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Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 May 18 2:34 PM-18CV002305
OE157 - Y6é
Exhibit 1
Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 May 18 2:34 PM-18CV002305
OE157 - Y6é
IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
ED MAP, INC.,
Plaintiff, Case No, 18-CV-002305
VS.
DELTA CAREER EDUCATION Judge David Cain
CORPORATION, ET AL.,
Defendants.
AFFIDAVIT OF MICHAEL ZAWISKY
STATE OF TEXAS )
TARRANT COUNTY ) ss.
Now comes Michael Zawisky, who being of lawful age and after being duly cautioned
and sworn, hereby states the following:
1 My name is Michael Zawisky. I am the Chief Executive Officer of STVT-AAT
Education, Inc. dba Ancora Education (“Ancora”), a Defendant in this action. I make this
Affidavit in support of Ancora’s Motion to Dismiss for Lack of Personal Jurisdiction. I have
personal knowledge of the facts set forth in this Affidavit.
2 Ancora is a Texas corporation with its principal place of business in Hurst, Texas.
It is in the business of providing career education and related services. It owns and/or operates a
number of career education centers, all outside the State of Ohio.
3 Ancora does not maintain any operations or have any other physical presence in
Ohio.
Ancora personnel do not regularly travel to Ohio for business purposes.
(019-8628-9265/5/AMERICAS.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 May 18 2:34 PM-18CV002305
OE157 - Y6é
5 Ancora undertakes no direct marketing in Ohio.
6 Ancora is not, and never was, a party to the alleged contract between Ed Map,
Inc. (“Plaintiff”) and Delta Career Education Corporation (the “Delta Contract”), as described in
the Complaint. Ancora did not participate in the negotiation of the Delta Contract, is not an
assignee of the Delta Contract, and did not receive any services or benefits under the Delta
Contract.
7 On or about January 18, 2018, well after Delta’s alleged breaches of the Delta
Contract, an Ancora affiliate named Ancora Intermediate Holdings LLC (“Ancora Holdings”)
entered into an asset purchase agreement (“APA”) with Delta Career Education Corporation and
several of its affiliates (collectively, “Delta”). Ancora Holdings is a Texas limited liability
company. Like Ancora, Ancora Holdings has no physical presence in Ohio and no contacts in
Ohio related to Plaintiff's claims.
8 In this transaction, Delta agreed to transfer specified assets, including certain
Delta career education facilities outside of Ohio, to Ancora, but neither Ancora nor Ancora
Holdings acquired Delta itself or assumed any Delta liabilities or debts other than those expressly
identified in the APA. The Delta Contract was neither purchased nor assumed by Ancora. In
any event, Delta expressly agreed as part of this transaction that any Delta liability or obligation
arising out of any breach or default prior to the closing date belonged solely to Delta, not
Ancora,
9 The APA was neither negotiated nor executed in Ohio. No center, facility or
entity that Ancora acquired or is operating as a result of the APA-has a physical presence in
Ohio. No party to the APA is or was an Ohio entity.
010-8628-9265/S/AMERICAS
Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 May 18 2:34 PM-18CV002305
OE157 - Y7
10. Ancora never provided any assurance to Plaintiff, in connection with discussions
around the APA or otherwise, that it would pay or guarantee payment of Delta’s debt, if any, to
Plaintiff.
11. I am aware of the suggestion in Plaintiff's Complaint that Bill Nance or Tim
Ryder made representations to Plaintiff in December 2017 to the effect that Ancora, which was
still in negotiations with Delta at the time, would pay or otherwise stand behind Delta’s debt to
Plaintiff. I have no personal knowledge of what, if anything, was said to Plaintiff by Delta
representatives on this subject in December 2017, but as noted above, I know that neither Ancora
nor any authorized representative of the company made such a statement to Plaintiff.
