Note 11 - Commitments and Contingencies | 6 Months Ended |
Jun. 30, 2014 |
Notes | ' |
Note 11 - Commitments and Contingencies | ' |
NOTE 11 COMMITMENTS AND CONTINGENCIES |
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INFRINGEMENT |
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On October 13, 2009, the U.S. Patent and Trademark Office (“PTO”) issued U.S. Patent No. 7,601,858, titled "Method of Processing Ethanol Byproducts and Related Subsystems” (the ’858 Patent) to GS CleanTech Corporation, a wholly-owned subsidiary of GreenShift Corporation. On October 27, 2009, the PTO issued U.S. Patent No. 7,608,729, titled "Method of Freeing the Bound Oil Present in Whole Stillage and Thin Stillage” (the ’729 Patent) to GS CleanTech. Both the ‘858 Patent and the ‘729 Patent relate to the Company’s corn oil extraction technologies. |
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On October 13, 2009, GS CleanTech filed a legal action in the United States District Court, Southern District of New York captioned GS CleanTech Corporation v. GEA Westfalia Separator, Inc.; and DOES 1-20, alleging infringement of the ‘858 Patent ("New York I Action"). On October 13, 2009, GS CleanTech filed a Motion to Dismiss with the same court relative to a separate complaint filed previously by Westfalia captioned GEA Westfalia Separator, Inc. v. GreenShift Corporation that alleged (1) false advertising in violation of the Lanham Act § 43(a); (2) deceptive trade practices and false advertising in violation of New York General Business Law §§ 349, 350 and 350-a; and (3) common law unfair competition ("New York II Action"). On October 13, 2009, Westfalia filed its First Amended Complaint in the New York II Action to include as a plaintiff, ethanol production company Ace Ethanol, LLC , and to add claims seeking a declaratory judgment of invalidity and non-infringement of the ‘858 Patent. On October 13, 2009, ICM, Inc. filed a complaint in the United States District Court, District of Kansas in the matter captioned ICM, Inc. v. GS CleanTech Corporation and GreenShift Corporation, alleging unfair competition, interference with existing and prospective business and contractual relationships, and deceptive trade practices and also seeking a declaratory judgment of invalidity and non-infringement of the ‘858 Patent. |
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On October 15, 2009, in the New York I Action, GS CleanTech filed a Notice of Filing First Amended Complaint for infringement of the ‘858 Patent, along with a copy of the First Amended Complaint, which added ICM, Ace Ethanol, Lifeline Foods LLC and ten additional DOES as defendants in the New York I Action. On October 23, 2009, GS CleanTech's First Amended Complaint in the New York I Action was entered by the court. On November 5, 2009, in ICM’s Kansas lawsuit, GS CleanTech filed a motion to dismiss or, in the alternative, to transfer the Kansas case to New York for inclusion in the New York I Action. Also on November 5, 2009, in ICM’s Kansas lawsuit, ICM filed a motion to enjoin CleanTech and GreenShift from prosecuting the claims against ICM in the New York I Action. |
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During February 2010, GS CleanTech commenced a legal action in the United States District Court, Southern District of Indiana captioned GS CleanTech Corporation v. Cardinal Ethanol, LLC, and a separate legal action in the United States District Court, Northern District of Illinois captioned GS CleanTech Corporation v. Big River Resources Galva, LLC and Big River Resources West Burlington, LLC. ICM sold Cardinal and Big River the equipment that each of Cardinal and Big River have used and are using to infringe the ‘858 Patent as alleged by GS CleanTech. ICM has assumed the defense of each of the above matters. |
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During May 2010, GS CleanTech commenced the following additional actions: GS CleanTech Corporation v. Lincolnland Agri-Energy, LLC, in the United States District Court, Northern District of Illinois; GS CleanTech Corporation v. Al-Corn Clean Fuel, LLC; Chippewa Valley Ethanol Company, LLLP; Heartland Corn Products, LLC and Bushmills Ethanol, Inc., in the United States District Court, District of Minnesota; GS CleanTech Corporation v. United Wisconsin Grain Producers, LLC, in the United States District Court, Western District of Wisconsin; GS CleanTech Corporation v. Iroquois BioEnergy Company, LLC, in the United States District Court, Northern District of Indiana; GS CleanTech Corporation v. Blue Flint Ethanol, LLC, in the United States District Court, District of North Dakota; and, GS CleanTech Corporation v. Lincolnway Energy, LLC, in the United States District Court, Northern District of Iowa. |
