How Guma Aguiar made his fortune

Published On: Jul 06 2012 08:00:58 AM EDT
guma-blend

Below is an amended complaint filed by billionaire Thomas Kaplan against his nephew and former business partner Guma Aguiar, the millionaire who went missing at sea on June 19.

We've reported about the lawsuit filed by Guma's wife, Jamie, challenging the couple's $500,000 prenup. And we've reported about the legal wrangling between the wife and Guma's mother, Ellen Aguiar, over his estate.

But all of that pales in comparison to the lawsuit below. This was the lawsuit that seriously threatened to take his entire fortune that at one point stood at over $200 million and sent Guma, who was admittedly bipolar, over the edge on several occasions. It's also a well-written complaint that provides an authorititative account of just how Guma made his fortune. 

INTRODUCTION
1. This is an action against Guma Aguiar, the former chief executive officer
(“CEO”) of Leor. Aguiar, the nephew of Leor’s founder and chairman, Thomas Kaplan (“Kaplan”), received distributions of over $200 million in connection with a Leor asset sale in 2007 (the “Leor Asset Sale”), notwithstanding that, both before and after the asset sale, unbeknownst to Kaplan and the Pardus LP Partners, Aguiar was defrauding Leor, its predecessor entity (Portland Energy), and its members, through a pattern of wrongdoing and deceit that only now has begun to be revealed.
2. Despite being placed in a position of utmost responsibility and trust by Kaplan in a venture wholly new and unfamiliar to Aguiar, and despite being given a participatory interest in the success of that venture (pursuant to which he received over $200 million) which was originated, funded and structured by Kaplan, beginning before the Leor Asset Sale and while he
was Leor’s CEO, Aguiar willfully and with malice violated his fiduciary duties to Portland Energy, Pardus LP, the Pardus LP Partners and Leor. Aguiar did so without Plaintiffs’ knowledge or consent by, among other things, (i) directing that Leor and Portland Energy pay Aguiar’s family members exorbitant salaries and bonuses for no services, (ii) directing that Leor
hire individuals to perform services for Aguiar (and not Leor, Portland Energy or Pardus) and that Leor pay those individuals salaries and bonuses, (iii) arranging unauthorized severance agreements containing provisions intended to be detrimental to Leor, and (iv) making unauthorized personal expenditures on Leor’s credit cards and otherwise wrongfully converting
Leor’s property and assets.
3. More recently, and despite his wrongdoing, Aguiar has asserted, falsely and for the first time, that he is entitled to a 50% partnership interest in Leor, when that claim is his own fabrication and by his conduct he is not entitled to any interest whatsoever.
4. Accordingly, by this action, Plaintiffs seek recovery of compensatory,
rescissionary and punitive damages, and declaratory relief.
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PARTIES
5. Plaintiff Leor is a limited liability company duly organized and existing under the laws of Delaware. All of Leor’s direct and remote equity owners are residents of New York.
6. Plaintiff Pardus LLC is a limited liability company duly organized and existing under the laws of Delaware. All of Pardus LLC’s direct and remote equity owners are residents of New York.
7. Plaintiff Pardus LP is a limited partnership duly organized and existing under the laws of Delaware. Its general partner is Pardus LLC, and its limited partners are the Trusts, whose trustee is William Natbony, a resident of New York.
8. Defendant Aguiar is a resident of Florida and the former chief executive officer of Leor.
JURISDICTION AND VENUE
9. Jurisdiction is appropriate pursuant to 28 U.S.C. § 1332(a)(1). The amount in controversy exceeds $75,000, exclusive of interest and costs.
10. Venue is proper pursuant to 28 U.S.C. § 1391(a)(1) because Aguiar resides in Broward County, Florida, and the material events that gave rise to the actions occurred in Broward County, Florida.
FACTUAL ALLEGATIONS
The Origins of Leor

11. The history of Leor begins in 2001, long before it was formally organized in 2005, when Kaplan decided to bring Aguiar into the family business to provide Aguiar with employment by monitoring Kaplan family investments and acting in certain contexts as Kaplan’s eyes and ears. The Kaplan family had made a significant investment in Cadence Resources
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Corporation (“Cadence”), a publicly traded oil and gas company. At the time, Cadence controlled numerous oil and gas leaseholds throughout the United States. The investment was managed and supervised by Tigris Financial Group Ltd. (“Tigris”), a management company wholly-owned by Kaplan. Despite the fact that Aguiar had no background in business, resources
exploration or production, or in the oil and gas industry (although Aguiar had most recently worked in the natural gas commodity trading pits in New York), Kaplan arranged for Aguiar to be elected to Cadence’s board of directors.
