Greenlight Training v. Xcel - NJ Case No. MON-L-002917-18 (Complaint v2 - Jan 2020)

MON-L-002917-18 01/15/2020 2:00:56 PM Pg 1 of 17 Trans ID: LCV2020103971
Jeffrey Schreiber, Esq.

NJ Attorney ID: 041751990
MEISTER SEELIG & FEIN LLP
2G Auer Court
Williamsburg Commons
East Brunswick, NJ 08816
Telephone: (732) 432-0322
Facsimile: (732) 432-4282
Email: js@msf-law.com
Attorneys for Plaintiff Greenlight Training, Inc.

X
SUPERIOR COURT OF NEW
GREENLIGHT TRAINING, INC., JERSEY — LAW DIVISION
Plaintiff, MONMOUTH COUNTY
-against- Docket: MON L-002917-18
XCEL TESTING SOLUTIONS, LLC, CIVIL ACTION

XCEL SOLUTIONS, LLC, SECURITIES
TRAINING CORP., COLIBRI GROUP, LLC, SECOND AMENDED
MCKISSOCK, LLC, MCKISSOCK INVESTMENT COMPLAINT
HOLDINGS, LLC, GREGORY SINNER, TOM AND JURY DEMAND
WILLIAMS, DAVID JACKSON, DURHON
OLDHAM, MYRON PINCOMB, CARL JACKSON,
DCBTKZ HOLDINGS, LLC, SUE WARREN
FORBIS, KARL WHITE and
XYZ CORPORATIONS 9 — 10,
Defendants.
Plaintiff Greenlight Training, Inc. ("Plaintiff'), by its undersigned attorneys, as and for its
Complaint against Defendants Xcel Testing Solutions, LLC ("Xcel Florida"), Xcel Solutions, LLC
("Xcel Delaware"); Securities Training Corp.; Colibri Group, LLC; McKissock, LLC; McKissock
Investment Holdings, LLC; and XYZ Corporations 9— 10 (together with Xcel Delaware, Securities
Training Corp., Colibri Group, LLC, McKissock, LLC, McKissock Investment Holdings, LLC,
the "Successor Defendants"); Gregory Sinner; Tom Williams; David Jackson; Durhon Oldham;
1
Myron Pincomb Carl Jackson, DCBTKZ Holdings, LLC, Sue Warren Forbis, and Karl White
(together the "Fraudulent Transferees" and all together with Xcel Florida and the Successor
Defendants, "Defendants"), hereby alleges as follows:
NATURE OF THIS ACTION
1. This action arises from Xcel Florida and the Successor Defendants' failure and
refusal to: (i) pay to Plaintiff amounts due under an Asset Purchase Agreement pursuant to which
Xcel Florida purchased certain assets of Plaintiff's insurance pre-licensing preparation business;
(ii) comply with their obligations to permit Plaintiff to audit their books and records, as required
under the Asset Purchase Agreement; and (iii) provide to Plaintiff a full and complete accounting
of all amounts due to Plaintiff under the Asset Purchase Agreement.
2. This action also seek relief under the New Jersey Uniform Transfer Act, N.J.S.A.
§§ 25:2:20 et seq., in connection with Xcel Florida's transfer of millions of dollars to its members,
the Fraudulent Transferees.
PARTIES
3. Plaintiff is a New Jersey corporation with its principal place of business located at
1000 River Road, Unit 6E, Belmar, NJ 07719.
4. Xcel Florida is, upon information and belief, a Florida limited liability company
with its principal place of business located at 770 Square Lake Blvd. — Building 2, Jacksonville,
FL 32256.
5. Xcel Delaware is, upon information and belief, a Delaware limited liability
company with its principal place of business located at 12977 N 40 Drive, Suite 108, Saint Louis,
MO 63141.
2
6. Securities Training Corp. is, upon information and belief, a New York business
corporation with its principal place of business located at 123 William Street, 7th Floor, New York,
NY 10038.
7. Colibri Group, LLC is, upon information and belief; a Delaware limited liability
company with its principal place of business located in Redwood City, CA.
8. McKissock, LLC is, upon information and belief, a Delaware limited liability
company with its principal place of business located at 218 Liberty Street, Warren, PA.
9. McKissock Investment Holdings is, upon information and belief, a Delaware
limited liability company with its principal place of business located at 218 Liberty Street, Warren,
PA.
10. Gregory Sinner is an individual who, upon information and belief; resides at 289
Saint Johns Golf Drive, St. Augustine, FL, and who is a member, affiliate and/or assign of Xcel
Florida.
11. Tom Williams is an individual who, upon information and belief; resides at 310
NW 15th Street, Delray Beach, FL, and who is a member, affiliate and/or assign of Xcel Florida.
12. David Jackson is an individual who, upon information and belief, resides at 335
North Shore Circle, # 1014, St. Augustine, FL, and who is a member, affiliate and/or assign of
Xcel Florida.
13. Durhon Oldham is an individual who, upon information and belief; resides at 1567
Henrietta Road, Rochester, NY, and who is a member, affiliate and/or assign of Xcel Florida.
14. Myron Pincomb is an individual who, upon information and belief; resides in the
State of Florida, and who is a member, affiliate and/or assign of Xcel Florida.
3
15. Carl Jackson is an individual who, upon information and belief, resides at 933
Trimble Place, Northfield, OH, and who is a member, affiliate and/or assign of Xcel Florida.
16. DCBTKZ Holdings, LLC is, upon information and belief, a Texas limited liability
company with its principal place of business located at 12594 Blitz Drive, Frisco, TX, and which
is a member, affiliate and/or assign of Xcel Florida.
17. Sue Warren Forbis is an individual who, upon information and belief, resides at
1600 London Lane, McKinney, TX, and who is a member, affiliate and/or assign of Xcel Florida.
18. Karl White is an individual who, upon information and belief, resides at 255 S.
Cypress Road, Apt. 333, Pompano Beach, FL, and who is a member, affiliate and/or assign of Xcel
Florida.
19. XYZ Corporations 9— 10 are fictitious names of entities which may have liability