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On May 6, 2010, GreenShift submitted a "Motion to Transfer Pursuant to 28 U.S.C. § 1407 for Consolidated Pretrial Proceedings" to the United States Judicial Panel on Multidistrict Litigation (the "Panel") located in Washington, D.C. In this motion, GreenShift moved the Panel to transfer and consolidate all pending suits involving infringement of GreenShift’s patents to one federal court for orderly and efficient review of all pre-trial matters. On August 6, 2010, the Panel ordered the consolidation and transfer of all pending suits in the U.S. District Court, Southern District of Indiana for pretrial proceedings (the "MDL Case"). |
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On July 14, 2010, GS CleanTech commenced an action entitled GS CleanTech Corporation v. Adkins Energy, LLC, in the United States District Court, Northern District of Illinois alleging infringement of the ‘858 Patent. On August 4, 2010, Adkins filed an answer to the complaint and included counterclaims seeking a declaratory judgment that Adkins does not infringe the '858 Patent and that the '858 Patent is invalid, and also alleging breach of contract. On November 30, 2010, the Adkins action was transferred to the MDL Case. |
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On October 14, 2010, GS CleanTech commenced an action entitled GS CleanTech Corporation v. Flottweg Separation Technology, Inc. and Flottweg AG, in the United States District Court, District of Connecticut alleging infringement of the ‘858 Patent. On November 15, 2010, GS CleanTech filed an amended complaint alleging that Flottweg Separation Technology, Inc., has infringed the ‘858 Patent. On November 15, 2010, the Flottweg action was transferred to the MDL Case. |
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As part of the MDL Case, on November 15, 2010, GS CleanTech amended its complaint filed in the New York I Action to include a claim of patent infringement personally against the founder, CEO and President of ICM, and ICM amended its complaint filed in the Kansas action to include a claim seeking a declaratory judgment that the '858 Patent is unenforceable. On November 30, 2010, in the MDL Case, GS CleanTech filed a motion to dismiss ICM's amended complaint (including its claim seeking a declaratory judgment that the '858 Patent is unenforceable) or, in the alternative, to transfer the Kansas case to New York for inclusion in the New York I Action. ICM has opposed the motion to dismiss. On December 10, 2010, in the MDL Case, GS CleanTech filed motions to strike the affirmative defenses that the '858 Patent is unenforceable asserted by Cardinal Ethanol, LLC; Big River Resources Galva, LLC; and Big River Resources West Burlington, LLC; and Lincolnland Agri-Energy, LLC. Each defendant has opposed the respective motion to strike. On February 14, 2011, GS CleanTech notified the court in the MDL Case that it will not be proceeding with a motion for preliminary injunction. On February 24, 2011, in the MDL Case, in connection with its breach of contract counterclaim against GreenShift Corporation, Adkins Ethanol, LLC filed a motion for judgment on the pleadings or in the alternative partial summary judgment on the issue of liability on the issue of breach of contract and partial summary judgment on the issue of damages. On March 24, 2011, GreenShift filed an opposition to Adkins’ motion. |
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All of the parties in the MDL Action filed their respective briefs with the Court in connection with proposed claim construction for certain claim limitations in the '858 Patent. A hearing on the claim construction matter was then held by the Court in the MDL Action on August 22, 2011. On September 29, 2011, the Court issued its ruling with respect to claim construction. |
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On December 2, 2011, the Court clarified its earlier claim construction order. On February 6, 2012, the Court granted the Company’s motion to amend its various complaints to include the recently issued U.S. Pat. No. 8,008,516 (the “‘516 Patent”). On February 27, 2012, the Company filed amended complaints alleging that the Defendants infringed the ‘516 Patent. |
