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U.S. Securities and Exchange Commission

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK


SECURITIES AND EXCHANGE COMMISSION,

Plaintiff,

v.

CEDRIC KUSHNER PROMOTIONS, INC., CEDRIC KUSHNER, JAMES DILORENZO, and STEVEN ANGEL,

Defendants.


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CIVIL ACTION NO. 04 CV 2324

JURY TRIAL REQUESTED

COMPLAINT

Plaintiff, the United States Securities and Exchange Commission ("Commission"), alleges for its Complaint as follows:

INTRODUCTION

1. Cedric Kushner Promotions, Inc. ("CKP" or the "Company") is a public holding company, which, through its direct subsidiaries, promotes professional boxers and world championship boxing events, and also, manages, develops, promotes and markets television programming, pay-per-view programming and live events relating to boxing.

2. Founded in 1974, CKP became a public company on April 30, 2002, when it consummated a reverse merger with a non-operating public shell corporation. Its first-ever annual report on Form 10-KSB to be filed with the Commission evidenced a complete disregard for the requirements of the federal securities laws. Specifically, on May 20, 2003, in an effort to avoid having its stock de-listed from the OTC Bulletin Board, CKP filed with the Commission a Form 10-KSB for the period ended December 30, 2002, which attached forged auditor reports that had not been finalized, that failed to address the auditors' latest round of comments and that the auditors expressly had told CKP could not be filed. The filing also contained financial statements that CKP and its executives and directors knew, or were reckless in not knowing, were materially inaccurate. Despite the lack of a signed audit report and the existence of these material errors, CKP's executives certified that the filing fairly and accurately presents CKP's financial position and does not contain any material misstatements or omissions. CKP amended its Form 10-KSB two days later, but, because its auditors still had not completed their review or signed-off on the filing, it did not attach any auditor reports to the amended Form 10-KSB and its executives did not sign the required certifications. The financial statements that were attached to the amended Form 10-KSB had been revised but were still materially inaccurate and not reflective of the auditors' prior comments.

3. The Commission brings this action to restrain and permanently enjoin CKP, its Chief Executive Officer Cedric Kushner ("Kushner"), its Principal Financial and Accounting Officer James DiLorenzo ("DiLorenzo"), and one of its Directors Steven Angel ("Angel") from violating the antifraud, record-keeping, and reporting provisions of the federal securities laws. As part of this action, the Commission also seeks to enjoin Kushner and DiLorenzo from violating the certification requirements imposed upon the principal executive and financial officers of public companies by the Sarbanes-Oxley Act, as codified in Rule 13a-14 of the Securities Exchange Act of 1934 ("Exchange Act") [17 C.F.R. 240.13a-14] promulgated thereunder. The Commission also seeks to permanently bar Kushner, DiLorenzo and Angel from serving as an officer or director of any public company and it seeks to impose civil monetary penalties on Kushner, DiLorenzo and Angel.

DEFENDANTS

4. CKP is a Delaware corporation headquartered in New York, New York. The Company went public through a reverse merger with a non-operating public shell corporation on April 30, 2002. At all relevant times it employed 6 full-time employees and 6 part-time employees or consultants. The common stock of CKP is registered with the Commission pursuant to Section 12(g) of the Securities Act of 1934 ("Exchange Act") and is traded on the OTC Bulletin Board. Defendants Kushner, DiLorenzo and Angel ("Individual Defendants") collectively own 60.9% of the outstanding shares of CKP common stock. CKP currently is in default on the majority of its outstanding notes payable, with the exception of those notes guaranteed by Kushner and/or for which Kushner is the lender.

5. Kushner is 55 years old and resides in New York, New York. He is the founder of CKP and has been Chairman of the Board, Chief Executive Officer, and President of CKP (or its predecessor companies) since 1974. He is the beneficial owner of 49.4% of the outstanding shares of CKP common stock. He loaned approximately $1 million of his personal funds to CKP in 2002 and personally guaranteed at least $600,000 of CKP's notes payable. CKP leases from Kushner the premises in New York in which it operates its business.

6. DiLorenzo is 39 years old and resides in Sag Harbor, New York. He has been with CKP since 1991, serving in various financial and managerial positions, including his current position as Executive Vice President. He also is CKP's Principal Financial and Accounting Officer. He is the beneficial owner of 10.3% of the outstanding shares of CKP common stock.