12. In 2002, Kaplan had described to Aguiar his plans to duplicate Kaplan’s previous successes, most notably in precious metals mining, by translating his template to the energy sector. Kaplan explained to Aguiar how he planned to start his own oil and gas company that would invest in grassroots oil and gas exploration based on Kaplan’s conviction that certain
macroeconomic factors indicated that the price of oil and gas would increase dramatically as the world headed toward a period of “peak oil.” Aguiar had asked whether mining would be the area in which he should focus, but that was not Kaplan’s then-current passion. From Kaplan’s perspective, energy was the “next big thing” – he was convinced that oil was going to $100 a
barrel (even though it was then trading at $20 barrel and analysts were forecasting lower prices). While on the Cadence board, Kaplan had started Aguiar on monitoring a portfolio of oil and gas investments owned by Kaplan family interests.
13. Based on his belief that the price of oil and gas would increase and that
technological breakthroughs would provide additional opportunities for exploration and production, Kaplan in 2003 formed Portland Energy Partners, L.P. and sent Aguiar to Houston to see what might look interesting from a prospective point-of-view. Portland Energy would employ grassroots exploration to identify oil and gas reserves that it could purchase and drill.
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Accordingly, Kaplan, through Tigris, arranged for Portland Energy to receive from Kaplan family interests the working capital it would need to acquire the oil and gas leaseholds, which ultimately amounted to approximately $25 million in funding. Portland Energy hired Aguiar as its only employee and he received the title of President. In his capacity as President of Portland
Energy, Aguiar remained fully accountable to Kaplan.
14. Kaplan instructed Aguiar to identify potential oil and gas leaseholds that the company could purchase and to report to Kaplan about each such property and the proposed prices and terms. To accomplish this, Aguiar spoke with Kaplan on a daily basis, during which he received instructions, discussed prospects, was tutored on the processes to be followed and the
dangers from competitors and others, and received approval for purchases. Portland Energy entered into its first commercial transaction in 2003, when it purchased oil and gas leaseholds in Northern Louisiana.
15. In continuing his search for appropriate leaseholds, Aguiar was offered an introduction to John Amoruso (“Amoruso”), a former president of the American Association of Petroleum Geologists. Aguiar asked Kaplan whether it would be worthwhile to meet with Amoruso and Kaplan instructed Aguiar to travel to Houston to do so. At that meeting, Amoruso explained his theory on Deep Bossier drilling. Amoruso believed that large quantities of natural gas would be present in Deep Bossier sand because such sand is thick and exists only under high pressure, which is highly conducive to the development of natural gas deposits. This was precisely the type of conceptual exploration that Kaplan thrived on and that he previously had
described to Aguiar.
16. After Aguiar met with Amoruso and had described to Kaplan Amoruso’s theory, Kaplan directed Aguiar to arrange a face-to-face meeting with Amoruso so that Kaplan could
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hear the Deep Bossier story in detail. That meeting took place in Tampa, Florida, after which Kaplan instructed Aguiar to focus on aggressively acquiring land with high concentrations of Deep Bossier sand in accordance with Amoruso’s conceptual thesis and with the help of Amoruso and Amoruso’s associates. Accordingly, throughout 2003 and part of 2004, Aguiar’s activities were to be directed to working with Amoruso and his associates in identifying and purchasing on behalf of Portland Energy land and oil and gas leaseholds rich in Deep Bossier sand. Throughout this time period, Aguiar spoke with Kaplan on a daily basis and received
instructions from Kaplan on all Portland Energy activities.
17. By the middle of 2004, Portland Energy had approximately 30,000 contiguous acres of Deep Bossier sand under its control. This land would later be identified as the Amoruso field. The value of Portland Energy’s land and leaseholds appreciated in value considerably during 2004. This rapid appreciation occurred, in part, because a third party drilled a very
productive gas well on land adjacent to Portland Energy’s, which suggested that there could be large quantities of oil and gas reserves in the area.
