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Thank you for your thoughtful, unbiased reply. I agree with your sentiments, which you articulated nicely in your opening paragraph.
We know that prospective independent directors are still required to have board experience with other public companies, and those who are undergoing DD with JBI may also be sitting on other company boards currently. If such candidates are of high caliber, they would likely want to wait until JBI shows further financial stability and viability before putting their reputations on the line.
Yes, exactly. Very well said.
Still hoping to hear from someone with a reasonable explanation for why Board of Director appointments have to wait until after the next cash raise, as the CEO indicated was the planned sequence of events.
I have asked for the same.
It appears to be a completely frivolous accusation that lacks any factual support whatsoever.
Good luck getting any meaningful response.
Mr. Irons has always been genuine and professional in my interactions with him. The assertion that he is a "lying sack of crap" is of course unsubstantiated. I have also found that Mr. Irons is good at communicating within regulatory constraints on private disclosures, as one should expect from an investor relations manager.
Substantiation please.
Otherwise I must assume you are fabricating baseless accusations out of thin air, with no support whatsoever.
I call BS, big time.
It would be foolish to attempt to answer insurance coverage questions in the abstract. An examination of the applicable insurance policy (or policies) is needed to determine what is and is not covered. I could ask 20 coverage questions in addition to the 20 coverage questions you raised, but that would be unproductive.
Since your focus is apparently on document 38, look at page 7, clause XI, then turn to document 16, page 2, paragraph 3.
Regardless, I would be very pleased to hear your case for insurance coverage. Thanks, and FWIW: I do not think this case is representative of insurance coverage in other matters.
Jurisdiction: Federal Question
I was unable to locate a page on the http://corp.delaware.gov
website that offered "additional info" regarding a Delaware business entity for $20. Can you link it for me, please?
Additional Information is available for a fee. You can retrieve Status for a fee of $10.00 or
more detailed information including current franchise tax assessment, current filing history
and more for a fee of $20.00.
Was the "someone" unidentified?
JBI Delaware is a Delaware corporation with its principal place of business located in 6002 Mountain Gate Drive, Niagara Falls, Ontario...
The Delaware Secretary of State does not adjudicate corporate authority when documents are filed, but thanks for the suggestion. And no, you have no obligation to supply a good faith basis for filing the suit, but given your apparent research into the matter I was hoping you could articulate one.
Perhaps I should ask the five "Does" and five "Roes" named as defendants for the details.
Have a good one yourself.
Has anyone else checked with the Delaware SOS to see if the corporation has been revived and who the majority shareholder(s) are?
Then why even bring all the details up? Seems pointless
You are overstating the role of an independent (non-employee) director. Your post:
Wesson screwed up huge and tried to sugar coat it.
He was given a specific task with very specific requirements.
Then he has the gall to present 9 candidates of which only 2 met the specific requirements he was specifically told to look for.
In the real world performance like that gets you fired from a job.
Or he could resign because now he exposed himself as truly incompetant and a complete waste of shareholder funds.
For purposes of the foregoing, (a) a “Qualified Independent Director” means an individual who (i) is an Independent Director (as defined below), (ii) has served for at least three years on the board of directors of at least two separate publicly-traded companies in the United States with market capitalization of at least US$700,000,000 (a “Relevant Company”), (iii) is currently serving on the board of directors of at least one such Relevant Company and (iv) has not been the defendant in (or an officer or director of an entity that has been a defendant in) any criminal or civil complaint of the SEC or any other material action brought by any Person alleging the violation of any state or Federal securities laws unless such action has been adjudicated pursuant to a non-appealable judgment absolving such Person (or such entity, as applicable) of all wrongdoing and (b) an “Independent Director” mean an individual who (i) the Board of Directors or nominating committee thereof has determined is “independent” within the meaning of Listing Rule 5605(a)(2) of The Nasdaq Stock Market.
Winning is fun! Cheers!
Correct in part. In the eyes of the court, a settlement is an agreement to resolve a claim without further litigation. Neither party has "won" or "lost" insofar as the court is concerned. In the eyes of the parties, the extent to which any settlement is a "win" requires consideration of the factors identified in my prior post.
I don't think that the company ever stated that it "prevailed" or "won" any case that it has settled, so I don't know why this is an issue.
Legally, and only legally, is a settlement agreement considered a win or loss to either party by the court?
GET READY TO HAVE YOUR SOCKS BLOWN OFF
Thirties soon to be gone.
Well, I guess there's still Grampp v. Bordynuik et al, and that could be a Juicy one!
That is an excellent report, and a must read for anyone (myself included) that is looking to understand the technical aspects of Plastic2Oil and its development.
Yes, I am glad we have that minor ambiguity behind us. I am not in the least bit surprised to see that amendment approved.
exogyra,
Having viewed the page myself, the description in Commando's post is a copy and paste from the online DEC permit application summary. It is the basic summary entered by the DEC into its database. I am not sure if pending applications are available upon request, but you could contact the DEC in that regard. The online summary obviously does not have all the details.
http://www.dec.ny.gov/cfmx/extapps/envapps/index.cfm?view=detail&applid=822054
Are you making this up out of thin air, or do you have at least some basis to support it?
