Opinion
Civil Action No. 1:18 cv 03634 (NRB)
01-21-2021
EMA FINANCIAL, LLC, Plaintiff, v. nFUSZ, Inc. Defendant.
ORDER AND FINAL JUDGMENT
WHEREAS, EMA Financial, LLC ("plaintiff") commenced this action against defendant NFusz, Inc. ("defendant") on April 24, 2018;
WHEREAS, defendant filed an answer with counterclaims on July 20, 2018;
WHEREAS, on March 16, 2020, the Court entered a Memorandum and Order granting plaintiff's motion for partial summary judgment and dismissing defendant's usury defense, but denying plaintiff's motion for a declaratory judgment and ordering that the cashless exercise formula contained in the Warrants be reformed in accordance with the formula advanced by defendant Nfusz;
WHEREAS, on December 22, 2020, the Court entered a Memorandum and Order granting in part and denying in part plaintiff's motion for summary judgment on damages, and denying defendant's motion to amend its answer with counterclaims;
WHEREAS, on January 4, 2021, plaintiff submitted an affidavit supporting its calculation of damages pursuant to the Court's December 22, 2020 Memorandum and Order;
NOW, upon all prior proceedings herein, it is hereby:
ORDERED AND ADJUDGED, that, as set forth in the Court's March 16, 2020 Memorandum and Order and in accordance with defendant's Fourth Counterclaim for reformation, the cashless exercise formula set forth in Section 2(c) of the December 5, 2017 and January 11, 2018 Warrants is hereby reformed so that the Section 2(c) formula, previously stated as "dividing [(A-B)(X)] by (B)" is reformed to "dividing [(A-B)(X)] by (A)"; and it is further
ORDERED AND ADJUDGED, that, pursuant to plaintiff's First Cause of Action in the operative Complaint, judgment is hereby entered in favor of plaintiff only as to the 467,836 shares due under the reformed cashless exercise formula in the amount of $463,571.98, of which $462,565.78 is comprised of compensatory damage ($389,707.39) plus, pursuant to Nev. Rev. Stat. § 99.040, prejudgment interest through January 3, 2021 ($72,858.39), plus $55.90 per diem interest for each day thereafter through the date of the entry of this Judgment ($1,006.20); and it is further
ORDERED AND ADJUDGED that plaintiff is entitled to post-judgment interest pursuant to 28 U.S.C. § 1961 accruing at the statutory rate from the date hereof; and it is further
ORDERED AND ADJUDGED, that each remaining claim and counterclaim in this action is hereby dismissed; and it is further
ORDERED that the Clerk of the Court shall enter this Judgment and terminate the case. Dated: New York, New York
January 21, 2021
SO ORDERED AND ADJUDGED:
/s/_________
Hon. Naomi Reice Buchwald
US District Judge