18. EnCana Oil & Gas (USA) Inc. (“EnCana”) contacted Portland Energy in May 2005 and sought to enter into an exploration agreement. The parties agreed to terms in June 2005, which required EnCana to complete nine wells on Portland Energy’s land; in exchange, EnCana received a 30% working interest in Portland Energy’s land and oil and gas leaseholds. This relationship proved highly profitable for both parties because many of the wells generated large quantities of gas and increased the value of Portland Energy’s lease portfolio.
19. Shortly after the deal with EnCana was completed, Leor was organized and Portland Energy transferred certain of its assets to Leor. Kaplan became Leor’s chairman of the board, and he arranged for his nephew, Aguiar, to be its chief executive officer. Tigris entered
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into a consulting agreement with Leor to provide business and financial advice with respect to the strategic business development and corporate finance activities of Leor.
20. Throughout 2006, Leor continued to acquire land rich in Deep Bossier sand and oil and gas leaseholds. Moreover, Leor negotiated a second transaction with EnCana in 2006. The agreement required EnCana to pay Leor approximately $243 million in return for an additional 20% interest in Leor’s land and leaseholds. The result of this transaction was that
EnCana and Leor each held a 50% ownership interest in the Amoruso field.
Aguiar is Given an Interest in Pardus

21. For calendar years 2003 and 2004 and prior to the initial EnCana transaction and the organization of Leor, Portland Energy paid Aguiar a salary; however, until June of 2006, Aguiar had no equity or other interest or participation in Portland Energy, Leor or any other aspect of the venture. However, Kaplan had told Aguiar that he would receive an equity
participation in the venture if he applied himself fully, proved himself capable and trustworthy, fulfilled the role of chief executive officer of the venture, and the venture was a success. In addition, both Kaplan and William Natbony, Kaplan’s attorney (“Natbony”), had explained to Aguiar that the Aguiar family was a contingent future beneficiary of the Kaplan family trusts that owned beneficial interests in the venture and that this structure had been adopted precisely for this reason. Aguiar, however, indicated that he would be more comfortable if the interest were his exclusively (rather than one for the benefit of the Aguiar family) and were vested and
documented in a legal agreement. Specifically, Aguiar asked that the promised 10% interest be legally documented, with the understanding that he would continue to satisfy Kaplan’s requirements and his legal obligations, to which Kaplan agreed. That agreement (negotiated and drafted over a number of months by counsel for Aguiar and counsel for Kaplan) was formalized in 2006 by an amendment to the limited partnership agreement of Portland Energy, the ultimate parent entity of Leor, to add Aguiar as a limited partner. The Amended and Restated limited partnership agreement of Portland Energy was made effective as of June 1, 2006, and was
executed in November 2006. Accordingly, Aguiar assumed the role, as well as having already received the title, of CEO of Leor.
22. In January of 2007, Portland Energy’s interest in Leor was transferred to a new partnership, Jaguar Energy L.P. (“Jaguar Energy”), and Aguiar and the other limited partners of Portland Energy became partners of a new limited partnership, Pardus Petroleum L.P., which was the direct and indirect owner of Jaguar Energy L.P., and thus the indirect majority owner
and controlling member of Leor. Portland Energy was subsequently dissolved. The limited partnership agreement of Pardus Petroleum L.P. (the “Pardus LPA”) provided that Aguiar held the same interest in Pardus LP that he had owned in Portland Energy. Thus, Aguiar’s economic interest in Leor was unaffected by this reorganization.
23. The agreement between Kaplan and the Pardus LP Partners, on the one hand, and Kaplan’s nephew, Aguiar, on the other, to grant Aguiar a participatory interest in Leor was based upon, and contingent upon, Kaplan’s and the Pardus LP Partners’ reliance on Aguiar’s representations and corresponding legal obligations that he had honestly and diligently been employed by Portland Energy and Leor, that he had acted in their best interests and in the best interests of the Pardus LP Partners, and that he had acted as a fiduciary in pursuing the interests of Portland Energy and Leor in accordance with his daily conversations with Kaplan. That
agreement was also based upon, and contingent upon, Aguiar’s legal obligation to serve the venture in a capable and trustworthy manner, both considering Aguiar’s relationship of trust with his uncle, Kaplan, and his fiduciary duties of loyalty and honesty as president of Portland Energy
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and CEO of Leor. Unbeknownst to Kaplan and the Pardus LP Partners, however, Aguiar was already engaging in a pattern of fraudulent and deceptive conduct that began well before Aguiar received his participatory interest and that extended to other dealings with Kaplan.
