Complaint for Damages - N24C-12-308-FWW 

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

SGH CAPITAL SA, a Luxembourg public limited company, ROSEWOOD CAPITAL, a Luxembourg private limited company, and SGH CAPITAL ALPHA – SLP, a Luxembourg private limited company,

Plaintiffs,

v.

ESOS VENTURES, LLC, a Delaware limited liability company, PENSAR LEARNING INC., a Delaware corporation, and CHARLES SEELY, an individual,

Defendants.

Civil Action No.

COMPLAINT FOR DAMAGES

1. Plaintiffs bring this action against Charles Seely, formerly their trusted agent, to recover damages for his breaches of contract, breaches of his fiduciary duty of loyalty, and related torts. Seely is the principal of ESOS Ventures, LLC, and acted as Plaintiffs' agent to source, develop, and manage investment opportunities, including in the United States, and business development activities in the United States.

2. Seely concealed from Plaintiffs that he purported to enter into an unauthorized addendum to his agency agreement, working in tandem with two former directors of SGH Capital SA, M. Dimitri Couderc and M. Eddy Abramo and used that to wrongfully obtain monies directly from companies Plaintiffs had invested in and from SGH Capital SA itself.

3. Seely is also the principal of defendant Pensar Learning Inc., and at relevant times was CEO of Pensar Learning Inc. SGH Capital SA invested monies into Pensar Learning, which Seely on information and belief absconded with. Seely concealed this from Plaintiffs as well.

4. Seely is currently a partner with Hoxton ventures, a venture capital fund based in the United Kingdom.

PARTIES AND JURISDICTION

5. Plaintiff SGH Capital SA ("SGH Capital") is a public limited company organized under the laws of Luxembourg, with its registered office in Luxembourg.

6. Plaintiff Rosewood Capital ("Rosewood") is a private limited company organized under the laws of Luxembourg, with its registered office in Luxembourg.

7. Plaintiff SGH Capital Alpha—SCSP is a special limited partner organized under the laws of Luxembourg, with its registered office in Luxembourg. Rosewood is the general partner of SGH Capital Alpha.

8. Defendant ESOS Ventures, LLC ("ESOS") is a Delaware limited liability company with a registered agent in Wilmington, Delaware.

9. Defendant Pensar Learning Inc. ("Pensar") is a Delaware corporation with a registered agent in Wilmington, Delaware.

10. Defendant Charles Seely is an individual and resident of the United Kingdom.

11. Plaintiffs are informed and believe, and based thereon allege, that at all times mentioned herein, each and every Defendant was the agent, servant, employee, joint venturer, partner, subsidiary and/or co-conspirator of each other Defendant, and that in performing or failing to perform the acts alleged herein, each Defendant was acting individually as well as through and in the foregoing alleged capacity and within the course and scope of such agency, employment, joint venture, partnership, subsidiary and/or conspiracy.

12. Plaintiffs are further informed and believe, and based thereon alleges, that each Defendant served as the alter ego of, succeeded to, assumed the liabilities of and/or ratified and affirmed the acts and omissions of the other Defendants with respect to the matters alleged herein. Plaintiffs further allege that Seely operated ESOS and Pensar Learning as his alter egos, including but not limited to by failing to maintain corporate formalities and commingling funds, such that it would be inequitable to treat ESOS or Pensar Learning as entities separate from Seely.

13. This court has jurisdiction over this matter because ESOS and Pensar are Delaware entities, and because Seely does business through them as his alter egos.

BACKGROUND FACTS

14. SGH Capital manages investment funds that invest in technology companies, including in the United States. SGH Capital Alpha –SCSP is one of those funds. Rosewood Capital is the manager of SGH Capital Alpha.

15. In June 2019, SGH Capital and Rosewood, on the one hand, and ESOS, on the other, entered into an Agency Agreement. Under the Agency Agreement, ESOS was to serve as SGH Capital's and Rosewood's "non-exclusive agent in sourcing, developing and managing investment opportunities based in the United States, Europe, and Asia." ESOS was also designated as a managing partner of SGH Capital and Rosewood.

16. The Agency Agreement provided for payment of annual compensation and placement fees for investments by SGH Capital and Rosewood. The Agency Agreement also provided for ESOS to be compensated with a percentage of carried interest profit on investments in specific companies. Those specific companies were listed on Appendix 1 to the Agency Agreement.

