Case 2:08-cv-11166-NGE-SDP Document 1 Filed 03/18/2008 Page 1 of 9 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION MARIO ANDRETTI, v. Plaintiff, CANNONBALL 8000, LTD., CONRAD WALL, TBG TECHNOLOGIES, LTD., and JONATHAN BRYANT, jointly and severally, Defendants. / COMPLAINT Mario Andretti ( Andretti ), through his attorneys, states for his Complaint against Cannonball 8000, Ltd. ( Cannonball ), Conrad Wall ( Wall ), TBG Technologies, Ltd. ( TBG ), and Jonathan Bryant ( Bryant ) (collectively, Defendants ), jointly and severally, as follows: JURISDICTIONAL ALLEGATIONS 1. Andretti is an individual that resides in Nazareth, Pennsylvania. 2. Cannonball is a foreign corporation with offices located at Suite 3, 22 Eden Street, Kingston Upon Thames, Surrey KT11DN, United Kingdom. Courthouse News Service 3. Wall is an individual with offices located at Suite 3, 22 Eden Street, Kingston Upon Thames, Surrey KT11DN, United Kingdom. 4. TBG is a foreign corporation with offices located at Victory Point Staffordshire Technology Park, Stafford ST 18 0GP, United Kingdom.
Case 2:08-cv-11166-NGE-SDP Document 1 Filed 03/18/2008 Page 2 of 9 5. Bryant is an individual with offices located at Victory Point Staffordshire Technology Park, Stafford ST 18 0GP, United Kingdom. 6. This Court has jurisdiction over this action pursuant to 28 USC 1332 because it is between citizens of different countries and the amount in controversy, exclusive of interest, costs and attorneys fees, exceeds $75,000. 7. Venue is proper in this district pursuant to 28 USC 1391 because the parties conducted substantial business in this venue, the facts giving rise to this action occurred in this venue, and because the parties have contractually agreed to bring any claim among them in this venue. GENERAL ALLEGATIONS 8. Andretti is an internationally renowned personality/automobile racecar driver and, among many other accomplishments, was a four-time Indy Car National Champion, the 1978 Formula One World Champion, and was honored in 2000 as the Co-Driver of the Century by the Associated Press. 9. Since his retirement from the world of automotive racing, Andretti, in addition to maintaining an interest in a diverse range of businesses, acts as a corporate spokesman for large and small companies alike that contract with Andretti for the excusive right to utilize his name, image, likeness, and personal services as part of the marketing and promotion of their goods and/or services in their particular industry ( Andretti Rights ). The Andretti Rights carry special and unique value. 10. Upon information and belief, Cannonball owns the rights to and produces an annual road rally event throughout Europe called the Cannonball 8000, which Cannonball, at one time, intended to expand to other parts of the world, including the United States and Asia. 2
Case 2:08-cv-11166-NGE-SDP Document 1 Filed 03/18/2008 Page 3 of 9 11. Cannonball was planning its 5th Annual Cannonball 8000 Road Rally that was to be held in September, 2007 as well as planning to launch its publicly traded stock on the Pink Sheets in the United States as part of an initial public offering. 12. As part of this planning, Cannonball approached Andretti in an effort to secure the Andretti Rights as a spokesperson and to utilize the endorsement, recognition, and reputation of Andretti toward the marketing, advertising, and promotion of Cannonball s name and brand, its initial public offering, and its various events. 13. To this end, on July 25, 2007, Andretti and Cannonball entered into a written agreement ( Agreement ) wherein Andretti provided the Andretti Rights to Cannonball in exchange for, among other things, the following: Agreement, p. 6 (Exhibit 1). In consideration for the rights, grants, benefits and services conveyed by Andretti to the Company hereunder, Company shall issue to Andretti one million (1,000,000), unrestricted, freely traded shares of the Company, at a par share price of at least $.60 (the Shares ). Upon the execution of this Agreement, the Company will facilitate the set up of a brokerage trading account for Andretti for liquidation and management of his stock. The Company guarantees minimum net stock proceeds of $250,000.00 (the Fee ), with the minimum net proceed value being available on or before 14 days from the date of float, in any event no later than the 31 st August 2007, and upon receipt be immediately paid to Andretti. Failure to achieve the net minimum liquidation value within the 14 days and 31 st August 2007 time lines will result in default. In the event of default, the company will issue an immediate wire to settle the outstanding shortfall. 14. A material part of inducing Andretti to enter into the Agreement was TBG s and Bryant s promise to guarantee Cannonball s obligations to Andretti (Exhibit 2). 15. Despite Defendants multiple repeated promises to pay Andretti accordingly to the terms of the Agreement, they failed to do so (Exhibit 3). 16. As a result of their failures to abide by their promises and representations, the parties entered into an agreement dated October 5, 2007 ( Letter Agreement ) (Exhibit 4) 3