The Leor Asset Sale
24. In the Fall of 2007, Kaplan met directly with Randy Eresman, EnCana’s chief executive officer, and negotiated the sale of Leor’s assets for $2.55 billion (the “Leor Asset Sale”). The Leor Asset Sale documents (the “Leor Sale Documents”) were negotiated and executed under the direction of Natbony, who was then and is currently the Chief Executive fficer of Tigris.
25. As a consequence of the Leor Asset Sale, the Leor board of directors’ structure was eliminated in favor of a “managing member structure,” and Natbony (as the Manager of Jaguar Energy LLC, the general partner of Jaguar Energy L.P., which is the managing member of Leor) became responsible for the oversight of the activities of Leor. Aguiar received a
proportionate distribution of his 10% interest in the Leor Asset Sale in late 2007. Previously, Aguiar also received a distribution under the Pardus LPA in respect of distributions of available cash made by Leor in July and August of 2006.
Aguiar Mismanages Leor for His Own Benefit
26. Because Leor sold all of its operating assets in the Leor Asset Sale, which closed at the end of November 2007, Leor’s functions thereafter were limited to ensuring that it complied with the terms of the Leor Sale Documents and that its books and records (including its tax records) were brought up-to-date and maintained in proper order. Such functions required the services only of Leor’s President, Kenton Holliday, its General Counsel, Garrett Smith (“Smith”), and its Chief Financial Officer, Theresa Hilliard (“Hilliard”) (collectively, the
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“Remaining Authorized Employees”). Natbony and Aguiar therefore agreed that Aguiar would promptly engage in a significant employee headcount reduction to be completed by the end of 2007 (the “Downsizing”). During this time period (late November through mid-December 2007), Aguiar (as Leor’s CEO) was responsible for executing the Downsizing and for
recommending the appropriate termination payments to be made to employees based on their prior service and performance. Thereafter, during 2008, Aguiar remained CEO and retained responsibility for, among other things, supervising the activities of the Remaining Authorized
Employees, ensuring that Leor complied with the terms of the Leor Sale Documents and that its books and records (including its tax records) were brought up-to-date and maintained in proper order, that its remaining assets were disposed of, and that potential liabilities of Leor were
minimized or eliminated. Aguiar failed to fulfill these obligations resulting, in part, in Natbony making inquiry and becoming aware of various then-existing and pre-existing misconduct, breaches of fiduciary duty, and other misdeeds by Aguiar, the discovery of which continues. The following items therefore are not exhaustive.
27. Aguiar in August 2007 had directed Leor to hire Aviad Shemesh (“Shemesh”). Shemesh was hired to act as Aguiar’s personal bodyguard and to provide him with personal security services. Such employment was personal to Aguiar because there were never any threats made against Aguiar or any indication that he required personal security in connection
with the performance of his duties for Leor, and was not approved by or informed to Leor’s board of directors, Kaplan or Natbony. Shemesh nevertheless received an annual salary from Leor of $87,500 plus a bonus of $100,000 in January 2008. Shemesh was fired by Aguiar “for cause” in June 2008 after having been on Leor’s payroll for 11 months.
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28. Similarly, despite explicit instructions from Natbony, Aguiar maintained Leor’s employment of Graydon Oliver (“Oliver”) past the end of 2007 to perform personal services for Aguiar unrelated to Leor’s operations. Although Aguiar retained Oliver on Leor’s payroll for his personal benefit, Aguiar nevertheless directed Leor to pay Oliver a 2007 bonus plus a severance amount in December 2007 as if he had been terminated pursuant to the Downsizing. Upon discovery by Natbony of Oliver’s continued employment in August 2008, Natbony directed Leor to terminate Oliver at the end of August 2008. Nevertheless, without Natbony’s knowledge or
consent, Aguiar instructed Leor to make a payment to Oliver in an amount equal to what he would have been paid, at the rate previously determined by Aguiar, had he continued to be employed by Leor through November 30, 2008 – even though Oliver had been and continued to be performing services for Aguiar and not Leor.
