Date post: | 18-Nov-2014 |
Category: |
Documents |
Upload: | eliscoming |
View: | 706 times |
Download: | 1 times |
IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
In re: XECHEM, INC., et al., Debtors. ___________________________________ THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF XECHEM, INC. AND XECHEM INTERNATIONAL, INC., Plaintiff, v. DR. ROBERT SWIFT AND COSMID CORP. LLC, Defendants.
Chapter 11 Case No.: 08-30512 (JBS) (Jointly Administered) ________________________________ Adv. Pro No.
ADVERSARY COMPLAINT AND COUNTERCLAIM
The Unsecured Committee of Unsecured Creditors of Xechem, Inc. and Xechem
International, Inc. (the “Creditors Committee”), for its adversary complaint against Dr. Robert
Swift (“Dr. Swift”) and Cosmid Corp. LLC (“Cosmid”) and counterclaim to the proof of claim
(Xechem International, Claim No. 45) filed by Dr. Swift, states and alleges as follows:
Background
1. The Creditors Committee was formed by the Office of the United States Trustee in these
above-captioned jointly administered bankruptcy cases. The Creditors Committee is the
plaintiff in this Adversary Proceeding and is suing derivatively on behalf of the Debtors and their
bankruptcy estates. The Creditors Committee is also a party in interest in these cases.
2. Defendant Dr. Swift is an individual resident in the State of Colorado.
Case 08-30512 Doc 263 Filed 01/12/10 Entered 01/12/10 18:34:17 Desc Main Document Page 1 of 13
- -
2
3. Defendant Cosmid is a limited liability company formed under the laws of the State of
Colorado. Cosmid was formed by Dr. Swift on March 13, 2009. Cosmid’s principal street
address in the Colorado state records is 7982 Bayside Drive, Fort Collins, 80528. That is Dr.
Swift’s home address. Dr. Swift is the registered agent for Cosmid.
4. Each of Xechem International, Inc. (“Xechem International”) and Xechem, Inc.
(collectively with Xechem International, the “Debtors”) is incorporated in Illinois.
5. The Debtors were originally founded and run by Dr. Ramesh Pandey. 6. Debtor Xechem International’s primary assets at the relevant times have been (i) a license
from a Nigerian government related entity (the National Institute for Pharmaceutical Research
and Development (“NIPRID”)) related to the sickle cell treatment drug known as NICOSAN (the
“Nicosan License”) and (ii) a related U.S. patent (the “Patent”).
7. Xechem International’s primary business at all relevant times has been selling botanical
based drugs for the treatment of sickle cell disease, including through a wholly owned subsidiary
in Nigeria, Xechem Pharmaceutical Limited (“Xechem Nigeria”).
8. The Nicosan License, the Patent and related research, knowledge and know-how were all
in place and were assets of Xechem International prior to Dr. Swift becoming associated with the
company.
9. In 2007, Dr. Swift became a director of both of the Debtors and also became the principal
officer in charge of running the Debtors.
10. Prior to becoming an officer and director in 2007 of the Debtors, Dr. Swift had no
affiliation with the Debtors.
11. Prior to becoming an officer and director in 2007 of the Debtors, Dr. Swift had no access
to the trade secrets and proprietary information of the Debtors.
Case 08-30512 Doc 263 Filed 01/12/10 Entered 01/12/10 18:34:17 Desc Main Document Page 2 of 13
- -
3
12. Dr. Swift continued to serve as a director and the principal officer of the Debtors through
the filing date of these bankruptcy cases in November 2008.
13 Dr. Swift continued to serve as a director and the principal officer of the Debtors after the
filing of these bankruptcy cases.
14. Dr. Swift appeared telephonically before this Court as the representative of the Debtors.
15. Upon information and belief, Dr. Swift has not delivered any written resignation as an
officer or as a director to Debtors’ counsels.
16. One of the Debtors’ assets upon the filing was the right in the so-called 5 HMF license
and related assets (“5 HMF Assets”).
17. The 5 HMF Assets were sold pursuant to order of this Court. (Xechem, Inc., Dkt. No.
62).
