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my streamer on TD actually.. 1.15 x 1.16 right now
I'm showing it at 1.16
Watch for the spike at opening, followed by a brief sell-off about 45 minutes into the session, followed by another day of gains.
what does that mean?
odd....I showed 1.04 on mine
holy crap I forgot that function even existed....thanks!
p.s. anyone know how to change the default number of messages displayed per page on these boards?
So can someone bring me up to date with the scuttlebut on this. What's the target buy-in point some others here are waiting for? a penny?
It's not a personal attack. It's a statement of fact. You come off like a contrary pubescent teenager. You can't backup what you say with facts so you create garbage and then spew it on this forum.
I think most people buy stocks with the belief that they'll rise in value. They then sell the stocks for a profit.
You come off like a 14 year old with a personality disorder to be perfectly honest. Everything you say is wrong.
it keeps hitting the marks for my buys...but it won't get filled
we're right back to where we were at open yesterday.
I'm still not very happy about the company not disclosing this to anyone that asked about developments etc. Their reputation took a huge hit from this, but lesson learned.
Le Sigh....if my money had cleared i'd be sitting on a 200% profit right now.
i transferred funds yesterday to my account..haven't cleared yet though :( was looking forward to halving my pps...ain't gonna happen now..darnit!
I use them too...it depends how long you've held it. If you've held it long enough (3 days) you can sell and then immediately buy back in. I believe you need a margin account if you want to trade it rapidly every day. With the conditions I stipulated (must be green on day, green after hours, and green in premarket), that doesn't happen every day though so I'm rarely stuck.
"Weak, Dow's only down ~2.5%. I was hoping for live, serious destruction. This is like Godzilla coming on shore, taking a sh** in the municipal pool, & heading back out to sea." -Gigantopithecus
I sell on the opening surge, buy back in on the early dips, ride what it's doing now. But ONLY if it was up AH and PM
is anyone here playing these morning shakes? you could conceivably add about 10% to your position per trading session with these things
there it is :)
We also now have to think at how other companies will view ASFX. With this litigation flying around do you think ANYONE is going to want to sign contracts with them anytime soon?
profit taking tomorrow I bet. Run up in premarket, spike at open for the first 40 minutes of trading, then a sharp dip.
great post man, absolutely summed it up.
I specifically asked if there were any developments that shareholders should know about whenever I called (both times AFTER the sep. 10 filing date) and never heard a peep about this. We didn't know because they....well not covered it up exactly...but because they were not forthcoming. They showed a real lack of regard for shareholders.
I called them myself twice, as did several other members of the ASFX board. I can link you to the posts if you like. It's not a piss & vinegar post. We all inquired as to current developments within the company and heard NOTHING about this. We were all told that in fact there were several GOOD developments about to break for shareholders. NONE of this came to fruition. After being rock solid with audited financials the company started acting somewhat shady last month (increased A/S without any explanation). Most of brushed it off since they had been so forthcoming in the past with information. Then when an inquiry was made about the A/S just 2 weeks ago we were told that there were very good things on the way. If you notice the date of the filings, you'll see it was 6 weeks ago. In other words the company knew about this the whole time, and failed to disclose ANYTHING, and instead blew sunshine up our rears.
The only way this is good is if the case has already been settled in favor of ASFX (unfortunately this does not look the case as another member found a settlement meeting scheduled for January 9th). Even if this was so, it shows an incredible lack of concern for current shareholders by letting this bomb drop and having nothing to say on the matter.
This may be a great buying opportunity for you, but for those of us who have held a position in this company (most much longer than I) it is a bit of a slap in the face. You're right, we don't know the whole story yet. And it's because they haven't been forthcoming with information for almost 2 months. Coincidentally around the time these filings are dated from.
I know. And for the profit I'll end up making on this thing that's WAAAAY too long to be in it. They promised good news for shareholders in early semptember. They haven't delivered. This thing bled for weeks, had one decent week, and then we find out they've been neglecting to mention this law suit?? 60 more days of this thing and we'll need to shoot up about 10000% before anyone has a profit. I'm sorry but I'm pissed. Pinks are rarely if ever investments, and if you've been treating this one like an investment you're sorely lacking in good judgment (As I have been since I treated it like one). I'm sorry but in the time it takes to turn a profit on this thing I could've earned several times what I make here. Averaging down doesn't make sense either as that's just dumping more money into this pig.
