A MAJOR COMPANY, INC.
TIP TOP TOYS, INC.
(formerly named GAMES & GAMES, INC.)
AND ABC GAME COMPANY & ASSOCIATES
THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK AS TO THE 25% CONTINGENT COMPOUND ANNUAL INTEREST
(See "Risk Factors to be Considered")
THERE IS PRESENTLY NO MARKET FOR THE SECURITIES OFFERED HEREIN. ASSUMING COMPLETION OF THE OFFERING, UNDER PRESENT MARKET CONDITIONS THERE IS A DISTINCT POSSIBILITY THAT A VIABLE MARKET IN THE SECURITIES OF THE ISSUER WILL NOT DEVELOP; EVEN IF A MARKET DOES IN FACT DEVELOP, THERE IS A DISTINCT POSSIBILITY THAT IT WILL NOT BE SUSTAINED.
THESE SECURITIES ARE OFFERED PURSUANT TO AN EXEMPTION FROM REGISTRATION WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION. THE COMMISSION DOES NOT PASS UPON THE MERITS OF ANY SECURITIES NOR DOES IT PASS UPON THE ACCURACY OR COMPLETENESS OF ANY OFFERING CIRCULAR OR OTHER SELLING LITERATURE.
...........Price to........Discounts or..........to the
...........Public (1)(3)...Commissions(2)........Trustee (2)
Per Share.... $5.00............ None ............ $5.00
Total (3)... $500,000 ..........None ............$500,000
100 Bay Blvd.
Brooklyn, N.Y. 11111
The date of this Offering Circular is June 25, 1976, as amended July 9, 1976.
(1) The Issuer, John Designer, is offering the 100,000 shares in his "Designer Action" (see p. 8 for definition) on a straight "best-efforts" basis (see Plan of Distribution" at p. 21). The sums collected from subscribers used to purchase the offered sec urities will be held in trust by the Issuer's attorney of record in the Designer Action for use in accordance with the terms and conditions contained in this Offering Circular (see "Use of Proceeds" at p. 14, and "Description of the Securities" at p. 17). Any sums collected from subscribers which are not accepted by the Issuer for purchase of any of the offered securities will be returned promptly by the Issuer, without interest or deduction.
(2) Assuming sale of all of the 100,000 shares offered hereby, the Issuer will turn over to the Trustee $500,000. The expenses of this offering will be paid out of interest earned on the U.S. Government securities purchased by the Trustee with the gross proceeds of the offering, or by the Issuer himself. Such expenses are estimated to amount to about $9,000, including photocopying and printing expenses, blue sky and other filing fees, tombstone advertising and postage. No legal or accounting fees are t o be paid in connection with this offering. No underwriters are to be employed by the Issuer, and no commissions or discounts of any kind will be paid on the sale of any of the shares offered hereby. The Issuer will be offering the securities by himself , without the aid of any employees, agents, salesmen, brokers, dealers or underwriters.
(3) Shares will be sold in minimum lots of 100 shares.
This offering involves:
(a) Special risks concerning the 25% contingent compound annual interest on the offered securities. (See "Risk Factors to be Considered," page 4.)
(b) Possible dilution of any proceeds available for distribution to shareholders by any additional financings or any use of expert witnesses on a contingent-fee basis. (See "Possible Dilution of Proceeds of any Recovery," page 19.)
(c) Contingent payment of 25% compound annual interest, payable only if the Designer Action is successful in obtaining sufficient recovery through judgment, settlement or otherwise. (See "Division of Proceeds of any Recovery," page 17, and " Possible Dilution of Proceeds of any Recovery," page 19.)
(d) Right of a shareholder to redeem his shares from the Trustee at any time for the lower of $5.00 or net asset value per share with no deductions, but with a forfeiture of all accrued and future contingent compound annual interest. (See "Redemption by S hareholders," page 17.)
(e) Right of the Issuer to call (by lot) any or all of the shares (but not the accrued contingent compound annual interest) for redemption at the net asset value per share, without termination of the shareholder's interest in all accrued contingent compou nd annual interest, which calls would stop any further accrual of the 25% contingent compound annual interest. (See "Calls by the Issuer," page 17.)
(f) An offer only to individuals and partnerships who are not in the business of collecting bills or adjusting claims. (See "Plan of Distribution," page 21, and "Material Litigation and Liens," page 21.) Other persons, including corporations and associati ons, may not buy the shares.
Until September 23, 1976 (ninety days after the first date upon which the securities offered hereby were bona fide offered to the public) all dealers effecting transactions in the securities 'offered hereby, whether or not they participated In th is distribution, may be required to deliver a current offering circular with respect to those securities to any purchasers thereof prior to or concurrent with the receipt of the confirmation of the sale of those securities.
The 100,000 shares in the Designer Action are offered by the Issuer on a straight best-efforts basis, subject to prior sale and to withdrawal, cancellation or modification of the offer without notice, to approval of certain legal matters for the Issuer by Carl E. Person, Esq., and to certain further conditions set forth in this Offering Circular. The Issuer reserves the right to reject at any time, in whole or in part, any order for the purchase of the shares being offered hereby.
No person has been authorized to give any information or to make any representations other than those contained in this Offering Circular in connection with the offer contained herein and, if given or made, such information or representations must not be relied upon. This Offering Circular does not constitute an offer to sell, or a solicitation of any offer to buy, the securities offered hereby in any state to any person to whom it is unlawful to make such offer or solicitation.
TABLE OF CONTENTS
The Issuer, 4
Risk Factors to be Considered, 4
All Statements Are Allegations Only, 7
Description of the Designer Action, 7
...Background of the Issuer and the Designer Action, 7
...Parties to the Designer Action, 8
...lssuer's Factual Claims, 8
...issuer's' Legal Theories, 9
...lssuer's Claimed Damages, 10
...Defendants' Answers to the Issuer's Claims, 11
Anticipated Trial Date, 11
Attorneys for the Parties to the Designer Action, 12
Prior Litigation Expenses, 14
Use of Proceeds, 14
Interests in Issuer's Claims in the Designer Action, 16
Description of the Securities, 17
...Redemption by Shareholders, 17
...Calls by the Issuer, 17
...Division of Proceeds of any Recovery, 17
...Filing of UCC-1 Financing Statements, 18
...No Control by Shareholders, 19
...Fidelity Bonding of the Trustee, 19
...Reports to Shareholders by the Trustee, 19
...Annual Judicial Accounting by the Trustee, 19
...Possible Dilution of Proceeds of any Recovery, 19
...Waiver of Rights to Accurate Disclosure, 20
...Transfer Agent, 20
...Reports to Shareholders and Financial Press, 20
Settlement Proceedings, 20
Plan of Distribution, 21
Certain Transactions, 21
Material Litigation and Liens, 21
Legal Opinions, 22
Tax Consequences to Shareholders, 22
Availability of Documents and Additional Information, 22
No Financial Statements, 23
JOHN DESIGNER, the Issuer, age 41, is a professional painter and designer, and part-time developer of games. He resides and has his principal place of business at 100 Bay Blvd., in the Mugwumps section of Brooklyn, New York 11111, telephone number (212) 9 99-9999. During September 1975, the Issuer commenced an action (the "Designer Action") against defendants A Major Company, Inc., Tip Top Toys, Inc. and ABC Game Company & Associates alleging they wrongfully appropriated the valuable business and property interests of the Issuer in a game idea developed by him and presented to Games & Games, Inc., and that Games & Games, Inc. (under its new name Tip Top Toys, Inc.) published the game under the name ARTFUL. Defendants claim the game was developed independen tly by ABC Game Company & Associates. The Issuer is offering shares in the Designer Action to raise money needed by him to finance the Designer Action.