18. Paragraph (4) of the Order approving sale of the 5 HMF Assets provided in relevant part
that “All remaining proceeds after determination and payment of such secured creditors (the
“Net Sales Proceeds”) may be used for authorized Chapter 11 administrative expenses authorized
by statute or further order or for distribution pursuant to a Chapter 11 plan, unless otherwise
ordered by this Court.”
19. The sale proceeds from the 5 HMF Assets were received by the Debtors.
20. There were two parties asserting secured claims against the proceeds of the 5 HMF
Assets.
21. The secured claim of AexRX was resolved by order of this Court (Xechem Dkt. No. 72)
and has been paid in full.
22. The other party, Dr. Swift’s, asserting a secured claim against proceeds of the 5 HMF
Assets has not had a determination of his secured claim against such proceeds.
Case 08-30512 Doc 263 Filed 01/12/10 Entered 01/12/10 18:34:17 Desc Main Document Page 3 of 13
- -
4
23. Upon information and belief and as reflected in the monthly operating reports, it appears
that the Debtors while under the control of Dr. Swift have spent proceeds of the 5 HMF Assets.
24. Virtually all of the proceeds of the 5 HMF Assets have been spent by the Debtors under
the direction and control of Dr. Swift.
25. Most of the proceeds of the 5 HMF Assets were paid to Dr. Swift or Mr. Stephen Burg,
another director who is closely allied with Dr. Swift.
26. Xechem International scheduled its rights under the license related to NICOSAN from
the NIPRID as having a value of approximately $7 million.
27. On January 13, 2009, the Debtors filed a motion to sell the stock of Xechem Nigeria.
(Xechem Dkt. No. 77).
28. In that Motion, the Debtors proposed to appoint Bank PHB as a broker and stated that
“Bank PHB determined that the value of [Xechem Nigeria] . . . is approximately Six Million and
00/100 Dollars.” (Xechem Dkt. No. 77, ¶ 4).
29. Bank PHB was approved as a broker and procedure for bidders conducting due diligence
were approved as well. (Xechem Dkt. No. 106).
30. The Debtors advised the Creditors Committee and this Court that no bids for Xechem
Nigeria were received in March, 2009 as contemplated by the bid procedures.
31. In March, 2009, the Debtors through their counsel indicated they were still hopeful that
bids for Xechem Nigeria would ultimately be received.
32. The Debtors have not advised the Creditors Committee or this Court of any bids for
Xechem Nigeria received thereafter.
33. Dr. Swift filed proof of claim amount number 45-1 asserting a secured claim in the
amount of $146,931.10 which as the sole attachment included a 11/6/08 UCC filing against “All
of Debtors’ Right, Title and Interest in its Contract with Virginia Commonwealth University
Case 08-30512 Doc 263 Filed 01/12/10 Entered 01/12/10 18:34:17 Desc Main Document Page 4 of 13
- -
5
Intellectual Property Foundation, dated November 11, 2004 and First Amended in February,
2008 for the Exclusive License of 5 HMF and all Proceeds Therefrom.” No security agreement
or other supporting documents or facts were attached to that original proof of claim.
34. The Creditors Committee filed an objection to Dr. Swift’s proof of claim. (Xechem Int’l
Dkt. No. 65). Eventually, Dr. Swift filed a response thereto but has never filed a formal
amended proof of claim. (Xechem Int’l Dkt No. 165).
35. In the summer of 2009, the Debtors’ counsel announced to this Court and the Creditors
Committee that it intended to pursue an exit from Chapter 11 based on Xechem Nigeria and a
botanical variant of the Nicosan drug which was being developed under Dr. Swift’s supervision.
36. Upon information and belief, Dr. Swift and his affiliates have filed a patent application
related to a botanical based drug for the treatment of sickle cell disease (the “Swift Competing
Patent Application”). The Creditors Committee has requested a copy of that application from
both Dr. Swift and his patent advisor, Dr. Jain. Cosmid’s website suggests an actual patent has
been issued, but no patent could be found of public record in the patent office.