7. Angel is 27 years old and resides in New York, New York. He has been a Director of CKP since 2000 and, from January 2000 through April 2002, served as Executive Vice President and Secretary. Angel also serves as a consultant to CKP. He is the beneficial owner of 3.9% of the outstanding shares of CKP common stock. Angel was an executive and director of the public shell corporation with whom CKP merged in April 2002 and signed the public filings for that company. Angel's principal responsibilities with respect to CKP's public filings were (and are) to work hand-in-hand with CKP's auditors to ensure that filings are complete and accurate, and to review filings for completeness and accuracy prior to presenting them to DiLorenzo and Kushner for their review and signature.

JURISDICTION AND VENUE

8. The Commission brings this action pursuant to the authority conferred upon it by Section 21(d) of the Exchange Act [15 U.S.C. 78u] seeking to restrain and permanently enjoin Defendants from engaging in the acts, practices, and courses of business alleged herein.

9. This Court has jurisdiction over this matter pursuant to Section 27 of the Exchange Act [15 U.S.C. 78aa].

10. Venue is proper pursuant to Section 27 of the Exchange Act [15 U.S.C. 78aa]. Certain of the acts alleged herein constituting violations of the Exchange Act and Sarbanes-Oxley occurred within the Southern District of New York. Defendant CKP conducts business and maintains offices within the Southern District of New York. Two out of three Individual Defendants reside within the Southern District of New York.

11. Defendants, directly and indirectly, have made use of the means or instruments of transportation or communication in, and the means or instrumentalities of interstate commerce, or of the mails, or of the facilities of a national securities exchange, in connection with the transactions, acts, practices, and courses of business alleged herein.

12. Defendants will, unless enjoined, continue to engage in the transactions, acts, practices and courses of business set forth in this Complaint, and transactions, acts, practices and courses of business similar in purport and object.

FACTUAL ALLEGATIONS

13. On the evening of May 20, 2003, at approximately 9:45 p.m., CKP filed with the Commission a Form 10-KSB for the year ended December 31, 2002 (the "May 20 Filing"), which contained unqualified independent auditor reports that purportedly had been authorized and issued by its current auditor Marcum & Kliegman LLP ("Marcum") and its former auditor BDO Seidman, LLP ("BDO Seidman"). The filing was officially stamped with a date of May 21, 2003. Contrary to CKP's representations and the defendants' knowledge, however, neither Marcum nor BDO Seidman had finalized (or consented to the filing of) their reports as of May 20. The May 20 Filing, moreover, contained material misstatements in the Company's statement of cash flows and several substantial errors and/or omissions in the financial footnotes that Marcum and BDO Seidman had previously brought to the defendants' attention.

14. On or about April 3, 2003, BDO Seidman had ceased functioning as CKP's independent auditor and CKP hired Marcum to succeed BDO Seidman. BDO Seidman remained responsible for CKP's consolidated financial statements for the year 2000 and the year ended December 31, 2001 to the extent such statements were required to be included in CKP's filings with the Commission. Marcum was retained for the specific purpose of auditing the Company's post-merger consolidated financial statements for the year ended December 31, 2002.

15. Kushner personally informed Marcum, at the outset of the relationship, that CKP needed to file its Form 10-KSB by May 20, 2003 to avoid being de-listed from the OTC Bulletin Board. Marcum was told that CKP intended to raise capital in the near future and, therefore, Kushner regarded even a temporary de-listing as potentially extremely detrimental to the Company. BDO Seidman was made aware of the May 20 deadline too.

16. CKP was required to file its Form 10-KSBs via the Commission's EDGAR (Electronic Data Gathering, Analysis and Retrieval) System. The EDGAR System accepts filings from 6:00 a.m. to 10:00 p.m., but only documents filed by 5:30 p.m. receive a "same day" date stamp. Documents filed between 5:31 p.m. and 10:00 p.m. are date stamped with the next day's date. Accordingly, CKP was required to file its Form 10-KSB by 5:30 p.m. on May 20, 2003 in order for it to be considered "officially" filed on that date.

17. In the days leading up to the May 20 deadline, on several occasions, Marcum informed CKP that it was highly unlikely that CKP's May 20 deadline would be met.