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On May 23, 2012, several defendants filed motions for summary judgment of noninfringement. The Company filed oppositions against the defendants’ motions for summary judgment of noninfringement on July 25, 2012, and July 30, 2012, and filed its own motions for summary judgment of infringement on September 14, 2012. On June 20, 2012, the Company dismissed with prejudice all claims asserted against Amaizing Energy Atlantic, LLC; Amaizing Energy Cooperative; Amaizing Energy Denison, LLC Amaizing Energy Holding Company pursuant to a settlement agreement. The Court approved this dismissal on August 1, 2012. |
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On August 6, 2012, the Court granted the Company’s motion to amend its various complaints to include the recently issued U.S. Pat. No. 8,168,037 (the “‘037 Patent”). On August 31 2012, the Company filed amended complaints alleging that certain Defendants infringed the ‘037 Patent. On November 7, 2012, the Court granted the Company’s motion to amend its various complaints to include other patents directed to similar technology. On November 9, 2012, the Company filed amended complaints alleging that the Defendants infringed U.S. Pat. No. 8,008,517 (the “‘517 Patent”) and U.S. Pat. No.8,283,484 (the “‘484 patent). |
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On November 19, 2012, the Court denied Adkins Energy, LLC’s Motion for judgment on the pleadings or, in the alternative, for partial summary judgment on the issue of liability for breach of contract, and for partial summary judgment on one part of Adkins’ damages. The Court found that Adkins had not established its substantial performance under the contract or that the Company breached its terms with Adkins. |
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On January 29, 2013, the Court issued a supplemental order on claim construction. Because this order modified the Court’s earlier claim construction, the Court stayed all briefing in the pending summary judgment motions regarding infringement. |
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On February 12, 2013, the Company filed a motion for summary judgment against Adkins’ counterclaims of breach of contract (and related defenses). Adkins filed its opposition on March 22, 2013. On May 21, 2013, the Court denied the Company’s motion for summary judgment against Adkins’ counterclaims of breach of contract (and related defenses). |
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On February 27, 2013, the Court dismissed a number of unfair competition claims asserted by ICM against the Company, but the Court allowed ICM to proceed with a federal Lanham Act claim against the Company. |
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On May 8, 2013, the Court issued an order on claim construction for the ‘037 Patent. |
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On May 24, 2013, GS CleanTech commenced an action entitled GS CleanTech Corporation v. Pacific Ethanol, Inc., in the United States District Court, Eastern District of California alleging infringement of the ‘858 Patent. On July 18, 2013, Pacific filed an answer to the complaint and included counterclaims seeking a declaratory judgment that Pacific does not infringe the '858 Patent and that the '858 Patent is invalid and unenforceable. On August 8, 2013, GS CleanTech answered Pacific’s counterclaims. |
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On June 7, 2013, GS CleanTech commenced an action entitled GS CleanTech Corporation v. Guardian Energy, LLC, in the United States District Court, District of Minnesota alleging infringement of the ‘858, ‘516, ‘517, and ‘484 Patents. |
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On July 12, 2013, GS CleanTech commenced an action entitled GS CleanTech Corporation v. Western New York Energy, LLC, in the United States District Court, Western District of New York alleging infringement of the ‘858, ‘516, ‘517, and ‘484 Patents. |
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On July 19, 2013, GS CleanTech commenced an action entitled GS CleanTech Corporation v. Little Sioux Corn Processors, LLLP, in the United States District Court, Northern District of Iowa alleging infringement of the ‘858, ‘516, ‘517, and ‘484 Patents. |
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On August 5, 2013, GS CleanTech commenced an action entitled GS CleanTech Corporation v. Southwest Iowa Renewable Energy, LLC, in the United States District Court, Southern District of Iowa alleging infringement of the ‘858, ‘516, ‘517, and ‘484 Patents. |
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On August 10, 2013, GS CleanTech commenced an action entitled GS CleanTech Corporation v. Homeland Energy Solutions, LLC, in the United States District Court, Northern District of Iowa alleging infringement of the ‘858, ‘516, ‘517, ‘484 and ‘037 Patents. |
