PHOENIX, Dec. 11, 2017 (GLOBE NEWSWIRE) -- NOHO, Inc. (OTC PINK:DRNK), a Wyoming corporation (the "Company"), announced that it has served a demand letter ("Demand") to Greenfield Farms Food, Inc. ("GRAS") (OTC:GRAS), serving its CEO, Ron Heineman, notifying GRAS of its alleged intentional breach of the Asset Purchase Agreement dated June 7, 2017. See below.
Pursuant to the Asset Purchase Agreement ("APA"), NOHO's wholly owned subsidiary, Cherry Hill Financial, LLC, acquired 49% newly issued common shares of GRAS, as well as, indefinite proxy over 1,000 Series D Preferred Shares giving NOHO voting control over GRAS ("Proxy Shares"). NOHO wants to point out that the Proxy Shares are owned by Ronald Heineman who personally signed the Asset Purchase Agreement and tendered the Proxy Shares to NOHO. Thus, the subsequent 8-K filed with the Securities and Exchange Commission on December 1, 2017, was materially misleading because that action was not authorized by NOHO.
On December 7, 2017, the Company sent a Demand Letter to Mr. Heineman and the announced acquisition partner, Ngen Technologies USA Corp. ("Ngen") that the disclosed transaction was in violation of the Asset Purchase Agreement, and in violation of the 1934 Exchange Act as the unauthorized acquisition was intentionally and materially leading. The Company's position is that Heineman's course of conduct was purposeful and deliberate, subjecting the Board of Directors and shareholders involved to potential personal liability.
In response to GRAS' action, NOHO, Inc. CEO, David Mersky, said, "We were taken by surprise at GRAS' announcement and the Company is taking all appropriate actions to insure that the Ngen transaction will not take place. The shares owned by NOHO are a significant asset to the company and our shareholders and we will enforce our rights to the fullest extent of the law." Since the closing was completed on June 7, 2017, NOHO has carried the securities on its Balance Sheet and now must reserve the shares until disposition of this matter.
Update on DRNK
While the company has not issued press releases over the last few months, CEO, David Mersky, indicated, "I am aware that the lack of communication with our shareholders has been a genuine cause for concern. I'd like to take this opportunity to advise our shareholders and the public that operations for NOHO are very active. I am engaged in positioning NOHO for the future and want to assure our shareholders that we are looking forward to providing updates on this process as they occur."
Mr. Mersky further provided, "It has been a lengthy process, but I'd like to remind everyone that I took over NOHO by accepting 54 billion shares, conveying 90% of the common stock at that time. Shortly thereafter, between converting all of my common stock to preferred and then cancelling that class entirely, we reduced the amount of shares to approximately 6 billion, before the conversion of pre-existing notes. Today, the current shares outstanding is approximately 9.2 billion, which was achieved without effecting as reverse-split, as promised. The 25 billion authorized but unissued shares must remain temporarily as a reserve for the remainder of the convertible notes. Management believes these notes will not be converted and will be handled in another manner. However, if in the restructuring process, the company incorporates a plan, which contemplates a reverse-split, I am announcing today that the decision will be put to the shareholders for vote and I will abstain from using the controlling preferred class B shares in that event."
Sibannac, Inc. (OTC:SNNC)
In an effort to once again clarify the operations of SNNC, the proposed name change to IMBUTEK has no effect on the assets or interests of NOHO. No assets of NOHO were conveyed in the merger transaction whatsoever and no assets were moved off of NOHO's Balance Sheet.
Mr. Mersky continued, "While SNNC's business model has allowed us to move forward and raise capital, I am committed to moving NOHO forward into the future together and believe that our success will continue to help restructure the company. However, despite the total independence of the companies at this time, I look forward to announcing a plan of operation that will benefit both companies as we move into 2018. Sometimes it is necessary to work quietly while this process takes place."
Cautionary Note Regarding Forward-Looking Statements.
This press release contains statements that constitute forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. These statements appear in a number of places in this release and include all statements that are not statements of historical fact regarding the intent, belief or current expectations of the Noho, Inc. (the "Company"), its directors or its officers with respect to, among other things: (i) financing plans; (ii) trends affecting its financial condition or results of operations; (iii) growth strategy and operating strategy. The words "may," "would," "will," "expect," "estimate," "can," "believe," "potential" and similar expressions and variations thereof are intended to identify forward-looking statements. Investors are cautioned that any such forward-looking statements are not guarantees of future performance and involve risks and uncertainties, many of which are beyond the Company's ability to control, and actual results may differ materially from those projected in the forward looking statements as a result of various factors. You should not place undue reliance on forward-looking statements since they involve known and unknown risks, uncertainties and other factors, which are, in some cases, beyond the Company's control and which could, and likely will, materially affect actual results, levels of activity, performance or achievements. The Company assumes no obligation to publicly update or revise these forward-looking statements for any reason, or to update the reasons actual results could differ materially from those anticipated in these forward-looking statements, even if new information becomes available in the future. Important factors that could cause actual results to differ materially from the company's expectations include, but are not limited to, those factors that are disclosed under the heading "Risk Factors" and elsewhere in documents filed by the company from time to time with the United States Securities and Exchange Commission and other regulatory authorities.