18. Marcum informed CKP in a telephonic conference on May 20, at 2:00 a.m. - in which defendants Kushner, DiLorenzo and Angel participated - that its audit was incomplete, several documents had not been provided to its audit team, final comments had yet to be incorporated and there were concerns remaining with the Company's financials. Marcum told CKP, at that point, that it intended to stop work for the night and would resume later in the morning of May 20.

19. Kushner, during the 2:00 a.m. telephonic conference, expressed anger to Marcum over Marcum's inability to complete the audit by the May 20 filing deadline. He accused Marcum of attempting to put CKP out of business. At the direct urging and insistence of Kushner, DiLorenzo, and Angel, Marcum continued to work throughout the night in an effort to meet the May 20 filing deadline.

20. Kushner called Marcum later on May 20, prior to the 5:30 filing deadline, in order to "thank" Marcum for working overnight. Marcum told Kushner that it still believed it would not make the May 20 filing deadline.

21. CKP missed the 5:30 p.m. deadline on May 20.

22. At approximately 6:45 p.m. on May 20 - an hour and 15 minutes after the filing technically should have been made - the Marcum partner in charge of the audit held a telephonic conference with DiLorenzo and John Yeend ("Yeend"), an independent contractor hired by CKP to maintain the Company's books and to help with filings. He informed them that Marcum also would not make the 10 p.m. deadline, but that Marcum would continue to work on the project the next day. The Marcum partner contemporaneously e-mailed DiLorenzo and Angel, referencing the phone call and reiterating that Marcum was not in a position to provide its signed opinion that evening.

23. Also on May 20, 2003, at approximately 6:30 p.m. and again at approximately 9 p.m., BDO Seidman complained to Yeend (who passed the complaint on to DiLorenzo and Angel) that CKP had not addressed all of its comments. BDO Seidman told CKP that CKP did not have BDO Seidman's consent to include its auditor report in the May 20 Filing unless all comments had been satisfactorily addressed. BDO also told CKP that, at that point, they would not be able to review and sign off on the filing until after the EDGAR System closed at 10 p.m.

24. Despite Marcum's explicit denial of its consent and the Company's failure to incorporate all of BDO Seidman's comments as required for its consent, CKP filed the Form 10-KSB electronically on May 20 at approximately 9:45 p.m.

25. CKP had taken an unsigned draft report that BDO Seidman had supplied to the Company in early 2002, and, without having addressed any of BDO Seidman's comments to the report, it electronically forged BDO Seidman's signature and dated the letter April 30, 2002. CKP likewise took an unsigned draft report that Marcum had supplied earlier and, without addressing Marcum's comments, electronically forged Marcum's signature and dated the report May 19, 2003. This was done without the knowledge and consent of either BDO Seidman or Marcum.

26. The May 20 Filing also contained several material misstatements and omissions - which Marcum and/or BDO Seidman had previously brought to CKP's attention - in the financial statements and footnotes. The statement of cash flows included in CKP's financial statements for 2002 reflected, among other things, an approximate $4 million cash deficit when, in fact, CKP's cash balance was $0 by year-end 2002. Further, it showed that $5.6 million had been used in operating activities in 2002 when, in fact, only $846,433 had been put to such uses. As a result, total assets reported by CKP were misstated by over 100%. The filing also misstated in the financial footnotes the number of shares outstanding following CKP's April 2002 reverse merger by nearly 600,000 shares, or 8% of the total outstanding shares as of year-end 2002. Omitted from the financial footnotes were certain pro forma basic and diluted net loss per common share figures required by accounting regulations SFAS 141 and APB 16. Such misstatements and omissions in CKP's May 20 Filing were material to investors' understanding of the Company's financial situation.

27. The May 20 Filing also contained the signed Sarbanes-Oxley certifications of Kushner and DiLorenzo, each of which stated, in relevant part, that:

  1. I have reviewed this annual report on Form 10-KSB of Cedric Kushner Promotions, Inc. (the "Registrant");

  2. Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report; and

  3. Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this annual report.