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On September 10, 2013, GS CleanTech commenced an action entitled GS CleanTech Corporation v. Aemetis, Inc. and Aemetis Advanced Fuels Keyes, Inc., in the United States District Court, Southern District of Indiana alleging infringement of the ‘858 Patent. On September 13, 2013, Aemetis filed an answer to the complaint and included counterclaims seeking a declaratory judgment that Aemetis does not infringe the '858 Patent and that the '858 Patent is invalid and unenforceable. |
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These cases with Defendants Pacific Ethanol, Inc.; Guardian Energy, LLC; Western New York Energy, LLC; Little Sioux Corn Processors, LLLP; Southwest Iowa Renewable Energy, LLC; Aemetis, Inc.; and Aemetis Advanced Fuels Keyes, Inc. have all been consolidated as “Tag-Along” cases for pre-trial proceedings in the current MDL in the United States District Court, Southern District of Indiana. On January 21, 2014, the Tag-Along Defendants Guardian Energy, LLC; Western New York Energy, LLC; Little Sioux Corn Processors, LLLP; Southwest Iowa Renewable Energy, LLC filed their Answers denying infringement. |
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On March 14, 2014, the Tag-Along Defendants stipulated that they adopted the claim construction arguments regarding the patents-in-suit made by the earlier MDL Defendants. Discovery is ongoing with the Tag-Along Defendants. |
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On July 23, 2013, GS CleanTech filed motions for summary judgment of infringement of the ‘858, ‘516, ‘517, and ‘484 Patents against the following defendants: Ace Ethanol, LLC, Adkins Energy, LLC, Al-Corn Clean Fuel, Big River Resources Galva, LLC, Big River Resources West Burlington, LLC, Blue Flint Ethanol, LLC, Bushmills Ethanol, Inc., Cardinal Ethanol, LLC, Chippewa Valley Ethanol Company, LLLP, Heartland Corn Products, Iroquois Bio-Energy Company, LLC, Lincolnland Agri-Energy, LLC, Lincolnway Energy LLC, and United Wisconsin Grain Producers, LLC. |
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On September 23, 2013, the above Defendants filed their oppositions (and cross-motions) asserting their non-infringement and invalidity positions regarding the ‘858, ‘516, ‘517, and ‘484 Patents. On November 22, 2013, GS CleanTech filed its reply in support of infringement and opposition (and cross-motions) regarding invalidity of the ‘858, ‘516, ‘517, and ‘484 Patents. On January 17, 2014, the above Defendants filed their reply in support of their motions for invalidity and their opposition to GS CleanTech’s motion for summary judgment of infringement. On January 16, 2014, Defendants Iroquois, GEA Mechanical, Adkins, and Lincolnway filed separate replies in support of their various motions and oppositions regarding noninfringement and invalidity. On January 16, 2014, Defendant Al-Corn filed its separate reply in support of its motion and opposition regarding noninfringement. On February 18, 2014, GS CleanTech filed a surreply opposing Defendants’ Joint Motion for Summary Judgment of Invalidity and to Dismiss Plaintiff's Claim for Provisional Remedies and Damages for Willful Infringement. On February 18, 2014, GS CleanTech also filed a surreply in support of its motions for summary judgment of infringement against Heartland Corn Products, Chippewa Valley Ethanol Company, LLLP, Lincolnway Energy LLC, Cardinal Ethanol, LLC, Blue Flint Ethanol, LLC, Big River Resources West Burlington, LLC, Big River Resources Galva, LLC, Al-Corn Clean Fuel, Lincolnland Agri-Energy, LLC, Adkins Energy, LLC, Ace Ethanol, LLC, Iroquois Bio-Energy Company, LLC, Bushmills Ethanol, Inc., and United Wisconsin Grain Producers, LLC. Finally on February 18, 2014, GS CleanTech also filed its reply in support of its cross-motions of no invalidity under 35 U.S.C. § 112. |
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On October 23, 2013, GS CleanTech filed a motion for summary judgment of infringement of the ‘037 Patent against Defendants Big River Resources Galva, LLC, Big River Resources West Burlington, LLC, Blue Flint Ethanol, LLC, Cardinal Ethanol, LLC, Lincolnland Agri-Energy, LLC, and Lincolnway Energy LLC. On December 31, 2013, Defendants Big River Resources Galva, LLC, Big River Resources West Burlington, LLC, Blue Flint Ethanol, LLC, Cardinal Ethanol, LLC, Flottweg Separation Tech., Inc., ICM, Inc., Lincolnland Agri-Energy, LLC, and Lincolnway Energy LLC filed a joint motion for summary judgment of invalidity and noninfringement of the ‘037 Patent. On February 28, 2014, GS CleanTech filed its reply in support of its motion for summary judgment of infringement of the ‘037 Patent, its opposition to the ‘037 Defendants’ motion for summary judgment of invalidity of the ‘037 Patent, and its cross-motions for summary judgment of no invalidity under 35 U.S.C. § 112 and § 102(e). On April 14, 2014, Defendants filed their reply in support of their summary judgment of invalidity and opposition to CleanTech’s motion for summary judgment of infringement of the ‘037 patent. On April 24, 2014 CleanTech filed a surreply in response. The ‘037 Defendants responded to the surreply on April 30, 2014. |