I have no doubt there'll be a bounce....I was tryign to turn this one into an investment though....As soon as there's a bounce and i'm back at even I'm fleeing that one like a rat from a sinking ship!
no point selling actually, that's why I'm staying in MONA..it's only worth a few dollars (literally). I'm assuming it'll get pumped again and I'll bail out
i can't wait for this thing to bottom out again....quick trade time after that
I reeeally need mona to get pumped again...just so I can get out. I wish I had read this board first..I never would've listened to their 'we're getting this to .20 with a buyback' b.s. Now I'm holding a bag of crap
ASFX!!! WHEEEE
I bought in at .007...rode to .023...sold...then bought back in at .013
I thought it was an 'investment'. I was even in communication with the company that's helping them finance. They told me that GREAT news was coming for share holders...so a few weeks later...whoops! turns out they're being sued....Easy way to go down 70% in a day.
it was a good ride from .007 to .023......Not such a good ride when I thought there was a bottom at .013 and bought back in....not good times. not good times.
you know what, you DEFINITELY are someone who's bitter that they held this around 70/share. I understand you're bitter...but hoping for this thing to finish the job of dying off isn't helping anyone else, or you.
what about the counter suit....this sounds fishy to me
great opportunity to scrape some off the pavement tomorrow...if most of us weren't already wrist deep in this thing.
What was southbridge's number again?? I can't seem to find it now
pending litigation is RARELY a good thing. The company never disclosed any of this previously to people who inquired...really ruins their credibility with share holders. Although bottom fishing for those already in a position with higher value may as well average down.
ASFX is NO LONGER IN PLAY. There is pending litigation, I'd run from this one like the plague.
Per members of the ASFX board:
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
AMERICAN SCIENTIFIC RESOURCES, INC. and KIDZ-MED, INC., Plaintiffs, -against- TECNIMED SRL, Defendant.
Case No. 08 CV 6167 (RMB) (FM)
ANSWER TO THE COMPLAINT OF PLAINTIFFS AMERICAN SCIENTIFIC RESOURCES, INC. AND KIDZ-MED, INC.
Defendant Tecnimed SRL (“Tecnimed”), by its attorneys Pillsbury Winthrop Shaw Pittman LLP, answers the Complaint of Plaintiffs as follows:
1. Tecnimed denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 1.
2. Tecnimed denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 1.
3. Tecnimed admits the allegations in Paragraph 3.
3.[sic] Tecnimed admits the allegations in Paragraph 3.
4. Tecnimed admits that venue is appropriate in this Court.
5. Tecnimed admits that it has consented to personal jurisdiction in this Court.
6. Tecnimed admits the allegations in Paragraph 6 of the complaint insofar as they conform to the terms of the referenced contracts and refers to such contracts for their terms and conditions, except denies that the later contracts were “amendments” and denies any inference that some or all of the referenced contracts are in effect.
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Case 1:08-cv-06167-RMB Document 7 Filed 09/05/2008 Page 1 of 9
7. Tecnimed denies the allegations in the first and second sentences of Paragraph 7, and refers to the referenced agreements for a full and correct statement of their terms and conditions. Tecnimed admits that Tecnimed entered into an agreement with Barrington Ventures, Ltd. (“BV Medical”) in or about June 2006, and refers to that agreement for a full and correct statement of its terms and conditions.
8. Tecnimed denies the allegations in Paragraph 8, and refers to the referenced agreements for a full and correct statement of their terms and conditions.
9. Tecnimed denies the allegations in Paragraph 9, except admits, on information and belief, that BV has sold a small number of thermometers to QVC.
10. Tecnimed denies the allegations in Paragraph 10, except admits that Plaintiffs have contended from time to time that BV has made some sales to the retail trade sector.
11. Tecnimed admits the allegations in Paragraph 11, except refers to the letter from Tecnimed’s counsel to Kidz-Med Inc., dated June 6, 2008, for a full and correct statement of its contents.
