"iWORLD Group will deploy its first business incubation facility in Europe within first quarter 2000 and establish an international presence in the ensuing months. By the end of 2003 the company plans to grow its capital value to a baseline figure of approximately USD3.4 billion. We offer selected strategic investors the opportunity to participate in iWORLD Group’s success. To establish the first of the iWORLD Group global incubators and fund the operations of the company during the next 24 months we will raise USD35 million by offering equity in the company. iWORLD Group offers a compelling opportunity to its investors. Within 12-18 months, iWORLD Group will position itself for an early IPO that will strengthen brand recognition, offer market valued equity incentives to its staff and provide an opportunity for investors to realise a portion of their gains. Investment partners will also benefit through the possibility of early participation in ventures emerging from the incubators, and in the eventual spin-off of iSmartMoney, iWORLD Group’s seed fund, as a growth fund specialising in the mobile e-business sector."
"● Establish Eurolncubators, its full-service incubation facilities for Europe, located in Germany, Europe’s largest national market, and later (3Q2001) replicate the facility by developing Asialncubators in Asia ● Establish an office network covering Sweden, Finland, UK, Italy, US, Hong Kong, and Japan to gather market intelligence and to provide its offspring with access and acumen for successful roll-out and execution ? Build an international team of recognized and experienced Internet and telecom professionals as the focus of a network of in-house and external resources and services in these international hubs, together with operational experts in the fields of marketing, business building, finance and fiscal matters, and logistics."
"1.1 In this Agreement and its recitals and the Schedules save where otherwise expressly provided or unless the context provides otherwise: ‘Incubation Period’ Means the period of up to twelve (12) months from the formation of an Incubated Company. ‘Initial Funding’ Means the initial investment by the Company in an Incubated Company pursuant to Clause 8.1 ‘iSmart Money’ Means the investment committee of the Company responsible, inter alia, for making the decision whether to fund Incubated Companies … 4.1 The principal purpose of the Company is to develop, invest in and own businesses in the e-mobile sector, principally in the area of service businesses (starting with at least majority ownership of such businesses). The Company may develop, invest in or own a business or businesses relating to technology or software in the e-mobile sector if it will facilitate or assist its other e-mobile service business. … 4.3 The holders of the majority of the total issued Preference Shares shall be entitled to elect one investor representative as a Board member of the Company … Such Investor Board Representative shall be entitled to vote at Board meetings of the Company … … 7.1 Each Party, severally and not jointly, agrees and acknowledges that such Shareholder will not directly or indirectly, offer, sell, assign … or otherwise transfer any Shares … unless such offer, sale, assignment … or other transfer complies with the provisions of this Agreement. … 7.9 If at any time Perikles Trust proposes to transfer Shares constituting more than 5% of the issued share capital of the Company to a third party pursuant to an understanding with such third party (a "
"iWORLD rejects the assertion that funds were being applied in a ‘fundamentally different’ manner than was expected by the investors."
"In reply to questions from Edward McCaffrey and Kevin Valenzia, Brigitte Baumann furthermore explained that it is estimated that about USD 8 million will be required to achieve break even in 2003 with the highest capital requirement in 2002. The budget for 2002 shows that the funding is assumed to be coming out of iWG’s capital although a fundraising is planned to take place in the second half of 2002. Edward McCaffrey asked for the specific amount necessary to take iModel into profitability, and potentially public. Brigitte Baumann stated that the total amount is assumed to be up to 10-12 million USD maximum. Upon his request Brigitte Baumann agreed to send him the iModel business plan financials in order to discuss financial projections."
"The Board agreed to approve the base case scenario budget, submitted to the Board by Brigitte Baumann, subject to a quarterly review in order to ensure that the investors will agree that monies are spent judiciously. It was also agreed that the success of iModel within the expected periods of time was therefore critical."
"Edward McCaffrey commented that in his view as well, the incubation business model is not valid. The industry has gone back to basics, and building businesses requires too much money and effort to still make sense. Therefore, the focus must be on iModel, the failure of which would bring the incubator model into question. Bettina Vossberg and Brigitte Baumann responded that the business incubator model could work if the scope within the industry is sufficiently vertical to exploit knowledge and assets. Several businesses could be created from one core asset, and the iModel platform could be used in other ways and other fields. Also, using and improving incubation processes has proven to be a least as beneficial to iModel as to the incubation model. Nevertheless, they agreed that it is as hard as ever to build companies, which cannot be done as fast as expected, and that the focus must first be on making a success out of iModel before the question of the incubation of further businesses is addressed."