RISK FACTORS TO BE CONSIDERED
The securities being offered by this Offering Circular are speculative in nature as to payment of the contingent compound annual interest of 25%. Therefore, each prospective investor should consider very carefully certain risks and speculative factors in herent in and affecting the potential for recovery in the Designer Action and the effect upon the offered shares prior to making any investment in the shares.
1. The Issuer may not be able to win or settle the Designer Action, in which case the shareholders would obtain no contingent interest whatever on their investment. It should be noted that at all times the shareholder will be able to redeem his shares even if the Issuer fails to win or favorably settle the Designer Action. The redemption price is $5.00 per share or le ss, depending on market value fluctuations of the short-term U.S. Government securities to be purchased by the Trustee. Even if
the shares are called by the Issuer, the shareholders may receive less than $5.00 per share, depending on the market value of the U.S. Government securities to be purchased by the Trustee.
2. No motion for summary judgment by any party to the Designer Action has been decided by any court and, therefore, the courts have not ruled on whether the Issuer has raised any issues of fact for determination by the trier of fact (jury). (See "Defendan ts' Answers to the Issuer's Claims" and "Anticipated Trial Date".)
3. Even if the Issuer has a trial, obtains a jury verdict and a final judgment in his favor, any of the defendants would have the right to appeal on any grounds alleged by them, which could possibly result in a new trial or even a judgment against the Iss uer. Any appeals would delay the ultimate determination of the Designer Action and any ultimate payment of the contingent compound annual interest to the shareholders.
4. The lssuer's agreement to pay the 25% contingent compound annual interest to shareholders may make any settlement of the Designer Action more difficult to achieve as time passes by, assuming any settlement would be possible at all. As time passes by, the Issuer will be required to pay an ever-increasing dollar amount of contingent compound annual interest to shareholders, which would require an ever-increasing payment in settlement of the Designer Action for the Issuer to net the same dollar amount in settlement.
5. Defendants in many lawsuits normally try to postpone any settlement or adverse judgment because of the earnings or other income they make in the meantime by use of the money which otherwise would be paid to the plaintiffs in the lawsuits. The cost of continued litigation to defendants frequently is far less than the additional earnings or income they can make, resulting in an unwillingness to settle for other than "nuisance value" unless absolutely necessary.
6. The Issuer has alleged in part that the defendants are part of an industry-wide conspiracy to "steal" game ideas from independent game developers such as the Issuer. The defendants in the Designer Action could well decide not to ever settle the action because of a possible belief that such settlement would constitute a tacit admission that defendants performed the alleged activities, in whole or in part. In such event, the Issuer would be obliged to go through the trial and various appeals to obtain a final resolution of the issues.
7. Any judgment or settlement in favor of the Issuer may be insufficient to cover all of the contingent compound annual interest of 25%, in which case the shareholders would obtain less than the 25% rate.
8. A market for the offered shares may not develop after the offering.
9. Even if a market develops, any redemptions or calls may destroy any such market for the shares, and no market may develop for the contingent payments of interest which shareholders would have after any call of their shares.
10. Prospective investors who obtain the advice of attorneys experienced in the areas of law covered by the Designer Action may be in a better position to analyze the merits of this offering than prospective investors who do not obtain such advice. These areas of law include, but are not limited to, litigation, appeals, trials, antitrust, patents and copyrights and securities law.
11. The interest to be earned on the U.S. Government securities to be purchased by the Trustee with the gross proceeds of this offering may not be sufficient to pay all of the expenses necessary in fully prosecuting the Designer Action. In such event, the alternatives are: (a) one or more of the attorneys for the Issuer to advance needed amounts of money in anticipation of subsequent
repayment; (b) a private offering and sale of litigation shares in exchange for the services of expert witnesses (if permitted by law), investigators, paralegals and others; (c) oral pre-trial examinations under oath of defendants and witnesses to take pl ace by tape recordings then transcribed by (he Issuer's attorneys (in lieu of the use of costly court reporters), (d) reduction of efforts in prosecuting one or both of the two actions, possibly in connection with an abandonment of one or more of the Issu er's assorted claims, (e) a private offering and sale of litigation shares to raise needed money; (f) another public offering of litigation shares at a subsequent time with possible changes in offering terms and conditions; and (g) payment of expenses by the Issuer himself (an unlikely alternative because of the Issuer's poor financial condition).
12. The securities of the Issuer are being offered on a straight "best-efforts" basis and if insufficient funds are raised from the offering the Issuer may not be in a position to fully prosecute the Designer Action. Subscribers' funds will be returned i n the event that the funds available to the Issuer are insufficient to prosecute the action on a reasonable basis.
13. All of the offered 100,000 shares may not be sold, thereby reducing the interest on U.S. Government securities available to the Trustee for paying necessary litigation expenses.
14. The disclosures contained in this Offering Circular and in the periodic reports to shareholders and the financial press could give undue advantage to the defendants in the Designer Action or tend to prejudice the lssuer's case. The Issuer's attorney of record does not believe this is likely to occur, however. The lack of available funds to fully prosecute the Designer Action is considered to be far more prejudicial than any such disclosures.
15. The Issuer, a key witness in the Designer Action, could die or become unable to testify at trial. However, the Issuer has already been examined under oath by defendants before a court reporter, and a transcript of his deposition has been executed by the Issuer. This transcript may be read at the trial in the event of such death or disability, although the reading of such transcript would not be as valuable to proving the lssuer's case as live testimony by the Issuer.
16. The information contained in this Offering Circular is necessarily abbreviated, incomplete and inaccurate. Many of the essential facts alleged by the Issuer are disputed by the defendants, who claim that they are not liable to the Issuer for anything. Shareholders are waiving, to the extent permitted by law, any rights they may otherwise have for full, complete and accurate disclosure. (See "Waiver of Rights to Accurate Disclosure," page 20.)
17. The offering of shares in a lawsuit is the offering of a new type of investment. There is no history of performance of similar securities.
18. Corporations and associations, as well as individuals or partnerships in the business of collecting bills or adjusting claims, may be prohibited by a New York statute from purchasing interests in any lawsuits. (See "Plan of Distribution," page 21, and "Material Litigation and Liens," page 21.) Accordingly, no offer is being made, directly or indirectly, to any such persons.
19. None of the shareholders shall have any right to control any part of the Designer Action, and shareholders will not be consulted as a matter of right as to any action taken or to be taken by the Issuer or his attorneys in connection with prosecuting, settling, abandoning or otherwise dealing with the Designer Action. The shareholders have no voice, are to remain inactive and are totally dependent upon the Issuer and his attorneys in all matters relating to prosecution, settlement or abandonment of th e lssuer's claims against the defendants.
See "Possible Dilution of Proceeds of any Recovery," page 19, for a description of the circumstances under which the shareholders' interest in any recovery may be reduced by division of proceeds with others.
ALL STATEMENTS ARE ALLEGATIONS ONLY
Prospective investors should be aware that all of the statements in this Offering Circular concerning the Issuer's claims and the Defendants' defenses are allegations only, and some or all of these allegations may not be proved or provable at the time of trial. No representation is being made that the facts alleged by the Issuer are in fact true, although the Issuer believes the alleged facts may be supportable by a reasonable amount of evidence. Also, the statements in the Offering Circular are necessa rily abbreviated, incomplete, inaccurate and subject to change at any time. See Waiver of Rights to Accurate Disclosure;" page 22.
