Attached files
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| 8-K - FORM 8-K - VERTICAL BRANDING, INC. | vbdg_8k.htm |
(SPACE
BELOW FOR FILING STAMP ONLY)
Alan M.
Mirman, Esq. (State Bar No. 66883)
MIRMAN,BUBMAN
& NAHMIAS, LLP
21860
Burbank Blvd., Suite 360
Woodland
Hills, California 91367
Tel:
(818) 451-4600
Fax:
(888) 451-7624
Attorneys
for Plaintiff
Gottbetter
Capital Master, Ltd.
SUPERIOR
COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF
LOS
ANGELES, NORTHWEST DISTRICT, VAN NUYS COURTHOUSE EAST
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GOTTBETTER
CAPITAL MASTER, LTD.,
vs.
VERTICAL
BRANDING, INC.,
a
Delaware Corporation; and
DOES
1 through 100,
Defendants.
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CASE
NO.
EX
PARTE ORDER APPOINTING RECEIVER AND ISSUING PRELIMINARY INJUNCTION IN AID
OF THE RECEIVER
EX PARTE HEARING:
DATE:
February 16, 2010
TIME:
8:30 a.m.
DEPT: "T"
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The Court, having considered the
Complaint filed in this case, the Ex Parte Application for Appointment of
Receiver and Issuance of Preliminary Injunction in Aid of the Receiver
(“Application”), the Memorandum of Points and Authorities and declarations filed
in support thereof, the Stipulation to Order Appointing Receiver and Issuing
Preliminary Injunction in Aid of the Receiver, and oral argument at the hearing
on the Application, and good cause appearing therefore, now orders as
follows:
APPOINTMENT OF
RECEIVER
1. Robb
Evans & Associates, LLC shall be immediately appointed as receiver in this
action (“Receiver”) to take over the possession, custody, and control of the
property, assets, equipment, accounts receivable, business accounts, real
property rent, tangible and intangible assets, furniture and other collateral
("Property") belonging to Defendant Vertical Branding, Inc.
(“Vertical”). Defendant is located and doing business at the
following location: 16000 Ventura Boulevard, Suite 301, Encino,
California 91436 and or 12100 Wilshire Boulevard, Suite 800, Los Angeles,
California 90025 (“Vertical’s Office”).
2. Before
entering upon his duties as a Receiver, the Receiver shall take the oath and
file a bond with a corporate surety thereon approved by this Court in the amount
of $10,000, to secure the faithful performance of his duties as the
Receiver.
3. The
Receiver is also required to disclose to all parties any financial relationship
between the Receiver and any company he hires to assist him in his management of
the receivership estate.
4. The
Receiver’s appointment is contingent on the filing by Plaintiff Gottbetter
Capital Master, Ltd. (“Gottbetter”) of an undertaking in the amount of $2,500 in
the proper form pursuant to Section 566 of the Code of Civil
Procedure.
5. Because
Vertical and Gottbetter have stipulated to the appointment of a receiver and the
issuance of a preliminary injunction in the aid of the receiver in the form of
this Order, this Court has determined that there is no need for a noticed
hearing to confirm the appointment of the receiver and issuance of injunctive
relief in aid of the receiver, and the requirement for such a hearing is hereby
waived.
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ORDER APPOINTING RECEIVER
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POWERS AND RESPONSIBILITIES
OF THE RECEIVER
6. Upon
appointment, the Receiver shall have the following powers and
responsibilities:
a. To enter,
gain access and take possession of the Property and Vertical’s
Office;
b. To
receive the rents and profits from the Property, to care for, preserve, protect,
and maintain Vertical’s Office and the Property; to incur the expenses necessary
for such care, preservation, maintenance, and protection; and do all things done
by, and to incur the risks and obligations ordinarily incurred by, owners,
managers, and operators of similar businesses and properties, including, but not
limited to, winding down and discontinuing those parts of Vertical’s business
that are no longer producing income. No risks or obligations so incurred shall
be at the personal risk or obligation of the Receiver, and/or his designated
representative, but shall be a risk or obligation of the receivership
estate;
c. To
demand, collect and receive all monies, funds and payments, including, but not
limited to, royalty payments, which may be due to Vertical (and any monies,
funds and payments in possession of any of its subsidiaries, affiliates and
controlled entities as to any funds in which Vertical has an interest) at the
time of this Order and any time thereafter;
d. To take
any and all steps necessary to receive, collect and review all mail addressed to
Vertical, including, but not limited to, mail addressed to each and every one of
Vertical’s employees, and any post office boxes held in the name of Vertical,
and at the Receiver’s discretion, he is authorized to instruct the U.S.