"In breach of Clause 9.1 of the Shareholders’ Agreement, the Company has continued to fund iModel after the expiry of its ‘Incubation Period’ as defined in the Shareholders’ Agreement, namely October 2001, alternatively February 2002, whichever is the date of expiry of 12 months after the formation of iModel. Further and in the alternative, in breach of Clause 9.1 of the Shareholders’ Agreement, the Company has provided to iModel funding in excess of the maximum ‘Initial Funding’ permitted under the said Clause, namely US$5 million ."
"Where a suit about a particular subject matter between a plaintiff and a defendant is already pending in a foreign court which is a natural and appropriate forum for the resolution of the dispute between them, and the defendant in the foreign suit seeks to institute as plaintiff an action in England about the same matter to which the person who is plaintiff in the foreign suit is made defendant, then the additional inconvenience and expense which must result from allowing two sets of legal proceedings to be pursued concurrently in two different countries where the same facts will be in issue and the testimony of the same witnesses required, can only be justified if the would-be plaintiff can establish objectively by cogent evidence that there is some personal or juridical advantage that would be available to him only in the English action that is of such importance that it would cause injustice to him to deprive him of it."
"…if genuine proceedings have been started and have had some impact on the dispute between the parties, especially if it is likely to have a continuing effect, then this may be a relevant (but not necessarily decisive) factor when considering whether the foreign jurisdiction provides the appropriate forum"
"… the board discussed whether it should consider protecting the Company’s operations from possible garnishee orders on its bank accounts which could have the effect of bringing the operations of the company to a stand-still. The idea would be to establish an account with sufficient funds to take the company through the next six months of operations and which would be ring-fenced from other company funds for the purposes of attachment by a possible garnishee order."
"The trustee that Medfinco purported to replace is the Second Defendant, Abacus Holdings Limited, a company incorporated under the laws of Malta. The validity and effect of the purported replacement by the first defendant of the second defendant as trustee to the Perikles Trust is open to question. For this reason, together with the fact that on the facts known to the Claimants there appears to have been a breach of the provisions of the Shareholders’ Agreement relating to share transfers, the claimants intend to proceed against both Medfinco and Abacus. Abacus was at all material times and remains, in any event, trustee of the Dolphins Trust, a party to the Shareholders’ Agreement … and therefore is a necessary party to the proposed proceedings."
"14. In breach of Clauses 9.1 and 10.1 of the Shareholders’ Agreement, the Company has continued, and the First Defendant and/or (since3 December 2002 ) the Second Defendant have permitted the Company to continue, to fund iModel after the expiry of its ‘Incubation Period’ as defined in the Shareholders’ Agreement, namely October 2001, alternatively February 2002, whichever is the date of expiry of 12 months after the formation of iModel. 15. Further and in the alternative, in breach of Clauses 9.1 and 10.1 of the Shareholders’ Agreement, the Company has provided, and the First Defendant and/or (since3 December 2002 ) the Second Defendant have permitted the Company to provide, to iModel funding in excess of the maximum ‘Initial Funding’ permitted under the said Clause, namely US$5 million ."
"In the present case the choice of the parties was the English Court, and … I should myself require strong grounds for saying that one of the parties should not keep his word."
"We should also look with favour on a choice of our own jurisdiction, when it appears to have been made in order to find a court which is neutral rather than one that is convenient."
