Tell me this wasn't Surfer Boy's plan all along.....dilute, dilute, dilute, run away. Looks like the scam was well planned.
Note the bold section.
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IN THE CIRCUIT COURT IN AND FOR MARION COUNTY, FLORIDA
CIVIL DIVISION
WAHOO FUNDING, INC., a Florida corporation,
Plaintiff,
v. Case No. 07-757-CA-G
JIM MCGINLEY and LAURA E. ANTHONY,
Defendants.
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PLAINTIFF'S EMERGENCY MOTION FOR TEMPORARY INJUNCTION
Plaintiff, WAHOO FUNDING, INC. ("Wahoo Funding"), through its undersigned attorneys, pursuant to Fla. R. Civ. P. 1.610, moves this Court to enter a temporary injunction enjoining and prohibiting Defendant, JIM MCGINLEY ("McGinley"), from issuing any more stock in Podium Venture Group, Inc., f/k/a Annapolis Capital Holdings, Inc. ("Podium") pending this Court's determination of the rightful owner of and party entitled to control the shares in Podium that are the subject of this pending litigation. The grounds for, and the substantial matters of law intended to be argued in support of, this motion follow.
1. Wahoo Funding filed its Complaint in this action on March 23, 2007. McGinley was served with the Summons and Complaint on March 29, 2007. McGinley has not filed any pleading or appearance in this action to date.
2. In its Complaint, Wahoo Funding seeks, among other things, declaratory relief in connection with the ownership and control of 23 million shares of preferred stock in Podium (the "Securities") that it agreed to sell to McGinley under the terms of a Stock Purchase and Sale Agreement (the "Sale Agreement") and Escrow Agreement, each dated as of July 25, 2006. Pursuant to the Sale Agreement, McGinley agreed to pay the sum of $200,000.00 to purchase the Securities from Wahoo Funding and to deliver a Promissory Note in that amount (the "Note") to Wahoo Funding. The parties also entered into an Escrow Agreement that provides that Defendant, Laura E. Anthony (the "Escrow Agent"), will hold the Securities in escrow pending full payment of the $200,000.00 to Wahoo Funding.
3. While Wahoo Funding tendered the Securities to the Escrow Agent, McGinley never delivered the original Note to Wahoo Funding. Moreover, McGinley has not paid the full purchase price for the Securities to Wahoo Funding. The Escrow Agent continues in possession of the Securities. Pursuant to the terms of the Escrow Agreement, the Securities are collateral for McGinley's obligation to pay Wahoo Funding the full purchase price under the Sale Agreement.
4. Because McGinley has not paid or delivered the agreed consideration for the Securities, Wahoo Funding requested the Escrow Agent to deliver the Securities to it but she is unable to comply with that request without a court order under the terms of the Escrow Agreement since McGinley, upon information and belief, notified her that he disputes Wahoo Funding's rights and entitlement to the Securities. As a result, Wahoo Funding filed its Complaint for declaratory and other relief with respect to the Securities. In particular, Wahoo Funding seeks a declaration that it is the rightful owner of the Securities and entitled to have the Securities issued in its name for purposes of controlling Podium.
5. Despite his failure to pay for the Securities, in late 2006 and early 2007, McGinley caused Podium to issue and sell additional shares of stock in that company to investors. Indeed, McGinley issued shares of stock to himself and others as recently as February 1, 2007 without the consent or knowledge of Wahoo Funding. And, despite the uncertainty over the rights to and ownership of the Securities, and notwithstanding the pendency of this action, Wahoo Funding has learned that McGinley is planning the imminent issuance and sale of more stock in Podium to investors. McGinley's prior sales of additional shares of stock in Podium has diluted, and his plan to issue and sell more shares will continue to dilute, the value of the Securities, the precise subject of this action for declaratory relief and the very collateral for the obligation of McGinley to Wahoo Funding. For that reason, Wahoo Funding requests an emergency temporary injunction prohibiting McGinley from issuing and selling more shares of stock in Podium pending this Court's determination of who is the rightful owner of and party entitled to control the Securities. An injunction on those terms will simply preserve the status quo until the Court can consider and determine the merits of the present controversy and dispute between the parties as it relates to the Securities.
6. Wahoo Funding is entitled to a temporary injunction as a matter of law. First, the Affidavit of Richard Astrom, the President of Wahoo Funding, establishes that Wahoo Funding will suffer irreparable harm if McGinley is not enjoined from issuing and selling shares of stock in Podium during the pendency of this action. Specifically, the issue before the Court in this action is ownership and control of Podium through ownership of the Securities. The continued issuance of stock in Podium will effectively negate control because of the dilution issuance causes. Secondly, the Astrom Affidavit demonstrates that there is a substantial likelihood that Wahoo Funding will succeed on the merits as McGinley has failed to pay for the Securities, or, alternatively, there is a failure of consideration for the Sale Agreement and, therefore, the Court is likely to find that Wahoo Funding is entitled to its collateral, namely, the Securities under the Escrow Agreement and/or has a vendor's lien on the Securities for the unpaid purchase price. Next, Wahoo Funding does not have an adequate remedy at law as money damages are insufficient to compensate Wahoo Funding for McGinley's failure to deliver the Note, consideration for the sale of the Securities under the Sale Agreement, and the loss of control of Podium through McGinley's continuing dilution of the value of the Securities. Lastly, consideration of the public interest weighs in favor of granting a temporary injunction as the restraint against future issuances of stock in Podium will preserve the current value of the Securities, namely, control of Podium. Accordingly, Wahoo Funding has satisfied the legal requirements for and is entitled to entry of a temporary injunction to preserve the status quo as a matter of law.
7. Wahoo Funding requests that the Court set this emergency motion for immediate hearing upon notice to McGinley. Wahoo Funding is ready, willing and able to post a bond, if required, in an amount the Court deems proper, conditioned for the payment of any costs or damages that McGinley may sustain if he is wrongfully enjoined.
WHEREFORE, Wahoo Funding, Inc. requests this Court enter an order temporarily enjoining and restraining Jim McGinley from, and any other person or entity who has been or may be hired or retained by or for him for the purpose of, issuing and selling any shares of stock in Podium Venture Group, Inc. during the pendency of this action, and for such other and further relief as is appropriate.
Respectfully submitted
ARNSTEIN & LEHR LLP
By: ______________________________
Robin S. Trupp
Florida Bar Number 314528
W. Patrick Ayers
Florida Bar Number 615625
302 Knights Run Avenue, Suite 1100
Tampa, Florida 33602
Telephone: (813) 254-1400
Facsimile: (813) 254-5324
Attorneys for Plaintiff
Certificate of Service
I CERTIFY that a copy of Plaintiff's Emergency Motion for Temporary Injunction has been furnished by overnight delivery and regular U.S. mail to Defendant, Jim McGinley, _______________, Portland, Maine _____, and to his counsel in Maine, Lee H. Bals, Esq., Marcus, Clegg & Mistretta, P.A., 100 Middle Street, East Tower, Portland, Maine 04101; and by U.S. mail to Defendant, Laura E. Anthony, 330 Clematis Street, Suite 217, West Palm Beach, Florida 33401, this ___ day of April, 2007.
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Attorney
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