DESCRIPTION OF THE DESIGNER ACTION
Background of the Issuer and the Designer Action
John Designer, age 41 and the Issuer, has been a professional painter and designer for approximately 20 years. The Issuer attended the University of ... full-time for 3 years and ... University part-time for 1 year, majoring in art and architecture at both institutions.
The Issuer has been self-employed as a painter and designer for about 10 of the past 20-years, and has been self-employed for the past 5 years. From 1958 or 1959 to the present, the Issuer has developed and designed 4 other games conceived by him (other than ARTGAME2). None of them has been manufactured or published.
During 1958 or 1959, approximately, the Issuer conceived of the idea for a board game based on buying and selling painting replicas, and developed a working model for the game (which he named ARTGAME1 at first, later ARTGAME2). From 1958 or 1959 to 1960, the Issuer worked on the 1st working model of the game, then submitted it during 1960 to Games & Games, Inc. (under the name ARTGAME1). The game was not accepted, on the alleged ground among others that games with an art subject matter would not sell, an d the working model was returned to the Issuer.
The Issuer developed the game further and during 1964, 1965 and 1969 submitted different working models of the game, under the name ARTGAME2, but the game in these new forms was rejected again.
During 1968, Games & Games, Inc. was acquired by A Major Company, Inc., and in 1970 its name was changed to Tip Top Toys, Inc., still a subsidiary of A Major Company, Inc. During 1970, Tip Top Toys, Inc. published a board game involving the purchase and sale of painting replicas under the name ARTFUL. Defendants allege, that ABC Game Company & Associates, in Chicago, Illinois, developed ARTFUL independently of lssuer's ARTGAME1 and ARTGAME2, and submitted ARTFUL to Tip Top Toys, Inc. during April, 1970 for review and publication independent of the lssuer's ARTGAME1 and ARTGAME2. Defendants state that ARTFUL was accepted for publication by Tip Top Toys, Inc. during May, 1970.
Parties to the Designer Action
On September 22, 1975, the Issuer, John Designer, commenced an action against Games & Games, Inc. under Index No. 75 C xxxx in the United States District Court for the Eastern District of New York (in Brooklyn, New York) under the title: John Designer v. Games & Games, Inc. The action was assigned for all purposes to Hon. Henry Bramwell, United States District Judge. In the Issuer's complaint, he alleged that Games & Games, Inc. had published a board game containing many unique features and valuable bus iness ideas contained in the board game submitted by the Issuer to Games & Games, Inc. in various working models from l960 to 1969. The game as published by Games & Games, Inc. is called ARTFUL.
As a result of a newspaper article about the commencement of the action, the Issuer and his attorney of record obtained unsolicited information from several persons in the game industry leading them to believe that the Issuer, after further investigation and discovery, may be able to prove there is a conspiracy in the game publishing industry to "steal" game ideas from independent game designers and developers (such as the Issuer) and publish them without compensating the designer and developer. Accordin gly, the Issuer amended his complaint, on September 29, 1975 to add two new defendants: A Major Company, Inc. (the company which acquired Games & Games, Inc. as a subsidiary during 1968) and ABC Game Company & Associates (a professional game and toy desig ning firm, located in Chicago, Illinois) which defendants claim developed ARTFUL independently and submitted it to Games & Games, Inc. during April, 1970. Games & Games, Inc. changed its name to Tip Top Toys, Inc. during 1970 and the business has been op erated thereafter as a division of defendant Tip Top Toys, Inc.
The amended title of the action in the United States District Court for the Eastern District of New York is: John Designer v. Games & Games, Inc., A Major Company, Inc. and ABC Game Company & Associates. The only defendants in this part of the Designer Ac tion at this time are A Major Company, Inc. and Tip Top Toys, Inc., because of the severance described immediately below.
On May 4, 1976, the Issuer's claims against ABC Game Company & Associates were severed by court order into a separate action and transferred to the United States District Court for the Northern District of Illinois, Eastern Division, Index No. 76 C xxxx. It is entitled John Designer v. ABC Game Company & Associates. The Issuer plans to request an order from the Multi-District Panel of federal judges in Washington, D.C. for an order transferring the severed action back to Judge Bramwell, in Brooklyn, New York, for all pre-trial purposes, at the end of which the severed action would be transferred back to Chicago for any trial. ABC Game Company & Associates is the only defendant in the severed action. Before any such requests, the court must rule on ABC' motion for summary judgment, which ruling is expected on or after August_25, 1976.
These two actions by the Issuer against the three defendants are considered in this offering as a single action, and are referred to hereinafter as the "Designer Action." The Issuer is offering interests in his claims underlying the Designer Action as mor e fully described in "Description of the Securities," at page 17.
Issuer's Factual Claims
The Issuer alleges that he submitted working models of his game (ARTGAME1 and ARTGAME2) to Games & Games, Inc. during 1960, 1964, 1965 and 1969, and that Games & Games, Inc. had agreed to compensate the Issuer if Games & Games, Inc. published the Issuer's game. The Issuer also alleges that he submitted the game each of the four times under a confidential relationship, even though the first submission (in 1960), according to Tip Top Toys, Inc., was pursuant to a letter which stated that the Issuer agreed that he was not submitting the game under any confidential relationship. The Issuer contends, among other things, that any such agreement did not exist or that it was induced by fraud.
The Issuer contends that various unique features and valuable business ideas were submitted by the Issuer to Games & Games, Inc. constituting property of the Issuer, and that Games & Games, Inc. (before and after its name change) and defendant ABC Game Co mpany & Associates unlawfully deprived the Issuer of his business and property rights. The Issuer alleges (that the following claimed features and ideas contained in ARTGAME1 and/or ARTGAME2 were subsequently used by defendants during their development a nd publication of ARTFUL:
(a) Players may start anywhere on the tracks of the two games;
(b) Both games have circular tracks;
(c) Both games use miniature replicas of existing paintings;
(d) Prices of the paintings change from game to game;
(e) Players in both games may sell paintings to a bank;
(f) In both games, the player who lands on the auction space becomes the auctioneer and must auction a painting;
(g) The players in both games may bid competitively on paintings auctioned by the bank;
(h) The players in both games may bid competitively on paintings auctioned by other players;
(i) Players in both games may buy paintings from other players;
Acquisition (ARTGAME2) and inheritance (ARTFUL) of paintings are the same game action, essentially;
(k) The design concepts for both games have the following same aesthetic qualities:
...(i) hand-tooled appearance; and
...(ii) a painting replica occupies center position on both boards.
Issuer's Legal Theories
In his Amended Complaint, the Issuer claims that the alleged facts he seeks to prove at a trial establish his right as a matter of law, if proven, to recover a judgment from the defendants based on the following legal theories:
(a) Conspiracy to restrain trade, in violation of Section 1 of the Sherman Act;
(b) Monopolizing and attempting to monopolize, in violation of Section 2 of the Sherman Act;
(c) Conspiracy to restrain trade in Washington, D.C., in violation of Section 3 of the Sherman Act;
(d) Breach of contract;
(e) Plagiarism and infringement of commonlaw copyright;
(g) Breach of fiduciary and confidential relationship;
(h) Commercial piracy and unjust enrichment;
(i) Prima facie tort; and
(j) Punitive or exemplary damages as to each defendant individually.
