number of shares of common stock. 16. These sales will likely continue, since Juniper is cash starved. The Original Securities Purchase Ameement and the Notes Issued to Plaintiffs 17. The December 2008 SPA was one of several offerings of Notes by Juniper to plaintiffs. On December 28,2005, Juniper first entered into a SPA with NMCP 11, AJWQP, AJWO, and AJWP, under which Juniper agreed to issue, for good and valuable consideration, Notes. Pursuant to this offering, plaintiffs purchased Notes from Juniper in the aggregate principal amount of $371,979.92 in consideration of their payment of that amount. All of these Notes referenced herein are in substantially similar form as those issued under the December 2008 SPA. Through March 2009, plaintiffs thereafter loaned additional funds to Juniper on similar terms, pursuant to similar agreements. 18. As of December 2005, NMCP II, AJWQP, AJWO, and AJWP also entered into agreements related to the SPA entered into that date, including a Security Agreement, Intellectual Property Security Agreement, and other agreements with Juniper. 4 Supreme Court Records OnLine Library - page 6 of 15
19. On March 14,2006, NMCP 11, AJWQP, AJWO, and AJWP entered into another SPA and such related agreements with Juniper, pursuant to which those plaintiffs purchased Notes in the aggregate principal amount of $300,000 from Juniper. 20. On May 18,2007, NMCP II, AJWQP, AJWO, and AJWP, and SPA purchased Notes in the aggregate principal amount of $500,000 from Juniper, pursuant to the December 28, 2005 Securities Purchase Agreement. 21. On September 13,2007, NMCP 11, AJWP, and AJWMF entered into another SPA and such related agreements with Juniper, pursuant to which those plaintiffs purchased Notes in the aggregate principal amount of $600,000 from Juniper. 22. On December 13,2007, NMCP 11, AJWP, and AJWMF entered into another SPA and such related agreements with Juniper, pursuant to which those plaintiffs purchased a Note in the principal amount of $100,000 from Juniper. 23. On March 14,2008, Juniper entered into another SPA and such related agreements with AJWP and NMCP 11, pursuant to which NMCP I1 purchased Notes in the aggregate principal amount of $50,000 from Juniper. 24. On June 20,2008, Juniper entered into another SPA and such related agreements with NMCP 11, pursuant to which NMCP I1 purchased Notes in the aggregate principal amount of $50,000 from Juniper. 25. On July 29,2008, Juniper entered into another SPA and such related agreements with Nh4CP 11, AJWP, and AJWMF pursuant to which those plaintiffs purchased Notes in the aggregate principal amount of $75,000 from Juniper. 5 Supreme Court Records OnLine Library - page 7 of 15
26. On September 23,2008, Juniper entered into another SPA and such related agreements pursuant to which NMCP I1 purchased Notes in the aggregate principal amount of $70,000 from Juniper. 27. On November 5,2008, Juniper entered into another SPA and such related agreements with NMCP 11, pursuant to which NMCP I1 purchased Notes in the aggregate principal amount of $61,000 from Juniper. 28. On December 5,2008, Juniper entered into another SPA and such related agreements with NMCP 111, AJW, AJW 11, AJWMF, and AJWMF 11, pursuant to which those plaintiffs purchased Notes in the aggregate principal amount of $75,000 from Juniper. 29. In lieu of paying in cash certain accrued interest, Juniper issued on or about January 31,2008 and November 10,2008, additional Notes to plaintiffs NMCP 11, AJWP, and AJWMF in the aggregate principal amount of $338,641.91. 30. Additionally, Juniper owed, as of November, 2009, and still owes to plaintiffs over $389,563.38 in interest which has accrued on the Notes. The Security Agreements 31. Pursuant to the Security Agreements and Intellectual Property Security Agreements, Juniper granted plaintiffs a first priority security interest in all of Juniper 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 Juniper s business using the collateral. 32. Plaintiffs duly perfected their security interests under the Security Agreements and Intellectual Property Security Agreements in connection with each of the transactions. 6 Supreme Court Records OnLine Library - page 8 of 15
Assiments 33. Plaintiffs NMCP 11, AJWP, AJWO, AJWQP, and AJWMF have assigned certain of their rights under the Notes, SPAS, Security Agreements and related agreements to plaintiffs NMCP 111, AJWP 11, AJWO 11, AJWQP 11, and AJWMF 11. Additionally, NMCP 11 has assigned all of its right, title and interest in the Notes to plaintiff NMCP III. Default of the Notes 34. Each of the Notes is convertible into Juniper common stock at plaintiffs election. Section 3.2 of the Notes defines as an Event of Default, inter alia, Juniper s failure to honor its obligations regarding plaintiffs conversion rights under the Notes, specifically, the failure to deliver the shares requested and failure to cure this defect. 35. Juniper defaulted on the Notes by failing to honor plaintiffs Notices of Conversion, dated September 28,2009. 36. 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. 37. As a result of the foregoing uncured 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. By plaintiffs written notice delivered to Juniper on November 2,2009, plaintiffs exercised their option to accelerate the Notes and make them all immediately due and payable. Attorneys Fees 38. 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. 7 Supreme Court Records OnLine Library - page 9 of 15
