muomaqu?oomuo?maxww?o Chad S. Hummel (SBN 139055) chummel@sidley.com Amanda R. Farfel (SBN 288126) afarfel idley.com SIDLE AUSTIN LLP 1999 Avenue of the Stars 17?h Floor Los Angeles, CA 90067 Telephone: +1 310 595 9505 Facsimile: +1 310 595 9501 Katherine A. Roberts (SBN 259486) SIDLEY AUSTIN LLP 555 West Fi?h Street, Suite 4000 Los Angeles, CA 90013 Telephone: +1 213 896 6000 Facsimile: +1 213 896 6600 Attorneys for Plaintiff ELON SPAR SUPERIOR COURT OF THE STATE OF CALIFORNIA OR THE COUNTY OF LOS ANGELES ELON SPAR, Case No. Plaintiff. v. Assigned to: RYAN KAVANAUGH, and VERIFIED COMPLAINT AGAINST RYAN DOES 1-10, inclusive. KAVANAUGH FOR: Defendants. FRAUD (2) VIOLATION OF CAL. BUS. PROF. CODE 17200 etseq. (3) DECLARATORY RELIEF SUMMARY OF ACTION 1. This is an action for fraud against Defendant Ryan Kavanaugh (?Kavanaugh?), a notorious Hollywood executive who bankruptcies of Relativity Media. presided over the highly publicized ?nancial failures and 2. This case involves Kavanaugh?s recent attempts to re-enter the world of ?lm ?nance, which he has sought to achieve through a myriad of misrepresentations and outright lies -- both public and private, including in multiple recent public press releases and interviews. Kavanaugh?s lies have been purposefully designed to lure people under false pretenses into investing or participating in his new purported business ventures, including a company called Proxima Media, LLC (?Proxima?), and several Kavanaugh-controlled af?liates Centauri Media LLC and Proxicoin LLC. 3. Among others defrauded by Kavanaugh was Plaintiff Elon Spar Spar enjoyed a long and successful career at the global ?nancial ?rms Credit Suisse and Cantor Fitzgerald. At Cantor Fitzgerald, Spar worked to, among other things, transform the virtual game Hollywood stock exchange into a real money exchange (the concept for which had been in existence for many years). 4. Spar had been working on the concept of a Hollywood real money exchange since at least 2016. The concept would allow investors to participate in the ?nancial performance of ?lms. Spar was in the process of meeting with potential partners for this project when Kavanaugh approached him, through Cantor Fitzgerald, in early 2018. Spar had signi?cant misgivings about partnering with Kavanaugh based on Kavanaugh?s prior conduct and poor reputation in the entertainment induSUy, which Kavanaugh himself has acknowledged (see, for example, Ryan Kavanaugh Wants to Move on From Relativity: ?7720: Guy Was Kind of an A -Hole. published in The Wrap on June 5. 2019 but Kavanaugh convinced Spar to work with him by misrepresenting that he had a turnkey solution for the real money exchange concept. Kavanaugh represented to Spar that his solution included ?nancing, a robust slate of ?lm and other entertainment projects to prove the model, and substantial marketing resources and expertise. 5. Between May 2018 and August 2018, Kavanaugh promised that he had substantial ?nancial commitments from third parties and that he would provide $6 million to ?nance the operating costs of the contemplated business model. In August 2018, Kavanaugh represented that he would ?nance the entire business, which would far exceed $6 million. Kavanaugh?s representations that he would provide full ?nancing and a turnkey solution. among others. induced Spar to pursue a potential arrangement with Kavanaugh. Those initial misrepresentations included, but were not limited to: Kavanaugh?s company. Proxima, was ?actively involved and invested with ?lm ?nancing vehicles and partnerships that immediately provide studio-distributed commercial ?lms for the HSX platform"; Kavanaugh had hundreds of millions of dollars in capital commitments from several signi?cant ?nance sources that would enable a rapid build-out of the developing business model; Kavanaugh controlled rights to at least 15 ?lm development projects with speci?c A-List talent attached and had ?over 20 projects in active development?; Kavanaugh had a partnership with Crowd?md X, a company that he claimed had successfully completed more than 30 Regulation A lPOs, and that he was personally involved in those successful Regulation A and His prior business failures were not his fault but were rather the result of, among other things, misconduct by the senior leadership of Elliott Management Corporation, including Paul Singer, who Kavanaugh said engineered the demise of Relativity in order to insert Singer?s son into the company. These representations were made in writing, including in a presentation prepared largely by Kavanaugh, in May 2018, that details many of these misrepresentations made to Spar, and upon which Spar reasonably andjusti?ably relied in deciding whether to partner with Kavanaugh. 