The following is the entire contents of the letter as mentioned in the first paragraph of this release:
2907 Shelter Island Drive, Suite 105 • San Diego, CA 92106 • 619.300.6971. www.zouvaslaw.com
December 6, 2017
Mr. Clifford M. Rhee
Mr. Ronald Heineman
Greenfield Farms Food, Inc.
118 West 5th Street
Covington, KY 41011
VIA FEDERAL EXPRESS AND ELECTRONIC CORRESPONDENCE
Re: Demand for Issuance of Common Stock and Liquidated Damages for Breach.
Dear Mssrs. Rhee and Heineman:
As you are aware, this firm represents NOHO, Inc. and its subsidiary, Cherry Hill, Inc. (collectively hereinafter referred to as the “Company and/or NOHO”). We are writing to convey to you our demands as current bona-fide shareholders of Greenfield Farms Food, Inc. (“GRAS”). GRAS is in default of its obligations to the Company pursuant to the asset purchase agreement executed on June 7, 2017 (hereinafter referred to as the “APA”), and, on that basis, we demand: (i) the immediate issuance of 49% of the Issued and Outstanding Common Stock of GRAS as of the Closing Date of the APA; and (ii) Assignment of the majority shareholder proxy (“Majority Proxy”) as agreed pursuant to Section 6.4(c) of the APA, assigned to David Mersky; and (iii) Retraction of the Press Release and 8-K filed on December 1, 2017 as it was not authorized by the majority shareholder; and (iv) Class D Preferred Stock is null and void pursuant to Section 13 and Section of the Exchange Act; and payment of $2,000,000.00; (and (v) waiver and release from all potential claims arising from your gross negligence and multiple regulatory violations as defined below (collectively referred to hereinafter as the “Demand”).
Based on a review of the facts, neither Heineman nor Rhee has the authorization from the majority shareholders of GRAS to take any of the corporate actions memorialized in the 8-K filed on December 1, 2017. Failure to comply with our Demand, will force us to exhaust all available remedies, both in law and in equity, as recourse for your refusal. To be clear, the extent of the recourse available to the Company include, but are not limited to: (i) filing a complaint with the Securities and Exchange Commission (the “SEC”) and the Financial Industry Regulatory Authority (“FINRA”); and (ii) filing a lawsuit against GRAS for contractual and punitive damages, as well as attorneys’ fees, govern yourselves accordingly.
The following is a brief summary of the basis for the Demand.
a. Violation of Federal Securities Laws
i. Violation of FINRA Ban and Section 15 of the Exchange Act
Subsequent the Closing of the APA on June 7, 2017, Mr. Heineman ceased having any legal right to negotiate, take part in, and/or sign any future agreement, but did so in the Letter of Intent (“LOI”) between GRAS and Ngen Technologies USA Corp. dated November 28, 2017. Heineman’s actions amount to gross recklessness and disregard for any regulations or regulatory authority.
As you are aware, the Securities Exchange Act of 1934 (the “Exchange Act”) makes it unlawful for any person who is not registered as a broker and/or dealer with the Securities and Exchange Commission (the “SEC”) to effectuate, induce or attempt to induce the purchase or sale of any security. Section 15(a) of the Exchange Act provides:
“It shall be unlawful for any broker or dealer which is either a person other than a natural person or a natural person not associated with a broker or dealer which is a person other than a natural person (other than such a broker or dealer whose business is exclusively intrastate and who does not make use of any facility of a national securities exchange) to make use of the mails or any means or instrumentality of interstate commerce to effect any transactions in, or to induce or attempt to induce the purchase or sale of, any security (other than an exempted security or commercial paper, bankers' acceptances, or commercial bills) unless such broker or dealer is registered in accordance with subsection (b) of this section” (emphasis added).