28. Kushner knew, from discussions with Angel on May 19, that possible repercussions of failing to file on May 20 were that trading in CKP's stock could be halted or that CKP could be de-listed from the OTC Bulletin Board. He regarded these possibilities as potentially devastating to CKP and had discussions with DiLorenzo and Angel and Marcum throughout May 20 in an effort to keep updated on Marcum's progress. In every such conversation, Kushner was told that Marcum had not completed its audit and believed it would not do so by the May 20 filing deadline. At no time did he receive word that Marcum had completed its audit and signed off on its opinion. Kushner thus knew, or was reckless in not knowing, that CKP did not have the consent of its independent auditor to file on the evening of May 20 and that the auditor reports included with the May 20 Filing were not authentic. Further, in violation of the duties imposed by Sarbanes-Oxley, he signed the May 20 Filing and the Sarbanes-Oxley certification without having read either document and without having taken any steps to determine their accuracy or truthfulness, relying instead on nothing more than Angel's representation to that effect. Had Kushner read the documents or made any reasonable inquiry, he would have known that the Form 10-KSB which CKP filed on May 20 contained the same material misstatements and omissions that the auditors had alerted him (and other CKP executives) to earlier that day. As the Chief Executive Officer, Kushner had a duty, imposed by the certification requirements of Sarbanes-Oxley and Exchange Act Rule 13a 14 promulgated thereunder, to review and take reasonable steps to determine the accuracy of the May 20 Filing, including the financial information contained therein, prior to signing the document. Because Kushner failed to do so, he knew, or was reckless in not knowing, that the Company's financial statements were materially false and misleading.

29. DiLorenzo was, with Angel, one of the primary contacts between CKP and the auditors. He at no point received the auditors' written or oral consent to file on May 20. To the contrary, he was affirmatively told on the evening of May 20 that Marcum had not finished its review and did not consent to the filing. Further, DiLorenzo was informed by Yeend via telephone on May 20 that BDO Seidman did not consent to inclusion of its auditor report in the May 20 Filing unless all of its comments had been addressed to its satisfaction. DiLorenzo thus knew, or was reckless in not knowing, that CKP did not have the consent of CKP's independent auditors to file and that the May 20 Filing lacked authentic signed independent auditor opinions. He also knew, or was reckless in not knowing, that the financial statements contained material inaccuracies that the auditors had previously brought to his attention. DiLorenzo, nevertheless, signed the May 20 Form 10-KSB and the Sarbanes-Oxley certification included therewith.

30. Angel was the other primary contact between CKP and the auditors. He too never received the auditors' written or oral consent to file on May 20. To the contrary, he was affirmatively told on the evening of May 20 that Marcum had not finished its review and did not consent to the filing. Further, on May 20, Angel discussed with Yeend and/or DiLorenzo the fact that CKP did not have BDO Seidman's consent to include its auditor report in the May 20 Filing unless all of the auditor's comments had been addressed to its satisfaction. Angel thus knew, or was reckless in not knowing, that CKP did not have the consent of CKP's independent auditors to file and that the May 20 Filing lacked authentic signed independent auditor opinions. He also knew, or was reckless in not knowing, that the financial statements contained material inaccuracies that the auditors had previously brought to his attention. Although Angel did not sign the Form 10 KSB or the Sarbanes-Oxley certification, as alleged above, he was instrumental in the filing process and worked closely with the auditors and Yeend during the days leading up to the May 20 Filing. Angel presented both the May 20 Filing and the attached certification to Kushner, informed Kushner that the documents were ready to be signed, and secured Kushner's signature on both documents prior to filing.

31. Marcum and BDO Seidman were informed of CKP's May 20 Filing via email at 9:53 p.m. on May 20. On May 21, after checking the EDGAR System, both realized that the May 20 Filing had attached what appeared to be signed, authentic auditor reports. On the morning of May 21, 2003, consistent with the requirements of Section 10A(b) of the Exchange Act, each independently contacted the CKP Board of Directors to (a) report that the May 20 Filing had been made without their consent or authorization and (b) request that the Board correct the May 20 Filing. Marcum reported to the CKP Board that its audit was not yet complete and was still subject to final review, its final comments had not been incorporated into CKP's financial statements and footnotes, and it had not authorized CKP to file its auditor report. BDO Seidman reported that it had recommended numerous changes to CKP that CKP had not incorporated into its May 20 Filing.

32. The CKP Board - whose members included Kushner, DiLorenzo and Angel - undertook a review of the events surrounding the May 20 Filing and concluded that the May 20 Filing had been made without the consent or authorization of Marcum and BDO Seidman. CKP publicly announced the Board's conclusion on May 23, 2004, in a Form 8-K.

