EXHIBIT 10.36
STATE OF WISCONSIN CIRCUIT COURT MILWAUKEE COUNTY
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ARI NETWORK SERVICES, INC.,
a Wisconsin corporation,
11425 West Lake Park Drive,
Suite 900,
Milwaukee, Wisconsin 53224-3025,
Plaintiff,
Case No.
v. Case Codes: 30701, 30303
RGC INTERNATIONAL INVESTORS, LDC,
Three Bala Plaza, Suite 501,
Bala Cynwyd, Pennsylvania 19004,
ARI NETWORK SERVICES PARTNERS,
c/o Taglich Brothers, Inc.
1000 Fort Salonga Road,
Northport, NY 11768,
DOLPHIN OFFSHORE PARTNERS, LP,
c/o Taglich Brothers, Inc.
1000 Fort Salonga Road,
Northport, NY 11768,
and
SDS MERCHANT FUND, LP
c/o Taglich Brothers, Inc.
1000 Fort Salonga Road,
Northport, NY 11768
Defendants.
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COMPLAINT
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Plaintiff, ARI Network Services, Inc. ("ARI"), by its attorneys, Whyte
Hirschboeck Dudek S.C., for its Complaint against the defendants, RGC
International Investors, LDC ("RGC"); and ARI Network Services Partners, Dolphin
Offshore Partners, LP, and SDS Merchant Fund, LP (hereinafter collectively
referred to as "Taglich"), alleges and states as follows:
NATURE OF THIS ACTION
1. This action is brought by ARI, to compel RGC and/or Taglich to live
up to the terms of an agreement made between ARI and RGC. In April 2000, ARI
borrowed $4 million by selling a subordinated debenture and certain other
securities to RGC. The debenture is due in April, 2003. In the summer of 2002,
ARI and RGC recommenced the negotiation of terms to postpone the repayment of
the debenture.
2. On August 28, 2002, RGC orally offered to enter into an eight month
"stand-still" agreement under which RGC agreed not to exercise any claimed
default rights in return for an immediate payment of $500,000 by ARI. RGC also
offered to give ARI an option to redeem the debenture at any time during the
eight month stand-still period in return for a payment of $1 million dollars.
RGC subsequently confirmed the offer in writing. ARI's Board of Directors met on
September 13, 2003, and accepted RGC's offer, both orally in a phone call and by
signing the written term sheet provided by RGC which RGC sent to ARI to confirm
the offer.
3. Without ARI's knowledge, RGC was apparently "shopping" the debenture
behind ARI's back. Although RGC verbally confirmed the agreement with ARI, RGC
later changed its position and informed ARI that it would not live up to the
terms of its agreement. RGC then told ARI that it had sold the debenture to a
third party. ARI has now been contacted by Taglich as the claimed new owners of
the debenture. Taglich's demands are wholly inconsistent with the agreement. RGC
did not disclose the identity of the supposed purchasers and did not provide ARI
with the proof or documentation required by the debenture that the alleged
transfer actually occurred. Taglich also did not provide ARI with the identity
of the purchasers or any of the required documentation of the alleged transfer
until November 8, 2002.
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THE PARTIES
4. ARI is a Wisconsin corporation with its corporate headquarters
located at 11425 West Lake Park Drive, in Milwaukee, Wisconsin. ARI is a
publicly-traded corporation in the business of providing electronic
catalog-enabled business solutions for sales, service and life-cycle product
support in the manufactured equipment market.
5. RGC is a Caymen Islands limited duration company with its principal
place of business located at Three Bala Plaza in Bala Cynwyd, Pennsylvania. RGC
is in the business of investing in publicly-traded companies with promising
growth potential and superior management. Upon information and belief, RGC has
engaged in substantial and not isolated activities in Wisconsin, including
activities undertaken in connection with its relationship with ARI.
6. ARI Network Services Partners, Dolphin Offshore Partners, LP and SDS
Merchant Fund, LP all claim to own a portion of the ARI debenture and warrants.
On November 8, 2002, each of these defendants notified ARI that they have
authorized Taglich Brothers, Inc. to act as their agent relative to ARI. Taglich
Brothers, Inc. is located at 1000 Fort Salonga Road, North Port, NY 11768. ARI
knows nothing about these three entities and was only placed on notice that they
claim to be owners of the ARI debenture and warrants on November 8, 2002.
7. This court has personal jurisdiction over RGC and Taglich in
Wisconsin because, on information and belief, they have engaged in substantial
and not isolated activities in Wisconsin and because this action concerns a
contract falling within Wis. Stat. Section 801.05(5).