37. Dr. Jain made himself available for a call with the Creditors Committee but refused to
provide a copy of the Patent Application. The Swift Competing Patent Application is not
publicly available from the patent office, and the Debtors’ counsel states that he does not have a
copy of the application.
38. Upon information and belief, the alternative botanical product that Dr. Swift and his
company are developing would compete with and impair the value of NICOSAN.
39. Upon information, Dr. Swift has retained employees or contractors formerly associated
with the Debtors at Cosmid.
40. Upon information and belief, Dr. Swift has transferred tangible and intangible assets of
the Debtors to Cosmid.
Case 08-30512 Doc 263 Filed 01/12/10 Entered 01/12/10 18:34:17 Desc Main Document Page 5 of 13
- -
6
41. No bankruptcy court approval was sought for any of these activities, nor did Dr. Swift
make any disclosures regarding his activities to the Court.
42. The Creditors Committee sent a derivative demand letter (the “Derivative Demand
Letter”) on August 20, 2009 to counsel for the Debtors. In the Derivative Demand Letter, the
Creditors Committee demanded that “Xechem International, Inc. immediately pursue all
necessary action, including litigation if necessary, to secure all patent and other rights for the
bankruptcy estate and pursue all other available remedies, including costs and damages against
Dr. Swift and is affiliates.”
43. The Debtors never made a formal response to the derivative demand letter.
44. The Creditors Committee then filed a motion to be granted derivative standing which this
Court granted. (Xechem Inc. Dkt. No. 225).
45. Cosmid is focused on a sickle cell drug treatment.
46. Cosmid’s website is www.cosmidcorp.com.
47. Dr. Swift is the first person listed as management on Cosmid’s website, and the website
states that “[p]rior to founding Cosmid, Dr. Swift’s most recent position was Chief Oversight
Officer at Xechem International, a biopharmaceutical company.”
48. Upon information and belief, Dr. Swift or other representatives of Cosmid have been
making presentations, attending conference and/or publishing papers to promote Cosmid.
49. The Creditors Committee filed Chapter 11 plan based on a new management team.
[Xechem. Inc., Dkt. No. 215].
50. Dr. Swift’s pursuit of a competitor drug to NIPRISAN (NICOSAN) hurts the value of
reorganized Xechem International and is an impediment to finalizing financing for any
reorganization plan including the one proposed by the Creditors Committee.
Case 08-30512 Doc 263 Filed 01/12/10 Entered 01/12/10 18:34:17 Desc Main Document Page 6 of 13
- -
7
Jurisdiction and Venue
51. This Court has jurisdiction over this Adversary Proceeding and Counterclaim and the
matters set forth herein under 28 U.S.C. § 1334.
52. This Adversary Proceeding and Counterclaim are matters within the core jurisdiction of
this Court under 28 U.S.C. § 157.
53. Venue is proper under 28 U.S.C. §§ 1408 and 1409.
Count 1
Breach of Fiduciary Duty by Dr. Swift
54. Plaintiff hereby incorporates by reference the allegations set forth in paragraphs 1 to 53
above.
55. As a director, executive officer and the responsible person for the bankruptcy estates in
these bankruptcy cases, Dr. Swift owed a fiduciary duty to the Debtors and their creditors.
56. This duty included a duty of loyalty to the Debtors and to fully disclose any self-interest
in any transaction to the board of directors of the Debtors and this Court.
57. Dr. Swift breached his fiduciary duty to the Debtors and their creditors.
58. The Debtors and their creditors have been harmed by Dr. Swift’s breach of that fiduciary
duty.
WHEREFORE, Plaintiff seeks an award of damages against Dr. Swift in an amount to be
determined at trial and for costs, interest and attorneys fees as may be permissible by law.
Count 2
Usurpation of Corporate Opportunity by Dr. Swift
59. Plaintiff hereby incorporates by reference the allegations set forth in paragraphs 1 to 58
above.