12. In December 2017, neither Bill Nance nor Tim Ryder were employees or agents
of Ancora or any of its affiliates, and neither was authorized by Ancora to make any statement on
its behalf, much less the commitment suggested by Plaintiff. Ancora never communicated with
Plaintiff about the Delta Contract prior to January 2018, and it never said or did anything by
which Plaintiff could reasonably have assumed either Mr. Nance or Mr. Ryder spoke for or was
acting on behalf of Ancora at that time.
13. Tim Ryder has never been an employee or agent of Ancora, and has never been
authorized to speak on Ancora’s behalf. Ancora has no knowledge of any instance in which Mr.
Ryder purported to provide payment assurances to Plaintiff on Ancora’s behalf. In the unlikely
event Mr. Ryder provided any payment assurances to Plaintiff, he did so on behalf of Delta and
was not authorized to do so on behalf of Ancora.
14. Bill Nance was employed by Delta, not Ancora, in December 2017. Ancora has
no knowledge of any instance in which Mr. Nance purported to provide payment assurances to
Plaintiff on Ancora’s behalf, and he denies having done so. In the unlikely event Mr. Nance
010-8628-9265/5/AMERICAS
Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 May 18 2:34 PM-18CV002305
OE157 - Y7
provided any payment assurances to Plaintiff, he did so on behalf of Delta and was not
authorized to do so on behalf of Ancora.
1S. in early 2618, after Ancora and Delta closed on the APA, Mr. Nance was hired by
Ancora. At no time during his employment with Ancora has Mr. Nance made any representation
or given any assurance to Plaintiff about payment on the Delta Contract by Ancora or its
affiliates. He has never been authorized to speak for Ancora on this subject.
16, To the best of my knowledge and belief, Ancora has never transacted any
business with Plaintiff.
Further affiant sayeth naught.
Michael Zay tay
; LA?
Sworn to and subscribed before me this i §
/
day of May, 2018.
sn cea NSS & WK
aad
Notary Public for Texa:
—
RICHARD POMPA
ly Notary 00 # 194498807
ie Explens March 2, My commission expires: Siar BOR 2.
910-8626 (AMERICAS
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Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 May 18 2:34 PM-18CV002305 OE157 - Y6é Exhibit 1 Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 May 18 2:34 PM-18CV002305 OE157 - Y6é IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO ED MAP, INC., Plaintiff, Case No, 18-CV-002305 VS. DELTA CAREER EDUCATION Judge David Cain CORPORATION, ET AL., Defendants. AFFIDAVIT OF MICHAEL ZAWISKY STATE OF TEXAS ) TARRANT COUNTY ) ss. Now comes Michael Zawisky, who being of lawful age and after being duly cautioned and sworn, hereby states the following: 1 My name is Michael Zawisky. I am the Chief Executive Officer of STVT-AAT Education, Inc. dba Ancora Education (“Ancora”), a Defendant in this action. I make this Affidavit in support of Ancora’s Motion to Dismiss for Lack of Personal Jurisdiction. I have personal knowledge of the facts set forth in this Affidavit. 2 Ancora is a Texas corporation with its principal place of business in Hurst, Texas. It is in the business of providing career education and related services. It owns and/or operates a number of career education centers, all outside the State of Ohio. 3 Ancora does not maintain any operations or have any other physical presence in Ohio. Ancora personnel do not regularly travel to Ohio for business purposes. (019-8628-9265/5/AMERICAS. Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 May 18 2:34 PM-18CV002305 OE157 - Y6é 5 Ancora undertakes no direct marketing in Ohio. 6 Ancora is not, and never was, a party to the alleged contract between Ed Map, Inc. (“Plaintiff”) and Delta Career Education Corporation (the “Delta Contract”), as described in the Complaint. Ancora did not participate in the negotiation of the Delta Contract, is not an assignee of the Delta Contract, and did not receive any services or benefits under the Delta Contract. 