33. On May 23, 2003, CKP filed a Form 10-KSB/A (the "May 23 Filing"), which omitted entirely the prior-filed auditor reports and included new, but still materially inaccurate, financial statements. No auditor reports were included in the May 23 Filing, despite warnings from Marcum on May 21 that, without auditor reports, such a filing would constitute a federal securities law violation. This time, however, Kushner and DiLorenzo did not include a Sarbanes-Oxley certification.

34. The May 23 Filing - like the May 20 Filing - contained material misstatements and omissions. Not only did it repeat, among other things, the same misstatements and omissions contained in the May 20 Filing regarding CKP's operating activities, but also added new material misstatements and omissions. For example, the May 23 Filing showed (a) $463,022 positive net cash flow for 2002 from investing activities when, in fact, CKP had a negative cash flow of $1.1 million from such activities, and (b) net cash proceeds of $4.5 million from financing activities in 2002 when, in fact, CKP had net cash flow from financing activities that year of only $1.9 million. These errors and misstatements in CKP's May 23 Filing were material to investors' understanding of the Company's financial situation.

35. CKP, Kushner, DiLorenzo and Angel knew, or were reckless in not knowing, that the May 23 Filing contained material misstatements and omissions and did not fairly and accurately present CKP's financial position. As members of the CKP Board of Directors, each had been contacted directly by Marcum and BDO Seidman on May 21 and was informed that, among other things, the May 20 Filing contained inaccurate financial statements that failed to reflect the auditors' comments. Each was fully aware that the audits, in fact, had not been completed by May 23. In fact, between May 21 and May 23, despite Kushner's, DiLorenzo's and Angel's efforts to contact the auditors, there were no direct communications between the auditors and CKP regarding the completion of the audit process. The auditors did not continue the review or comment process during that period. Defendants nonetheless made a conscious decision, on May 23, to file an amended Form 10-KSB, which contained different but still materially misleading financial statements. Defendants' acknowledged that they were filing materially misleading statements not approved by the auditors in the Form 8-K filed on May 23, which stated that: [CKP] has prepared an amended Form 10-KSB for the period ended December 31, 2002 and is aggressively seeking to have the amended report reviewed by the accountants in order to have the accountants provide any additional comments required to complete the report and to deliver their consent in connection with the filing.

[CKP] intends to file a further amended Form 10-KSB to rectify the filing, which report will include the reports and consents of appropriate independent certified public accountants with respect to [CKP's] financial statements, at the earliest practicable date.

CKP did not discuss completion of the audit with Marcum or BDO Seidman until on or about June 9, 2003.

36. On June 27, 2003, CKP filed a Form 10-KSB/A-1 with the Commission (the "June 27 Filing"), which contained signed and authorized auditor reports from Marcum and BDO Seidman and also revised (and corrected) financial statements and footnotes. CKP acknowledged, in the June 27 Filing, the material misstatements and omissions of its May 20 and 23 Filings. The June 27 Filing, for example, acknowledged that CKP did not have a cash deficit of $4 million as reported on May 20, but rather, had a cash balance of zero. The June 27 Filing acknowledged that CKP's investment activities had resulted in a negative net cash flow of $1.1 million, not a positive net cash flow of $463,022 as reported on May 23. Further, the June 27 Filing acknowledged that CKP had expended only $846,433 on operating activities for 2002, not the $5.6 million that had been reported on May 20 or the $5.0 million that had been reported on May 23. Additionally, the June 27 Filing acknowledged that CKP had received a net of $1.9 million from financing in 2002, not the $2.4 million reported on May 20 or the $4.5 million reported on May 23.

37. CKP failed to devise and maintain a system of internal controls sufficient to provide reasonable assurances that transactions were recorded as necessary to permit the preparation of its financial statements. CKP's failure to file accurate financial statements on a timely basis (and its auditors' inability to complete the audit on a timely basis) resulted in part from the Company's failure, through the actions of Kushner, Angel, and DiLorenzo, to make and keep books, records, and accounts that accurately and fairly reflected the Company's transactions and disposition of the Company's assets.

CAUSES OF ACTION

COUNT I

Violations of Exchange Act Section 10(b) and Rule 10b-5 Thereunder (All Defendants)

38. Plaintiff realleges and incorporates by reference Paragraphs 1 through 37 above.

39. Section 10(b) of the Exchange Act and Rule 10(b)-5 thereunder make it unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails, or of any facility of any national securities exchange, from employing any device, scheme or artifice to defraud, or from making any untrue statement of material fact or omitting to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or from engaging in any act, practice or course of business which operates or would operate as a fraud or deceit on any person, in connection with the purchase or sale of any security.