to Plaintiff, as successors, assigns, affiliates, or parents of Xcel Florida, under the Asset Purchase
Agreement and/or in connection with Xcel Florida's subsequent sale of the assets Xcel Florida
purchased from Plaintiff. The identities of such entities are not yet known to Plaintiff, and Plaintiff
reserves the right to amend its pleadings so as to include the real names of any such entities as
discovery in this action may reveal.
20. The Successor Defendants are, upon information and belief, successors, assigns,
affiliates and/or parents of Xcel Florida, and liable for Xcel Florida's obligations under the Asset
Purchase Agreement.
JURISDICTION AND VENUE
21. Jurisdiction in this Court is proper as Defendants have submitted to the exclusive
jurisdiction of the courts of New Jersey in the underlying agreement.
4
22. The Successor Defendants market, promote and offer to the general public online
courses for obtaining an insurer provider and securities sales license in New Jersey.
23. Securities Training Corp. is registered to conduct business in the State of New
Jersey and is certified by the New Jersey Department of Banking and Insurance as an "Approved
Insurance Education Provider".
24. Xcel Solutions is certified by the New Jersey Department of Banking and Insurance
as an "Approved Insurance Education Provider".
25. The Successor Defendants generate substantial revenue, from customers located in
New Jersey, including by using Plaintiff's assets that are the subject of this action.
26. Venue is proper in this vicinage, pursuant to R. 6:1-3, as Defendants are non-
residents of New Jersey and therefore venue is properly laid in Monmouth County, where the cause
of action arose, and in the underlying agreement, Defendants waived any argument that venue in
Monmouth County is improper or inconvenient.
STATEMENT OF FACTS
The Asset Purchase Agreement
27. Before it sold its business assets to Xcel Florida pursuant to the Asset Purchase
Agreement, Plaintiff was in the business of providing state certified insurance and securities pre-
licensing education services.
28. In February 2014, the parties entered into an Asset Purchase Agreement (the
"Agreement") pursuant to which Xcel Florida purchased certain assets of Plaintiff (the "Greenlight
Assets") in exchange for a purchase price (the "Greenlight Purchase Price").
29. The Greenlight Assets are listed in Schedule 1.1 of the Agreement and include,
among other things, Plaintiff's customer lists, proprietary information, intellectual property,
5
training materials, licenses, student lists/databases, and "Referral Sources," as provided in
Schedule 1.1(A).
30. The Greenlight Purchase Price consisted of several components:
a. transfer of 100,000 "membership units" of Xcel Florida to Plaintiff's
principal, Scott Rubman (the "Closing Payment");
b. payment to Plaintiff of a specified portion of the Net Revenue generated
from the services rendered by Xcel Florida, after the Closing Date and for
a specified period, to: (i) all customers transferred from Plaintiff to Xcel
Florida as part of the transaction (the "Transferred Customers") and (ii) all
customers derived from Referral Sources (pre- and post-Greenlight
APA)(the "Net Revenue Payments"); I and
c. payment to Plaintiff of 5% of Gross Revenue generated from any
Transferred Customers for a period of 15 years, to be paid on a monthly
basis (the "Gross Revenue Payments").
31. Pursuant to Section 1.3(b)(vii) of the Agreement, Xcel Florida and the Successor
Defendants are obligated to provide Plaintiff, on demand but not more frequently than once every
three months, with "records and information reasonably necessary for [Plaintiff] to ascertain the
accurateness of the Purchase Price...."
32. Section 1.3(b)(vii) further provides that Plaintiff "shall have the right to audit the
records of Xcel Florida which shall reasonably related to [Plaintiff's] rights to payments ... in the
event of a dispute."
I Net Revenue is defined as "the gross proceeds of Xcel Florida generated from any Transferred Customers less the
costs for referral fee arrangements." Pursuant to Section 1.3(b)(vi), Net Revenue derived by Referral Sources is treated
the same way as Transferred Customers.
6
33. Additionally, under Section 1.3(b)(vii), Xcel Florida and the Successor Defendants
are obligated to provide Plaintiff with "real time access to Xcel Florida's website so that [Plaintiff]
may monitor student registration from [Plaintiff's] Transferred Customers."
Defendants' Breach of the Agreement
34. In breach of the Agreement, Xcel Florida and the Successor Defendants have failed
and refused fully to pay to Plaintiff all Net Revenue Payments due under the Agreement.
35. In further breach of the Agreement, Xcel Florida and the Successor Defendants
have failed and refused to pay to Plaintiff any part of the Gross Revenue Payments due under the
Agreement.
36. Despite Plaintiff's demand, and in breach of the Agreement, Xcel Florida and the
Successor Defendants have failed and refused to provide Plaintiff with their records and
information reasonably necessary for Plaintiff to ascertain the accurateness of any Greenlight
Purchase Price payments.
37. Although Plaintiff demanded, including by letter dated July 7, 2018, an opportunity
to audit records reasonably related to Plaintiff s rights to payments, Xcel Florida and the Successor
Defendants have failed and refused to allow such audit, in breach of the Agreement.