The penalty for willfully violating the Exchange Act, for which you are clearly culpable, is severe and can result in: (i) a fine of up to Five Million Dollars ($5,000,000); and (ii) imprisonment for up to Twenty Years (20 years) in a Federal penitentiary. Section 32(a) of the Exchange Act provides the following:
“Willful violations; false and misleading statements
Any person who willfully violates any provision of this title (other than section 30A), or any rule or regulation thereunder the violation of which is made unlawful or the observance of which is required under the terms of this title, or any person who willfully and knowingly makes, or causes to be made, any statement in any application, report, or document required to be filed under this title or any rule or regulation thereunder or any undertaking contained in a registration statement as provided in subsection (d) of section 15, or by any self-regulatory organization in connection with an application for membership or participation therein or to become associated with a member thereof, which statement was false or misleading with respect to any material fact, shall upon conviction be fined not more than $5,000,000, or imprisoned not more than 20 years, or both, except that when such person is a person other than a natural person, a fine not exceeding $25,000,000 may be imposed; but no person shall be subject to imprisonment under this section for the violation of any rule or regulation if he proves that he had no knowledge of such rule or regulation.” See section 32(a) of the Securities Exchange Act of 1934.
Given the significant sanctions that can be levied upon you both for making false statements in the 8-K filed on December 1, 2017. We will be forced to file a complaint with the SEC and FINRA if you do not comply, and you will be personally liable for the derivative shareholder lawsuit we are preparing to file.
A. Violation under Rule 13e-3
SEC Rule 13e-31 prohibits issuers subject to the registration or reporting provisions of the Exchange Act from taking certain actions without making certain filings with the SEC and disseminating extensive information to the issuer’s stockholders. You both failed to file the Preliminary and Definitive 14C with the SEC and therefore any actions filed on the Form 8-K are null and void by operation of law.
1. Transactions to Which the Rule Applies
SEC Rule 13e-3 governs several transactions by an issuer or between an issuer and one or more of its affiliates (i.e., any person directly controlling, controlled by, or under common control with the issuer) that are intended to or may reasonably be expected to result in one or more of the following: (A) causing any class of equity securities of the issuer which is subject to 12(g) or section 15(d) of the Exchange Act to be held of record by less than 300 persons; or (B) causing any class of equity securities of the issuer which is either listed on a national securities exchange or authorized to be quoted in an inter-dealer quotation system of a registered national securities association to be neither listed on any national securities exchange nor authorized to be quoted on an inter-dealer quotation system of any registered national securities association.
The rule applies to transactions which involve the purchase of any equity security by its issuer or by an affiliate of the issuer; a tender offer for an equity security by its issuer or by an affiliate of the issuer; a proxy or consent solicitation or distribution of information statements pursuant to Exchange Act Regulations 14A or 14C with respect to a merger, consolidation, reclassification, recapitalization, reorganization, sale of assets, or similar types of transactions between an issuer (or its subsidiaries) and any of its affiliates; and reverse stock splits involving the purchase of fractional interests. The gross recklessness of Mr. Heineman will undoubtedly allow the rightful shareholders of GRAS to pierce the corporate veil and sue any and all standing directors personally.
Mr. Heineman also committed violations of Sections 17(a)(2) and 17(a)(3) of the Securities Act. In the offer or sale of securities, Section 17(a)(2) makes it unlawful “to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading;” and Section 17(a)(3) proscribes “any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.” Violations of Section 17(a)(2) and 17(a)(3) may be established by a showing of negligence. Aaron v. SEC, 446 U.S. 680, 697 (1980); SEC v. Glt. Dain Rauscher, Inc., 254 F.3d 852, 856 (9th Cir. 2001).
B. Rule 10b-5 Anti-Fraud
SEC Rule 10b-5 requires full and accurate disclosure of all material facts regarding the transaction and any corporation must carefully abide by the requirements of this rule at all times when effectuating any transaction involving the sale of securities.
Rule 10b-5 is the principal anti-fraud provision in the federal securities laws. Rule 10b-5 provides:
“shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
a. To employ any device, scheme, or artifice to defraud,
b. To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
c. To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.”
To prove securities fraud under Rule 10b-5, a plaintiff must establish the following: (1) material misrepresentation or omission by the defendant; (2) intent to defraud or recklessness; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission (transaction causation); (5) economic loss; and (6) loss causation. In this case, you both have clearly committed fraud because: (i) GRAS made a material misrepresentation as to the status of the APA; and (ii) you both had the intent to defraud because you decided to ignore the Asset Purchase Agreement which Heineman executed and then filed an 8-K announcing an unauthorized LOI Between GRAS and Ngen; (iii) the misrepresentation by Heineman was made as an inducement for the Ngen to purchase the securities of GRAS; (iv) the Company relied upon the misrepresentation from GRAS as inducement to enter into the Merger transaction; (v) the Company suffered substantial economic loss in the form of loss of investment capital needed for operations, enhanced regulatory and accounting costs, loss of goodwill, equity dilution, declines in share price, and the loss of good will as a result of GRAS’s fraud; and (vi) these losses are attributable to the fraudulent actions of you both.