40. On May 20 and 23, 2003 respectively, CKP, Kushner, DiLorenzo and Angel filed a Form 10-KSB and a Form 10-KSB/A with the Commission that lacked authentic signed independent auditor opinions and contained materially incorrect financial statements. Additionally, Kushner and DiLorenzo made affirmative false statements by personally certifying that they had reviewed the Form 10-KSB and determined that, to the best of their knowledge, the annual report did not contain any untrue statement of material fact or omit to state a material fact. Furthermore, Kushner so certified without ever reviewing the Form 10-KSB, and without taking any steps to ensure that the annual report was true and accurate. Angel approved for Kushner's signature both materially misleading filings despite the fact that he knew, or was reckless in not knowing, that: (1) the audit was not yet complete; (2) CKP had not received the approval of either BDO Seidman or Marcum to file; and (3) the financial statements therein were incomplete, inaccurate, and materially misleading.

41. By reason of the conduct described above, defendants CKP, Kushner, DiLorenzo and Angel violated Section 10(b) of the Exchange Act [15 U.S.C. 78j(b)] and Rule 10b-5 thereunder [17 C.F.R. 240.10b-5].

COUNT II

Aiding and Abetting Violations of Exchange Act Section 10(b) and Rule 10b-5 Thereunder(Angel)

42. Plaintiff realleges and incorporates by reference Paragraphs 1 through 41 above.

43. Section 20(e) of the Exchange Act [15 U.S.C. 78t(e)] provides that any person that knowingly provides substantial assistance to another person in violation of a provision of the Exchange Act, or of any rule or regulation issued under the Exchange Act, shall be deemed to be in violation of such provision to the same extent as the person to whom such assistance is provided.

44. By reason of the conduct described above, defendant Angel knowingly provided substantial assistance to defendants CKP, Kushner and DiLorenzo in their violation of Section 10(b) of the Exchange Act [15 U.S.C. 78j(b)] and Rule 10b-5 thereunder [17 C.F.R. 240.10b-5]. By reason of that conduct, defendant Angel violated Section 20(e) of the Exchange Act.

COUNT III

Violations of Exchange Act Section 13(a) and Rules 13a-1 and 12b-20 Thereunder (CKP)

45. Plaintiff realleges and incorporates by reference Paragraphs 1 through 44 above.

46. Section 13(a) of the Exchange Act and Rule 13a-1 thereunder require issuers of registered securities to file with the Commission factually accurate annual reports. Section 13(a)(2) of the Exchange Act requires that annual reports be "certified" by independent accountants, which means examined and reported upon with an opinion expressed by an independent public accountant. Exchange Act Rule 12b-20 provides that in addition to the information expressly required to be included in a statement or report, there shall be added such further material information, if any, as may be necessary to make the required statements, in the light of the circumstances under which they are made not misleading.

47. CKP filed a Form 10-KSB on May 20, 2003 consisting of unauthorized audit reports and financial statements containing material misstatements, inaccuracies and classification errors. The annual report lacked material information necessary to make the required statements in the filing, in light of the circumstances under which they were made, not misleading. CKP filed a Form 10-KSB/A on May 23, 2003 that omitted auditor reports entirely and made additional material misstatements.

48. By reason of the conduct described above, defendant CKP violated Section 13(a) of the Exchange Act [15 U.S.C. 78m(a)] and Rules 13a-1 and 12b-20 thereunder [17 C.F.R. 240.13a-1 and 240.12b-20].

COUNT IV

Violations of Exchange Act Sections 13(b)(2)(A) and 13(b)(2)(B)(CKP)

49. Plaintiff realleges and incorporates by reference Paragraphs 1 through 48 above.

50. Section 13(b)(2)(A) of the Exchange Act requires that reporting companies make and keep books, records and accounts which, in reasonable detail, accurately and fairly reflect the transactions and disposition of the reporting companies' assets. Section 13(b)(2)(B) of the Exchange Act requires, among other things, that reporting companies devise and maintain a system of internal controls sufficient to provide reasonable assurances that transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP.