38. Despite Plaintiff's demand, and in breach of the Agreement, Xcel Florida and the
Successor Defendants have failed and refused to provide Plaintiff with real-time access to their
websites so that Plaintiff may monitor student registration from Plaintiffs Transferred Customers.
The Sale of Xcel Florida's Assets
39. Section 7.4 of the Agreement states: "This Agreement may not be assigned without
1
the prior written consent of the Parties hereto.... Buyer agrees that this Agreement shall survive
and apply to any change of ownership, corporate form, or successor or assign of Buyer."
7
40. Upon information and belief, Xcel Florida sold its assets, including the Greenlight
Assets, to, the Successor Defendants (the "Xcel Sale Transaction") pursuant to a written Asset
Purchase Agreement (the "Xcel APA").
41. Upon information and belief, as part of the Xcel Sale Transaction, Xcel Florida
assigned the Agreement and/or transferred its assets to the Successor Defendants, including the
Greenlight Assets.
42. The Successor Defendants are liable to Plaintiff not only pursuant to Section 7.4 of
the Agreement, which states that its survives and applies to any change of ownership, corporate
form, or successor or assign of Xcel Florida, but also under the theory of successor liability
because, by virtue of the Xcel Sale Transaction, and upon information and belief: (a) the Successor
Defendants expressly or impliedly assumed Xcel Florida's liability; (b) there was an actual or de
facto consolidation or merger of Xcel Florida and the Successor Defendants; and/or (c) the
Successor Defendants are mere continuations of Xcel Florida.
43. Upon information and belief, Xcel Florida has ceased its business
operations(except for maintaining a bank account) , and the Successor Defendants have assumed
Xcel Florida's liabilities necessary for the uninterrupted continuation of Xcel Florida's business,
including without limitation, Xcel Florida's real estate and equipment leases, telephone numbers
and web addresses (including Plaintiff's web addresses, which Plaintiff sold to Xcel Florida under
the terms of the Greenlight APA).
44. For example, even though Section 1.4 of the Agreement obligated Xcel Florida to
make a certain payment to Plaintiff in the event Xcel Florida sells or transfers 51.1% or more of
Xcel Florida to "to a third party as part of a contemplated sale or merger transaction," (the "Early
Payout"), Xcel Solutions LLC (not Xcel Florida) was the entity that wrote Plaintiff a check
8
purporting to be the Early Payout (the "Check").2 Xcel Solutions made that payment pursuant to
Section 3.1(c)(i) of the Xcel APA.
45. As part of the Xcel Sale Transaction, Xcel Florida's Chief Executive Officer and
largest percentage interest owner, Gregory Sinner, became the General Manager of Xcel Solutions
and an owner of McKissock Investment Holdings.
46. As part of the Xcel Sale Transaction, all of Xcel Florida's employees became
employees of defendant McKissock.
47. Furthermore, in addition to its office leases, Xcel Florida's phone service and
utilities (electric, water, sewer, etc.) were transferred to Xcel Solutions.
48. The Successor Defendants are intertwined and disregard corporate form, as
evidenced by, inter alia: (a) McKissock's payment of salaries and associated employment
expenses and taxes for each employee of all the Successor Defendants; (b) each Successor
Defendant publicly represented that it acquired Xcel Florida; (c) Michael Duran serves as the CEO
of Colibri Group, CEO of Xcel Delaware, and Director of Securities Training; (d) Douglas
Wnorowski serves as CEO of Xcel Delaware, Treasurer of Securities Training Corporation, and
COO of Colibri Group; and (e) Paul Skordilis, who is solely employed and whose salary is paid
by McKissock, serves as President of Securities Training Corporation, Board Member of Colibri
Group, and General Manager of Xcel Delaware, and oversees the operations and management of
Xcel Delaware.
49. Moreover, upon information and belief, the Successor Defendants were, at all
relevant times, fully aware of the Agreement, including Xcel Florida's obligations thereunder.
2 Plaintiff disputes the calculation of the Early Payout underlying the Check and previously, and in writing, reserved
all rights in connection with the Check.
9
50. In fact, pursuant to a Closing Side Letter and in an implicit admission that
Defendants have liability to Plaintiff under the Greenlight APA, Xcel Solutions is "holding back"
funds from the Xcel Purchase Price (defined below) from Xcel Florida pending resolution of Xcel
Florida's dispute with Plaintiff.
The Fraudulent Transfers
51. Xcel Florida sold its assets to the Successor Defendants in exchange for $9 million,
plus or minus various adjustment amounts, expenses, and "earnout payments" (the "Xcel Purchase
Price").
52. On or about August 13, 2018, and as part of the Xcel Sale Transaction, the
Successor Defendants wired millions of dollars to Xcel Florida's bank account in partial payment
of the Xcel Purchase Price.
53. Thereafter, Xcel Florida distributed all such monies, which was its only remaining
asset, to the Fraudulent Transferees (the "Fraudulent Transfers") despite its liabilities to Plaintiff
at the time of the transfers.
54. At the time of the Fraudulent Transfers, Plaintiff was both a present and future
creditor of Xcel Florida.
55. Plaintiff first learned of the Fraudulent Transfers on November 6, 2019.
FIRST CAUSE OF ACTION