17. The Agency Agreement further provided that ESOS' compensation for any investments after the date of the Agency Agreement would have to be the subject of a new and separate agreement.

18. In 2021, two managing directors of SGH Capital, M. Dimitri Couderc and M. Eddy Abramo, were removed from their positions. Days before that removal, however, the two managing partners and Seely purported to sign an addendum to the Agency Agreement without the statutory agreement of Rosewood. Seely knew those two managing partners were to be removed, but signed the addendum anyway, without the approval of Rosewood.

19. Based on this illegal addendum to the Agency Agreement, ESOS has wrongfully obtained funds either directly from Plaintiffs or that rightfully belonged Plaintiffs. Seely and ESOS concealed this from Plaintiffs.

20. The Agency Agreement also prohibited ESOS and Seely from competing with Plaintiffs during the term of the Agency Agreement, and specifically from soliciting any internal or external position with a specific venture capital firm, whose name is specified in the Agency Agreement. On information and belief, ESOS and Seely disregarded this, acting as an advisor to that specific venture capital firm, Amity Ventures LLC, based in San Francisco, and directly shutting Plaintiffs out of future investments with that same firm.

21. By acting as an advisor to that specific firm, and by acting against the interests of Plaintiff while also acting as its agent, ESOS and Seely violated the Agency Agreement and harmed the interests of Plaintiffs.

22. Seely also directly obtained $100,000 from SGH Capital for Defendant Pensar. The $100,000 investment was made through a SAFE ("Simple Agreement for Future Equity") Agreement (the "SAFE Agreement"). Pensar has not provided any information regarding its operations, despite taking SGH's monies, for the last five years. Pensar maintains a webpage, pensarlearning.com, where it claims that it has "been in active use teaching thousands of students and teachers STEM content through NASA's EPDC program since 2018." Seely, on behalf of Pensar, assured SGH Capital that "most of the value [is] in the technology platform we have built." Despite this, Pensar has stopped providing any visibility at all to SGH Capital regarding SGH Capital's SAFE investment, nor any information or timeline for a conversion of the SAFE into equity after eight years, or a plan to pay back the monies with any interest.

23. On information and belief, Seely misappropriated the monies from SGH Capital for his own purposes, rather than using them for the benefit of Pensar Learning.

24. Seely actively conspired with M. Corentin Denoeud, a former employee of the Group's subsidiaries, against SGH capital, Rosewood and its managing partners.

25. Seely actively conspired with M. Dimitri Couderc against Rosewood, SGH Capital by benefiting from the ownership embezzlement by M. Dimitri Couderc of the SGH Capital 1 SLP, fund, by knowingly signing an advisory agreement with SGH Capital 1 SLP or its managers.

26. Seely altered the content of a conversation between him and the managers of Rosewood by producing a fake document, forging its content and appearance in a court of law in order to support the legal actions of minority shareholders.

27. Seely voluntarily blocked the access to the cash account of SGH capital SA with Angellist, with no power of attorney over this account and resorting to a private password, in an attempt to hurt the capacity of Rosewood and its managing partners to operate. Seely actively and illegally blocked a $1 million distribution payment from the sale of Honey in July 2020, a company invested by SGH Capital SA, in order to secure an undue carry payment and hurt the capacity of the company to pay its Counsels and its Auditors while being under attack by minority shareholders.

FIRST CAUSE OF ACTION

BREACH OF CONTRACT (AGAINST DEFENDANTS ESOS AND SEELY)

28. Plaintiffs re-allege all preceding paragraphs and incorporate them as though fully set forth herein.

29. The Agency Agreement was a valid and binding contract between Plaintiffs and ESOS.

30. Seely, as an alter ego of ESOS, is a party to the Agency Agreement.

31. Plaintiffs performed all material obligations under the Agency Agreement.

32. ESOS and Seely breached the Agency Agreement, including but not limited to by acquiring agent compensation in violation of the Agency Agreement, by competing with Plaintiffs, and by serving as an advisor to the specific venture capital firm as alleged above.

33. As a direct and proximate result of ESOS and Seely's conduct as alleged above, Plaintiffs have been damaged in an amount according to proof but no less than $400,000.