Issuer's Claimed Damages
In his Amended Complaint, the Issuer alleges many millions of dollars in damages, but the amount alleged was not based on actual sales records, which were unavailable to the Issuer. The actual amount of damages to the Issuer can be proved at trial only b y evidence supplied by the defendants, for the most part, such as the amount of sales of and royalties paid on ARTFUL. One possible method of calculating damages is using the amount of royalties on ARTFUL paid and estimated to be payable by Tip Top Toys, Inc. to defendant ABC Game Company & Associates. From 1970 (the year of publication of ARTFUL) to 1975 (the last year for which the Issuer obtained figures), ABC Game Company & Associates was paid an aggregate of $421,802 in royalties by Tip Top Toys, I nc., including royalties on licensing agreements with third persons, as follows:
Year......Units Sold*.......Royalties Paid
*Does not include foreign sales.
The Issuer is unable to estimate, at this time, the amount of royalties which could reasonably be anticipated from sales of ARTFUL during and after 1976. Also, it is not clear at this time on what period, if any, the Issuer would be entitled to damages, assuming he could prove liability. The defendants have raised various defenses, some of which would substantially limit the issuer's claimed damages if asserted successfully. See "Defendants' Answers to the Issuer's Claims," page 11.
Another possible method of proving the Issuer's alleged damages may be to take the gross sales proceeds received by defendant Tip Top Toys, Inc. on its sales of ARTFUL and deducting related expenses. This is done by an accounting, which the Issuer has re quested as an alternative form of relief. The gross sales for 1970 to 1975 have amounted to about $7,405,862 (not including foreign sales or royalties received by Tip Top Toys, Inc.). The amount of allocable expenses would have to be deducted, but such e xpenses have not been supplied by Tip Top Toys, Inc., which contends that such figures are irrelevant.
Other theories for damages may be asserted by the Issuer, which may involve amounts more or less than the amounts described above.
Also, the Issuer alleges various antitrust violations. If the Issuer proves a violation of any of the federal antitrust laws, any related damages proven at trial would be trebled under the federal antitrust laws, and an additional amount (perhaps 10% of t he untrebled damages) possibly would be added as assumed reimbursement for the Issuer's assumed legal expenses. Any such assumed legal expenses are part of the Issuer's recovery and are not paid directly to the Issuer's attorney of record.
In addition, the Issuer seeks $10,000,000 in punitive or exemplary damages (often called "smart money") from each of the three defendants. The amount of any such punitive damages would be in the discretion of the jury and applicable Law will require that the Issuer prove that the defendants are continually "stealing" game ideas from independent same developers and designers. This allegation may be substantially more difficult to prove than any of the Issuer's other material allegations.
Defendants' Answers to the Issuer's Claims
Defendants A Major Company, Inc. and Tip Top Toys, Inc. (including Games & Games, Inc.) allege in their Answer and in other documents filed in court the following defenses:
(a) a general denial of the lssuer's material allegations, except that they "admit that plaintiff John Designer did offer a game idea to Games & Games, Inc. sometime in 1965 or 1966 as well as in 1960, 1964 and 1969; they claim that 18 "game ideas" for "a rt board games" were submitted to Games & Games, Inc. from 1946 to 1970, prior to presentation to them of ARTFUL on April 14, 1970. Whether or to what extent any of these submissions included any of the similarities claimed by the Issuer is unknown at th is time. Also, they allege that various similarities alleged by the Issuer may be found in other games for which copyrights or patents were issued;
(b) The Issuer fails to state a claim upon which relief can be granted;
(c) The Issuer's claims are barred by the statute of limitations;
(d) The Issuer's claims are barred by the Statute of Frauds; and
(e) The Issuer's claims are barred by the doctrine of ]aches.
Defendant ABC Game Company & Associates has not answered the Issuer's Amended Complaint, because of its recent motion to dismiss based on an alleged lack of jurisdiction and venue. The Issuer requested a severance of his claims against ABC Game Company & Associates and a transfer of the severed action to the federal district court in Chicago, Illinois. This request was granted on May 4, 1976. ABC Game Company & Associates can be expected to answer the Issuer's Amended Complaint within several months. Dur ing June, 1976, ABC filed papers to move for a summary judgment as to plaintiff's whole complaint, and the court will rule on the motion on or after August 25, 1976.
ANTICIPATED TRIAL DATE
The Issuer has demanded a trial by jury. It is impossible at this time to predict with any substantial accuracy when the Designer Action may go to trial, if it goes to trial at all. The Judge has assigned the matter to federal Magistrate Vincent A. Cato ggio for the purpose of handling matters relating to pre-trial discovery requests; setting a trial date, in consultation with the Judge; determination of whether any settlement is possible; and for other purposes. The Issuer's attorney of record anticipa tes that the matter will be tried in late 1976 or early 1977, but this is only a guess, based on factors beyond the control of the Issuer or his attorney of record. Of course, there is no
assurance that any of the issues raised by the Issuer will be entitled to be tried. None of the parties (except ABC) have made any motions for summary judgment, the customary procedure for determining whether there are any triable issues. The judgment mo tion of ABC will be decided by the court on or after August 25, 1976.
ATTORNEYS FOR THE PARTIES TO THE DESIGNER ACTION
Carl E. Person, of 325 W. 45th Street, New York New York 10036 is the Issuer's attorney of record in the Designer Action. Mr. Person, an individual practitioner, has been a member of the bar of the State of New York since 1962.
Mr. Person has agreed to represent Mr. Mr. Designer on a wholly contingent basis of 35% of the Issuer's recovery, by settlement, judgment or otherwise, and Mr. Person has agreed, with the Issuer's prior written consent, to share 1/3rd of his contingent fe e with Robert R. Referrer, Jr., Esq., who is assisting Mr. Person in the Designer Action. Mr. Person and Mr. Referrer have agreed to a division of the 35% contingent legal fee with Chicago attorney Jones, as described below. Mr. Person is co-attorney of record together with Chicago attorney Jones in the severed Action transferred to Chicago against defendant ABC Game Company & Associates.
Robert R. Referrer, Jr., Esq., of 333 W. 99th Street, New York, New York 10199, advised the Issuer in connection with his claims prior to commencement of the action, and brought the Issuer to Mr. Person for possible representation. Mr. Referrer is assist ing Mr. Person in prosecution of the Designer Action. Mr. Referrer, an individual practitioner, has been a member of the bar of the State of New York since 1957.
Mr. Referrer is to receive 1/3rd of the 35% contingent fee payable to Mr. Person, subject to the agreement for division of the legal fee with Chicago attorney Jones, as described below.
John J. Jones, of 222 East Wackenhurt Street, Chicago, Illinois 60666, is co-attorney of record for the Issuer in the severed action in Chicago against ABC Game Company & Associates and is Chicago attorney for the Issuer in connection with local discovery and other matters relating to the other part of the Designer Action. He was retained by Mr. Person on June 7, 1976. Mr. Jones, an individual practitioner, has been a member of the Illinois Bar since 1949.