(Breach of Contract)
56. Plaintiff repeats and realleges each and every allegation contained in Paragraphs 1-
29 above as though fully set forth herein.
57. The Agreement is a valid and binding contract.
58. Plaintiff has fully complied with its obligations under the Agreement.
10
59. Xcel Florida and the Successor Defendants have breached the Agreement by failing
to fully pay the Net Revenue Payments, failing to pay any part of the Gross Revenue Payments,
and failing to provide the records and access set forth in Section 1.3(b)(vii) of the Agreement.
60. As a result of Xcel Florida and the Successor Defendants' breach, Plaintiff has
been damaged in an amount to be determined at trial, but in no event less than $2,500,000.00, plus
interest.
SECOND CAUSE OF ACTION

(Specific Performance)
62. The Agreement is a valid and binding contract.
63. The terms of the Agreement are known with reasonable certainty.
64. Plaintiff has fully complied with its obligations under the Agreement.
65. Xcel Florida and the Successor Defendants will not be unduly burdened by the
ordering of specific performance as sought herein.
66. In Section 7.11 of the Agreement, the parties agreed that "any breach of the terms
of this Agreement may give rise to irreparable harm for which money damages would not be an
adequate remedy, and accordingly agree that, any non-breaching party shall be entitled to enforce
the terms of the Agreement by a decree of specific performance and the non-defaulting party shall
be entitled to recover its costs and expenses, including reasonable attorney's fees, incurred as a
result of the defaulting party's breach."
67. Plaintiff is entitled to a judgment of specific performance directing Xcel Florida
and the Successor Defendants to provide Plaintiff with: (a) records and information reasonably
necessary for Plaintiff to ascertain the accurateness of the Greenlight Purchase Price; (b) access to
11
audit the records of Xcel Florida and the Successor Defendants reasonably related to Plaintiffs
rights to the Greenlight Purchase Price; and (c) real-time access to Xcel Florida and the Successor
Defendants' websites so that Plaintiff may monitor student registration from Plaintiffs Transferred
Customers.
THIRD CAUSE OF ACTION