SECOND CAUSE OF ACTION

BREACH OF FIDUCIARY DUTY (AGAINST ESOS AND SEELY)

34. Plaintiffs re-allege all preceding paragraphs and incorporate them as though fully set forth herein.

35. ESOS and Seely, acting as Plaintiffs agent via the Agency Agreement, owed Plaintiffs a fiduciary duty.

36. ESOS and Seely breached their fiduciary duty of loyalty to Plaintiffs by conspiring with removed managing directors to obtain Plaintiffs' monies outside the Agency Agreement, by competing with Plaintiffs, and by interfering with Plaintiffs' economic opportunities by working to exclude Plaintiffs from a new fund raised by that specific venture capital firm set forth above.

37. As a direct and proximate result of ESOS and Seely's conduct as alleged above, Plaintiffs have been damaged in an amount according to proof but no less than (1) actual and precise damages of $400,000 and (2) A loss of opportunity in the exclusion of SGH capital SA and Rosewood from the following Amity Ventures LLC, whose subsequent funds have shown an even stronger performance Given the initial $5 million invested by funds managed by Rosewood Capital in Amity Venture's first fund, and given a gross multiple of 3,7x the amount invested at 12.31.2023, an equal investment in fund 2 could have produced similar returns.

38. ESOS and Seely's conduct was fraudulent, malicious, and/or oppressive, entitling Plaintiffs to punitive damages.

THIRD CAUSE OF ACTION

CONVERSION (AGAINST ESOS AND SEELY)

39. Plaintiffs re-allege all preceding paragraphs and incorporate them as though fully set forth herein.

40. By obtaining agent compensation to which they were not entitled under the Agency Agreement, ESOS and Seely wrongly exercised ownership and control of monies in an amount exceeding $400,000.

41. ESOS and Seely's conduct was fraudulent, malicious, and/or oppressive, entitling Plaintiffs to punitive damages.

FOURTH CAUSE OF ACTION

BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING (BY SGH CAPITAL AGAINST PENSAR AND SEELY)

42. Plaintiffs re-allege all preceding paragraphs and incorporate them as though fully set forth herein.

43. The SAFE Agreement was a valid and binding contract between SGH Capital and ESOS.

44. Seely, as an alter ego of Pensar, is a party to the SAFE Agreement.

45. Plaintiffs performed all material obligations under the SAFE Agreement.

46. In every contract, there is an implied covenant of good faith and fair dealing, whereby the parties agree not to interfere with the expected benefits of the contract.

47. Pensar and Seely breached the implied covenant inherent in the SAFE Agreement, including but not limited to by misusing SGH Capital's SAFE Investment.

48. As a direct and proximate result of Pensar and Seely's conduct as alleged above, Plaintiffs have been damaged in an amount according to proof but no less than $100,000.

FIFTH CAUSE OF ACTION

CONVERSION (BY SGH CAPITAL AGAINST PENSAR AND SEELY)

49. Plaintiffs re-allege all preceding paragraphs and incorporate them as though fully set forth herein.

50. By misusing the monies invested under the SAFE Agreement, Pensar and Seely wrongly exercised ownership and control of monies in an amount exceeding $100,000.

51. Pensar and Seely's conduct was fraudulent, malicious, and/or oppressive, entitling Plaintiffs to punitive damages.

SIXTH CAUSE OF ACTION

ACCOUNTING (BY SGH CAPITAL AGAINST PENSAR)

52. Plaintiffs re-allege all preceding paragraphs and incorporate them as though fully set forth herein.

53. SGH Capital invested in Pensar via the SAFE Agreement.

54. Pensar has not provided any accounting to SGH Capital of its investment since 2016.

55. Equity requires that Pensar provide SGH Capital an accounting.

WHEREFORE, Plaintiffs pray for the following relief:

1. General and compensatory damages in an amount according to proof, but at least in the amount of $400,000;

2. Punitive damages on the Second, Third, and Fifth Causes of Action;

3. Pre-judgment interest as allowed by law;

4. An order on the Sixth Cause of Action for Pensar to provide a full accounting of the use of SGH Capital's investment;

5. Costs of suit; and

6. All such other relief as the Court determines to be just and proper.

Dated: December 23, 2024

By: /s/ Sean J. Bellew

Sean J. Bellew (#4072)

Bellew LLC

Red Clay Center at Little Falls

2961 Centerville Road, Suite 302

Wilmington, Delaware 19808

Telephone: (302) 353-4951

sjbellew@bellewllc.com

Attorney for Plaintiffs SGH Capital SA and Roswood Capital, SGH Capital Alpha—SCSP