Case 08-30512 Doc 263 Filed 01/12/10 Entered 01/12/10 18:34:17 Desc Main Document Page 7 of 13
- -
8
60. As a director, executive officer and the responsible person for the bankruptcy estates in
these bankruptcy cases, Dr. Swift owed a fiduciary duty to the Debtors and their creditors.
61. The alternate botanical drug formation which Dr. Swift and Cosmid are developing was
in the Debtors’ line of business.
62. Dr. Swift was under a duty to disclose that opportunity to the bankruptcy estates.
63. Dr. Swift should have disclosed that opportunity to the independent directors on the
board of directors.
64. Dr. Swift should have disclosed that opportunity to this Court.
65. Dr. Swift failed to so disclose.
66. Dr. Swift should have tendered the opportunity to the bankruptcy estates.
67. Dr. Swift failed to so tender the opportunity.
68. The bankruptcy estates had an actual or expected interest in the opportunity.
69. Dr. Swift acknowledged as much by having Debtors’ counsel advise this Court and the
Creditors Committee that an exit proposal for the Debtors’ estates and creditors including this
alternative formulation would be pursued.
70. Dr. Swift’s thereafter taking advantage of the opportunity solely through an entity owned
by him hinders or defeats plan and purposes of the Debtors in carrying on and developing
legitimate business for which they were created.
71. The Debtors and their creditors have been harmed by Dr. Swift’s usurpation of the
Debtors’ corporate opportunity.
WHEREFORE, Plaintiff seeks an award of damages against Dr. Swift in an amount to be
determined at trial and for costs, interest and attorneys fees as may be permissible by law.
Case 08-30512 Doc 263 Filed 01/12/10 Entered 01/12/10 18:34:17 Desc Main Document Page 8 of 13
- -
9
Count 3
Setoff Against Dr. Swift’s Claim
72. Plaintiff hereby incorporates by reference the allegations set forth in paragraphs 1 to 71
above.
73. A bankruptcy estate may setoff any pre or post-petition claim it holds against any pre-
petition or post-petition claim asserted by a party it holds a counterclaim against.
74. The Xechem International bankruptcy estate is entitled to a setoff against Proof of Claim
45 asserted by Dr. Swift under applicable state law.
75. The Xechem International bankruptcy estate is entitled to a setoff against Proof of Claim
45 asserted by Dr. Swift under Section 553 of the Bankruptcy Code.
WHEREFORE, Plaintiff seeks a setoff for the amount of damages against the asserted
amount of Proof of Claim 45, and for costs, interest and attorneys fees as may be permissible by
law.
Count 4
Section 549
76. Plaintiff hereby incorporates by reference the allegations set forth in paragraphs 1 to 75
above.
77. Dr. Swift’s actions constituted a transfer of assets of the bankruptcy estates.
78. The transfers of these assets were not in the ordinary course of the Debtors’ business.
79. No bankruptcy court approval of these transfers of assets was sought or obtained from
this Court.
80. Upon information and belief, these transfers were not authorized at any meeting of the
Debtors’ board of directors.
81. No value was provided to the bankruptcy estates for the transfer of these assets.
Case 08-30512 Doc 263 Filed 01/12/10 Entered 01/12/10 18:34:17 Desc Main Document Page 9 of 13
- -
10
82. These transfers were conducted by an insider for his own benefit.
83. The bankruptcy estates are entitled to recover these transfers under Section 549 of the
Bankruptcy Code.
WHEREFORE, Plaintiff seeks (i) an award of damages against Dr. Swift in an amount to
be determined at trial, (ii) return of all assets transferred and (iii) costs, interest and attorneys fees
as may be permissible by law.
Count 5
Ultra Vires Act
84. Plaintiff hereby incorporates by reference the allegations set forth in paragraphs 1 to 83
above.
85. As a matter of corporate law, a transfer of substantial assets of a corporation can only
occur with approval of the board of directors after a duly called meeting of the board.
86. Upon information and belief, no such meeting was held with respect to the transfer of the
Debtors assets to Cosmid nor was any such board approval obtained.
87. Therefore, the purported transfer of the assets was an ultra vires act and was void and
ineffective.
