UPDATE: Gym closes after federal judge derails Znetix/HMC
June 9, 2008 · Updated 4:12 PM
Of the $74 million raised from 5,000 investors nationwide, only some $500,000 appears to have gone unspent.
And saying she saw no hope that the Bainbridge-based Znetix/HMC would become viable, federal Judge Marsha Pechman Thursday appointed a receiver to find whatever assets remain a decision company attorneys said is a death knell for the businesses.
I see nothing to go forward with, no assets from which a company can function, Pechman said, ruling from the bench after a two-hour hearing in a packed Seattle courtroom.
The gym on Madison Avenue variously referred to as Human Performance Center and Health Maintenance Center, and once touted as the proof of concept for the Lawrence business plan closed its doors Thursday evening, and remained shuttered Friday.
A hand-lettered sign in the door said the receiver would provide additional information, perhaps as soon as the weekend, but gave no specifics.
Curious and disgruntled gym members and passersby showed up throughout the day, drawn by the empty parking lot and turned away by the locked doors.
Damn! one woman said, as she read the sign announcing the gyms closure. I was thinking of coming here this evening.
It sucks that were probably going to lose our (membership) money, she said, but thats not what Im worried about. I want to still come here and work out.
The decision to shutter the business, at least temporarily, was made by court-appointed receiver Michael Grassmueck of Portland, Ore. The court Thursday assigned Grassmueck to take control of all Znetix/HMC operations immediately.
After the hearing, Grassmueck said that one of his priorities would be determining the future of the fitness center, from which he will be working.
But he gave no indication at that time that the doors would be closed for any period, and declined further comment.
Grassmuecks assignment from the court includes locating all assets of the businesses and the individual defendants and placing them under court custody and locating and repatriating any offshore bank accounts.
The ruling came in proceedings following a civil lawsuit filed by the federal Securities and Exchange Commission against Health Maintenance Centers, Inc., and Znetix principals Kevin Lawrence of Bainbridge Island and Donovan Claflin of Redmond.
The suit alleges that the companies bilked investors nationwide in what regulators call a $74 million securities fraud scheme.
Also named in the complaint were a number of so-called relief defendants individuals who did not violate securities laws, but who may have received financial benefits arising out of the alleged violations of others.
The SEC also sued two entities called Cascade Pointe, which allegedly tried to raise money from investors to buy HMC/Znetix. The money was being raised, in part, to pay off any HMC stockholders who wanted their money back.
Cascade Pointe raised some $17 million, the SEC claimed. No statements were made in court about those funds, but Pechmans order prevents any further sales of Cascade Pointe securities.
When the SEC filed its action of Jan. 23, it secured a temporary freeze on assets of the various defendants.
The hearing Thursday was on the SECs motion to extend the freeze until final resolution of the case, and to give the defendants a chance to be heard.
ADS FOR IMAGE
The SEC laid out its case that Lawrence, a Bainbridge Island resident, and Claflin had sold some $74 million in unregistered HMC stock, and had made various misrepresentations in so doing.
No matter whether people bought stock in HMC or any other entity, they were ultimately investing in Znetix, said senior SEC trial counsel Nicolas Morgan.
According to the SECs complaint, HMC investors were told that Znetix would buy out HMC, then offer its shares to the public in an initial public offering.
They were told that the would receive multiple shares of Znetix for each share of HMC stock, and could sell their Znetix stock on the open market after the IPO.
The product was supposed to be a line of gymnasiums integrating fitness and medical equipment, which would be licensed to clubs around the country.
But Morgan said the Znetix IPO was a mirage.
There were no financials, no underwriters and no registration statement, he said.
Instead, there was ongoing, high-profile advertising through sponsorship of racing hydroplanes and a Safeco Field sign efforts to create an image that this was a substantial company, Morgan said.
And there were large sums of money paid to the principals, especially to Lawrence, Morgan said.
Morgan showed the court a pie chart of where the SEC believes the $74 million went, including 22 percent some $16.25 million the principals spent on expensive cars, houses and gifts for family and friends. The presentation included photos of Lawrence-owned homes in Hawaii and on Bainridge Island, and his Lamborghini sports car.
The SECs percentage breakdown, together with a dollar breakdown based on those percentages:
* Salaries and payroll taxes 27 percent ($20 million);
* Misappropriated 22 percent ($16.25 million);
* Undetermined 11 percent ($8 million);
* Acquisitions 9 percent ($6.6 million);
* Advertising and sponsorships 8 percent ($6 million);
* Land, furniture and assets 7 percent ($5.2 million);
* Supplies and office expenses 5 percent ($3.7 million);
* Professional services 4 percent ($3 million);
* Travel and entertainment 4 percent ($3 million);
* Rent, insurance and utilities 3 percent ($2.2 million).
Note that there is no slice there representing assets, Morgan said. We have only been able to find $500,000 in the various bank accounts.
Basically, there is nothing left.
Lawrence was present at the Thursday hearing, but did not address the court.
Counsel for the defendants did not try to refute the SECs claims of illegal security sales or improper diversion of assets. Nor did they contest that little remained of the $74 million in investor funds.
Rather, they tried to distance the companies from Lawrence, and pleaded with Pechman for a chance to move forward with the concept.
We have an investor willing to put $5 million into the company on Feb. 22 if the court does not appoint a receiver, said Mark Holscher of the Los Angeles firm of OMelveny & Myers, representing Znetix and HMC.
The fusion of going to the gym and working out, being monitored by cutting-edge equipment and going to the doctor is so powerful that unsolicited investments have been rolling in despite Lawrences youth and inexperience, he said.
Going forward with a new and independent board of directors and giving the idea a chance to work is the only way the investors could recover any of their money, Holscher argued.
The receiver the SEC wants appointed is a specialist at finding assets, not at running health clubs, Holscher said. The SEC is asking the court in the name of the shareholders to destroy this company today.
But Pechman noted that the proposed board of directors contained a number of individuals who had previously been associated with Znetix or HMC.
If they have enough experience to run the company, she said, why didnt they catch these problems earlier?
The judge also expressed concerns about allowing additional money to come into companies with highly uncertain prospects.
How can I tell investors willing to pour money in that Im willing to let this company operate without books and records? she asked.
Lawrences attorney, Robert Chadwell of Seattle, did not comment on the allegations against his client. Rather, he said that Lawrence is willing to disassociate himself completely from HMC and Znetix, and said Lawrence is considering a job offer with a marine design company.
Chadwell also argued that appointing a receiver would be futile.
As the SEC points out, the assets appear to be limited, Chadwell said. If we appoint a receiver, accountants will be paid and attorneys will be paid, but there wont be anything left for the investors.
The courtroom was packed with 80 to 100 spectators, many of them investors or one-time employees.
Further court proceedings will resolve, among other issues, the priorities for asset recovery among past and present employees who claim they have not been paid; settlements for other creditors, including various lien claimants; and repayment of shareholders.
For the investors, the news was bad there will be no Znetix IPO, there are virtually no assets, and the chances for getting any substantial portion of their money back, much less a profit, appears remote.
One message posted on the an Internet message board dedicated to the Znetix operations seemed to capture the feelings of many.
This sucks bad, the poster wrote after learning of the judges decision. Were done!