29. Aguiar had arranged for Leor to hire his brother-in-law, Corey Drew (“Drew”), in June 2006. On information and belief, Drew ceased performing substantial services for Leor in November 2006 when he relocated to Israel. From and after November 2006, Hilliard, Leor’s Chief Financial Officer, classified his compensation on Leor’s books and records as “Israel”
because Leor had no office or operations in Israel and his services were for the benefit of Aguiar.
Drew continued to receive an annual salary from Leor of $50,000, received a 2006 bonus payment from Leor of $70,825, and received a severance payment from Leor in December 2007 of $1,429,175. Although Drew was not performing services for Leor, was terminated by Leor at the end of 2007, and worked under the supervision of Aguiar solely on personal Aguiar matters, he (like Aguiar himself and others whom Aguiar wrongfully placed on the Leor payroll) continued to charge non-Leor-related amounts on his Leor credit card throughout 2008.
30. In August 2008, Aguiar instructed Smith, Leor’s General Counsel, to prepare a new form of severance agreement for the benefit of the three Remaining Authorized Employees that would be materially different from the pre-existing form that had been prepared by Natbony together with Smith some months earlier. Aguiar falsely indicated that the new form of
severance agreement had been approved by Kaplan and/or Natbony. The new form of severance agreement in fact had not been authorized, contained terms that were intentionally disadvantageous and punitive to the company (including by providing for significant financial penalties for failure to make payments by the deadline set forth in the agreements, even though
such a provision had never been requested by the Remaining Authorized Employees (or anyone else)), and were unnecessary and distracting to the operations of Leor.
31. On September 12, 2008, after learning of the unauthorized severance agreements, Natbony, as the Manager of Jaguar Energy LLC, the general partner of Jaguar Energy L.P., which is the managing member of Leor, relieved Aguiar of his corporate responsibilities pending Leor’s investigation. Natbony repeatedly asked Aguiar to explain his understanding of the
circumstances leading to the unauthorized severance agreements, but he never responded.
Aguiar Misappropriates Leor’s Property
32. Aguiar intentionally removed property from Leor’s office and, despite requests from Leor, failed to return it or compensate Leor for its value.
33. Aguiar instructed Oliver to remove certain of Leor’s office equipment in March 2008. The Leor equipment Oliver removed at Aguiar’s direction included five nineteen-inch monitors; one fifteen-inch monitor; four keyboards; one mouse; four docking stations; five Dell laptop computers; and one fifty-inch plasma television. On information and belief, Aguiar
instructed Oliver to store this equipment in a storage unit under Oliver’s control.
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34. Throughout 2008, Aguiar, in pursuing his personal interests, continued to be compensated by Leor for his services as CEO, even though his principal activities were completely unrelated to Leor. In addition, Aguiar throughout 2008 charged very substantial travel, entertainment and other non-Leor business and personal expenses to his Leor credit card
and, despite repeated requests by Hilliard that he reimburse the company, Aguiar has not done so. His credit card, as well of those of others in his employ, had to be terminated by the company in order to terminate the continuing charging of non-Leor expenses.
35. Based on Aguiar’s conduct and his failure to respond or explain his conduct, Leor terminated Aguiar’s employment for cause on December 12, 2008.

Aguiar’s Most Recently Discovered Misconduct
36. Following Aguiar’s termination, Kaplan and Natbony learned, for the first time, that Aguiar’s recently revealed improprieties involving Leor were just part of a pattern of fraudulent and improper conduct dating back to at least 2004.
37. In 2004, while President of Portland Energy and without Kaplan’s knowledge or approval, Aguiar began directing payments to family members who did little or no actual work for Portland Energy. Portland Energy operated out of Texas, while Aguiar’s family members who received Portland Energy’s funds were in Broward County, Florida and Israel.