(Accounting)
69. The Agreement requires Xcel Florida and the Successor Defendants to provide
Plaintiff with records and information reasonably necessary for Plaintiff to ascertain the
accurateness of the Greenlight Purchase Price payments, with an ability to audit such records, and
with real-time access to Xcel Florida and the Successor Defendants' websites so that Plaintiff can
monitor student registration.
70. Despite Plaintiff's demand, Xcel Florida and the Successor Defendants have failed
to provide such records and access, which prevents Plaintiff from ascertaining the precise amount
of payments owed by Xcel Florida and the Successor Defendants.
71. Plaintiff is entitled to an accounting of the revenue generated by Xcel Florida and
the Successor Defendants from the Transferred Customers and the Referral Sources.
FOURTH CAUSE OF ACTION

(Equitable Lien / Injunctive Relief)
12
73. The parties intended to create an equitable lien in Plaintiff's favor against Xcel
Florida and the Successor Defendants' assets in the event, which occurred, that the Greenlight
Purchase Price has not been fully paid to Plaintiff.
74. Given Xcel Florida and the Successor Defendants' failure to pay the Greenlight
Purchase Price to Plaintiff, part of which (the Gross Revenue Payments) is to be paid out over the
course of fifteen years, and given that the Xcel Sale Transaction constitutes a breach of Xcel
Florida and the Successor Defendants' obligation to obtain Plaintiff's prior written consent thereto,
Plaintiff is entitled to the impression of an equitable lien upon Xcel Florida and the Successor
Defendants' assets in the amount of the Greenlight Purchase Price due and owing to Plaintiff, as
determined by the Court.
FIFTH CAUSE OF ACTION

(Attorneys' Fees)
76. Section 7.14 of the Agreement provides: "If any party files a suit or an action, or
commences any proceeding (whether in arbitration, mediation, or otherwise) to enforce the
provisions of this Agreement or otherwise with respect to the subject matter of this Agreement,
the prevailing party shall be entitled to recover its reasonable attorneys' fees as fixed by the court
or arbitrator."
77. Xcel Florida and the Successor Defendants have breached the Agreement, as set
forth herein.
78. Plaintiff is entitled to reimbursement of its reasonable attorney's fees incurred as a
result of Xcel Florida and the Successor Defendants' breach of the Agreement.
13
SIXTH CAUSE OF ACTION