12. Tecnimed denies the allegations in the first sentence of Paragraph 12, except admits that on June 6, 2008, Tecnimed sent Walgreens a letter, and refers to that letter for a full and correct statement of its content. Tecnimed admits the allegations in the second sentence of Paragraph 12 to the extent it accurately quotes from the referenced agreement, except refers to such agreement for a full and complete statement of its terms and conditions. Tecnimed denies the remaining allegations in Paragraph 12.
13. Tecnimed denies knowledge or information sufficient to form a belief as to the truth of the allegations in the first sentence of Paragraph 13. Tecnimed denies the allegations in the second sentence of Paragraph 13, except admits that Walgreens has informed Tecnimed and
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Case 1:08-cv-06167-RMB Document 7 Filed 09/05/2008 Page 2 of 9
Kidz-Med that it will hold the payments currently owed on the Thermofocus thermometers until it receives a letter signed by both Tecnimed and Kidz-Med directing Walgreens to release the funds, a direction from a third party neutral jointly appointed by Tecnimed and Kidz-Med, or a final court order stating who is entitled to receive Walgreens’ payments on this account. Tecnimed denies the allegations in the last sentence of Paragraph 13.
COUNT ONE (Breach of Contract)
14. Tecnimed repeats its answers to Paragraphs 1 through 13 as if set forth in full herein.
15. Tecnimed denies the allegations in Paragraph 15.
16. Tecnimed denies the allegations in Paragraph 16.
COUNT TWO (Tortious Interference With Contract)
18. [sic] Tecnimed repeats its answers to Paragraphs 1 through 17 [sic] as if set forth in full herein.
19. Tecnimed denies knowledge or information sufficient to form a belief as to the truth of the allegations in the first sentence of Paragraph 19. Tecnimed denies the remaining allegations in Paragraph 19.
20. Tecnimed denies the allegations in Paragraph 20.
COUNT THREE (Request for Declaratory Relief)
21. Tecnimed repeats its answers to Paragraphs 1 through 21 [sic] as if set forth in full herein.
22. Tecnimed admits the allegations in Paragraph 22.
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Case 1:08-cv-06167-RMB Document 7 Filed 09/05/2008 Page 3 of 9
23. Tecnimed denies that Plaintiffs are entitled to the requested relief.
AFFIRMATIVE DEFENSES
First Affirmative Defense
24. Plaintiffs’ claims are barred in whole or in part because the Complaint fails to state a claim upon which relief may be granted.
Second Affirmative Defense
25. Plaintiffs’ claims are barred in whole or in part because the consequential damages that Plaintiffs seek to recover (lost business as a result of not securing venture capital) were unforeseeable and are also speculative.
Third Affirmative Defense
26. Plaintiffs’ claims are barred in whole or in part to the extent they seek to enforce rights under contracts that have been terminated or that never came into existence as a result of Plaintiffs’ failure to satisfy conditions precedent to the contract’s formation, specifically, the minimum purchase obligations.
Fourth Affirmative Defense
27. Plaintiffs’ claims are barred in whole or in part because Plaintiffs have materially breached the relevant agreements.
Fifth Affirmative Defense
28. Plaintiffs’ claims are barred in whole or in part insofar as they seek damages in excess of the exclusive remedies set forth in the Agreement.
Sixth Affirmative Defense
29. The Complaint fails to state a claim for tortious interference as the Complaint fails to allege any facts that Defendant acted with malice or without economic justification.
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Case 1:08-cv-06167-RMB Document 7 Filed 09/05/2008 Page 4 of 9
Seventh Affirmative Defense
30. Plaintiffs’ claims are barred in whole or in part because Plaintiffs’ injuries, if any, were caused in whole or in part by Plaintiffs’ own culpable conduct.
AS AND FOR COUNTERCLAIMS
AGAINST PLAINTIFFS
31. Tecnimed srl (“Tecnimed”) is an Italian company located at p.le Cocchi, 12-21040 Vedano Olona (VA), Italy.
32. American Scientific Resources, Inc. (“American Scientific”) is a Nevada Corporation with its principal place of business at 1112 Weston Road, Unit 278, FL 33326.
33. Kidz-Med, Inc. (“Kidz-Med”) is a Florida Corporation with its principal place of business at 1112 Weston Road, Unit 278, FL 33326.