. First Cause of Action (Specific Performance/ Preliminary and Permanent Injunction) 39. Plaintiffs restate the allegations in paragraphs 1 through 38. 40. Based upon the foregoing, Juniper has breached its covenants and contractual obligations to plaintiffs under the December 2008 SPA by offering shares in violation of Section 4(e) thereof. 41, Plaintiffs have fully performed their obligations under the December 2008 SPA. 42, Plaintiffs are therefore entitled to an order directing Juniper to comply with Section 4(e) and enjoining any offering by Juniper that does not comply with Section 4(e). 43. Plaintiffs have no adequate remedy at law. 44. Plaintiffs will suffer irreparable harm without the aforesaid order. Second Cause of Action 45, 46. Plaintiffs restate the allegations in paragraphs 1 through 38. Based upon the foregoing, Juniper has breached its obligations to NMCP I11 under the Notes, As a direct, approximate and foreseeable result of Juniper s breach, NMCP I11 is entitled to recover from Juniper 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 penalties, and attorneys fees. Third Cause of Action 47. Plaintiffs restate the allegations in paragraphs 1 through 38. 48. Based upon the foregoing, Juniper has breached its obligations to AJWP under the Notes. As a direct, approximate and foreseeable result of Juniper s breach, AJWP is entitled to recover from Juniper an amount to be determined at trial, representing the Default Sum or 8 Supreme Court Records OnLine Library - page 10 of 15
Default Amount as defined in Section 3.10 of the Notes, plus all interest and penalties, and attorneys fees. Fourth Cause of Action 49. Plaintiffs restate the allegations in paragraphs 1 through 38. 50. Based upon the foregoing, Juniper has breached its obligations to AJWO under the Notes. As a direct, approximate and foreseeable result of Juniper s breach, AJWO is entitled to recover from Juniper 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 penalties, and attorneys fees. Fifth Cause of Action 5 1. Plaintiffs restate the allegations in paragraphs 1 through 38. 52. Based upon the foregoing, Juniper has breached its obligations to AJWQP under the Notes. As a direct, approximate and foreseeable result of Juniper s breach, AJWQP is entitled to recover from Juniper 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 penalties, and attorneys fees. Sixth Cause of Action 53. Plaintiffs restate the allegations in paragraphs 1 through 38. 54. Based upon the foregoing, Juniper has breached its obligations to AJWMF under the Notes. As a direct, approximate and foreseeable result of Juniper s breach, AJWMF is entitled to recover from Juniper an amount to be determined at trial, representing the Default 9 Supreme Court Records OnLine Library - page 11 of 15
Sum or Default Amount as defined in Section 3.10 of the Notes, plus all interest and penalties, and attorneys fees. Seventh Cause of Action 55. Plaintiffs restate the allegations in paragraphs 1 through 38. 56. Based upon the foregoing, Juniper has breached its obligations to AJWP I1 under the Notes. As a direct, approximate and foreseeable result of Juniper s breach, AJWP I1 is entitled to recover Erom Juniper 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 penalties, and attorneys fees. Eighth Cause of Action 57. Plaintiffs restate the allegations in paragraphs 1 through 38. 58. Based upon the foregoing, Juniper has breached its obligations to AJWO I1 under the Notes. As a direct, approximate and foreseeable result of Juniper s breach, AJWO I1 is entitled to recover from Juniper 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 penalties, and attorneys fees. Ninth Cause of Action 59. Plaintiffs restate the allegations in paragraphs 1 through 38, 60. Based upon the foregoing, Juniper has breached its obligations to AJWQP I1 under the Notes. As a direct, approximate and foreseeable result of Juniper s breach, AJWQP 11 is entitled to recover from Juniper an amount to be determined at trial, representing the Default 10 Supreme Court Records OnLine Library - page 12 of 15
Sum or Default Amount as defined in Section 3.10 of the Notes, plus all interest and penalties, and attorneys fees. Tenth Cause of Action 61. Plaintiffs restate the allegations in paragraphs 1 through 38. 62. Based upon the foregoing, Juniper has breached its obligations to AJWMF I1 under the Notes. As a direct, approximate and foreseeable result of Juniper s breach, AJWMF I1 is entitled to recover from Juniper 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 penalties, and attorneys fees. Eleventh Cause of Action (Marshalling of Assets) 63. Plaintiffs restate the allegations in paragraphs 1 through 62. 64. Based upon the foregoing, plaintiffs are entitled to an Order directing Juniper to marshal, in preparation for foreclosure, all of its 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 locations. 65. Plaintiffs have no adequate remedy at law. WHEREFORE, plaintiffs pray that judgment be entered against Juniper: 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 $7.46 million. E. Ordering that Juniper, 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 Juniper from: 11 Supreme Court Records OnLine Library - page 13 of 15
'*. 4 (1) negotiating or contracting for any equity financing which includes the issuance of convertible securities that are convertible into an indeterminate number of shares of Juniper'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 July 2009 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 fireen 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 to plaintiffs as the Court deems just and proper. Dated: New, York, New York December 17,2009 OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP -/, I - By: p-- 3' Thomas J. Fleming Christine Wong Attorneys for Plaint@ Park Avenue Tower 65 East 55th Street New York, New York 10022 (212) 451-2300 12 Supreme Court Records OnLine Library - page 14 of 15
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK NEW MILLENNIUM CAPITAL PARTNERS 111, LLC; NEW MILLENNIUM CAPITAL PARTNERS 11, LLC; AJW PARTNERS, LLC; AJW OFFSHORE, LTD.; AJW QUALIFIED PARTNERS, LLC; AJW MASTER FUND, LTD,; AJW PARTNERS 11, LLC; AJW OFFSHORE 11, LTD.; AJW QUALIFIED PARTNERS 11, LLC; and AJW MASTER FUND 11, LTD., Plaintiffs, Index No.: Purchase Date: December -, 2009 Plaintiffs designate New York County as the place of trial. The bases of venue are CPLR 99 501 and 509. -against- JUNIPER GROUP, mc., Defendant. SUMMONS AND COMPLAINT OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP Attorneys for Plaint@ Park Avenue Tower 65 East Sth Street Supreme Court Records OnLine Library - page 15 of 15