6. Each of these representations was false when Kavanaugh made them. At the time, Proxima was not, in fact, invested in the ?lm ?nancing vehicles as represented. lt had virtually no capital. It had no viable ?nance commitments certainly nothing approaching the magnitude of what was represented. Kavanaugh did not have the rights to all of the ?lm projects that be listed. He had no partnership with rowdfund X. And Elliott Management Corporation was not 27 28 responsible for the demise of Kavanaugh?s prior business ventures in the manner that Kavanaugh represented. 7. Kavanaugh?s detailed lies induced Spar to enter a one-sided non-disclosure agreement covering speci?c non-public information provided by Proxima to Spar. and to devote substantial time and effort between February 2018 and April 2019 to re?ning plans for a movie exchange. 8. It was contemplated that Spar would be the CEO of the new exchange, dubbed ESX (an acronym for Entertainment Stock Exchange), but he never executed any formal agreement to do so or received any compensation or equity (which was contemplated) for his extensive efforts. The terms of Spar?s deal kept changing from originally being a CEO charged with operating a fully-funded venture, ultimately to being the person responsible for raising capital, in approximately October 2018, when Kavanaugh?s alleged ?nancial commitments failed to materialize. 9. Over time, as Kavanaugh withdrew and replaced one funding proposal a?er another and each of his lies was exposed, it became apparent to Spar that Kavanaugh was operating Proxima and its related entities as essentially a Ponzi scheme, using meager new investment capital to satisfy old debts, diverting corporate funds for personal use (instead of paying his employees and contractors), and manipulating the corporate books and records to conceal his misrepresentations. Ultimately, in early May 2019, after Kavanaugh went behind Spar?s back in April 2019. to attempt to hire technologist and Spar?s long-time friend Jacob Loveless and cut Spar out of all ESX activity, Spar informed Kavanaugh in writing that he would no longer be af?liated with Kavanaugh. Spar offered in writing simply to part ways with Kavanaugh and to proceed with their respective business plans. 10. Kavanaugh, however, continued thereafter to engage in unfair and fraudulent business practices, including defaming Spar to third parties by claiming falsely that Spar was terminated and that Spar ?stole? materials from him and seeking in other wrongful ways to block Spar ?'om lawfully pursuing Spar?s movie exchange concept. n?a?n?n?na?n? 16 1 1. Based on Kavanaugh?s fraud, unfair business practices, and other misconduct described above and in more detail below, Spar seeks damages proximately caused by the fraud. punitive damages against Kavanaugh for his malicious and willful fraud, and declaratory relief. THE 12. Plaintiff Elon Spar (?Spar?) is an individual residing in Beverly Hills, California. 13. Defendant Ryan Kavanaugh (?Defendant" or ?Kavanaugh") is an individual residing in or around Los Angeles, California. 14. Plaintiff does not presently know the true names and capacities of the defendants sued herein as Does I through 10, inclusive. Plainti?' will seek leave of the Court to amend this complaint to allege said defendants? true names and capacities as soon as Plaintiff ascertains them. JQBEMQTION AND ZENQE 15. Jurisdiction is proper under Section 410.10 of the California Code of Civil Procedure and Article 4 of the California Constitution. 16. Venue is proper under Section 395 of the California Code of Civil Procedure in the County of Los Angeles as Defendant Kavanaugh is an individual who is, and at all times mentioned in this complaint has been, a resident of the County of Los Angeles, in the state of California. Additionally, all acts and transactions giving rise to this action occurred in substantial part in the County of Los Angeles. California. GENERAL ALLEGAZEIONS 17. After earning his MBA from Stanford University Graduate School of Business in 1987. Spar worked at the leading ?nancial services company Credit Suisse First Boston for almost two decades. eventually as Managing Director and head of US equity block trading. In 2004, Cantor Fitzgerald (?Cantor?), an innovative global ?nancial services firm, hired Spar. Within two years. Cantor promoted Spar to CEO of Europe and Asia, where he ran equity and ?xed income trading, investment banking and derivatives. In 2012. Spar became Chief of Staff for Cantor?s CEO Howard Lutnick. In 2014, Spar became the Executive Chairman and owner of TopLine Game Labs. a developer of fantasy sports and social gaming services. He was on the