34. This Court has jurisdiction over the counterclaim pursuant to 28 USC §1332 (a)(2) in that the matter in controversy exceeds the sum of $75,000, exclusive of interest and costs, and is between citizens of a State and citizens or subjects of a foreign state.
35. Venue is appropriate in this district pursuant to 28 USC §1391(b).
36. This Court has personal jurisdiction over American Scientific and Kidz-Med in that they transact business in the State of New York and have consented to personal jurisdiction in this district.
The Agreement and Notes
37. The parties to this action were parties to a certain distribution agreement for thermometers manufactured by Tecnimed (the “Agreement”), pursuant to which Tecnimed agreed to supply and Kidz-Med and American Scientific agreed to purchase and distribute certain thermometers.
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Case 1:08-cv-06167-RMB Document 7 Filed 09/05/2008 Page 5 of 9
38. In connection with the Agreement and Tecnimed’s delivery of thermometers to American Scientific and Kidz-Med, American Scientific executed a Promissory Note dated October 30, 2007, in the principal amount of $350,000 for the benefit of Tecnimed (the “First Note”).
39. In connection with the Agreement and Tecnimed’s delivery of thermometers to American Scientific and Kidz-Med, American Scientific also executed a Promissory Note dated April 1, 2008, in the principal amount of $258,800 for the benefit of Tecnimed (the “Second Note,” and together with the First Note, the “Notes”).
40. Tecnimed has a perfected security interest against the assets of American Scientific and Kidz-Med.
41. In an Addendum to the Agreement dated March 31, 2008, which forms part of the Agreement, American Scientific agreed, among other things, to “promptly transfer back” 12,000 thermometers to Tecnimed.
42. In the Addendum to the Agreement, American Scientific also agreed to pay Tecnimed a percentage of any revenues received either from its customer, Walgreens, or from any financings.
Plaintiffs’ Breach of the Agreement and Default Under the Notes
43. American Scientific has failed to make any payments as when due under the Notes.
44. American Scientific has failed to return any of the thermometers as required by the Addendum to the Agreement. Upon information and belief, the thermometers that American Scientific agreed to return are presently located at Jamestown Container Companies (“JCC”).
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Case 1:08-cv-06167-RMB Document 7 Filed 09/05/2008 Page 6 of 9
JCC has refused to surrender such thermometers on the grounds that American Scientific and Kidz-Med owe it in excess of $100,000.
45. American Scientific has failed to pay Tecnimed any proceeds from sales of the thermometers to Walgreens or from financings.
46. American Scientific and Kidz-Med have further breached the Agreement by, inter alia, failing to comply with the Agreement’s (i) first order requirements, (ii) payment provisions, (iii) inventory return provisions, (iv) minimum purchase provisions, (v) advertising requirements, (vi) sales and support requirements, (vii) pricing and information requirements, and (viii) information disclosure requirements pertaining to Walgreens. Such defaults have remained uncured for more than 30-days following notice and have given rise to an event of termination under the Agreement.
47. On or about June 6, 2008, Tecnimed gave written notice to American Scientific that an Event of Default had arisen under the Notes as a result of American Scientific’s failure to make principal and interest payments as and when due, and demanding payment in full of the outstanding principal and interest then due.
48. On or about June 6, 2008, Tecnimed sent a letter to Plaintiffs informing them that the Agreement was terminated.
49. On or about June 6, 2008, Tecnimed advised Walgreens, a purchaser of the Tecnimed thermometers, that proceeds of any sales of Tecnimed’s thermometers should be paid to Tecnimed or held in escrow pending resolution of the disputes between the parties to this proceeding.
50. On June 24, 2008, Walgreens advised that it would hold any payments pending resolution of this matter.
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Case 1:08-cv-06167-RMB Document 7 Filed 09/05/2008 Page 7 of 9
FIRST COUNTERCLAIM
(Breach of the Agreement)
51. Tecnimed incorporates by reference Paragraphs 31 through 50 of the Counterclaims as if set forth in full herein.
52. American Scientific and Kidz-Med have materially breached the Agreement.
53. Tecnimed is owed damages in an amount to be determined at trial, but believed to be in excess of one million dollars.