38. Plaintiffs have only now discovered that, at Aguiar’s direction, Portland Energy paid Aguiar’s sister, Angelika Aguiar Drew (“Angelika”) $1,200 in March 2004, $1,500 in April and May, 2004, $1,000 in June 2004, $1,500 in September 2004, $3,000 in November 2004,
$3,000 in December 2004, $6,000 in February 2005, $3,000 in April 2005, $6,000 in June 2005, $10,000 in August 2005, $4,000 in September 2005, $4,000 in October 2005, $4,000 in November 2005 and $4,000 in December 2005. Besides being directed by Aguiar and being
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noted as check entries on the Portland Energy books, these payments have no justification whatsoever and evidence a pattern, begun early, of fraud and misappropriation of Kaplan family assets to the personal benefit of Aguiar and his family members.
39. Following December 2005, Aguiar’s sister, Angelika, continued to receive
payments until January 2008. Hilliard, who had become controller of Leor, asked the justification for the payments and was told by Aguiar that they were for administrative support for the Florida office of Portland Energy. Portland Energy, however, never had a “Florida office” other than the home office Aguiar used when he was working from his home.
40. In December 2006, Aguiar directed Hilliard to pay his sister, Angelika, a “bonus” of $100,000, which Portland Energy paid by check on or about December 21, 2006. That same month, Aguiar directed Hilliard to pay his wife, Jamie Black (“Black”), $100,000, purportedly as a “consulting fee.” Black has no apparent credentials to provide consulting services relevant to
Portland Energy’s or Leor’s business, and performed no apparent services for this fee. Despite that, Portland Energy paid Black $100,000.00 by wire transfer on or about December 27, 2006.
41. None of the payments to Angelika or Black were revealed to Kaplan or to the Pardus LP Partners, none were authorized or would have been authorized, and none were of apparent benefit to Portland Energy or Leor. Rather, Aguiar was engaged in a campaign to extract as much cash as he could from Portland Energy, the parent company of Leor, and from its
beneficial owners, by directing cash to his family members and by committing other improprieties through Leor, during which period he was convincing Kaplan and the Pardus LP Partners that he should have a participatory interest in Leor based on his purported loyalty, responsibility and familial relationship to Kaplan.
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42. Kaplan and Natbony have also recently discovered that, from at least 2005 through late 2007, Aguiar, in a blatant violation of his fiduciary duties, regularly charged personal expenses to Leor using his Leor American Express card and obtained reimbursement for personal expenses incurred on his other credit cards. While Hilliard attempted to separate Aguiar’s business and personal charges so that Aguiar could be held responsible for the personal charges, Aguiar insisted on categorizing the expenses himself and reimbursed the company only for those expenses that he identified as non-business charges. Despite repeated requests, Aguiar refused to provide receipts for any of his credit card charges, thus making it difficult or
impossible for the company to determine whether any of the expenses had been properly charged to Leor. Aguiar even refused to reimburse the company for a number of charges that were clearly unrelated to Leor’s business, including over $20,000 of clothing purchases made at a
luxury department store in November 2007, and charges made in Israel and Florida (where Leor has no operations) in the fourth quarter of 2008.
43. Over the same period that Aguiar was inappropriately charging Leor for personal expenses and concealing his actions from Kaplan and Natbony, Aguiar was engaged in a similar pattern of wrongdoing in his role as a director of the Lillian Jean Kaplan Foundation, Inc., a not-for-profit corporation founded and funded by Kaplan. Aguiar’s actions in this regard are the subject of a pending action in Florida state court in Broward County. As that action alleges, Aguiar has come to believe that he is the messiah, and has diverted funds in part to support his messianic mission.
44. More recently Aguiar has also begun claiming, for the first time, that he was entitled to far more than the 10% interest in Leor documented in the Pardus LPA. Aguiar now apparently believes that he is entitled to 50% of the Leor proceeds. Plaintiffs, however, dispute
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Aguiar’s claim, not only because Aguiar already has been paid more than the 10% profits interest he was to receive based on the Pardus LPA, but also because his pattern of dishonesty and willful and malicious breaches of fiduciary duty which were the predicate for the Pardus LPA mean that
Aguiar should not have received even those funds.
45. All conditions precedent to this action have occurred, been performed, or been waived.
COUNT I
BREACH OF FIDUCIARY DUTY
Plaintiffs reallege and incorporate herein by reference paragraphs 1 through 45 above.
46. As President of Portland Energy and CEO of Leor and as a partner of Portland Energy and Pardus LP, as well as through the closeness of his relationship with his uncle, Kaplan, Aguiar owed fiduciary duties, including without limitation the duties of complete disclosure, trust, loyalty, and care.