Board of WNOMhWN?oewqom#wN?o Managers at his alma mater, Haverford College, and is a member of the American Jewish University?s Investment Committee. in short, Spar is a businessman with impeccable credentials and a sterling reputation in his community. As Kavanaugh himself has described him, Spar is the ?most ethical and honest guy he?s ever worked with.? 18. Defenth Kavanaugh is a ?lm ?nancier whose reputation has been the subject of substantial public reporting. One recent article in the Hollywood Reponer, ?ls Ryan Kavanaugh?s New China Deal for Real?" discussed the ?industry doubt? about Kavanaugh. ?Every time anyone lies in Cannes, Ryan gets a royalty,? the article quotes Mark Gill, the president and CEO of Solstice Studios as saying. See new-china-deal-real-l 212502. Because of Kavanaugh's reputation for dishonesty, at the outset of his interactions with Kavanaugh, Spar sought explanations for the demise of Relativity and was met with Kavanaugh?s assurances about alleged misconduct by Elliott Management. 19. A?er defaulting on its ?nancial obligations, Kavanaugh?s last company, Relativity Media, ?led for bankruptcy in 2015. The ?istog of the Entertainment angpt 20. in May 2016, Spar returned to Cantor from Topline Game Labels to work on a project called Hollywood Stock Exchange, or The idea behind HSX was to create a virtual entertainment stock market, in which participants buy shares, with ?Hollywood Dollars,? of their favorite actors and new movies. 2 1. On behalf of Cantor, Spar began turning the concept behind HSX into a real money exchange. 22. in December 2016, Cantor stopped paying Spar to work on the HSX project, but Spar believed in the idea behind the project and wanted to continue moving forward with the concept of a real money movie exchange. 23. For the next year or so, Spar worked on creating the Box Of?ce Participation Exchange Like HSX, BOPX would be an entertainment exchange. Spar considered a number of different business models for the exchange, including movie futures, binary options, and equities. Spar ultimately settled on a business model for BOPX that would be a real money binary options exchange based on his conclusion that it would be the most ef?cient and effective way to market. Defendant Kavana Be ins His Involvement with ntertainm Exchan 24. In January 2018, Andrew Kramer (?Kramer?). the former COO of lntemational Distribution for Lionsgate Motion Picture Group, reached out to Cantor to ?nd out with whom to speak about HSX. Cantor referred Kramer to Spar. 25. Kramer told Spar that he was working as a "consultant? for a client who wanted to buy into the HSX project outright or develop a joint venture. 26. Spar told Kramer that he could not consider entering into a business relationship until Kramer disclosed whom he was representing. A?er conferring with his client, Kramer disclosed he was representing Kavanaugh. 27. Despite misgivings given Kavanaugh?s reputation, Spar decided to meet with Kavanaugh and Kramer in February 2018. 28. Before getting into any details about ideas, concepts, or plans for future business endeavors, Kramer and Kavanaugh asked Spar to sign a piece of paper stating that he would keep the contents of their meeting con?dential. 29. After the piece of paper was signed, Kavanaugh disclosed that he, like Spar, wanted to create an entertainment exchange. Kavanaugh stated that he wanted to create a movie exchange using Regulation A of the Securities Act (?Reg that used real money, where the general public could share in the pro?ts. Through Reg. A, companies and producers could raise up to $50 million with an initial public offering of shares for movies, television shows, music, games, and Broadway productions on the platform. Then, the shares could be traded in the secondary market like any other stock. This idea had been public knowledge in finance circles since at least as early as 2012, when the Jumpstart Our Business Startups Act was enacted into law by President Obama to improve access to the public capital markets for emerging growth companies, and finance professionals began to consider opportunities in the entertainment industry. The Agreement 30. A month or so later, while discussions continued between Kavanaugh and Spar. Kavanaugh asked that Spar enter into a Con?dential Non-Disclosure Agreement (the with Proxima. Given the carefully circumscribed scope of the NDA, and Kavanaugh?s false assurances described above, Spar agreed to sign it. The NDA is attached hereto as Exhibit A. 31. The NDA expressly covers only ?Con?dential Information? which is ?all information disclosed by or on behalf of Proxima," with the exception of the following: Con?dential information shall not include any information: that is or subsequently becomes available to the general public other than through a breach of this Agreement by Con?dant; or that was in Con?dant?s possession prior to disclosure by Proxima or that Con?dant has rightfully received or later receives from a third party without any restriction as to con?dentiality or use . . . . 