(Fraudulent Transfer Under N.J.S.A. 4 25:2-27)
80. Plaintiff's claim against Xcel Florida arose before the Fraudulent Transfers were
made or the obligation to the Fraudulent Transferees was incurred.
81. Xcel Florida made the Fraudulent Transfers without receiving a reasonably
equivalent exchange in value.
82. Xcel Florida was insolvent at the time of the Fraudulent Transfers or became
insolvent as a result of the Fraudulent Transfers.
83. Plaintiff is entitled to: (a) avoidance of the Fraudulent Transfers to the extent
necessary to satisfy Plaintiff's claim against Xcel Florida; (b) an attachment or other provisional
remedy against the monies transferred to the Fraudulent Transferees; and (c) an injunction
prohibiting Xcel Florida and the Fraudulent Transferees from further disposing monies owed to
Plaintiff.
SEVENTH CAUSE OF ACTION

(Fraudulent Transfer Under N.J.S.A. 4 25:2-25)
85. The Fraudulent Transfers were made with actual intent to hinder, delay or defraud
Plaintiff, which at all relevant times was a creditor of Xcel Florida.
86. The Fraudulent Transfers were made to insiders — members/owners of Xcel Florida.
14
87. The Fraudulent Transfers were not disclosed to, and were concealed from, Plaintiff,
including via Defendants' refusal to exchange in discovery in this action and subsequent
withholding and/or redaction of documents.
88. Before the Fraudulent Transfers were made, Plaintiff sued Xcel Florida and/or
threatened such suit.
89. The Fraudulent Transfer was a transfer of all or substantially all of Xcel Florida's
assets.
90. Xcel Florida made the Fraudulent Transfers without receiving a reasonably
equivalent exchange in value, and Xcel Florida was engaged or was about to engage in a
transaction for which Xcel Florida's remaining assets were unreasonably small in relation to the
transaction, or Xcel Florida intended to incur or reasonably should have believed that it would
incur debts beyond its ability to pay as they became due, such as the debt to Plaintiff described
herein.
91. Plaintiff is entitled to: (a) avoidance of the Fraudulent Transfers to the extent
necessary to satisfy Plaintiff's claim against Xcel Florida; (b) an attachment or other provisional
remedy against the monies transferred to the Fraudulent Transferees; and (c) an injunction
prohibiting Xcel Florida and the Fraudulent Transferees from further disposing monies owed to
Plaintiff.
WHEREFORE, Plaintiff demands judgment against Defendants for the following:
a. all amounts due and owing Plaintiff under the Agreement in an amount to be
determined at trial, but in no event less than $2,500,000, plus interest;
b. directing Xcel Florida and the Successor Defendants to provide Plaintiff with: (i)
records and information reasonably necessary for Plaintiff to ascertain the accurateness of the
15
Greenlight Purchase Price; (ii) access to audit the records of Xcel Florida and the Successor
Defendants reasonably related to Plaintiffs rights to the Greenlight Purchase Price; and (iii) real-
time access to Xcel Florida and the Successor Defendants' websites so that Plaintiff may monitor
student registration from Plaintiffs Transferred Customers;
c. an accounting of the revenue generated by Xcel Florida and the Successor
Defendants from the Transferred Customers and the Referral Sources;
d. impressing an equitable lien upon Xcel Florida and the Successor Defendants'
assets in the amount of the Greenlight Purchase Price due and owing to Plaintiff, as determined by
the Court;
e. avoiding the Fraudulent Transfers to the extent necessary to satisfy Plaintiffs claim
against Xcel Florida; (b) attaching or granting other provisional remedies against the monies
transferred to the Fraudulent Transferees; and (c) enjoining Xcel Florida and the Fraudulent
Transferees from further disposing monies owed to Plaintiff;
f. Plaintiffs costs and expenses, including its reasonable attorney's fees, incurred as
a result of Xcel Florida and the Successor Defendants' breach of the Agreement, as provided for
in Section 7.14 of the Agreement; and
g. all such additional and further relief that the Court may deem just and proper.
Dated: East Brunswick, New Jersey