SECOND COUNTERCLAIM (Default of Promissory Notes)
54. Tecnimed incorporates by reference Paragraphs 31 through 50 of the Counterclaims as if set forth in full herein.
55. American Scientific has failed to meet its payment obligations under the Notes, which are now due and payable in full in the principal amount of $608,000, plus interest.
THIRD COUNTERCLAIM (Declaratory Judgment)
56. Tecnimed incorporates by reference Paragraphs 31 through 50 of the Counterclaims as if set forth in full herein.
57. There is an actual controversy between the parties within the meaning of 28 US §§2201 and 2202 as to the entitlement to the proceeds of Walgreens’ sales of Tecnimed’s thermometers.
58. Tecnimed is entitled to a declaratory judgment that it is entitled to the proceeds of the sales.
WHEREFORE, Tecnimed respectfully requests judgment against Plaintiffs:
(i) dismissing Plaintiffs’ Complaint with prejudice and denying each and every request for relief set forth therein;
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Case 1:08-cv-06167-RMB Document 7 Filed 09/05/2008 Page 8 of 9
(ii) awarding Defendant damages in an amount to be determined at trial, but believed to be in excess of one million dollars;
(iii) awarding Defendant principal and interest due on the Notes;
(iv) declaring that Tecnimed is entitled to the proceeds of Walgreens’ sales of the Product;
(v) declaring that Plaintiffs return all thermometers in their possession or control to Tecnimed;
(vi) awarding Defendant the costs, disbursements and expenses of this action, together with prejudgment interest and attorneys fees;
(vii) granting Defendant the right to foreclose upon collateral sufficient to satisfy Plaintiffs’ obligations under the Agreement and Notes; and
(viii) granting such other and further relief as the Court may deem just and equitable.
Dated: New York, New York
September 5, 2008
PILLSBURY WINTHROP SHAW PITTMAN LLP By: __/s/___________________
Eric Fishman 1540 Broadway New York, NY 10036 (212) 858-1000
Attorneys for Defendant and Counterclaimant Tecnimed SRL
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Case 1:08-cv-06167-RMB Document 7 Filed 09/05/2008 Page 9 of 9
1:08-cv-06167-RMB American Scientific Resources Inc. et al v. Tecnimed SRL
Richard M. Berman, presiding
Date filed: 07/07/2008
Date of last filing: 09/10/2008
Case Summary
Office: Foley Square Filed: 07/07/2008
Jury Demand: Both Demand: $3000000
Nature of Suit: 190 Cause: 28:1332 Diversity-Breach of Contract
Jurisdiction: Diversity Disposition:
County: XX Out of State Terminated:
Origin: 1 Reopened:
Lead Case: None
Related Case: None Other Court Case: None
Def Custody Status:
Flag: ECF
Plaintiff: American Scientific Resources Inc. represented by Richard Charles Yeskoo Phone: 212-983-0900
Fax: 212-983-0907
Email: yeskoo@yeskoolaw.com
Plaintiff: Kidz-Med Inc. represented by Richard Charles Yeskoo Phone: 212-983-0900
Fax: 212-983-0907
Email: yeskoo@yeskoolaw.com
Defendant: Tecnimed SRL represented by Eric Xinis Fishman Phone: 212-858-1745
Fax: 212-858-1000
Email: eric.fishman@pillsburylaw.com
Counter Claimant: Tecnimed SRL represented by Eric Xinis Fishman Phone: 212-858-1745
Fax: 212-858-1000
Email: eric.fishman@pillsburylaw.com
Counter Defendant: American Scientific Resources Inc. represented by Richard Charles Yeskoo Phone: 212-983-0900
Fax: 212-983-0907
Email: yeskoo@yeskoolaw.com
Counter Defendant: Kidz-Med Inc. represented by Richard Charles Yeskoo Phone: 212-983-0900
Fax: 212-983-0907
Email: yeskoo@yeskoolaw.com
finally,
Technimed Counter Claim
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
AMERICAN SCIENTIFIC RESOURCES, INC. and KIDZ-MED, INC., Plaintiffs, -against- TECNIMED SRL, Defendant.