He's given away shares to family, who could have sold them for millions
I also didn't see where "Janice" said that it does not appear to apply.
You can read about "good reason" in the document; it doesn't really seem to fit.
3.3.3 Good Reason. “Good Reason” shall mean the Employee’s termination of his employment upon the occurrence of a material reduction in the Employee’s duties, authority, or responsibilities relative to the duties, authority, or responsibilities in effect immediately prior to such reduction. Provided, however that, such termination by the Employee shall only be deemed for Good Reason pursuant to the foregoing definition if: (a) the Employee gives the Company written notice of the intent to terminate for Good Reason within thirty (30) days following the first notice to the Employee of the occurrence of the condition(s) that the Employee believes constitutes Good Reason, which notice shall describe such condition(s); (b) the Company fails to remedy such condition(s) within sixty (60) days following receipt of the written notice; and (c) any termination for Good Reason must take place within a one year period following the Company’s failure to cure such conditions constituting Good Reason.
If he thought that he could establish "Good Cause" he gave up $400k by signing the Separation Agreement. Either he didn't think he could do that or felt it was not worth the effort, net of attorney fees and aggravation.
3.3.3 Good Reason. “Good Reason” shall mean the Employee’s termination of his employment upon the occurrence of a material reduction in the Employee’s duties, authority, or responsibilities relative to the duties, authority, or responsibilities in effect immediately prior to such reduction. Provided, however that, such termination by the Employee shall only be deemed for Good Reason pursuant to the foregoing definition if: (a) the Employee gives the Company written notice of the intent to terminate for Good Reason within thirty (30) days following the first notice to the Employee of the occurrence of the condition(s) that the Employee believes constitutes Good Reason, which notice shall describe such condition(s);and (b) the Company fails to remedy such condition(s) within thirty (30) days following receipt of the written notice.
Not sure about the dialog, but make note of the footnote.
(9) Represents 4,323,846 shares owned of record, options to purchase 750,000 shares of common stock which are presently exercisable and options to purchase 650,000 shares of common stock which are exercisable within 60 days of the date of this report.
What are you claiming was "theoretically fraudulent" about the science and why? Regarding the SEC's investigation, the following inquiry by the SEC is recorded in the publicly available filings:
"With regard to your P2O business, please disclose how your process breaks plastic down into oil and other various products. Please clarify the nature of your process and catalyst and if you have any proprietary rights with respect to the process or catalyst."
Do you believe that this inquiry was not related to the science of the process? Just curious....
Comments like these are laughable to anyone who knows or is familiar with this judge:
Judge "I just sign 'em, somebody else reads 'em" Wolf
It wasn't a small thing....this so-called "minor ambiguity" rendered the judgment unenforceable. It was WRONG.
Is there some concern that acknowledging his mistake might have a deleterious effect on his disposition in the other case involving The Defendant?
I agree. What really matters for a settlement is that there is a "meeting of the minds," so to speak. The parties obviously agreed on the terms, which the judge approved, and a minor ambiguity in one of the documents mattered only to [fill in the blanks].
Also, please note that Mr. Healy was obviously falling on his sword in front of the court in his use of this language:
"It is totally the fault of the Commission, not Mr. Bordynuik, that the five year limitation was not contained in the proposed Final Judgment submitted to the Court and, as a result, in the Final Judgment entered by the Court."
While that may be true, it was the judge's hand that applied his signature to the flawed judgment, not Healey's.
So, according to you, the issue before the judge in applying his signature to the Final Judgment is whether the sum of the SEC's unproven allegations and the Defendant's denials of those allegations, which the Defendants have agreed to withdraw, is reflected in the terms of the settlement, which include fines and a director and officer ban.
If "there is no evidence before the court", the court cannot possibly be in a position to "determine that the settlement is fair, adequate, reasonable and appropriate under the particular facts".
If the court "need not inquire into the precise legal rights of the parties", then indeed the Court is acting to "approve a settlement" without regard to the law cited therein.
I fail to understand how the Judge could conclude that the fines and the director and officer ban, which are pursuant to cited securities laws involving Misleading and Deceptive Practices, are reasonable sanctions ("equitable") without CONCLUDING that fraud occurred. Said another way, the fines and director and officers bans could not be seen to be equitable terms of a settlement if no fraud occurred.
We began this discussion with your declaration that my following statement was "Nonsense":
"If he signs the proposed judgment it confirms that he finds that fraud occurred."
Is the Court simply acting to "approve a settlement" without regard to the wording of the judgment and the law cited therein?
I ask again:
Is the Court simply acting to approve a settlement without regard to the wording of the judgment and the law cited therein?