32. Kavanaugh has released details publicly regarding an entertainment exchange, which Kavanaugh and Spar mutually decided to call In fact, Kavanaugh, through his company Proxima, has now released a public statement regarding the ?lm exchange concept, a concept that had been discussed in ?nance circles since at least 2012. ?gvmugh Allays Sg?s Congms Through 33. Given Kavanaugh?s dismal reputation, Spar had serious misgivings about entering into any business dealings with Kavanaugh. However, Kavanaugh created an elaborate facade that made Spar believe Kavanaugh had funding and could provide a turnkey partnership for Spar and Cantor. This included conducting business from a lavish and large of?ce space in the Fox Tower in Century City, referencing an ongoing business relationship with Mark Burg (the ?lm producer, manager. including of the Saw movie franchises), and introducing Spar to Michael Lambert (the former Executive Vice President of HBO, former Vice Chairman of Village Roadshow, and head of Lambert Media Group), whom Kavanaugh described as a partner and with While Kavanaugh and Spar called the potential entertainment exchange and Spar called himself the CEO of ESX, no contracts or agreements of any kind were ever signed regarding the entity. whom Spar spoke. Kavanaugh also represented that .lim Wiatt and Ben Silverman were on his advisory board, which created the illusion of legitimacy. 34. Indeed, in order to induce Spa: to work with Kavanaugh. Kavanaugh made numerous misrepresentations about his business dealings and the capital he had at his disposal, the capitaliution and funding of Proxima, the ?nancial commitments he had from various ?nance sources, and his ownership and/or access to intellectual property rights for potential projects. These included Kavanaugh?s representations that he, through his company Proxima, had over $500 million of committed ?lm funds, including but not limited to the following: -0 $250 million from Fortress Investment Group and Apollo Global Management LLC af?liates; 0 $250 million from Talaria Pictures, a ?lm ?nance fund created through a partnership between Kavanaugh, through Proxima, and Christopher Woodrow; 0 $250 million from technology platform MovieCoin that would expand to $1 billion in later rounds; - Kavanaugh subsequently revealed (in or around August 20l 8) that MovieCoin would not be involved, but Kavanaugh represented that Proxicoin was committed to ?ll the $250 million investment gap. Kavanaugh further represented that Brock Pierce, a well-known investor, had committed to have Block.one, a $4 billion fund in which Pierce was a founder, fund the entirety of the $250 million Proxicoin investment. - Kavanaugh also represented that Mike Novogratz, a billionaire investor and head of investment fund Galaxy, was also committed to invest. Kavanaugh later represented that the money was not formally committed but instead only ?soft circled." Kavanaugh's representation that he had rights to approximately 30 ?lm projects, including Limitless 2 and the Atomic Blonde prequel, which he orally represented were ready to be listed on the platform. On information and belief, Kavanaugh does not control the rights to Limitless 2 or the Atomic Blonde prequel, and there were no scripts for either project. 0 Kavanaugh?s representations that he would provide at least $6 million to fund operations for the ?rst two years, and his subsequent commitment to fund the entirety of the ESX project budget, which would far exceed $6 million. Spar reasonably relied upon these critical representations when he agreed to work with Kavanaugh. 35. These representations, along with others, were false. 36. In actuality, Kavanaugh has been, and effectively is still, operating the Proxima, Proxicoin and ESX ?businesses? as a Ponzi scheme: Kavanaugh seeks new investor money to cover existing obligations and does not use contributed funds as promised. 37. Based on recent press releases. it is clear that Kavanaugh?s misrepresentations have gone public and that Kavanaugh is now, on information and belief, inducing others to consider investing in his scheme based on similar misrepresentations. Spar Works to the Entertainment Exchange ancept 38. From early 2018 through about August 2018, the project that Spar and Kavanaugh were considering pursuing would involve Cantor as a partner that would manage the regulatory compliance obligations and issues and supply the operational and technological framework for the real money exchange itself. In August 2018, however, it appeared that the parties would be unable to agree with Cantor on a mutually acceptable governance model. At that point, Kavanaugh suggested that Spar consider moving forward with him to pursue the movie exchange project without Cantor, representing that he would ?nance the entirety of the business. 