Case No. 08 CV 6167 (RMB) (FM)
ANSWER TO THE COMPLAINT OF PLAINTIFFS AMERICAN SCIENTIFIC RESOURCES, INC. AND KIDZ-MED, INC.
Defendant Tecnimed SRL (“Tecnimed”), by its attorneys Pillsbury Winthrop Shaw Pittman LLP, answers the Complaint of Plaintiffs as follows:
1. Tecnimed denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 1.
2. Tecnimed denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 1.
3. Tecnimed admits the allegations in Paragraph 3.
3.[sic] Tecnimed admits the allegations in Paragraph 3.
4. Tecnimed admits that venue is appropriate in this Court.
5. Tecnimed admits that it has consented to personal jurisdiction in this Court.
6. Tecnimed admits the allegations in Paragraph 6 of the complaint insofar as they conform to the terms of the referenced contracts and refers to such contracts for their terms and conditions, except denies that the later contracts were “amendments” and denies any inference that some or all of the referenced contracts are in effect.
500267745v3
7. Tecnimed denies the allegations in the first and second sentences of Paragraph 7, and refers to the referenced agreements for a full and correct statement of their terms and conditions. Tecnimed admits that Tecnimed entered into an agreement with Barrington Ventures, Ltd. (“BV Medical”) in or about June 2006, and refers to that agreement for a full and correct statement of its terms and conditions.
8. Tecnimed denies the allegations in Paragraph 8, and refers to the referenced agreements for a full and correct statement of their terms and conditions.
9. Tecnimed denies the allegations in Paragraph 9, except admits, on information and belief, that BV has sold a small number of thermometers to QVC.
10. Tecnimed denies the allegations in Paragraph 10, except admits that Plaintiffs have contended from time to time that BV has made some sales to the retail trade sector.
11. Tecnimed admits the allegations in Paragraph 11, except refers to the letter from Tecnimed’s counsel to Kidz-Med Inc., dated June 6, 2008, for a full and correct statement of its contents.
12. Tecnimed denies the allegations in the first sentence of Paragraph 12, except admits that on June 6, 2008, Tecnimed sent Walgreens a letter, and refers to that letter for a full and correct statement of its content. Tecnimed admits the allegations in the second sentence of Paragraph 12 to the extent it accurately quotes from the referenced agreement, except refers to such agreement for a full and complete statement of its terms and conditions. Tecnimed denies the remaining allegations in Paragraph 12.
13. Tecnimed denies knowledge or information sufficient to form a belief as to the truth of the allegations in the first sentence of Paragraph 13. Tecnimed denies the allegations in the second sentence of Paragraph 13, except admits that Walgreens has informed Tecnimed and
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Kidz-Med that it will hold the payments currently owed on the Thermofocus thermometers until it receives a letter signed by both Tecnimed and Kidz-Med directing Walgreens to release the funds, a direction from a third party neutral jointly appointed by Tecnimed and Kidz-Med, or a final court order stating who is entitled to receive Walgreens’ payments on this account. Tecnimed denies the allegations in the last sentence of Paragraph 13.
COUNT ONE (Breach of Contract)
14. Tecnimed repeats its answers to Paragraphs 1 through 13 as if set forth in full herein.
15. Tecnimed denies the allegations in Paragraph 15.
16. Tecnimed denies the allegations in Paragraph 16.
COUNT TWO (Tortious Interference With Contract)
18. [sic] Tecnimed repeats its answers to Paragraphs 1 through 17 [sic] as if set forth in full herein.
19. Tecnimed denies knowledge or information sufficient to form a belief as to the truth of the allegations in the first sentence of Paragraph 19. Tecnimed denies the remaining allegations in Paragraph 19.
20. Tecnimed denies the allegations in Paragraph 20.
COUNT THREE (Request for Declaratory Relief)
21. Tecnimed repeats its answers to Paragraphs 1 through 21 [sic] as if set forth in full herein.
22. Tecnimed admits the allegations in Paragraph 22.
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23. Tecnimed denies that Plaintiffs are entitled to the requested relief.
AFFIRMATIVE DEFENSES
First Affirmative Defense
24. Plaintiffs’ claims are barred in whole or in part because the Complaint fails to state a claim upon which relief may be granted.