November 21, 2019 MEIST G & FEIN LLP
Jeffrey Schreiber, Esq.
16
JURY DEMAND
Plaintiff hereby demands a trial by jury of all issues so triable.
DESIGNATION OF TRIAL COUNSEL
Jeffrey Schreiber, Esq., of the firm Meister Seelig & Fein LLP is hereby designated as trial
counsel in this matter.
CERTIFICATION PURSUANT TO RULE 4:5-1
I hereby certify that to the best of my knowledge, information and belief, the within matter
as between and among the parties hereto is not the subject of any other action pending in any Court,
or the subject of a pending arbitration proceeding, and no other action or arbitration proceeding is
contemplated.
Dated: East Brunswick, New Jersey

November 21, 2019 MEIS & FElG-------INT-1---_,LP
I
By: Je ey Schreiber, Esq.
8612/1/7809454.v2
17

Greenlight Training v. Xcel - NJ Case No. MON-L-002917-18 (Complaint v2 - Jan 2020)

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Greenlight Training v. Xcel - NJ Case No. MON-L-002917-18 (Complaint v2 - Jan 2020)

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MON-L-002917-18 01/15/2020 2:00:56 PM Pg 1 of 17 Trans ID: LCV2020103971

Jeffrey Schreiber, Esq.

Attorneys for Plaintiff Greenlight Training, Inc.

Plaintiff, MONMOUTH COUNTY

-against- Docket: MON L-002917-18

XCEL TESTING SOLUTIONS, LLC, CIVIL ACTION

Defendants, "Defendants"), hereby alleges as follows:

NATURE OF THIS ACTION

of all amounts due to Plaintiff under the Asset Purchase Agreement.

the Fraudulent Transferees.

1000 River Road, Unit 6E, Belmar, NJ 07719.

9. McKissock Investment Holdings is, upon information and belief, a Delaware

is a member, affiliate and/or assign of Xcel Florida.

discovery in this action may reveal.

JURISDICTION AND VENUE

jurisdiction of the courts of New Jersey in the underlying agreement.

Insurance Education Provider".

as an "Approved Insurance Education Provider".

Monmouth County is improper or inconvenient.

The Asset Purchase Agreement

licensing education services.

Assets") in exchange for a purchase price (the "Greenlight Purchase Price").

training materials, licenses, student lists/databases, and "Referral Sources," as provided in

30. The Greenlight Purchase Price consisted of several components:

a. transfer of 100,000 "membership units" of Xcel Florida to Plaintiff's

principal, Scott Rubman (the "Closing Payment");

b. payment to Plaintiff of a specified portion of the Net Revenue generated

customers derived from Referral Sources (pre- and post-Greenlight

APA)(the "Net Revenue Payments"); I and

c. payment to Plaintiff of 5% of Gross Revenue generated from any

Transferred Customers for a period of 15 years, to be paid on a monthly

basis (the "Gross Revenue Payments").

accurateness of the Purchase Price...."

may monitor student registration from [Plaintiff's] Transferred Customers."

Defendants' Breach of the Agreement

Purchase Price payments.

The Sale of Xcel Florida's Assets

Purchase Agreement (the "Xcel APA").

Successor Defendants are mere continuations of Xcel Florida.

the terms of the Greenlight APA).

Section 3.1(c)(i) of the Xcel APA.

and an owner of McKissock Investment Holdings.

employees of defendant McKissock.

utilities (electric, water, sewer, etc.) were transferred to Xcel Solutions.

by McKissock, serves as President of Securities Training Corporation, Board Member of Colibri

Florida's dispute with Plaintiff.

The Fraudulent Transfers

of the Xcel Purchase Price.

at the time of the transfers.

creditor of Xcel Florida.

55. Plaintiff first learned of the Fraudulent Transfers on November 6, 2019.

FIRST CAUSE OF ACTION

29 above as though fully set forth herein.

57. The Agreement is a valid and binding contract.

SECOND CAUSE OF ACTION

34 above as though fully set forth herein.

62. The Agreement is a valid and binding contract.

ordering of specific performance as sought herein.

result of the defaulting party's breach."

67. Plaintiff is entitled to a judgment of specific performance directing Xcel Florida

THIRD CAUSE OF ACTION

41 above as though fully set forth herein.

monitor student registration.

of payments owed by Xcel Florida and the Successor Defendants.

FOURTH CAUSE OF ACTION

45 above as though fully set forth herein.

Purchase Price has not been fully paid to Plaintiff.