39. Beginning in August 2018, Spar began working on building the new project. 40. Spar began referring to the project as ESX, but no papers were ever signed making him the CEO and the material terms of such an arrangement were never agreed. lO 41. Over the course of the next several months, Spar realized the true nature of Kavanaugh?s business dealings and other misconduct. 42. In early May 2019, Spar took action to graciously disentangle himself from the contemplated business with Kavanaugh. A copy of the email in which Spar attempts to disentangle himself for the contemplated business is attached hereto as Exhibit B. 43. After Spar sent the email, Kavanaugh has wrongfully asserted that Spar?s work product is Kavanaugh?s property. 44. Spar has fully complied to the letter with the NDA. Speci?cally. Spar returned the non-public materials provided to him by Proxima on the subjects enumerated in the NDA. 45. Spar damages from the lost opportunity costs and out of pocket costs are substantial. FIRST CAUSE FA (Fraud) 46. Plaintiff Spar realleges and incorporates by reference the prior and subsequent paragraphs of this Complaint. 47. The allegations of this complaint stated on information and belief are likely to have evidentiary support after a reasonable opportunity for timber investigation or discovery. 48. As alleged in the General Allegations and in the following Causes of Action, Kavanaugh made representations of material fact. 49. These representations were in fact false. 50. When Kavanaugh made those representations, he knew the representations to be false and/or had no reasonable ground for belief the representations were true. 51. Kavanaugh made the representations with the intent to defraud and induce Spar to act as described in the General Allegations. 52. At the time Spar acted, Spar did not know the representations were false and believed they were true. Spar acted in justi?able reliance upon the truth of the representations. 53. Kavanaugh also concealed, failed to reveal, and actively suppressed material facts that he should have disclosed. ll 54. Kavanaugh also told Spar other facts, as described in the allegations, to mislead Plaintiff and prevent Plaintiff from discovering the concealed or suppressed facts. 55. Kavanaugh concealed and/or suppressed these facts with the intent to defraud and induce Plaintiff to act as described in the General Allegations. As described above, Kavanaugh concealed and/or suppressed these facts with the intent to defraud and induce Spar to act. At the time Spar acted, Spar was unaware of the concealed and/or suppressed facts and would not have taken these actions if Spar had known these facts. SECOND CAUSE OF ACTION (Violation of Cal. Bus. Prof. Code 17200. et seq.) 56. Plaintiff Spar realleges and incorporates by reference the prior and subsequent paragraphs of this Complaint. 57. As herein alleged, Kavanaugh willfully undertook unlawful, fraudulent, and unfair acts to harm Spar, with knowledge of and disregard of Spar?s rights, and with the intention of benefiting Kavanaugh and/or others. Such conduct constitutes ?unlawful,? ?unfair," and/or ?fraudulent? business practices in violation of California Business Professions Code 17200, et seq. 58. Spar was harmed as a result of Kavanaugh?s unlaw?ll, fraudulent, and unfair acts and business practices. and as a result of the acts, Kavanaugh has been unjustly enriched. THIRD CAUSE OF ACTION (Declaratory Relief) (Cal. Code of Civ. Proc. 1060) 59. Plaintiff Spar reallcges and incorporates by this reference the prior and subsequent paragraphs of this Complaint. 60. The allegations of this Complaint are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. An actual and immediate controversy has arisen and now exists between Spar and Kavanaugh regarding the enforceability. effect and scope of the the duties and obligations, if any, relating to Spar?s and Kavanaugh?s respective work product created during the time that they were working 12 27 28 together in light of Kavanaugh?s fraud, failures to perform as promised. and other misconduct; and the rights, if any, the concepts surrounding the movie exchange ideas that the parties discussed. Spar seeks a declaration of his rights under California Code of Civil Procedure Section 1060 regarding the foregoing. 