Postmaster to re-route, hold or release said mail to said
Receiver. Mail reviewed by the Receiver in the performance of his
duties will promptly be made available for inspection to Vertical after review
by the Receiver;
e. To take
possession of all bank accounts of Vertical and chattel paper, wherever located
and receive possession of any money on deposit in said bank accounts, and the
receipt by the Receiver for said funds shall discharge said bank from further
responsibility for accounting to said account holder for funds for which the
Receiver shall give his receipt;
f. To
establish bank accounts at any bank the Receiver deems appropriate for the
deposit of monies and funds collected and received in connection with his
administration of the receivership estate, provided that all funds on deposit
are insured by an agency of the United States government;
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g. To
execute and prepare all documents and perform all acts, either in the name of
Vertical, as is applicable, or in the Receiver’s own name, which are necessary
and incidental to preserving, protecting, managing and controlling the Property.
The Receiver will not, under any circumstances, be personally liable for any
obligations incurred as a result of the exercise of this provision but instead,
said obligation shall be the obligations of the receivership
estate;
h. To take
possession of all the books and records of Vertical wherever located, as the
Receiver, and/or his designated representative, deems necessary for the property
administration, management, and/or control of the estate;
i. The
monies coming into possession of the Receiver and not expended for any of the
purposes herein authorized, shall be paid over by the Receiver to Gottbetter for
the payment of Vertical’s obligations to Gottbetter sued upon in the Complaint,
subject however to (a) a reserve to cover anticipated administrative expenses of
the receivership, including but not limited to fees and costs of the Receiver
and his professionals; (b) the payment of specific obligations of Vertical that
Gottbetter has agreed shall be paid in conjunction with payments to Gottbetter;
and (c) to such orders as this Court may hereinafter issue;
j. To employ
servants, agents, employees, appraisers, guards, clerks, accountants, attorneys
and management consultants to administer the receivership estate and to protect
the receivership estate as the Receiver deems necessary; to purchase insurance,
materials, supplies and services and to pay therefore at the usual rate and
prices out of funds that shall come into his possession; to pay reasonable value
of said services out of the proceeds of the estate; and that no risk or
obligation incurred by said Receiver shall be the personal risk or obligation of
the Receiver, but shall be the risk or obligation of the receivership
estate;
k. To employ
Craig Welin and his law firm, Frandzel
Robins Bloom & Csato, L.C., as the Receiver’s attorneys in connection
with the above-entitled case, effective as of January 21, 2010. Mr.
Welin’s hourly rate is $395, and that of his partner Hal Goldflam is
$315. The hourly rate for associates whom Mr. Welin expects may be
needed to render services on behalf of the Receiver is between $235 and
$295.
l. Vertical
shall notify the Receiver upon the Receiver’s taking possession of the
receivership estate whether or not there is sufficient insurance coverage on the
Property. If sufficient insurance coverage does exist, Vertical shall be
responsible and is hereby ordered to name the Receiver as additional insured on
the insurance policy(ies) for the period that the Receiver shall be in
possession of the Property. If there is insufficient insurance
coverage, it is hereby ordered that the Receiver shall have thirty (30) working
days to procure said insurance on the Property, provided that the
Receiver has funds available to do so, and during said period the Receiver shall
not be personally responsible for claims arising or the for the procurement of
insurance;
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m. To
prepare periodic interim statements reflecting the Receiver’s fees and
administrative costs and expenses incurred for said period in the operation and
administration of the receivership estate. If the Receiver does not
receive a written objection to the statement within ten days of mailing said
statement to the parties’ respective attorneys of record or any other designated
personal agent, the Receiver shall pay from the estate funds, if any,
the amount of said statement. Despite the periodic statement of Receiver’s fees
and administrative expenses, such fees and expenses shall be submitted to the
Court for its approval and confirmation, in the form of either a noticed interim
request for fees or a Receiver’s final account and report;
n. To
institute ancillary proceedings in this State or other states and countries as
is necessary to preserve and protect the receivership estate. The
Receiver may pay for the costs of such proceedings from the funds of the
receivership estate;
o. To the
extent feasible, the Receiver shall, within 30 days of his qualification
hereunder, file in this action an inventory of all property of which he has
taken possession pursuant to this Order and shall conduct periodic accountings
thereafter; and
p. The
Receiver, or any party to this action, may from time to time, and on due notice
to all parties, make application to this Court for further orders instructing
said Receiver.