Second Affirmative Defense
25. Plaintiffs’ claims are barred in whole or in part because the consequential damages that Plaintiffs seek to recover (lost business as a result of not securing venture capital) were unforeseeable and are also speculative.
Third Affirmative Defense
26. Plaintiffs’ claims are barred in whole or in part to the extent they seek to enforce rights under contracts that have been terminated or that never came into existence as a result of Plaintiffs’ failure to satisfy conditions precedent to the contract’s formation, specifically, the minimum purchase obligations.
Fourth Affirmative Defense
27. Plaintiffs’ claims are barred in whole or in part because Plaintiffs have materially breached the relevant agreements.
Fifth Affirmative Defense
28. Plaintiffs’ claims are barred in whole or in part insofar as they seek damages in excess of the exclusive remedies set forth in the Agreement.
Sixth Affirmative Defense
29. The Complaint fails to state a claim for tortious interference as the Complaint fails to allege any facts that Defendant acted with malice or without economic justification.
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Seventh Affirmative Defense
30. Plaintiffs’ claims are barred in whole or in part because Plaintiffs’ injuries, if any, were caused in whole or in part by Plaintiffs’ own culpable conduct.
AS AND FOR COUNTERCLAIMS
AGAINST PLAINTIFFS
31. Tecnimed srl (“Tecnimed”) is an Italian company located at p.le Cocchi, 12-21040 Vedano Olona (VA), Italy.
32. American Scientific Resources, Inc. (“American Scientific”) is a Nevada Corporation with its principal place of business at 1112 Weston Road, Unit 278, FL 33326.
33. Kidz-Med, Inc. (“Kidz-Med”) is a Florida Corporation with its principal place of business at 1112 Weston Road, Unit 278, FL 33326.
34. This Court has jurisdiction over the counterclaim pursuant to 28 USC §1332 (a)(2) in that the matter in controversy exceeds the sum of $75,000, exclusive of interest and costs, and is between citizens of a State and citizens or subjects of a foreign state.
35. Venue is appropriate in this district pursuant to 28 USC §1391(b).
36. This Court has personal jurisdiction over American Scientific and Kidz-Med in that they transact business in the State of New York and have consented to personal jurisdiction in this district.
The Agreement and Notes
37. The parties to this action were parties to a certain distribution agreement for thermometers manufactured by Tecnimed (the “Agreement”), pursuant to which Tecnimed agreed to supply and Kidz-Med and American Scientific agreed to purchase and distribute certain thermometers.
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38. In connection with the Agreement and Tecnimed’s delivery of thermometers to American Scientific and Kidz-Med, American Scientific executed a Promissory Note dated October 30, 2007, in the principal amount of $350,000 for the benefit of Tecnimed (the “First Note”).
39. In connection with the Agreement and Tecnimed’s delivery of thermometers to American Scientific and Kidz-Med, American Scientific also executed a Promissory Note dated April 1, 2008, in the principal amount of $258,800 for the benefit of Tecnimed (the “Second Note,” and together with the First Note, the “Notes”).
40. Tecnimed has a perfected security interest against the assets of American Scientific and Kidz-Med.
41. In an Addendum to the Agreement dated March 31, 2008, which forms part of the Agreement, American Scientific agreed, among other things, to “promptly transfer back” 12,000 thermometers to Tecnimed.
42. In the Addendum to the Agreement, American Scientific also agreed to pay Tecnimed a percentage of any revenues received either from its customer, Walgreens, or from any financings.
Plaintiffs’ Breach of the Agreement and Default Under the Notes
43. American Scientific has failed to make any payments as when due under the Notes.
44. American Scientific has failed to return any of the thermometers as required by the Addendum to the Agreement. Upon information and belief, the thermometers that American Scientific agreed to return are presently located at Jamestown Container Companies (“JCC”).
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JCC has refused to surrender such thermometers on the grounds that American Scientific and Kidz-Med owe it in excess of $100,000.
45. American Scientific has failed to pay Tecnimed any proceeds from sales of the thermometers to Walgreens or from financings.