51. CKP's books and records were inaccurate throughout its most recent fiscal year end. CKP failed to devise and maintain a system of internal controls sufficient to provide reasonable assurances that transactions are recorded as necessary to permit the preparation of its financial statements.

52. By reason of the conduct described above, defendant CKP violated Sections 13(b)(2)(A) and 13(b)(2)(B) of the Exchange Act [15 U.S.C. 78m(b)(2)(A) and 78m(b)(2)(B)].

COUNT V

Aiding and Abetting Violations of Exchange Act Sections 13(a), 13(b)(2)(A) and
13(b)(2)(B)and Rules 13a-1 and 12b-20 Thereunder
(Kushner, DiLorenzo and Angel)

53. Plaintiff realleges and incorporates by reference Paragraphs 1 through 52 above.

54. Section 20(e) of the Exchange Act [15 U.S.C. 78t(e)] provides that any person that knowingly provides substantial assistance to another person in violation of a provision of the Exchange Act, or of any rule or regulation issued under the Exchange Act, shall be deemed to be in violation of such provision to the same extent as the person to whom such assistance is provided.

55. By reason of the conduct described above, defendants Kushner, DiLorenzo and Angel knowingly provided substantial assistance to defendant CKP in its violation of Sections 13(a), 13(b)(2)(A) and 13(b)(2)(B) of the Exchange Act [15 U.S.C. 78m(a), 78m(b)(2)(A) and 78m(b)(2)(B)] and Rules 13a-1 and 12b-20 thereunder [17 C.F.R. 240.13a-1 and 240.12b-20]. By reason of that conduct, defendants Kushner, DiLorenzo and Angel violated Section 20(e) of the Exchange Act.

COUNT VI

Exchange Act Section 20(a) Control Person Liability
(Kushner)

56. Plaintiff realleges and incorporates by reference Paragraphs 1 through 55 above.

57. Section 20(a) of the Exchange Act [15 U.S.C. 78t(a)] provides that any person who, directly or indirectly, controls any person liable under any provision of the Exchange Act, or of any rule or regulation issued under the Exchange Act, shall also be liable jointly and severally with and to the same extent as the controlled is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action.

58. Defendant Kushner possessed, directly and indirectly, the power to direct and control CKP's management and policies, including CKP's management of and policies surrounding its financial reporting and compliance with the Commission's antifraud provisions and reporting requirements. Kushner was, therefore, a controlling person of CKP pursuant to Section 20(a) of the Exchange Act.

59. As described above, defendant Kushner was a culpable participant in conduct that resulted in CKP filing a Form 10-KSB on May 20, 2003 and a Form 10-KSB/A on May 23, 2003 that contained materially false and misleading financial statements and lacked authentic, signed independent auditor opinions. Kushner failed to act in good faith during the filing process and directly or indirectly induced the filing of both annual reports, resulting in the aforementioned antifraud, reporting, books and records, and internal controls violations.

60. By reason of the foregoing, Kushner is liable as a controlling person pursuant to Section 20(a) of the Exchange Act for CKP's violations of Section 10(b) of the Exchange Act [15 U.S.C. 78j(b)] and Rule 10b-5 thereunder [17 C.F.R. 240.10b-5], as well as Sections 13(a), 13(b)(2)(A) and 13(b)(2)(B) of the Exchange Act [ 78m(a), 78m(b)(2)(A) and 78m(b)(2)(B)] and Rules 13a-1 and 12b-20 thereunder [17 C.F.R. 240.13a-1 and 240.12b-20], and unless enjoined, will again violate these provisions of the Exchange Act and Rules thereunder.

COUNT VII

Violations of Exchange Act Rule 13a-14
(Kushner and DiLorenzo)

61. Plaintiff realleges and incorporates by reference Paragraphs 1 through 60 above.

62. Exchange Act Rule 13a-14 [17 C.F.R. 240.13a-14] - adopted by the Commission as required by Section 302 (a) of Sarbanes-Oxley - requires an issuer's principal executive and principal financial officers to certify in each quarterly and annual report filed under Section 13(a) of the Exchange Act [15 U.S.C. 78m(a)], that, among other things, they have reviewed the report and based on their knowledge (i) the report does not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading and (ii) the financial statements and other financial information included in the report, fairly present in all material respects the financial condition, results of operations and cash flows of the issuer, with respect to the period covered by the report.