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On March 18, 2014, CleanTech commenced an action against Pacific Ethanol Stockton LLC alleging infringement of the ‘858 patent in the United States District Court for the Eastern District of California, Case No. 2:14-cv-00711-JAM-EFB. On March 18, 2014, CleanTech commenced an action against Pacific Ethanol Magic Valley LLC, ICM, Inc., and David Vander Griend alleging infringement of the ‘858, ‘516, ‘517, and ‘484 patents in the United States District Court for the District of Idaho, Case No. 4:14-cv-00108-BLW. On April 4, 2014, these two new cases against were transferred to the multidistrict litigation as Tag-Along cases 1:14-cv-08019-LJM-DML (PE Stockton) and 1:14-cv-08020-LJM-DML (PE Magic Valley). |
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On June 4, 2014, Stockton answered the complaint and filed counterclaims alleging noninfringement, invalidity, and unenforceability of the patents-in-suit. On May 29, 2014, Magic Valley and ICM answered the Complaint. On June 2, 2014, David Vander Griend moved to dismiss the complaint based on lack of personal jurisdiction in Idaho. CleanTech filed its opposition on June 19, 2014. On July 22, 2014, the Court granted Vander Griend’s motion to dismiss and dismissed Vander Griend from the Magic Valley case. |
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On June 20, 2014, CleanTech filed an assented to motion to amend the complaint against Aemetis Inc and Aemetis Advanced Fuels Keyes, Inc. to add the ‘516, ‘517, ‘484, and ‘037 patents. On June 25, 2014, the Court granted the motion to amend. Aemetis answered the amended complaint on July 16, 2014. |
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Also on June 20, 2014, CleanTech filed a motion to amend the complaint against Guardian and to add the ‘037 patent and co-defendants ICM, Inc. and David Vander Griend. Guardian filed its opposition on July 7, 2014. CleanTech filed its reply in support on July 17, 2014. |
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On July 29, 2014, CleanTech filed motions to amend its complaints against (1) LSCP to add ICM; (2) WNYE to add the ‘037 patent and ICM; and (3) SIRE to add the ‘037 patent and ICM. |
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There have been no other substantive rulings on the merits on any of the actions included in the MDL Case and Management is unable to characterize or evaluate the probability of any outcome at this time. The Company intends to take all necessary steps to bring infringement of its patents to an end, including filing additional lawsuits involving any and all infringing use of the Company’s patents. The Company further plans to seek additional relief for instances of willful infringement. The Company’s position is that any infringing ethanol producer is liable for any infringing use of the Company’s patented technologies beginning on the publication date of the application that led to the ‘858 Patent. |
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OTHER MATTERS |
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The Company’s subsidiary, GS COES (Yorkville I), LLC, is a party to an action entitled Nosan, et at v. GS COES (Yorkville I), LLC, et. al., previously pending in Lenawee County, Michigan Circuit Court Case No. 11-4069-CK, an action by nineteen plaintiffs to recover on a guarantee by the subsidiary secured by a pledge of Net Cash Flow from corn oil production at two Michigan facilities, as credit support for a bridge loan arrangement under which a variety of lenders claim to be owed the aggregate principal amount of $1,734,579, plus interest for claimed breach of their subordinated loan to GS CleanTech Corporation. The parties have briefed the issues on appeal and oral argument is scheduled for April 2, 2014. GS COES intends to continue to vigorously defend this action. In the event of the reversal of the trial court’s ruling on appeal, we cannot evaluate the likelihood of an unfavorable outcome at this time. In the event of an adverse judgment, damages could range from $2,500,000 to $3,500,000. |