The standard for judicial review and approval of proposed consent judgments in [Securities and Exchange] Commission enforcement actions is well-established. Because actions brought by the Commission seek to enforce the federal securities laws, they should serve "the public interest." SEC v. Randolph, 736 F.2d 525, 529 (9th Cir.1984), see also United States v. Trucking Emp., Inc., 561 F.2d 313, 317 (D.C.Cir.1977) ("prior to approving a consent decree a court must satisfy itself of the settlement's overall fairness to beneficiaries and consistency with the public interest") (citations and internal quotations omitted). To ensure that the public interest is served, the court "need not inquire into the precise legal rights of the parties nor reach and resolve the merits of the claims or controversy, but need only determine that the settlement is fair, adequate, reasonable and appropriate under the particular facts and that there has been a valid consent by the parties." Citizens for a Better Env't v. Gorsuch, 718 F.2d 1117, 1126 (D.C.Cir.1983) (citations omitted).
Sorry for another "belated" reply (my prior same day reply was belated?). The key distinction here is the difference between a settlement and a judgment after finding. There is no evidence before the court, and therefore no basis to make any finding. So what we have is a settlement, and nothing more, and your links are not to the contrary.
If you can present a reputable link or cite to a document (or preferably law) that states that a "Judge MUST find that a violation of the Misleading and Deceptive Practices (aka fraud) section of the code occurred" in order to approve a settlement, then please do so. Though tough for some to grasp, without evidence before the court, there can be no factual findings. Your link to 15 U.S.C. sec. 78u(d)(3) in no way changes that, as it imposes no requirements for settlement approval.
Don't take my word for it. There are plenty of cases that contain statements such as this (anyone who is citing laws and stating what securities laws require should be able to find them):
The standard for judicial review and approval of proposed consent judgments in [Securities and Exchange] Commission enforcement actions is well-established. Because actions brought by the Commission seek to enforce the federal securities laws, they should serve "the public interest." SEC v. Randolph, 736 F.2d 525, 529 (9th Cir.1984), see also United States v. Trucking Emp., Inc., 561 F.2d 313, 317 (D.C.Cir.1977) ("prior to approving a consent decree a court must satisfy itself of the settlement's overall fairness to beneficiaries and consistency with the public interest") (citations and internal quotations omitted). To ensure that the public interest is served, the court "need not inquire into the precise legal rights of the parties nor reach and resolve the merits of the claims or controversy, but need only determine that the settlement is fair, adequate, reasonable and appropriate under the particular facts and that there has been a valid consent by the parties." Citizens for a Better Env't v. Gorsuch, 718 F.2d 1117, 1126 (D.C.Cir.1983) (citations omitted).
The parties can waive a jury, in which case all findings would be by the judge. But yes, the question for settlement approval is a matter of equity.
"Not according to the honorable US District court Judge Wolf of the Boston courthouse."
We haven't heard from him yet. If he signs the proposed judgment it confirms that he finds that fraud occurred.
The commission has already passed judgment on a settlement that says ""Defendants engaged in a scheme to commit securities and accounting fraud by stating materially false and inaccurate financial information on the financial statements of JBI, Inc. for two reporting periods during 2009."
That's fraud.
Sorry Brig. There is no way of knowing what and how much is covered without having a copy of the insurance policy (or policies).
Okay, thanks for the explanation. What you meant by "personally" making an investment was not clear in your prior post. I construed it to mean him making the investment himself, as opposed to someone else investing the money on his behalf. Now I see you use the term to refer to direct as opposed to indirect ownership.
I did not "ignore" the context of your post. It simply wasn't worth the effort to respond to the remainder of it. My point, which you apparently do not "get," is that the litigation costs would have far exceeded the cost to settle, making settlement the obvious choice. Settlement is not an admission of liability, period. The fact that an injunction is agreed upon as part of the settlement does not change that fact.
Sometimes settlement makes sense from a practical standpoint. This case was one of them.
Jax, please allow me to explain. The following quote from the consent agreement is important:
"Nothing in this paragraph affects Defendant's: (i) testimonial obligations; or (ii) right to take legal or factual positions in litigation or other legal proceedings in which the Commission is not a party."
Thus, the consent does not compel Bordynuik to admit the allegations during the course of testimony (or admit the allegations at all for that matter). A defendant is obligated to testify truthfully, and the consent in no manner affects that obligation.
It bears noting that the clause requiring the defendant not to make a public statement denying the allegations in the complaint, including the exception quoted above, is not unique to Bordynuik and JBI. It is the stated policy of the SEC to impose this requirement in the consent, as stated in the Federal regulations. You will find neary verbatim language in other consents to settle SEC enforcemelnt actions. By way of example only, refer to the consent signed by Pfizer in civil action 1:12-cv-01303 in the U.S. District Court for the District of Columbia.
As for your question:
But if they do... are you suggesting that any lawyer in a security litigation that tracks these SEC cases would not use public statements to bolster their argument ?