Mr. Bordynuik offered Plaintiff his own "personal stock" in JBI to induce him to work for the company. (See Ex. "A" at ¶ 3). In doing so, Mr. Bordynuik was acting outside of his corporate capacity. Mr. Bordynuik's January 28-31, 2010 emails with Plaintiff state in relevant part as follows:
From: John Bordynuik [mailto:john@johnbordynuik.com] Sent: Sunday, January 31, 2010 11:58 AM To: Michael Kaplanis Cc: Geoffrey C. Weber Subject: Re: Follow up . . . Please don't trade the stock during the next 3 weeks -- you can expect FINRA to pull all the transactions after this massacre. Power Plays: There have been a few between Steve Seneca (PakIt) and others who wish control. I know you are moving to Florida but JBI Admin and Executive are being scattered all over North America. I don't believe we need a centralized office other than Accounting Controls (limited to compliance and reporting only -- Florida). . . -------------------------------------------------------------------------------------------------- On Sat, 2010-01-30 at 18:33 -0600, Michael Kaplanis wrote: Hi John, I was thinking we call it “Executive Vice President of Mergers, Acquisitions and Strategy.” . . . Best, Michael -------------------------------------------------------------------------------------------------------------------- On Sat, Jan 30, 2010 at 3:45 PM, John Bordynuik <john@johnbordynuik.com> wrote: We are a go. $120k & I'll issue 100k shares from my stock. You'll have an agreement this weekend. Please execute and we proceed. I'll send the job description with it. Gregg has helped on this... Your title should be: VP Mergers & Acquisitions or VP ?? -------------------------------------------------------------------------------------------------- On Thu, 2010-01-28 at 17:57 -0600, Michael Kaplanis wrote: Hi John, I hope you are well. Geoff gave me your cell and I left a message. I think Geoff's advice to both of us is to keep it simple. I agree with him. You and I have agreed to the terms, and think we are very close to making this finalized. I'd like to hit the ground running with you and making myself helpful ASAP. I'm available anytime tonight. My cell is 312-497-9665. Talk to you soon, Michael (See Ex. "A" at ¶ 3) (redacted above for the sake of brevity) (emphasis added).
Therefore, Mr. Bordynuik offered "my stock" to Plaintiff to induce him to work for the company. (Id.). This means that Mr. Bordynuik was stepping outside of his official duties to engage in his own individual offering of securities. Mr. Bordynuik was serving as a promoter of stock. Clearly, this is the type of activity that is not protected by the corporate shield doctrine, putting aside for the moment federal securities regulations relating to the promotion of stock. See Estate of Canavan v. Nat’l Healthcare Corp., 889 So.2d 825 (Fla. 2d DCA 2004) (finding that negligence by an officer, even if performed in the capacity as a corporate officer, constitutes tortuous conduct that is not shielded from personal liability). Similarly, other Florida case law holds that officers of a corporation may be held liable for their own torts even if such acts are performed as corporate officers); McElveen v. Peeler, 544 So. 2d 270 (Fla. 1st DCA 1989); Orlovsky v. Solid Surf, Inc., 405 So. 2d 1363, 1364 (Fla. 4th DCA 1981).
Mr. Bordynuik's above-cited email came two days after another email he wrote to Plaintiff on this same subject which makes it even clearer that Mr. Bordynuik acted beyond the scope of his duties in personally soliciting Plaintiff's employment:
---------- Forwarded message ---------- From: John Bordynuik <john@johnbordynuik.com> Date: Thu, Jan 28, 2010 at 11:52 AM Subject: Re: Contract To: Michael Kaplanis <michael.kaplanis@gmail.com> Cc: Geoff Weber <gweber@bayshorebroadway.com> Hello Mike, . . . I will provide the agreement I used for Jacob and Ron Kurp. The stock is coming from my holdings so the exchanges can't get funny about it. It is 500k out of my pocket so I am dealing with Gregg on the agreement. My concern is how to deal with the employee stock option plan and salary. Cash salaries hit the bottom line hard and don't look like value-based management. The SEC created S-8 stock (or options) stock to allow a growth company to grow without having to pay exec salaries because the S-8 stock can be sold into the market as cash.They are securities registered for sale the moment I file it. They have been abused in the past so the SEC looks at these closely which will then in turn cause a greater flurry of requests to come from FINRA and the SEC. Our problem at this time is how implement a stock option plan without creating precedents I can't support. Baldwin is a prime example with "salary in escrow". He has no stock though... I appreciate your research on the matter and I am looking into how we can compensate everyone and include room for new execs. If we can hammer a plan out then I believe it will work. Do you have time this afternoon do discuss how we can accomplish this with you & everyone else? I would like to bring you on board ASAP.
(See, Ex. "A" at ¶ 4) (redacted above for the sake of brevity) (emphasis added).
As evidenced by the above, Mr. Bordynuik engaged in the business of stock promotion in Florida pursuant to Section 48.193(1)(a). He basically offered to devise his own personal stock in order to induce Plaintiff to work for the company. Further, because the Plaintiff did not receive the promised stock from Mr. Bordynuik, Mr. Bordynuik's representations regarding the same constitute fraud or another tortious act pursuant to Section 48.193(1)(b). Additionally, pleading in the alternative, Mr. Bordynuik's breach of his oral promise to devise his personal stock to the Plaintiff constitutes breach of contract pursuant to Section 48.193(1)(g).
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