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GreenShift Corporation, GS CleanTech Corporation, and (non-party) GS COES are parties to an action entitled Nosan, et al. v. GS CleanTech, GreenShift Corporation, YA Global Investments, LP, and Green Plains Commodities LLC, previously pending in the Lenawee County, Michigan Circuit Court as Case No. 11-4292-CK, a case filed by the same nineteen plaintiffs as a companion case to Case No. 11-4069-CK. The Plaintiffs filed this action after the Court denied their request to file an Amended Complaint against GS CleanTech Corporation, GreenShift Corporation, YA Global Investments, and Green Plains Commodities, LLC in Case No. 11-4069-CK. The Complaint alleges that GS CleanTech Corporation breached its obligation to repay the same $1,734,579 loan. The Complaint also alleges that the Defendants violated the Plaintiffs' claimed security interest and improperly sold the corn oil extraction equipment. In addition to the claims for breach of the notes, the Complaint includes claims for civil conspiracy, specific performance and declaratory judgment, contract implied in law/unjust enrichment, and conversion. Pursuant to the Asset Purchase Agreement entered into between GS COES and Green Plains Commodities, LLC, GS COES has agreed to assume the defense of Green Plains Commodities, LLC in this action. This case was dismissed by the trial court on July 2, 2012 based on the principles of res judicata and collateral estoppel, in light of the Court's ruling in case No. 11-4069-CK, and Plaintiffs filed an appeal with the Michigan Court of Appeals. The case is now before the Michigan Court of Appeals and all parties are awaiting a decision after briefing and oral arguments. GS COES intends to continue to vigorously defend this action. At this stage, we cannot evaluate the likelihood of an unfavorable outcome. In the event of an adverse judgment, damages could range from $2,500,000 to $3,500,000. |
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GreenShift Corporation, GS CleanTech Corporation and GS COES (Yorkville I), LLC, was party to the matter captioned Dynalectric of Michigan II, Inc. v. Biofuels Industries Group, et al, Lenawee County, Michigan Circuit Court Case No. 09-3584-CK. This case was consolidated with Case Nos. 09-3479-CK and 09-3321-CK, which also involved the collection of construction lien claimants (Overhead Door and Detroit Boiler) related to BIG. The parties entered into a settlement agreement covering all the pending claims on December 17, 2013, pursuant to which the GreenShift entities agreed to pay the BIG bankruptcy trustee the sum of $125,000 in exchange for a release of all claims, subject to bankruptcy court approval. GreenShift paid the settlement amount in 2013. The bankruptcy court approved the settlement on March 4, 2014, and the parties are in the process of concluding the settlement. |
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The Company’s former subsidiary GS Agrifuels Corp. is party to Max v. GS Agrifuels Corp., et al. now pending in the Supreme Court, New York County, in which the plaintiffs are asserting claims to money damages against the Company and other defendants, arising from a series of “Share Purchase Agreements” dated March 6, 2007, under which the individual plaintiffs sold their shares in a company called “Sustainable Systems, Inc” to GS Agrifuels Corporation. In their Amended Complaint, plaintiffs asserted claims for breach of contract, fraud and negligent misrepresentation, and sought money damages on the amount of $6 million 6,000,000. In a Decision and Order dated March 19, 2013, the Court granted in part the defendants’ motion to dismiss the Amended Complaint, and dismissed all but the breach of contract claims asserted against the Company and certain other corporate defendants. The plaintiffs have filed a Notice of Appeal from the Decision and Order, and have indicated that they intend to perfect their appeal. On October 30, 2013, the defendants filed a motion for summary judgment dismissing the plaintiffs’ remaining claims for breach of contract. The plaintiffs have opposed the motion for summary judgment, and the motion is scheduled for oral argument in May 2014. There is no way to predict whether the motion for summary judgment will be granted and, if it is, whether the plaintiffs will take an appeal and be successful in the appellate court. If the motion for summary judgment is denied, the case is likely to proceed to trial. If the case proceeds to trial, we cannot offer any opinion as to the likelihood of a favorable outcome or, if the outcome is unfavorable, the amount or range of potential loss. It is, however, our understanding that management intends to continue to vigorously defend and litigate the matter. |