63. By reason of the conduct described above, defendants DiLorenzo and Kushner violated Exchange Act Rule 13a-14 [17 C.F.R. 240.13a-14].

PRAYER FOR RELIEF

WHEREFORE, the Commission respectfully requests that the Court enter Orders:

I.

Permanent Injunctive Relief (All Defendants)

A. Permanently restraining and enjoining CKP from violating Sections 10(b), 13(a), 13(b)(2)(A) and 13(b)(2)(B) of the Exchange Act [15 U.S.C. 78j(b), 78m(a), 78m(b)(2)(A) and 78m(b)(2)(B)] and Rules 10b-5, 13a-1 and 12b-20 thereunder [17 C.F.R. 240.10b-5, 240.13a-1 and 240.12b-20].

B. Permanently restraining and enjoining DiLorenzo from violating Section 10(b) of the Exchange Act [15 U.S.C. 78j(b)], Section 302 of Sarbanes-Oxley, and Exchange Act Rules 10b-5 and 13a-14 [17 C.F.R. 240.10b-5 and 240.13a-14]; and from aiding and abetting violations of Sections 13(a), 13(b)(2)(A), and 13(b)(2)(B) of the Exchange Act [15 U.S.C. 78m(a), 78m(b)(2)(A) and 78m(b)(2)(B)] and Rules 13a-1 and 12b-20 thereunder [17 C.F.R. 240.13a-1 and 240.12-20].

C. Permanently restraining and enjoining Kushner from violating Section 10(b) of the Exchange Act [15 U.S.C. 78j(b)], Section 302 of Sarbanes-Oxley, and Exchange Act Rules 10b-5 and 13a-14 [17 C.F.R. 240.10b-5 and 240.13a-14]; and from aiding and abetting violations of Sections 13(a), 13(b)(2)(A), and 13(b)(2)(B) of the Exchange Act [15 U.S.C. 78m(a), 78m(b)(2)(A) and 78m(b)(2)(B)] and Rules 13a-1 and 12b-20 thereunder [17 C.F.R. 240.13a-1 and 240.12-20].

D. Permanently restraining and enjoining Angel from violating Section 10(b) of the Exchange Act [15 U.S.C. 78j(b)] and Rule 10b-5 thereunder [17 C.F.R. 240.10b-5]; and from aiding and abetting violations of Sections 13(a), 13(b)(2)(A), and 13(b)(2)(B) of the Exchange Act [15 U.S.C. 78m(a), 78m(b)(2)(A) and 78m(b)(2)(B)] and Rules 13a-1 and 12b-20 thereunder [17 C.F.R. 240.13a-1 and 240.12-20].

II.

Permanent Officer and Director Bar
(Kushner, DiLorenzo and Angel)

Permanently barring Kushner, DiLorenzo and Angel from serving as an officer or director of any public company pursuant to Section 21(d) of the Exchange Act [15 U.S.C. 78u(d)].

III.

Civil Money Penalties
(Kushner, DiLorenzo and Angel)

Imposing civil monetary penalties on Kushner, DiLorenzo and Angel pursuant to Section 21(d) of the Exchange Act [15 U.S.C. 78u(d)].

IV.

Further Relief
(All Defendants)

Granting such other and further relief as may be necessary and appropriate.

V.

Retention of Jurisdiction
(All Defendants)

Further, the Commission respectfully requests that the Court retain jurisdiction over this action in order to implement and carry out the terms of all orders and decrees that may herein be entered, or to entertain any suitable application or motion by the Commission for additional relief within the jurisdiction of this Court.

Dated: March 22, 2004

Washington, DC

Respectfully submitted,

By:
Suzanne J. Romajas (SR-4531)
Assistant Chief Litigation Counsel

Attorney for Plaintiff
SECURITIES AND EXCHANGE COMMISSION
450 Fifth Street, NW
Mail Stop 09-11,br> Washington, DC 20549
Tel: 202-942-7934 (Romajas)
Fax: 202-942-9581 (Romajas)
Email: RomajasS@sec.gov

Of Counsel:
Paul R. Berger, Esq.
Mark Kreitman, Esq.C.
Hunter Wiggins, Esq.
David B. Witherspoon, Esq.

 

http://www.sec.gov/litigation/complaints/comp18638.htm


Modified: 03/25/2004