Case 2:08-cv-11166-NGE-SDP Document 1 Filed 03/18/2008 Page 4 of 9 wherein Defendants reiterated their obligation to pay Andretti the sums due and owing. The payment schedule was as follows: PAYMENT DUE DATE AMOUNT $20,000.00 October 4, 2007 $46,000.00 November 1, 2007 $46,000.00 December 1, 2007 $46,000.00 January 1, 2008 $46,000.00 February 1, 2008 $46,000.00 March 1, 2008 17. Pursuant to the terms of the Letter Agreement, which incorporated by reference all of the terms of the Agreement, if Defendants failed to provide payment as promised, and Andretti was required to retain legal counsel and incur costs and attorneys fees in the enforcement of the Agreement and the Letter Agreement, Andretti is entitled to the recovery of his costs and attorneys fee as an element of his damages. 18. Defendants paid Andretti the sum of $19,967.00 on or about October 10, 2007 but notwithstanding Defendants repeated material representations that it would do so in accordance with the Letter Agreement, Andretti has not been paid any of the remaining sums due and owing to him. 19. Despite Defendants repeated material representations, Defendants continue to do business and promote Cannonball s events and stock offering (Exhibit 5). 4
Case 2:08-cv-11166-NGE-SDP Document 1 Filed 03/18/2008 Page 5 of 9 20. On January 30, 2008, Andretti terminated the Agreement and Letter Agreement and demanded all monies owing be paid in full (Exhibit 6). Defendants have not responded to this latest demand. 21. As a result of the above, Defendants actions have damaged Andretti. COUNT I BREACH OF CONTRACT 22. Andretti reiterates and incorporates all prior allegations as if fully set forth herein. 23. Andretti entered into a valid and legally binding Agreement and Letter Agreement with Defendants. 24. These terms were bargained for by Andretti and agreed to by Defendants. 25. Defendants committed a material breach of the Agreement and Letter Agreement because they failed to perform according to its terms, covenants, and conditions. 26. As a result of Defendants breaches, Andretti has been damaged. 27. As a result of Defendants breaches, Andretti was required to retain legal counsel and incur costs and attorneys fees that, pursuant to the Agreement, are fully recoverable as an element of damages. 28. Andretti has been damaged in at least the amount of $230,000, plus costs, interest, attorneys fees, and all other damages allowed by law. 5
Case 2:08-cv-11166-NGE-SDP Document 1 Filed 03/18/2008 Page 6 of 9 COUNT II FRAUDULENT INDUCEMENT 29. Andretti reiterates and incorporates all prior allegations as if fully set forth herein. 30. Defendants representations to Andretti that they would compensate Andretti for the Andretti Rights were material to Andretti s decision to do business with Defendants in the first instance and to continue to do business with Defendants in the future. 31. Defendants represented to Andretti that they would perform according to the agreed upon terms of the Agreement and the Letter Agreement on multiple occasions. 32. These statements were false and known to be false when made by Defendants. 33. Defendants knew their representations were false when they were made, or made them recklessly without knowledge of their truth and as positive assertions. 34. Defendants representations were made with the intention to induce reliance by Andretti to render the Andretti Rights as agreed. 35. Andretti relied upon Defendants representations to his detriment. 36. As a direct and proximate result of Defendants representations, Andretti has been damaged in the manner detailed herein. 6
Case 2:08-cv-11166-NGE-SDP Document 1 Filed 03/18/2008 Page 7 of 9 COUNT III INNOCENT MISREPRESENTATION 37. Andretti reiterates and incorporates all prior allegations as if fully set forth herein. 38. Defendants representations as set forth in the preceding paragraphs were made in connection with the making of the Agreement and Letter Agreement between Andretti and Defendants. 39. Andretti would not have entered into a business relationship with Defendants and provided the Andretti Rights if Defendants had not made such representations. 40. Andretti has been damaged by Defendants actions in the manner detailed herein. COUNT IV SILENT MISREPRESENTATION 41. Andretti reiterates and incorporates all prior allegations as if fully set forth herein. 42. Prior to Andretti entering into the Agreement and Letter Agreement with Defendants, Defendants owed him a duty to disclose the fact that they never intended to honor their promises of performance according to the agreed upon terms. 43. Had Defendants disclosed to Andretti their intention to not honor their promises, Andretti would not have entered into the Agreement or Letter Agreement with Defendants. Accordingly, Andretti relied on Defendants silent misrepresentations to his detriment. 44. Defendants knew of Andretti s reliance and nonetheless failed to disclose their intentions not to honor their promises. 7
Case 2:08-cv-11166-NGE-SDP Document 1 Filed 03/18/2008 Page 8 of 9 45. Andretti has been damaged by Defendants silent misrepresentations in the manner detailed herein. COUNT V FRAUD 46. Andretti reiterates and incorporates all prior allegations as if fully set forth herein. 47. On multiple occasions, Andretti made inquiry and requested of Defendants to confirm that Defendants would perform according to the terms of the Agreement and Letter Agreement. 48. Defendants represented on each of those occasions that, indeed, they would do so. 49. Defendants made these statements with the intention that they be relied on by Andretti and Andretti, in fact, relied on them to his detriment. herein. 50. These statements were false and known to be false by Defendants. 51. Andretti has been damaged by Defendants fraudulent representations, as detailed 8
Case 2:08-cv-11166-NGE-SDP Document 1 Filed 03/18/2008 Page 9 of 9 Respectfully submitted, s/ Eric D. Scheible Eric D. Scheible Frasco Caponigro Wineman & Scheible, PLLC 1668 Telegraph Road, Suite 200 Bloomfield Hills, MI 48302 (248) 334-6767 es@frascap.com MI Bar No. P54174 Dated: March 18, 2008 Attorneys for Mario Andretti 9