WHEREFORE, Plaintiff seeks a determination that all assets of the bankruptcy estates
purported in the possession and control of Cosmid remain with the bankruptcy estates and
Cosmid has no right to possession or control of such assets.
Count 6
Equitable Subordination
88. Plaintiff hereby incorporates by reference the allegations set forth in paragraphs 1 to 87
above.
89. The acts by Dr. Swift were inequitable.
Case 08-30512 Doc 263 Filed 01/12/10 Entered 01/12/10 18:34:17 Desc Main Document Page 10 of 13
- -
11
90. The acts by Dr. Swift have harmed the bankruptcy estates and their creditors.
91. This Court has the power to subordinate claims under Section 510(c) of the Bankruptcy
Code and should do so based on the facts and circumstances present here.
WHEREFORE, Plaintiff seeks a determination that all Proof of Claim 45 is subordinated
below all unsecured claims of these bankruptcy estates.
Count 7
Satisfaction
92. Plaintiff hereby incorporates by reference the allegations set forth in paragraph 1 to 53
above.
93. Dr. Swift has received the bulk of the 5 HMF sale proceeds from payments he authorized
during the case.
94. All such payments constitute partial satisfaction of his asserted secured claim.
95 In any event, his security interest was limited to the 5 HMF Assets and therefore, he
cannot assert a secured claim against any other assets of these bankruptcy estates outside of the
grant clause in his security agreement and UCC filing.
WHEREFORE, Plaintiff seeks a determination that Dr. Swift’s purported secured claim
is satisfied to the extent he has received payment of 5 HMF proceeds and that he cannot assert a
secured claim in other assets of the bankruptcy estates since he was never granted a security
interest in those assets to begin with and never perfected such a security interest.
Count 8
Preference and Strong Arm Powers
96. Plaintiff hereby incorporated by reference the allegations set forth in paragraphs 1 to 53
of this Complaint.
Case 08-30512 Doc 263 Filed 01/12/10 Entered 01/12/10 18:34:17 Desc Main Document Page 11 of 13
- -
12
97. The original UCC filing attached to Dr. Swift’s claim filing was made after the security
interest and purported advance of funds for the benefit of the Debtors.
98. Therefore, the UCC filing was given on behalf of an antecedent debt.
99. The UCC filing would allow Dr. Swift to recover more than unsecured creditors would
receive in a Chapter 7 liquidation.
99. The UCC filing was made within 1 year of this Bankruptcy filing.
100. Dr. Swift was an insider and therefore, the 1 year preference period is applicable.
101. The bankruptcy estates could under their strong arm and avoidance powers avoid any
unperfected or untimely perfected lien.
WHEREFORE, Plaintiff seeks a determination that any purported security interest in the
5 HMF Assets was not timely perfected and is avoidable under Sections 544, 547 and 550 of the
Bankruptcy Code.
Count 9
Alter Ego
102. Plaintiff hereby incorporates by reference paragraphs 1 to 101 of this Complaint.
103. Cosmid is controlled and operated by Dr. Swift for his personal benefit.
104. There is no meaningful distinction between Dr. Swift and Cosmid.
105. Cosmid is an alter ego of Dr. Swift.
Case 08-30512 Doc 263 Filed 01/12/10 Entered 01/12/10 18:34:17 Desc Main Document Page 12 of 13
- -
13
WHEREFORE, Plaintiff seeks a determination that Cosmid is an alter ego of Dr. Swift
and that any relief granted against Dr. Swift hereunder is enforceable against Cosmid and its
purported assets.
Dated: January 12, 2010
SONNENSCHEIN NATH & ROSENTHAL LLP By: /s/ Robert E. Richards Robert E. Richards (ARDC No. 6199138)
233 S. Wacker Drive Suite 7800 Chicago, IL 60606 [email protected] Telephone: (312) 876-8000 Facsimile: (312) 876-7934
Counsel to the Official Committee of Unsecured Creditors of Xechem, Inc. and Xechem International, Inc.
Case 08-30512 Doc 263 Filed 01/12/10 Entered 01/12/10 18:34:17 Desc Main Document Page 13 of 13