46. American Scientific and Kidz-Med have further breached the Agreement by, inter alia, failing to comply with the Agreement’s (i) first order requirements, (ii) payment provisions, (iii) inventory return provisions, (iv) minimum purchase provisions, (v) advertising requirements, (vi) sales and support requirements, (vii) pricing and information requirements, and (viii) information disclosure requirements pertaining to Walgreens. Such defaults have remained uncured for more than 30-days following notice and have given rise to an event of termination under the Agreement.
47. On or about June 6, 2008, Tecnimed gave written notice to American Scientific that an Event of Default had arisen under the Notes as a result of American Scientific’s failure to make principal and interest payments as and when due, and demanding payment in full of the outstanding principal and interest then due.
48. On or about June 6, 2008, Tecnimed sent a letter to Plaintiffs informing them that the Agreement was terminated.
49. On or about June 6, 2008, Tecnimed advised Walgreens, a purchaser of the Tecnimed thermometers, that proceeds of any sales of Tecnimed’s thermometers should be paid to Tecnimed or held in escrow pending resolution of the disputes between the parties to this proceeding.
50. On June 24, 2008, Walgreens advised that it would hold any payments pending resolution of this matter.
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FIRST COUNTERCLAIM
(Breach of the Agreement)
51. Tecnimed incorporates by reference Paragraphs 31 through 50 of the Counterclaims as if set forth in full herein.
52. American Scientific and Kidz-Med have materially breached the Agreement.
53. Tecnimed is owed damages in an amount to be determined at trial, but believed to be in excess of one million dollars.
SECOND COUNTERCLAIM (Default of Promissory Notes)
54. Tecnimed incorporates by reference Paragraphs 31 through 50 of the Counterclaims as if set forth in full herein.
55. American Scientific has failed to meet its payment obligations under the Notes, which are now due and payable in full in the principal amount of $608,000, plus interest.
THIRD COUNTERCLAIM (Declaratory Judgment)
56. Tecnimed incorporates by reference Paragraphs 31 through 50 of the Counterclaims as if set forth in full herein.
57. There is an actual controversy between the parties within the meaning of 28 US §§2201 and 2202 as to the entitlement to the proceeds of Walgreens’ sales of Tecnimed’s thermometers.
58. Tecnimed is entitled to a declaratory judgment that it is entitled to the proceeds of the sales.
WHEREFORE, Tecnimed respectfully requests judgment against Plaintiffs:
(i) dismissing Plaintiffs’ Complaint with prejudice and denying each and every request for relief set forth therein;
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(ii) awarding Defendant damages in an amount to be determined at trial, but believed to be in excess of one million dollars;
(iii) awarding Defendant principal and interest due on the Notes;
(iv) declaring that Tecnimed is entitled to the proceeds of Walgreens’ sales of the Product;
(v) declaring that Plaintiffs return all thermometers in their possession or control to Tecnimed;
(vi) awarding Defendant the costs, disbursements and expenses of this action, together with prejudgment interest and attorneys fees;
(vii) granting Defendant the right to foreclose upon collateral sufficient to satisfy Plaintiffs’ obligations under the Agreement and Notes; and
(viii) granting such other and further relief as the Court may deem just and equitable.
Dated: New York, New York
September 5, 2008
PILLSBURY WINTHROP SHAW PITTMAN LLP By: __/s/___________________
Eric Fishman 1540 Broadway New York, NY 10036 (212) 858-1000
Attorneys for Defendant and Counterclaimant Tecnimed SRL
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It's so funny, I was JUST thinking that today....I tried to turn this short-med. term trade into an investment and I wish I hadn't done that. I could've made soooo much money with the funds I wasted on this stinker. Live & learn!
well see there in lies the problem. We've been trying for 2 months now to get facts out of them. We heard about 'great developments' for shareholders and funding, and all that jazz. Most of us took them at face value because of the good record the company has. But it turns out it has been sitting on this the whole time, which ruins their credibility. Not quite to MONA levels, but still, this is officially stamped as a stinky pinky. Now I'm holding 2 of these turds....I can't win!
open litigation is NEVER an opportunity to buy. Run. run fast.
LOL I was just thinking the exact same thing. I was trading for a living and took a bath on this one (i was diversified, but still this was one of my 'decent' positions). So what exactly is the cause of this lawsuit....I can't read the legalese...
it also went up more before too don't forget