Mr. Jones will receive a contingent legal fee computed at twice the hourly rate of $60 for his services and twice the hourly rate of any of his associate attorneys or paralegals (hereinafter, the "Contingent Time Charges") payable solely out of any contin gent legal fees received by attorneys Person and Referrer in either of the two actions. Mr. Jones's Contingent Time Charges will be limited to 40% of the 35% contingent legal fee payable to Messrs. Person and Referrer in the Chicago action and to 25% of the 35% contingent legal fee payable to Messrs. Person and Referrer in the Brooklyn action (so that Mr. Jones may look to the whole Designer Action for payment of his Contingent Time Charges, limited, however, by the 40% and 25% limitations). In any even t, Mr. Jones's Contingent Time Charges will be deemed to be $2,500 in the event his actual Contingent Time Charges (at the doubled rate) do not amount to as much as $2,50O.
Messrs Person and Referrer and the Issuer have the option to pay all or part of Mr. Jones's contingent legal fee for his legal services at the $60 rate (as to his services) or regular (non-doubled) rate described above, and payment of such non-doubled rat e will extinguish to such extent the contingent fee at the doubled rate otherwise payable to him. However, Mr. Jones has the option to remain in whole or in part on the contingent fee arrangement (involving the doubled rate) and may refuse any such offer to pay him on a non-contingent basis. Mr. Jones has agreed that he will in no way participate in or give his approval to this offering or sale.
Mr. Jones may withdraw as co-attorney of record by giving the Issuer and Mr. Person 2 weeks' written notice and by delivering his files to plaintiff or a lawyer designated by the Issuer or attorney Person, and the Issuer and Mr. Person have agreed to faci litate any such withdrawal by Mr. Jones by the filing of appropriate consents or notices of substitution. In the event of any such withdrawal by Mr. Jones, he will no longer represent the Issuer in any part of the Designer Action and all Contingent Time C harges will cease to accrue as of such withdrawal date, and such accrued amount of his Contingent Time Charges and the Contingent Time Charges to be accrued by his successor attorney will be paid to Mr. Jones and such successor (under the agreement with M r. Jones or a comparable agreement) on a pro rata basis in accordance with respective accrued Contingent Time Charges. Such apportionment shall be made as to the $2,500 minimum as well.
Defendants A Major Company, Inc. and Tip Top Toys, Inc. (including Games & Games, Inc. are represented by Able, Baker & Charlie, 1 Broadway, New York, New York 10004, consisting of approximately 300 attorneys.
Defendant ABC Game Company & Associates is represented in Chicago, Illinois by Johnson & Johnstone, 205 West Wackenhut Drive, Chicago, Illinois 66666, consisting of approximately 14 attorneys. Mr. Johnstone is a partner in ABC Game Company & Associates.
Also, ABC Game Company & Associates is represented in New York by Xerex, Young, Young, Young and Zerone, of 444 North Avenue, New York, New York 11111, consisting of about 20 attorneys.
There is no assurance that any of attorneys or firms will remain attorney of record throughout the litigation since all litigants have the right to terminate the engagement of any lawyer at any time. It is not possible to predict or describe the effective ness with which counsel will present the merits of their respective client's cases nor the bearing, if any, on the outcome of the litigation, of the varying degrees of effectiveness and experience of counsel.
During 1970, after learning about the publication of ARTFUL, the Issuer was told by a friend employed as a secretary by a New York law firm specializing in patent and copyright law to seek legal advice from the law firm concerning any remedies the Issuer may have against Games & Games, Inc. and ABC Game Company & Associates. The Issuer was advised by an attorney at the firm that he should not pursue his claims because they had little or no merit, in the apparent opinion of such attorney, and because of t he strength of his intended opponents. The attorney did not advise the Issuer that the law firm represented ABC Game Company & Associates during the recent past. The Issuer only became aware of this alleged conflict of interest after commencement of thi s action, The Issuer failed to commence his action against the defendants for about 5 years after publication of ARTFUL because of the advice of this attorney. The appropriate New York statute of limitations seems to bar any recovery on grounds of allege d malpractice or non-disclosed conflict of interest. The law firm claims it is unaware that the claimed incident ever took place, and the Issuer is unable to recall the name of the attorney who gave the advice.
PRIOR LITIGATION EXPENSES
To date, the total out-of-pocket expenses incurred in prosecuting the Designer Action amount to about $500. This does not include the value of legal and paralegal time employed in the Designer Action or the value of the time spent by the Issuer and his f ormer business manager, Martin corn. Income from the U.S. Government securities purchased out of the proceeds of this offering Will be used in part to reimburse counsel for their unreimbursed out-of-pocket expenses.
USE OF PROCEEDS
Carl E. Person, as Trustee for the Designer Action and attorney of record for the Issuer, will invest all or substantially all of the gross proceeds of this offering in short-term U.S. government securities (i.e.. with maturities not exceeding 1 year) and use the income from these (U.S. Government securities (together with any proceeds of any interim settlement not used to pay the 25% contingent compound annual interest to shareholders) in furtherance of the Designer Action. (As to use of the proceeds of any interim settlement, see "Division of Proceeds of any Recovery," page 17). The standard to be employed by the Trustee is "in the best interests of pursuing the Issuer's claims in the Designer Action, but in the sole discretion of the Trustee together with the Issuer's approval." It is expected that the gross proceeds of the offering ($500,000 if all shares are sold) can produce income in the trust of up to $30,000 to $40,000 per year, approximately, depending on the rate of interest earned by short-te rm U.S. Government securities. If fewer than all of the offered shares are sold, the income would be reduced proportionally. None of the income from the trust will be used to pay any legal fees to either Mr. Person or Mr. Referrer, the Issuer's attorneys . The income from the trust will be used to pay the following litigation and related expenses:
(a) costs for transcripts of depositions (i.e., pre-trial examinations of witnesses under oath, recorded and transcribed by a "court reporter" or by a paralegal (i.e., legal assistant) or other person employed by the Issuer's attorney of record);
(b) salary of a full or part-time paralegal, to assist the lssuer's attorney of record by performance of tasks which can be done by a non-lawyer, under the direction and supervision of the attorney; this expense is expected to amount to no more than $13,0 00 per year (including payroll taxes); the paralegal so employed should be able to perform, at no extra cost, much if not all of the transcribing of testimony taken pursuant to depositions described in the preceding paragraph (a);
(c) photocopying expenses; the Issuer's attorney of record will charge the Issuer $.15 per copy, which is higher than the attorney's out-of-pocket expense and includes some of the attorney's overhead costs; such amount is comparable to charges of major la w firms in New York City;
(d) fees to expert witnesses for preparation and testimony (unless they are engaged by the Issuer on a contingent-fee basis; see "Possible Dilution of Proceeds of any Recovery," page 19, and "Material Litigation and Liens," page 21);
(e) mileage and attendance fees for any expert witnesses;
(f) filing fees;
(g) investigative "expenses;
(h) additional litigation expenses, including possible fees to local attorney John J. Jones to maintain and try the Issuer's claims against defendant ABC Game Company & Associates, Chicago, Illinois (see "Attorneys for the Parties to the Designer Action") ;
(i) postage; printing; telephone; telegraph; office supplies; and other miscellaneous litigation expenses;
(j) travel expenses, including reimbursement for automobile travel at the rate of $.15 per mile;
(k) data processing expenses, if necessary, including an allocable charge for rental of any terminals or for any minimum monthly charges;
(l) messenger expenses;
(m) secretarial and proofreading expenses, charged at the average rate charged by major law firms in New York City;
(n) out-of-pocket expenses relating to any appeals;
(o) taxable costs and any other costs which may be assessed against the Issuer or his attorney of record in the event of any ultimate loss of the Designer Action or any loss of any appeals or motions which the court may characterize as "frivolous' or "mer itless;"