THE CONVERTIBLE DEBENTURE AND OTHER SECURITIES
8. On April 27, 2000, ARI issued and sold to RGC (i) a convertible
subordinated debenture in the amount of $4,000,000 due on or before April 27,
2003 (the "Debenture"), which is convertible into shares of ARI's Common Stock,
(ii) warrants to purchase 600,000 shares of
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Common Stock, and (iii) an investment option to purchase 800,000 shares of
Common Stock (collectively "the Existing Securities"). The documentation for the
transaction was proposed and prepared by RGC.
9. Under the Existing Securities, RGC's investment option expired on
October 27, 2001 and the warrants will expire on April 27, 2005. RGC has not
exercised the investment options or warrants under the Existing Securities.
THE STAND-STILL AND BUY-OUT AGREEMENT
BETWEEN ARI AND ROSE GLEN
10. In the summer of 2002, ARI recommenced the negotiation of an
extension of time to repay the Debenture. In response to ARI's request, the
parties met at RGC's offices in Bala Cynwyd on August 28, 2002. At the meeting,
RGC orally communicated to ARI a formal offer to enter into a new structure for
the transaction (referred to herein as the "Offer"). In the Offer, RGC offered
to resolve all obligations concerning the Existing Securities held by RGC in
ARI. RGC also offered to stand-still, i.e., not to exercise any claimed default
or other rights under the Existing Securities for a period of eight months in
exchange for ARI's payment of $500,000 to RGC. RGC also offered to give ARI the
right to call, i.e., to buy back, any of the remaining Existing Securities in
return for the payment of $1 million dollars at any time during the stand-still
period. Under the Offer, if ARI did not exercise the call, then the initial
$500,000 payment for the "stand-still" period would be applied to the amount
owed under the Debenture. In short, RGC offered to accept a payment of $1.5
million for the Existing Securities if the amount was paid by ARI during the
stand-still period.
11. In response to the Offer, at the meeting on August 28, 2002, ARI's
representatives told RGC that ARI was inclined to accept the Offer, but that it
was necessary to obtain authorization from ARI's Board of Directors to formally
accept the Offer. At the meeting, ARI's
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representatives also asked RGC to confirm the business terms of the Offer in
writing so that all of the details could be accurately presented to ARI's Board.
12. Pursuant to the discussion at the August 28th meeting, on September
12, 2002, RGC faxed a document to ARI entitled "Term Sheet for ARI Network
Services, Inc." confirming the terms of the Offer. The business terms contained
in this writing are consistent in all material respects with the terms of the
Offer communicated by RGC to ARI on August 28, 2002. In addition, RGC asked both
parties to promise to keep the terms of the Offer confidential and not to
discuss them with or distribute them to any third party (except for legal and
financial advisors), without the prior written consent of the other party.
13. On September 13, 2002, ARI's Board of Directors met and accepted
RGC's Offer, authorizing ARI's president to accept the Offer.
14. Immediately thereafter, ARI communicated its acceptance of the
Offer to RGC, both by telephone and in writing.
15. ARI's acceptance of the Offer formed a contract between ARI and RGC
(the "Agreement").
RGC'S REFUSAL TO HONOR THE AGREEMENT AND
THE CLAIMED TRANSFER TO TAGLICH
16. As late as 4:00 p.m. on September 18, 2002, RGC represented to ARI
that everything was proceeding with the Agreement. On the evening of September
18, 2002, however, RGC contacted ARI to tell ARI that RGC might renege on the
Agreement.
17. On or about September 26 or 27, 2002, RGC claimed that it
transferred the Existing Securities to one or more purchasers which it did not
identify. Shortly thereafter, ARI was contacted by Michael Taglich, who claimed
to be a representative of Taglich as the alleged transferees of the Debenture
and the Existing Securities. RGC did not provide ARI with the proof required by
the debenture that any transfer occurred. On November 8, 2002, Taglich
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provided ARI with undated incomplete documents which appear to document a
transfer of the ARI Existing Securities. Taglich has made demands against ARI
which are wholly inconsistent with the Agreement.
18. On October 29, 2002, ARI sent RGC a letter demanding that RGC
perform its obligations and abide by the Agreement. ARI confirmed that it was
ready, willing, and able to perform under the Agreement.
19. On November 1, 2002, RGC responded and claimed that the Agreement
could not be enforced. RGC again claimed that it sold and assigned all of its
rights and obligations in the Existing Securities on September 27, 2002.