61. A judicial declaration is necessary and appropriate at this time in order that the parties ascertain their rights and obligations to each other and to avoid the hardship caused on the parties by a protracted dispute and further delay. PRAYER FOR RELIEF WHEREFORE, Plaintiff Spar prays judgment as follows: 1. 2. 3. Date: June 6, 2019 For compensatory damages in an amount to be proved at trial; Punitive damages for fraudulent misconduct; A declaratory judgment on the issues described in the Second Cause of Action above, speci?cally that NDA is not enforceable and/or that it does not apply to materials not speci?cally provided by Proxima to Spar; that none of the work product created by the parties is owned or controlled by any other party; and that Kavanaugh may not pursue development of the movie exchange concept using the operating roadmap that was provided to him by Spar based on Kavanaugh?s fraudulent misrepresentations; All costs and attorneys? fees associated with bringing this suit; and Such other and further relief as this Court may deem just and proper. AUSTIN LLP Chad S. Hummel Amanda R. Farfel l3 n?ny?n?tn?lu?t 15 VERIFICATIQE I am a party to this action and have read the foregoing COMPLAINT and know its contents. The matters in the COMPLAINT are true based on my own knowledge, except as to those matters stated on information and belief, and as to those matters I believe them to be true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on June 2019, at Los Angeles, California. Elon Spar 7 CONFIDENTIAL NON-DISCLOSURE AGREEM ENT This agreement (this "Agreement") is entered into by and between Proximtt Media LLC ("Proxima") and Elon Spar Proxima wishes to discuss with Con?dent certain business matters tolling.? certain business matters relating to Proxima and its af?liated entities (the ?Proxima Matters"). The parties are entering into this Agreement because Proxima and Con?dent agree that. in order for the parties to have meaningful discussions about and properly evaluate such Proxima Matters (the "intended Purpose"). there isa need for Proxima to disclose to Con?dent certain informatim that is to be used only for the intended Purpose and to be protected from unauthorized use or disclosure. I-Qen?dsasisuatatmum For the purposes of this Agreement. "Confidential Information? shall mean all information disclosed by or on behalf of Proxima. whether disclosed orally or in writing and whether or n0t speci?cally marked as "Con?dential? or ?Propricty.? including. without limitation. any and all infatuation related to Prosima's and its af?liates' founders. formation. existence. financial statements and proposed business plan. motion picture treatments. screenplays or story lines. memos. production budgets. marketing budgets. policies and purposes. existing. proposed or potential technology. knowledge. products. services. clients. projects. md other busincssand ?nancial information. and tangible materials carnalning any such information. whether atacltine or user read. L2 Con?dential in formation shall not include any information: that is or subsequently becomes available to the general public other than through a breach of this Agreement by Con?dmt; or that was in Confident?s possession prior to disclosure by Proximo or that Con?dent has right?tlly received or later receives from a third party without any restriction as to con?dentiality or use. in each case only to the extent that Con?dent does not lrnow or have any reason to ltnow that Confidant?s possession of. or the third party?s possession of. such images or information ts in violation of an obligation or duty of confidentiality to Proxinta. 3. trict' ns. Confldant shall disclose Con?dential information ottly to Con?danl's employees and professional advisers on a need-ttaoltnow basis and shall require any recipients ofConfldential lnforrnation to agree in writing that such Con?dential information is subject to the terms ofthis Agreement and to be used only for the intended Purpose. Con?dent shall only be authorized to copy. reproduce. summarize and/or distribute Con?dential Information to the extent that such actions are in furtherance of the intended Pta'pose. Confident shall not disclose Confidential Information to any third party except to the estent that Con?dent is compelled to do so in with ajudicial. administrative or other order. or as otherwisc required by law. in which case Con?dent shall give Proxima reasonable notice prior to such disclosure and shall comply with any applicable protective order (or equivalent) obtained by or on behalf of Proxima. Con?dent shall lite reachable measures. which Itdl measures shall be at least as great as the measures Con?dent uses to keep its own confidential information acetate. to hold the Con?dential Information in strict con?dence and safe custody. To the extent it can be masonabiy done. Con?dent agrees to segregate the Con?dential lnfonmatran from the con?dential information and the matcrial of others to in order to prevent commingling. 