The penalty for willfully violating the Securities Act, for which you are clearly culpable, is severe and can result in: (i) a fine; and (ii) imprisonment for up to Twenty Five Years (25 years) in a Federal penitentiary. 18 USC § 1346(2) of the Securities Act of 1933 (the “Securities Act”) provides the following:
“Whoever knowingly executes, or attempts to execute, a scheme or artifice …
(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any money or property in connection with the purchase or sale of any commodity for future delivery, or any option on a commodity for future delivery, or any security of an issuer with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l) or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78o (d));
shall be fined under this title, or imprisoned not more than 25 years, or both” (emphasis added). See 18 USC § 1346(2).
Given the significant sanctions that can be levied upon you and GRAS, it is advisable that you comply with the Demand or we will be forced to file a complaint with the SEC and FINRA. If you do not comply, you will be at risk of potential imprisonment and the imposition of monetary sanctions.
Our complaint against you will charge you with failing to disclose material facts to all shareholders and intentional misrepresentation, and failing to maintain physical possession or control of securities. We will seek appropriate injunctive relief, damages, costs and possible attorneys’ fees, together with any and all possible available remedies, such causes of action will include the violations discussed above, but may also include:
1. Violations of the Sherman Act, 15 U.S.C. § 1 - Conspiracy to Restrain Trade – We believe that you have engaged in concerted action with others and that this concerted action produced anticompetitive effects with respect to NOHO’s stock and geographic markets; and
2. Unjust Enrichment – We will allege that you were enriched by your illegal practices and that our client suffered in the amount that you profited from the shares you naked shorted and that there was no justification for this conduct; and
3. Conversion – our client had a property interest in its own stock and the right to issue stock, further our client had a right to possession of the shares of its own stock that you illegally sold. Accordingly, our client suffered damages as a result of your illegal conversion; and
4. Deceptive Trade Practices – we will be able to prove that, in the course of your business you passed off our client’s stock as your own, caused a likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of the goods, caused a likelihood of confusion or of misunderstanding as to filiation, connection, association with, or certification by our client, used deceptive representations or designations of geographic origin in connection with goods, represented that goods had the sponsorship and/or approval of our client, and that you had quantities of our client’s stock that you did not have, that you advertised goods with intent not to sell them as advertised, that you advertised goods with intent not to supply reasonably expectable public demand and that this willful conduct created a likelihood of confusion and/or misunderstanding; and
5. Civil Conspiracy – a confederation or combination of two or more persons and or entities, including you engaged in the unlawful acts described in the preceding paragraphs, this conduct was done in furtherance of a conspiracy to harm our client in the ways described in the preceding paragraphs, and with the goal of driving down our client’s stock price so that the you and your conspirators would profit through selling. Our client suffered actual damage as a result of the conspiracy; and
6. Negligence – at all relevant times, you breached the duty of care you owed to the company, individual shareholders and the public to employ reasonable means and practices to ensure that trade transactions conducted on their own behalf or on behalf of third parties were not conducted for the purpose of, or which it is reasonable to foresee may or will have had the result of, improperly, deceptively, or fraudulently manipulating the market price of our client’s stock or presenting false or misleading information concerning the price, actual trading activity and/or trading and/or failures to deliver securities. All representation you have made regarding our client’s stock were made intentionally and/or negligently and were materially false and misleading; and
7. Fraud – you knowingly defrauded the Company, the shareholders and the public by manipulating the price of the shares in the marketplace through the practice of illegally selling the shares without consent; and
8. Civil RICO 18 U.S.C § 1962 – we believe that you have acted with others as an enterprise engaged in and whose activities were fraudulent and otherwise illegal and otherwise effecting interstate commerce. During the course of the underlying transaction, you and others devised a scheme and artifice to defraud and mislead the public through illegal stock market manipulation. The sole purpose of this enterprise was to create illegally obtained profits. At all times, you knew your conduct was illegal and in connection with this conduct utilized interstate commerce, the internet and interstate phone services. Under this statute, we would be able to recover triple damages in addition to attorney’s fees.
Our claims against you also involve conversion or misuse of customer funds, misuse of customer securities, as well as failure to maintain possession or control of fully paid securities. We believe and can prove that you have misused customers’ fully-paid securities by selling shares without the customer’s knowledge.
Based on our research we believe your potential exposure to damages could easily be upward of $10,000,000.00, not including attorney’s fees and likely punitive damages.
Please feel free to contact me by e-mail at firstname.lastname@example.org or by telephone at (619) 300-6971 in case you have any additional questions or comments regarding this matter. We look forward to hearing from you and resolving this matter amicably and expeditiously.
Luke C. Zouvas, Esq.