Securities and Exchange Commission
Litigation Release No. 18586 / February 23, 2004
Securities and Exchange Commission v. Aqua Vie Beverage Corp., Thomas J. Gillespie, and Joseph J. Wozniak
U.S. District Court for the Southern District of New York, Civil Action No. 04 Civ. 1528(JK),
Docket No. 2:03CV00914DAK (USDC, D.Ut.)
The Securities and Exchange Commission today filed a civil injunctive action against Aqua Vie Beverage Corp., a beverage company based in Ketchum, Idaho, and its CEO, Thomas Gillespie, as well as a major shareholder, Joseph Wozniak. This action follows the Commission's 10-day suspension of trading in Aqua Vie common stock on May 2, 2003. Aqua Vie stock formerly traded on the over-the-counter bulletin board.
The Commission's complaint alleges that Aqua Vie and Gillespie fraudulently promoted Aqua Vie's common stock from by means of millions of one-page tout sheets faxed to homes and businesses. Aqua Vie, Gillespie and Wozniak also offered millions of shares of Aqua Vie's common stock publicly, without any registration statement in effect as to the offering. The unregistered public offering included 2,750,000 shares offered and sold from November 2002 through May 2003 by a company that distributed Aqua Vie's faxes, Fax.com, Inc. According to the complaint, the defendants dumped millions of shares into a market reflecting demand created by the fax promotion, without disclosing the increase in the public float of Aqua Vie securities. The unregistered offer and sale effectively kept afloat a struggling company that was far more successful at marketing its stock than its only product, bottled water.
According to the complaint, the tout sheets presented Aqua Vie, a boutique bottled-water company, in an unrealistically favorable light, projecting high revenues and stock prices, and excluding a dismal history of sales and the expected termination of Aqua Vie's bottling agreement. Neither Aqua Vie's Commission filings nor the tout sheets disclosed the company's substantial and prolonged unregistered offering of securities, nor its arrangement with Fax.com. Further, Aqua Vie has not publicly filed any current financial information with the Commission. The company is delinquent with respect to its most recent Form 10-K and its Form 10-Q for its quarter ended October 31, 2003.
The Complaint alleges that Aqua Vie and Gillespie violated the anti-fraud provisions and certification provisions, and that they, along with Wozniak, violated the registration requirement. In addition, Aqua Vie and Gillespie are alleged to have violated the reporting requirements (for the late filing of the company's annual and quarterly report). The Commission is seeking injunctive relief with respect to all three defendants; disgorgement, pre-judgment interest, civil monetary penalties and penny-stock bar from Gillespie and Wozniak, and with respect to Gillespie only, a penny-stock bar.