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On June 28, 2010 JMJ Financials commenced an action entitled JMJ Financial v. GreenShift et. al., in the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, State of Florida, alleging breach of contract and other causes of action for which the plaintiff seeks damages of about $300,000 plus costs. In January 2013 judgment in the amount of $600,026 was entered by default against GreenShift and its co-defendants. The Company has agreed to pay $350,000 in full settlement and release of any obligations. The Company made payments totaling $189,583 during 2013, with eight monthly remaining payments of $14,583 due through November 2014. The settlement and release will be effective as long as the required payments are made timely or defaults due to late payment are cured within five days of the written notice of default has been sent. The Company is permitted two events of default under the terms of the settlement. |
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On September 10, 2012, Long Side Ventures commenced an action entitled Long Side Ventures and Sunny Isles Ventures, LLC, LLC v. GreenShift et. al., in the United States District Court for the Southern District of New York, alleging breach of contract and other causes of action for which the plaintiff seeks damages of about $250,000 plus costs. The Company intends to vigorously defend this action. At this stage of the proceedings, we cannot evaluate the likelihood of an unfavorable outcome in excess of the amounts previously accrued. |
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On October 10, 2013, Golden Technology Management, LLC, and other plaintiffs commenced an action entitled Golden Technology Management, LLC, et al. v. NextGen Acquisition, Inc. et al. in the Supreme Court of the State of New York, County of New York, alleging breach of contract and other causes of action against the Company in connection with the acquisition of NextGen Fuel, Inc. by a former indirect subsidiary. Plaintiffs seek damages in excess of $5,200,000 plus prejudgment interest and costs. The Company intends to vigorously defend this action. At this stage of the proceedings, we cannot evaluate the likelihood of an unfavorable outcome in excess of the amounts previously accrued. |
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Under the Company’s insurance programs, coverage is obtained for catastrophic exposures, as well as those risks required to be insured by law or contract. There is a $2,500 deductible per occurrence for environmental impairments. Environmental liability insurance is carried with policy limits of $1,000,000 per occurrence and $2,000,000 aggregate. |
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The Company is party to employment agreements with Kevin Kreisler, formerly the Company’s Chairman, Ed Carroll, the Company’s Chief Executive Officer and Chief Financial Officer, David Winsness, the Company’s Chief Technology Officer, Greg Barlage, the Company’s Chief Operating Officer, and Richard Krablin, the Company’s Vice President. Each agreement also included terms for reimbursement of expenses, periodic bonuses, four weeks’ vacation and participation in any employee benefits provided to all employees of GreenShift Corporation. |
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The Company’s Articles of Incorporation provide that the Company shall indemnify its officers, directors, employees and agents to the full extent permitted by Delaware law. The Company’s Bylaws include provisions to indemnify its officers and directors and other persons against expenses (including attorney’s fees, judgments, fines and amounts paid for settlement) incurred in connection with actions or proceedings brought against them by reason of their serving or having served as officers, directors or in other capacities. The Company does not, however, indemnify them in actions in which it is determined that they have not acted in good faith or have acted unlawfully. The Company is further subject to various indemnification agreements with various parties pursuant to which the Company has agreed to indemnify and hold such parties harmless from and against expenses and costs incurred (including attorney’s fees, judgments, fines and amounts paid for settlement) in connection with the provision by such parties of certain financial accommodations to the Company. Such parties indemnified by the Company include YA Global Investments, L.P., YA Corn Oil Systems, LLC, Viridis Capital, LLC, Minority Interest Fund (II), LLC, Acutus Capital, LLC, and various family members of the Company’s chairman that have provided the Company with cash investments. |