(p) costs to purchase transcripts of hearings and trials;
(q) office furniture and equipment solely for use in the Designer Action (estimated to cost less than $500);
(r) proportionate costs of any furniture or equipment rented or leased, or periodic data processing time charges or any data processing programming or data-bank costs incurred by the Issuer's attorney of record and used in whole or in part in furtherance of the Designer Action, such as (i) terminals for data processing; (ii) word-processing equipment; computerized typesetting equipment; (iv) computer time-sharing costs paid per month or other period; (v) costs of building a legal files or forms data bank; and (vi) the proportionate amount of an assumed rental or lease expense at competitive rates as to any such furniture or equipment owned or purchased by the Issuer (estimated at $3,000 per year); the purpose of these expenses is to enable the Issuer's attorney of record to have his various clients share in the costs which must be incurred to enable th e clients to benefit from use of data processing techniques in litigation, which should lower the number of man hours required as well as reduce the length of time needed to go through pre-trial procedures and prepare the case for any trials;
(s) reimbursement of prior unreimbursed litigation expenses (estimated at $500) advanced by the Issuer's attorneys;
(t) payment or reimbursement to the Issuer of any litigation expenses incurred subsequent to the date of this Offering Circular, with the Trustee's approval;
(u) expenses in connection with this offering (estimated at $9,000);
(v) expenses in transferring shares and issuing reports to shareholders and others (estimated at $500 per year);
(w) expenses in administering the trust, including annual judicial accountings (estimated at S100 per year);
(x) "entertainment" expenses (such as dinners, luncheons and beverages in moderation) inevitably expected to be incurred by investigators or the Issuer's attorneys or their employees in identifying, locating and interviewing prospective witnesses with res pect lo the alleged industry-wide conspiracy to "steal" game ideas from independent game designers and developers, as alleged by the Issuer;
(y) premiums to purchase and maintain a fidelity bond covering the Issue and Trustee;
(z) payment of any applicable income or other taxes; and
(aa) to offset market fluctuations in the value of the U.S. Government securities purchased by the Trustee, in the event of any redemptions at less than $5.00 per share, in the Trustee's discretion or otherwise (see "Redemption by Shareholders," page 17);
The approximate amount of expense to be incurred each year in each category of expense set forth above cannot be estimated reasonably other than as set forth above. The most substantial expenses are expected to be the expenses described above in paragrap hs (a), (b), (d), (g), (h), (n), (p), (r), (u) and (aa).
The principal of the trust (i.e., the "Trust Corpus"), consisting of the gross proceeds of this offering, will be held in trust by Carl E. Person, as the Trustee, and used solely for the purchase of short-term U.S. Government Securities and to redeem or c all shares in accordance with the provisions set forth in "Redemption by Shareholders,". page 17, and "Calls by the Issuer," page 17. The income from the Trust Corpus will be used in accordance with paragraphs (a) through (aa) above.
See "Fidelity Bonding of the Trustee," page 19, "Reports to Shareholders by the Trustee," page 19, and "Annual Judicial Accounting by the Trustee," page 19, for information about (1) the fidelity, bond covering the Trustee; (2) periodic reports by the Tru stee on trust expenditures, calls and redemptions; and (3) annual judicial accountings by the Trustee.
INTERESTS IN ISSUER'S CLAIMS IN THE DESIGNER ACTION
The Issuer, John Designer, has a 100% interest in his claims underlying the Designer Action, subject to:
(a) the interests offered by this Offering Circular;
(b) the 35% contingent fee agreement with attorneys Person and Referrer, as described in "Attorneys for the Parties in the Designer Action," page 12;
(c) payment of the expenses described in paragraphs (a) through (aa) under "Use of Proceeds," page 14, these expenses will be deducted from the gross proceeds of any recovery by settlement or otherwise to the extent income from the trust is insufficient t o pay or reimburse such expenses; and
(d) any contingent fees to be paid to expert witnesses who may be employed by the Issuer to prepare and testify on a contingent-fee basis and amounts payable with respect to other possible financings of the expenses of the Designer Action, as limited by t his Offering Circular (see "Possible Dilution of Proceeds of any Recovery," page 19, and "Material Litigation and Liens," page 21).
DESCRIPTION OF THE SECURITIES
Redemption by Shareholders
Each share being offered has a $5.00 par value and may be redeemed upon 7 days' written notice to the Issuer, together with a tender of the certificate(s) for the shares being redeemed with the redemption form on the back of each certificate properly endo rsed by the shareholder of record and with the signature of such shareholder guaranteed by a commercial bank or a member firm of the New York Stock Exchange. Upon each such redemption by a shareholder, the Trustee will pay to the shareholder the redempti on price of $5.00 or the net asset value per share of the Trust Corpus (defined at p. 16) whichever is less. The shareholder who redeems his shares will be paid less, initially, than the $5.00 per share if the U.S. Government Securities purchased by the Trustee have decreased in value as a result of market fluctuations and if there is, at the time of redemption, insufficient income on hand the time of redemption from the trust investments to make up the difference. In the event the full $5.00 price p er share is not paid as to any redemption, the amount remaining unpaid shall be paid before any other payments out of any proceeds of the Designer Action or, at the sole discretion of the Trustee and with the Issuer's consent, out of income received by th e Trustee after the redemption on the Trust Corpus. In the event the net asset value of the Trust Corpus exceeds $5.00 per share, the excess over $5.00 shall not be paid on any redemptions at such time but shall remain as part of the Trust Corpus. The s hareholder will forfeit all of his interest in any of the contingent compound annual interest of 25% otherwise payable on such shares being redeemed.
Calls by the Issuer
At any time the Issuer may call any number or all of the outstanding shares for redemption, upon 7 days' written notice to the affected shareholders. Shares will be called, if at all, according to lot, in the event fewer than all outstanding shares are b eing called at any one time. Any such call shall be at the net asset value per share of the Trust Corpus, and no further contingent compound annual interest will accrue as to such shares called after the date of payment on the call. In the event the full $5.00 par value per share is not paid as to any call, the amount remaining unpaid shall be paid before any other payments out of any proceeds of the Designer Action or, at the sole discretion of the Trustee and with the Issuer's consent, out of income fr om the U.S. Government securities received by the Trustee before the effective date of the redemption. In the event the net asset value per share exceeds $5.00, such excess over $5.00 shall be paid to shareholders as part of the call price. Accumulated i ncome of the Trust Corpus does not constitute any part of the net asset value per share in connection with any redemptions or calls. The accrued contingent annual interest from the date of this Offering Circular to the effective date of the call (less an y of the contingent interest previously paid from any settlements or judgments involving fewer than all of the remaining defendants) shall not be extinguished by any such call, and the shareholder's only interest in his shares after the effective date of the call shall be such accrued contingent initial interest, payable in accordance with the terms of this Offering Circular as to shares not so called.
Division of Proceeds of any Recovery
In the event fewer than all of the defendants make a payment to the Issuer by settlement, payment of judgment or otherwise, the proceeds shall be used, in the following order of priority, to pay
(a) any part of the $5.00 par value remaining unpaid as to any redemptions,
(b) any outstanding litigation expenses not paid out of trust income;
(c) all accrued contingent compound annual interest not paid to shareholders prior to the Trustee's receipt of such proceeds; and
(d) any remaining proceeds shall be held by the Trustee for investment in U.S. Government securities as a separate and distinct trust the principal and interest of which are to be used
...(i) for paying any part of the $5.00 par value not previously paid on any redemptions;
...(ii) to pay for litigation expenses; and
...(iii) at the Trustee's discretion and with the Issuer's consent, for use in calling shares.