3. Right and gems-dies. All Con?dential information provided by i?roxima shall remain the property of Proxima (as applicable). and Proxima?s disclosure of the Con?dential Information to Con?dent does not grant any express or implied right to Confident under Pruxima's patents. copyrights. or trademarks. At Proxima's request. Con?dant shall return or destroy.ot Proxinta?s option. all originals. copies. reproductions and summaries of the Confidential information and. it?Proxima so requests. Con?dent shall certify that it has returned or destroyed all such Con?dential lnfonnation. Cnnlidant acknowledges that monetary damages may not be sufficient remedy for unauthorized disclosure of Confidential information and that Proximn shall be entitled. without waiving any other rights or remedies. to such injunction or equitable relief as may be deemed proper by a court of competent jurisdiction. ES VOA the Page I ofl 4- W- Although Proxima will endeavor to include in the Con?dential Information that information known and believed by Proxima to be relevant to the discussions for the Intended Purpose. Coniidant acknowledges that neither Proxima nor any of their representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Information disclosed. Con?dent agrees that neither Proxima nor their representatives shall have any liability to Con?dent resuhing from or arising in connection with the discussions for the intended Purpose. immune 5.l This Agreement shall be govemed by. and constructed in accordance with. the laws of the State of California without reference to choice of law doctrine. Any portion or provision of this Agreement that is deemed to be invalid. Illegal or unenforceable will not affect in any way the remaining portions or provisions hereof in such jurisdiction. 5.2 Each party will execute and deliver such documents and instruments and do such other acts as me reasonably requested by the ether party and are in tire renewable judgment of the other party necessary or approprime to efi'eetuate the purposes of this Agreement. including without limitation. executing and delivering documents andlor instruments that may he recorded or ii led and cooperating in eiTecring such recordation or filing. 5.3 This Agreement shall be effective as of the later of the two dates set forth below. This Agreement constitutes the full and binding agreement of the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous agreements or understandings with respect thereto. This Agreement may not be amended or modi?ed. and no waiver hereunder will be valid. unless authorized in writing and signed by both parties. Amendments of individual obligations of this Agreement shall not affect the other obligations. Any agreement between Con?dent and Proxima concerning any speci?c transaction will exist only when that agreement is in writing and duly executed by the parties thereto. The parties agree that each party is acting independently from the ether and nothing in this Agreement shall be dcetned to make either party the agent or the other or create a partnership orjoint venture between the parties. 5.4 This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. and all of the rights and obligations created by this Agreement shall survive any change and/or termination of the parties? business relationship. In witneas whereof. the parties hereto agree to be bound by the terms and conditions set forth herein and have caused this Agreement to be esecuted by their duly authorized representatives (CONFIDAN nbd/ _(Signatur/e) Name: J5 Tlilc. 7-. Date NDAdoe hoelnl'l EXHIBIT From: Elon Spar Date: May 7, 2019 at 7:03:01 AM PDT To: Ryan, Good luck with your operation. I hope everything is okay. As I told you on Thursday night. I was heading out of town for the weekend to attend my nephew's graduation from the University of Michigan. Over the past several weeks, I have had time to re?ect on our long contemplated arrangement and have determined that, for a number of reasons, I am not going to proceed with any business venture or enterprise with you. The string of misrepresentations by you, your many broken commitments and promises, and your recent inappropriate overture to Jake Loveless have all led me to the conclusion that we must now go our separate ways. I am happy to meet with you at your convenience to discuss. Thank you. Elon Sent from my iPad