7 On or about January 18, 2018, well after Delta’s alleged breaches of the Delta Contract, an Ancora affiliate named Ancora Intermediate Holdings LLC (“Ancora Holdings”) entered into an asset purchase agreement (“APA”) with Delta Career Education Corporation and several of its affiliates (collectively, “Delta”). Ancora Holdings is a Texas limited liability company. Like Ancora, Ancora Holdings has no physical presence in Ohio and no contacts in Ohio related to Plaintiff's claims. 8 In this transaction, Delta agreed to transfer specified assets, including certain Delta career education facilities outside of Ohio, to Ancora, but neither Ancora nor Ancora Holdings acquired Delta itself or assumed any Delta liabilities or debts other than those expressly identified in the APA. The Delta Contract was neither purchased nor assumed by Ancora. In any event, Delta expressly agreed as part of this transaction that any Delta liability or obligation arising out of any breach or default prior to the closing date belonged solely to Delta, not Ancora, 9 The APA was neither negotiated nor executed in Ohio. No center, facility or entity that Ancora acquired or is operating as a result of the APA-has a physical presence in Ohio. No party to the APA is or was an Ohio entity. 010-8628-9265/S/AMERICAS Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 May 18 2:34 PM-18CV002305 OE157 - Y7 10. Ancora never provided any assurance to Plaintiff, in connection with discussions around the APA or otherwise, that it would pay or guarantee payment of Delta’s debt, if any, to Plaintiff. 11. I am aware of the suggestion in Plaintiff's Complaint that Bill Nance or Tim Ryder made representations to Plaintiff in December 2017 to the effect that Ancora, which was still in negotiations with Delta at the time, would pay or otherwise stand behind Delta’s debt to Plaintiff. I have no personal knowledge of what, if anything, was said to Plaintiff by Delta representatives on this subject in December 2017, but as noted above, I know that neither Ancora nor any authorized representative of the company made such a statement to Plaintiff. 12. In December 2017, neither Bill Nance nor Tim Ryder were employees or agents of Ancora or any of its affiliates, and neither was authorized by Ancora to make any statement on its behalf, much less the commitment suggested by Plaintiff. Ancora never communicated with Plaintiff about the Delta Contract prior to January 2018, and it never said or did anything by which Plaintiff could reasonably have assumed either Mr. Nance or Mr. Ryder spoke for or was acting on behalf of Ancora at that time. 13. Tim Ryder has never been an employee or agent of Ancora, and has never been authorized to speak on Ancora’s behalf. Ancora has no knowledge of any instance in which Mr. Ryder purported to provide payment assurances to Plaintiff on Ancora’s behalf. In the unlikely event Mr. Ryder provided any payment assurances to Plaintiff, he did so on behalf of Delta and was not authorized to do so on behalf of Ancora. 14. Bill Nance was employed by Delta, not Ancora, in December 2017. Ancora has no knowledge of any instance in which Mr. Nance purported to provide payment assurances to Plaintiff on Ancora’s behalf, and he denies having done so. In the unlikely event Mr. Nance 010-8628-9265/5/AMERICAS Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 May 18 2:34 PM-18CV002305 OE157 - Y7 provided any payment assurances to Plaintiff, he did so on behalf of Delta and was not authorized to do so on behalf of Ancora. 1S. in early 2618, after Ancora and Delta closed on the APA, Mr. Nance was hired by Ancora. At no time during his employment with Ancora has Mr. Nance made any representation or given any assurance to Plaintiff about payment on the Delta Contract by Ancora or its affiliates. He has never been authorized to speak for Ancora on this subject. 16, To the best of my knowledge and belief, Ancora has never transacted any business with Plaintiff. Further affiant sayeth naught. Michael Zay tay ; LA? Sworn to and subscribed before me this i § / day of May, 2018. sn cea NSS & WK aad Notary Public for Texa: — RICHARD POMPA ly Notary 00 # 194498807 ie Explens March 2, My commission expires: Siar BOR 2. 910-8626 (AMERICAS