47. Aguiar has breached his fiduciary duties by, inter alia, hiring, paying, and
directing personnel for his own benefit and no substantial benefit to Portland or Leor; creating compensation and severance packages for employees without the approval of Leor’s board; converting Leor’s property for his own benefit; and charging personal expenses to Leor.
48. Aguiar’s breaches were committed with malice, willfully, and in reckless
disregard of the rights of his employer, Leor.
49. Had Kaplan and the Pardus LP Partners known of Aguiar’s breaches, they would never have granted Aguiar any participatory interest in the Leor Asset Sale.
50. As a direct and proximate result of Aguiar’s breaches of fiduciary duty, Leor has suffered damages, including rescissionary damages.
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COUNT II
CONVERSION
Plaintiffs reallege and incorporate herein by reference paragraphs 1 through 45 above.
51. Aguiar converted assets of Portland Energy and Leor to himself and for his benefit, all to the detriment of Leor.
52. Aguiar’s acts of conversion were committed with malice, willfully, and in
reckless disregard of the rights of his employers, Portland Energy and Leor.
53. As a direct and proximate result of Aguiar’s conversion of Portland Energy and Leor’s assets, Leor, itself and as successor to Portland Energy, has suffered damages.
COUNT III
FRAUDULENT INDUCEMENT
Plaintiffs reallege and incorporate by reference paragraphs 1 through 45 above.
54. As a material inducement to receiving his participatory interest in the Leor Asset Sale, Aguiar represented to Kaplan and the Pardus LP Partners that he had served and would serve Portland Energy, Pardus and Leor with the utmost loyalty and good faith, and not misdirect or waste their assets (the “Representations”).
55. When Aguiar made the Representations, he knew they were false.
56. Aguiar made the Representations to induce Kaplan’s and the Pardus LP Partners’ reliance.
57. Kaplan and the Pardus LP Partners relied on Aguiar’s Representations, and but for that reliance on those Representations, would not have granted Aguiar his participatory interest.
58. As a result of Aguiar’s fraudulent inducement, the Plaintiffs are entitled to rescission of Aguiar’s participatory interest, or rescissionary damages.
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COUNT IV
DECLARATORY RELIEF
Plaintiffs reallege and incorporate hereby by reference paragraphs 1 through 45 above.
59. Since his termination, Aguiar has asserted that he is entitled to more than the 10% share he received from the Leor Asset Sale, though his share of the sale was fully documented and consummated over two years ago. Aguiar, in fact, now has indicated that he somehow is entitled to a 50% share.
60. Plaintiffs deny that Aguiar is entitled to 50% of the Leor Asset Sale, and because they have now learned of Aguiar’s willful and malicious breaches of fiduciary duty, Plaintiffs deny that Aguiar is entitled to any of the proceeds of the Leor Asset Sale.
61. The dispute between Plaintiffs and Aguiar relating to their respective rights and obligations represents an actual controversy, is definite and concrete, affecting the parties’ adverse legal interests with sufficient immediacy as to justify relief.
62. The dispute between Leor and Aguiar is not hypothetical, abstract, or academic.
63. Pursuant to 28 U.S.C. § 2201 and chapter 86, Florida Statutes, Plaintiffs are entitled to declaratory relief from this Court, and further supplemental remedies to receive complete relief, to resolve their dispute with Aguiar.
RELIEF
Wherefore, Plaintiffs respectfully request that the Court enter judgment for Plaintiffs and against Defendant Aguiar:
(1) awarding compensatory and punitive damages, and costs of suit;
(2) awarding rescission or rescissionary damages consisting of all funds Aguiar received through his participatory interest in Pardus LP;
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(3) declaring that Aguiar is not entitled to 50% of the Leor Asset Sale, and rather that, by his conduct, Aguiar is not entitled to any interest in Pardus LP, Leor, or the Leor Asset Sale; and
(4) granting such other, further relief as the Court deems just.
Dated this 20th day of January, 2009.
Respectfully submitted,
KOZYAK TROPIN & THROCKMORTON, P.A.
Attorneys for Plaintiffs
2525 Ponce de Leon Blvd. 9th Floor
Miami, Florida

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