No part of the principal or interest of this separate and distinct trust (the "Interim Settlement Proceeds Trust") shall be used for making payment of any contingent compound annual interest to shareholders.
In the event of a settlement or final judgment terminating the entire Designer Action and after receipt of any proceeds by the Trustee,
(a) the Trustee shall pay to the shareholders, in complete distribution of the Trust Corpus, the net asset value per share of the Trust Corpus after liquidation by the Trustee; and
(b) the Trustee shall use any proceeds of the Designer Action together with any accumulated income in the Trust Corpus and any principal and accumulated interest in any Interim Settlement Proceeds Trust in the following order and priority; To pay:
...(i)any part of the $5.00 par value remaining unpaid as to any prior redemptions or calls and as to the liquidation and distribution described in paragraph (a) above,
...(ii) any outstanding litigation expenses not paid out of trust income;
...(iii) all unpaid contingent compound annual interest of 25% from the date of the Offering Circular to the date of such final payment to each of the holders of outstanding shares (including shares which were called by the trustee); and
...(iv) the remaining assets, if any, to the Issuer and his attorneys, in the proportions described in "Attorneys for the Parties to the Designer Action," page 12.
Any amounts payable to shareholders who cannot be located by the Trustee shall be retained by the Trustee until turned over by the Trustee to the appropriate state officials under applicable escheat or abandoned property laws.
Filing of UCC-1 Financing Statements
Form UCC-1 Financing Statements have been filed by the Trustee as the Secured Party on behalf of the shareholders with the Department of State, Uniform Commercial Code Section, P.O. Box 7021, Albany, N.Y. 12225 and with the City Register, Uniform Commerci al Code Division, Room 1, Municipal Building, Brooklyn, N.Y. 11201. These Financing Statements refer to the interests being sold to investors under this Offering Circular, and state that the Trustee is the Secured Party acting on behalf of the shareholde rs. The Trustee will act for the shareholders to receive on their behalf their portion of the proceeds of the Designer Action and no shareholder shall have any right to receive any of the proceeds directly or from any person other than the Trustee.
The shareholder irrevocably waives any right he may have to pursue independently his share in the Issuer's claims and further waives any right he may otherwise have to receive payment on his share in the Issuer's claims directly or other than from the Tru stee. All power granted to the Trustee in this paragraph to receive the shareholders' portion of the proceeds and to pay the proceeds to the shareholders is a power coupled with an interest and is irrevocable. The purpose of this restriction is to ensur e that no person other than the Issuer has any say whatever in determining how the claims are to be pursued and whether any of the claims should he settled, abandoned or otherwise treated.
No Control by Shareholders
None of the shareholders will have any right to control any part of the Designer Action, and shareholders will not be consulted as a matter of right as to any action taken or to be taken by the Issuer or his attorneys in connection with prosecuting, settl ing, abandoning or otherwise dealing with the Designer Action. The shareholders have no voice, are to remain inactive and are totally dependent upon the Issuer and his attorneys in all matters relating to prosecution, settlement or abandonment of the Iss uer's claims against the defendants.
Fidelity Bonding of the Trustee
The Trustee, before accepting any of the proceeds of the offering, shall be bonded with a fidelity bond protecting the shareholders and all others having any interest in any of the assets held in trust by the Trustee. Such bond shall be in an amount equal to no less than 110% of the assets held in trust at any time.
Reports to Shareholders by the Trustee
The Trustee shall report monthly to the shareholders and financial press on the developments in the Designer Action and the expenditures made to date, with the Trustee's absolute right to avoid specificity when specificity could, in the opinion of the Iss uer's attorney of record, be detrimental to the Issuer or the Designer Action. Also, the Trustee shall report on the number of shares outstanding and the number of redemptions and calls, the price at which the calls and redemptions, if any, were made, an d the net asset value of the Trust Corpus.
Annual Judicial Accounting by the Trustee
The Trustee shall, on an annual basis, make application to the New York courts for the settlement of the Trustee's accounts for the preceding year, with the same right to avoid specificity. Upon the Trustee's final judicial accounting and report to the s hareholders, upon liquidation and termination of the trust, the Trustee shall adhere to the normal disclosure standards for trust accountings, in absence of cause shown to the court.
Possible Dilution of Proceeds of any Recovery
The proceeds of any settlement or other recovery by judgment or otherwise may be diluted by any agreement to retain expert witnesses on a contingent-fee basis. (See "Material Litigation and Liens," page 21.) Also, the proceeds of any settlement or other r ecovery may be diluted by any additional financings. Such possibility of dilution of proceeds of the Designer Action is limited to 50%, as explained immediately hereinafter. The priority in payment to the holders of shares offered hereby shall be shared on a pro rata basis with persons who would receive payments of any kind out of the proceeds of the Designer Action not exceeding 50% of the aggregate amount of contingent compound annual interest payable with respect to the shares offered hereby. Such p ayments may
be made by contingent-fee agreements with expert witnesses, by sale of additional shares to finance the action or otherwise. Thus, a maximum of 50% of the amount of contingent interest payable with respect to all of the shares offered hereby may he shari ng the shareholders' priority to receive payments hereunder. Any shares redeemed or called could be reissued by the Issuer, in compliance with applicable securities laws, as if the shares had never been redeemed or called for purposes of being entitled t o share in the priority of payment to be made to holders of shares which were never called or redeemed. Such priority to reissued shares would not extend to any interest accrued for the period when the shares were redeemed or called, before reissuance. Upon any reissuance, the shares will have the same features and rights granted with respect to the shares offered by this Offering Circular, but only to the extent such reissued shares do not exceed the terms of the shares offered hereunder.
Waiver of Rights to Accurate Disclosure
By purchase of the offered shares, the shareholder waives any rights he or his heirs, successors, administrators, executors or assigns may have to the extent such waiver is permitted by law concerning completeness and accuracy of the Issuer's description of the Designer Action in this Offering Circular or in subsequent reports. It may be virtually impossible to describe completely and accurately all material aspects to a lawsuit in litigation, and any alleged facts omitted or inaccurately described could well be determinative of the outcome of the action. Facts which seem provable as of the date of this Offering Circular may well become non-provable at trial for any number of reasons, including the death or disability of a witness, change in testimony b y a witness, discovery of additional evidence, disbelief of evidence, inadmissibility of evidence, change in legal theories, and change in trial strategy, among other reasons. Whether this waiver would be upheld to any extent by the courts is unknown at this time.
Carl E. Person, Trustee for the Designer Action and attorney for the Issuer in the Designer Action, will act as Transfer Agent for the shares being offered hereby. The Trustee will pay for the out-of-pocket expenses of share transfers out of the income e arned on the U.S. Government securities purchased with the gross proceeds of the offering. Any share-transfer expenses not so covered will be paid by the Issuer as an expense of the litigation. Mr. Person will not receive any fees for his services as Tra nsfer Agent.
Reports to Shareholders and Financial Press
Carl E. Person, as Trustee and as attorney for the Issuer, will prepare monthly reports on the Designer Action, expenditures by the Trustee, any calls or redemptions, the prices paid On such calls and redemptions, and net asset value per share, and the am ount of shares outstanding. Copies of the reports will be mailed to shareholders of record and to the financial press. Shareholders will be advised of material developments in the Designer Action through these reports.