PRELIMINARY INJUNCTION IN
AID OF RECEIVER
7.
Vertical
and its officers, directors, agents, servants, and employees, and all persons or
entities acting under, or in consort with them, or for them, are enjoined from
the following and are restrained and enjoined from engaging in, or performing
directly or indirectly, any or all of the foregoing acts:
a. Interfering,
hindering or molesting in any way whatsoever the Receiver in the performance of
the Receiver’s duties herein described and in the performance of any duties
incident thereto;
b. Transferring,
directly or indirectly, any interest by sale, pledge, grant of security
interest, assignment, invoice or encumbering in any manner the Property, and all
proceeds and products thereof;
c. Moving
the physical location of the materials and/or equipment of Vertical from any
location where it is presently located, and all proceeds and products
thereof;
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d. Transferring,
concealing, destroying, defacing, or altering any of Vertical’s books and
records;
e. Diverting
in any way of the proceeds from the accounts receivable and/or
inventory;
f. Causing
any mail to be forwarded to any address other than the post office box or
business address supplied by the Receiver; and
g. Failing
or refusing to immediately turn over the Receiver all monies, checks, funds or
proceeds relating to the Property, and failing to make available to the Receiver
for inspection and copying all non-privileged books and records relating to the
Property.
8. Except by
leave of this Court, during the pendency of the receivership ordered herein,
Vertical and all customers, principals, investors, collectors, stockholders,
lessors, creditors and other persons seeking to establish or enforce any claim,
right or interest against or on behalf of Vertical, or any of its subsidiaries
or affiliates, and all others acting for or on behalf of such persons, including
attorneys, trustees, agents, sheriffs, constables, marshals and other officers
and their deputies, and their respective attorneys, agents, servants, and
employees be and are hereby stayed from:
a. Commencing,
prosecuting, continuing or enforcing any lawsuit, claim or proceeding against
Vertical, or any of its subsidiaries or affiliates, except as to the filing, but
not the continued prosecution, of such actions as may be filed to toll any
applicable statutes of limitations. This stay on litigation and
claims includes, but is not limited to, the lawsuit entitled American Shipping Company,
Inc. v. Vertical Branding, et al. (case no. NC053457), pending in the Los
Angeles Superior Court;
b. Commencing,
prosecuting, continuing or entering into any suit or proceeding in the name of
or on behalf of Vertical, or any of its subsidiaries of affiliates;
c. Accelerating
the due date of any obligation or claimed obligation, enforcing any lien upon,
or taking or attempting to take possession of, or retaining possession of, any
property of Vertical, or any of its subsidiaries or affiliates, or any property
claimed by any of them or attempting to foreclose, forfeit, alter, or terminate
any of Vertical’s or any of its subsidiaries’ or affiliates’ interest in
property, including, without limitation, the establishment, granting or
perfection of any security interest, whether such acts are part of a judicial
proceeding or otherwise;
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d. Using
self-help or executing or issuing, or causing the execution or issuance of any
court attachment, subpoena, replevin, execution or other process for the purpose
of impounding or taking possession of or interfering with, or creating or
enforcing a lien upon any property, wheresoever located, owned by or in the
possession of Vertical or any of its subsidiaries or affiliates, or the Receiver
appointed pursuant to this Order or any agent appointed by said Receiver;
and
e. Doing any
action or thing whatsoever to interfere with the Receiver taking control,
possession or management of the Property or any other property subject to this
receivership or to in any way interfere in any manner with the Receiver, or to
harass or interfere with the Receiver, or to harass or interfere with the duties
of the Receiver, or to interfere in any manner with the exclusive jurisdiction
of this Court over the property and assets of Vertical, or its subsidiaries or
affiliates. Provided however, nothing in this paragraph shall
prohibit any federal or state law enforcement or regulatory authority from
commencing or prosecuting an action against Vertical, or its subsidiaries or
affiliates.
DATED:
____________________________
Judge of
the Superior Court
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