20. RGC has instructed ARI to direct future questions to the new owners
of the Existing Securities. RGC did not identify who those purchasers are and
did not disclose the terms and conditions of any such transfer.
COUNT I
DECLARATORY JUDGMENT OF ARI'S RIGHTS UNDER THE AGREEMENT
21. ARI realleges and incorporates paragraphs 1 through 20 of this
Complaint as though fully set forth herein.
22. As a person interested under a contract, whose rights, status, or
other legal relations are affected by the Agreement, ARI is entitled to a
determination of questions of construction and validity arising under the
Agreement and to obtain a declaration of the parties' rights, status, and legal
relations pursuant to Wis. Stat. Section 806.04.
23. RGC and Taglich refuse to honor the terms of the Agreement and both
have denied that the Agreement is a binding, enforceable contract.
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24. The Agreement is a binding, enforceable agreement against RGC and
any claimed transferee of RGC's investment in ARI, including, but not limited
to, Taglich. Neither RGC nor Taglich has any contractual right to terminate the
Agreement or to deny its enforceability.
25. ARI is ready, willing and able to perform its obligations under the
Agreement.
26. ARI is entitled to a judicial determination of its rights and
obligations under the Agreement.
27. ARI seeks declaratory relief against RGC and Taglich confirming the
existence and enforceability of the Agreement against both parties, if, in fact,
Taglich actually did acquire some interest in the Existing Securities.
COUNT II
BREACH OF CONTRACT
28. ARI realleges and incorporates paragraphs 1 through 27 of the
Complaint as though fully set forth herein.
29. RGC and Taglich have committed a breach and/or anticipatory
repudiation of the Agreement by virtue of their refusal to acknowledge, honor or
perform the Agreement, and their refusal to cooperate in good faith under the
terms of the Agreement.
30. ARI has suffered and will suffer compensatory damages and/or
irreparable harm as a result of this breach and/or anticipatory repudiation of
the Agreement.
COUNT III
CLAIM FOR SPECIFIC PERFORMANCE
31. ARI realleges and incorporates paragraphs 1 through 30 of the
Complaint as though fully set forth herein.
32. ARI will suffer irreparable harm for which there is no adequate
remedy at law if RGC and/or Taglich persist in their refusal to honor the terms
of the Agreement.
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33. To avoid suffering irreparable harm, ARI seeks an order from the
Court requiring RGC and/or Taglich to perform all of the contractual obligations
of the Agreement, including, but not limited to, the execution of a stand-still
agreement for eight (8) months in return for the payment of $500,000 by ARI and
the granting of an option to ARI to repurchase the Existing Securities at any
time during the stand-still period in return for the payment of $1 million
dollars.
COUNT IV
BREACH OF THE COVENANT OF
GOOD FAITH AND FAIR DEALING
34. ARI realleges and incorporates paragraphs 1 through 33 of this
Complaint as though fully set forth herein.
35. The actions and statements of RGC and Taglich as described above,
including the refusal to acknowledge and perform the Agreement, and the claimed
sale of the investment in ARI while refusing to disclose the terms of the
transfer or the identity of the transferee, have breached the covenant of good
faith and fair dealing inherent in the Agreement.
36. ARI has and will suffer compensatory damages and irreparable harm
as a result of this breach of the covenant of good faith and fair dealing.
WHEREFORE, ARI demands the following relief against RGC and Taglich:
A. A judgment declaring that the Agreement is binding and
enforceable and granting specific performance to ARI, ordering
RGC and Taglich to abide by and perform under the terms of the
Agreement;
B. A judgment awarding compensatory damages to ARI, in an amount
to be determined by the trier of fact, for the damages
sustained by ARI as a result of the breach and/or anticipatory
repudiation of the Agreement and the breach of the covenant of
good faith and fair dealing inherent in the Agreement.
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C. A judgment for ARI's taxable costs and disbursements incurred
in this litigation, and, to the extent recoverable by law,
actual attorneys' fees; and
D. Any other and relief deemed appropriate by the Court.
Dated this 8th day of November, 2002.
WHYTE HIRSCHBOECK DUDEK S.C. Attorneys for
the Plaintiff, ARI Network Services, Inc.
By:
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Bruce G. Arnold
State Bar No. 1002833
P.O. ADDRESS: Ross A. Anderson
- ------------- State Bar No. 1018368
111 East Wisconsin Avenue Suite 2100 Lisa M. Arent
Milwaukee, WI 53202 State Bar No. 1021749
414-273-2100
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