To date, there have been no settlement discussions of any kind in the Designer Action. Any settlement discussions which a defendant requests be kept in confidence will not be disclosed in the reports to shareholders, Also, the terms of any non-confidenti al settlement offers not accepted by the Issuer will not be disclosed, unless the Issuer deems disclosure in the best interests of the Designer Action and required by the applicable securities laws. The reason for any non-disclosure at the discretion of the Issuer and his attorney of record is to prevent the defendants from making frequent "nuisance-value" offers to the Issuer which would have a tendency of undermining the
market value of the shares, if disclosed to shareholders and other members of the public. The Issuer and his attorney of record take the position that disclosure of "offers" could be a violation of the rules and statutes prohibiting the manipulation of t he market prices for securities or using any scheme or artifice to defraud.
PLAN OF DISTRIBUTION
The Issuer plans to make the offering by himself, without the help of any employees, agents, salesmen, brokers, dealers or underwriters. The offering is to be on a best-efforts basis, so that as few as 100 or as many as 100,000 shares may be sold. Share s will be sold in minimum lots of 100 shares. All of the shares will be offered to individuals or, partnerships who are residents of New York State, but none of such individuals or partnerships may be in the business of adjusting claims or collecting deb ts. Purchases by (1) persons in the business of adjusting claims or collecting debts; or (2) corporations or associations may be prohibited by Section 489 of the New York Judiciary Law (see "Material Litigation and Liens," page 21). Resales by sharehold ers will not be restricted by the Issuer, but Section 489 prohibits each of the persons described under paragraphs (1) and (2) above from making purchases "directly or indirectly, . . . by or through its officers, agents or employees." Also, applicable s ecurities laws prohibit or may prohibit sales to persons who are buying on behalf of persons who themselves are ineligible to buy the offered shares.
Carl E. Person, attorney for the Issuer in the Designer Action and the Trustee for the Designer Action, has advanced about $500 on behalf of the Issuer. Mr. Person will be reimbursed for this advance out of any income from the U.S. Government securities to be purchased with the proceeds of this offering. Also, Mr. Person and Robert R. Referrer, Jr., as attorneys for the Issuer, have agreed with the Issuer to represent the Issuer in this action (Mr. Person as sole attorney of record in the Brooklyn actio n and co-attorney of record in the Chicago action) for an aggregate contingent fee of 35%, to be divided 2/3rds for Mr. Person and 1/3rd for Mr. Referrer. Part of the 35% contingent legal fee is payable to Chicago attorney John J. Jones (see "Attorneys f or the Parties to the Designer Action"). Also, the litigation expenses described in paragraphs (c), (j), (k), (m), (q) and (r) under "Use of Proceeds," page 14, include or may include a contribution to the overhead of the Issuer's attorney of record.
MATERIAL LITIGATION AND LIENS
There arc no material lawsuits of any kind pending or threatened against the Issuer relating in any to the Designer Action. There are no liens of any kind actual or threatened affecting the proceeds of any settlement or recovery by judgment or otherwise in the Designer Action other than the lien of Carl E. Person, attorney of record, relating to his 35% contingent fee, which lien is junior to the interests of the shares being offered hereby. (See "Attorneys for the Parties to the Designer Action," page 1 2.) See "Filing of UCC-1 Financing Statements," page 18, for a description of the filing of Financing Statements in New York State to protect the interests of the holders of the shares offered hereby and others interested in the trust from any subsequent attachments or liens on any of the proceeds of the Action.
On September 8, 1975, Mr. Person as plaintiff filed an action against The Association of the Bar of the City of New York, the Appellate Divisions of the Supreme Court of the State of New York for the First and Second Departments and the Attorney General o f New York State to establish the right of the Issuer's attorney of record and his various clients to sell shares in pending litigation to obtain financing for the litigation [but did not seek any monetary recovery]. Judge John F. Dooling ruled that shar es in lawsuits could 'be sold without any necessary violation of New York law. It Is the legal opinion of Carl E.
Person, the Issuer's attorney of record, that the present offering as described in this Offering Circular conforms to the requirements of New York law. (See "Legal Opinions.")
Also, in the same action, the Issuer's attorney of record sought to have the court declare unconstitutional a Bar Association Disciplinary Rule, DR 7-109C, which prohibits attorneys from using expert witnesses on a contingent-fee basis. On June 25, 1976, Judge Dooling granted a partial declaratory judgment declaring that the Disciplinary Rule is discriminatory and invalid. In the event this decision becomes final (after entry of final judgment and after any appeals), the Issuer may decide to use and compe nsate expert witnesses for their preparation and trial testimony by paying them a reasonable contingent fee, particularly if the interest carried on the U.S. Government securities purchased with the proceeds of this offering is insufficient, after payment of other litigation expenses, to pay for expert witnesses on a non-contingent basis. No offers of any kind to any expert witnesses have been made by the Issuer or his attorneys. The Person action was commenced in the United States District Court for the Eastern District of New York under Index No. 75 C xxxx.
Carl E. Person will pass upon securities matters for the Issuer. (See "Attorneys for the Parties to the Designer Action" and "Material Litigation and Liens.")
TAX CONSEQUENCES TO SHAREHOLDERS
The Issuer's attorneys are not able at this time to state whether any capital gains obtained by shareholders on any resales of the shares purchased by them under this Offering Circular would be entitled to capital gains treatment. In the event the lssuer 's attorneys obtain a ruling from the Internal Revenue Service on this issue, they will advise the shareholders in a periodic report.
It is assumed that any income from the trust not expended for purposes of the Designer Action would be taxed. Any such taxes would be paid by the Trustee out of the unused income of the Trust. The Trustee does not envision that there will be any substan tial amount of unused income, and to the extent there could be any substantial unused income, the Issuer may decide to call shares for redemption. (See "Calls by the Issuer," page 17.)
The contingent compound annual interest of 25% is being compounded without any deduction for taxes because of the contingent feature. Accordingly, the tax consequences to shareholders are different from the consequences to persons with money on deposit i n a savings account. For such savers, their money does not compound the full amount of interest or dividends paid, because of the requirement of payment of income taxes. The amount compounded for the savers is the net amount after payment of applicable income taxes on the interest or dividends.
AVAILABILITY OF DOCUMENTS AND ADDITIONAL INFORMATION
The Issuer has filed with the New York Regional Office of the Securities and Exchange Commission a Notification on Form I-A under Regulation A of the General Rules and Regulations of the Securities and Exchange Commission, with respect to the 100,000 shar es offered hereby. This Offering Circular does not contain all of the information set forth in the Notification, as permitted by the General Rules and Regulations. For further information, reference is made to the Notification on Form 1-A, including the exhibits filed or incorporated as a part hereof.
Information about the Designer Action can be obtained from court records (1) in the United States District Court located at 225 Cadman Plaza East, Brooklyn, N.Y. 11201 under Index No. 75 C xxxx (Judge Henry Bramwell); and (2) in the United States District Court for the Northern District of Illinois, Eastern Division, located at 219 South Dearborn Street, Chicago, Illinois 60604, under Index No. 76 C xxxx (Judge George N. Leighton).
NO FINANCIAL STATEMENTS
Because of the nature of the shares being offered by this Offering Circular, the Issuer has no financial statements to publish in connection with the offered securities. See "Prior Litigation Expenses,"- page 14, and "Use of Proceeds," page 14, for an es timate of prior litigation expenses and an estimate, to the extent reasonably possible, of future litigation expenses in the continued prosecution of the Designer Action.