"180. On an application without notice the duty of the applicant is to make a full and fair disclosure of all the material facts, i.e. those which it is material (in the objective sense) for the judge to know in dealing with the application as made: materiality is to be decided by the Court and not by the assessment of the applicant or his legal advisers; the duty is a strict one and includes not merely material facts known to the applicant but also additional facts which he would have known if he had made proper enquiries: Brinks Mat Ltd v. Elcombe[1988] 1 WLR 1350 at 1356-7. But an applicant does not have a duty to disclose points against him which have not been raised by the other side and in respect of which there is no reason to anticipate that the other side would raise such points if it were present. 181. These principles have long been applied to applications for permission to serve out of the jurisdiction: see, e.g. The Hagen [1908] P. 189 at 201 (CA). In that context it has been held that it would not be reasonable to expect an applicant for permission to serve out to anticipate all the arguments or points which might be raised against his case: see The Electric Furnace Co v. Selas Corporation[1987] RPC 23 at 29 (CA). A failure to refer to arguments on the merits which the defendant might raise at trial should not generally be characterised as a ‘failure to make full and fair disclosure’, unless they are of such weight that their omission may mislead the Court in exercising its jurisdiction under the rule and its discretion whether or not to grant permission: BP Exploration v. Hunt[1976] 3 All ER 879 at 89, approved in Electric Furnace at 29. 182. In BP Exploration v. Hunt, Kerr J warned (at page 894) that: ‘the Court should not consider the supporting affidavit as though it were marking an examination paper, deciding one way or the other merely on the basis of the extent to which the affidavit could have been improved. The primary question should be whether in all the circumstances the effect of the affidavit is such as to mislead the court in any material respect concerning its jurisdiction and the discretion under the rule.’"
"We have been asked by U.K. counsel to iWORLD Group Europe Holdings Plc, a Maltese company (‘iWG’), to contact you in connection with the matters discussed herein. As you may know, Banc of America Equity Corporation (‘BoA’) is a holder of preference shares in iWG. In addition, Mr. Edward J. McCaffrey, an employee and agent of BoA, serves as BoA’s representative on the board of directors of iWG. We have been advised that Mr. McCaffrey, on behalf of BoA, has taken and continues to take actions that clearly are detrimental to the best interests of iWG and its shareholders, including, without limitation, creating severe disruption in the ranks of management and thereby diverting management’s attention from the proper operation of the business of iWG, and conspiring with others to improperly oust certain duly appointed board members of iWG. In addition, we are advised that BoA’s authorized representative made false and improper statements to potential clients of iWG with a materially adverse effect on the business of iWG. These actions by Mr. McCaffrey, on behalf of BoA, have caused serious and irreparable damage to the business and prospects of iWG and have prevented iWG from pursuing its business opportunities in a prudent manner. We have been advised by Maltese counsel that the actions of Mr. McCaffrey, on behalf of BoA, constitute a clear and wilful breach of Mr. McCaffrey’s fiduciary duty as a director of iWG to act in the best interests of iWG and its shareholders. On behalf of iWG, demand is hereby made that BoA and Mr. McCaffrey immediately cease and desists from all such activities and conduct themselves in the future strictly in conformity with the standard of conduct for directors of Maltese companies and all applicable laws and regulations. Notwithstanding BoA’s anticipated cessation of the activities complained about above, iWG does not waive any claims or damages that have accrued to date. Rather, iWG intends to pursue its right of recovery for all damages suffered as a consequence of BoA’s activities. If BoA and Mr. McCaffrey do not immediately cease these improper and actionable activities, iWG will not hesitate to take all action as it may deem necessary or appropriate to enforce its rights and remedies against BoA and Mr. McCaffrey, including the initiation of immediate legal action in the appropriate forum. Please govern yourself accordingly"
"… you should be aware that the Maltese Civil Court, presided by Justice Gino Camilleri, has been having the affairs of the Company and its subsidiaries governed solely and exclusively by a Board of Administration. As far as we are aware, that Board of Administration has not properly engaged counsel in Malta, the UK, the US or otherwise to act on behalf of the Company or its subsidiaries in connection with the matters alleged in your letter."
"We are aware of the appointment of the Board of Administration with respect to the operation of iWORLD Group Europe Holdings Plc (‘iWG’). The Board of Administration has appointed Wragge & Co., a firm of solicitors in the U.K., to act on behalf of iWG in connection with the matters referred to in my letter to Mr. Perucca dated May 9, 2003, with authority to appoint U.S. counsel. Pursuant to that authority, we have been appointed by Wragge & Co. to serve as U.S. counsel in connection with these matters. Mr. Joseph Zammit Tabona, the Court-appointed Chairman of the Board of Administration, recently submitted to the Court a report concerning the status of iWG and actions taken by the Board of Administration in connection with the management of the business of iWG. We trust that you have read the relevant portions of that report, particularly as they relate to BAS Capital Funding Corporation."