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FOLGER LEVIN & KAHN LLP Gregory D. Call (CSB No. 120483, [email protected]) Loni A. Mahanta (CSB No. 253885, [email protected]) Embarcadero Center West 275 Battery Street, 23rd Floor San Francisco, CA 94111 Telephone: (415) 986-2800 Facsimile: (415) 986-2827 Attorneys for Plaintiff Vintage Racing Motors, Inc.
6 7 8 9 10 11 12 Plaintiff, 13 v. 14 15 16 17 Defendants. 18 19 20 1. 21 into between Daimler AG, the Mercedes-Benz Museum GmbH, the Mercedes-Benz Classic 22 Center (collectively, "Daimler") and Vintage Racing Motors, Inc. ("VRM"). 23 2. 24 ("SLR"), and in exchange VRM was to provide a Mercedes-Benz G4 ("G4") plus cars and cash to 25 bring the value up to that of the SLR. Based on the difference in value between the SLR and G4, 26 VRM would owe $10,000,000 in addition to the G4, in exchange for the SLR. Moreover, the 27 28
F OLGER L EVIN & K AHN LL P
ATTORNEYS AT LAW
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
VINTAGE RACING MOTORS, INC., a Washington corporation,
Case No. COMPLAINT FOR BREACH OF CONTRACT DEMAND FOR JURY TRIAL
DAIMLER AG, a German corporation, MERCEDES-BENZ MUSEUM GMBH, a German corporation, AND MERCEDESBENZ CLASSIC CENTER, a German corporation,
I.
INTRODUCTION
This is an action for breach of contract, that arises out of an oral contract entered
Under the initial contract, Daimler was to provide a Mercedes-Benz 300 SLR
COMPLAINT FOR BREACH OF CONTRACT
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contract was conditioned on VRM's confirmation of which of the SLR racing cars would be in the deal, and upon Daimler's inspection of the G4. 3. In reliance on the contract, VRM partially performed the contract by purchasing a
G4. VRM bought the G4 based on its contract with Daimler; it had no reason to buy it otherwise. VRM continues to have access to the G4 in order to honor its obligations under the contract. 4. Moreover, VRM sold an important, one-of-a-kind Mercedes-Benz 540K Autobahn
Kurier in order to have enough cash to complete its end of the bargain. VRM never would have sold such an important car, did it not need the cash to honor its obligations under the contract. 5. In December 2005, Daimler sent a signed email to VRM indicating that a contract
existed between Daimler and VRM and specifying the number and type of goods at issue in the contract. 6. The parties later modified the contract such that VRM would provide the G4 plus
$12,500,000 in exchange for the SLR. 7. Despite the contract, and despite the repeated confirmations of the contract,
Daimler has repudiated the contract and refused to perform. Because the SLR at issue in the contract is a unique good and because VRM cannot reasonably obtain cover in the open market, VRM is entitled to specific performance on the contract. II. 8. PARTIES TO THE ACTION
Plaintiff Vintage Racing Motors, Inc. is a Washington corporation, and is a
Washington licensed auto dealer. 9. Germany. 10. Defendant Mercedes-Benz Museum GmbH is a German corporation, Defendant Daimler AG is a German corporation, headquartered in Stuttgart,
headquartered in Stuttgart, Germany. 11. Plaintiff is informed and believes that Defendant Mercedes-Benz Classic Center is
a German corporation, headquartered in Fellbach, Germany. 12. The Defendants are herein referred to collectively as "Daimler."
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III. 13.
JURISDICTION
This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a) because
the action is between a citizen of a State and citizens of a foreign state, and the amount in controversy exceeds $75,000.00, exclusive of interest and costs. 14. Venue is proper in the Northern District of California under 28 U.S.C. §§
1391(a)(2) and 1391(d) because all Defendants are subject to personal jurisdiction in this district, because a substantial part of the events giving rise to the claim occurred in this judicial district, and because the Defendants are aliens. IV. A. 15. FACTS
VRM Has Had a Long-Term Relationship with Daimler Since the Mid-1990s and Has Long Expressed an Interest in Buying a Mercedes-Benz 300 SLR. Since at least 1997, Bruce R. McCaw, acting on behalf of VRM, expressed an
interest in acquiring a Mercedes-Benz 300 SLR, also formerly known as a W196s. At a meeting in Pebble Beach in 1997 and again at a meeting in Stuttgart in 1997, Mr. McCaw explained to Max-Gerrit von Pein, Chief Executive of the Mercedes-Benz Museum GmbH and an agent of Daimler, that he would like to buy a SLR from Daimler. Mr. von Pein explained that Daimler could not sell VRM a SLR at that time, but that it might be possible in the future. 16. Prof. Jurgen Hubbert, the former CEO of Mercedes-Benz and a former member of
the Board of Daimler, has also long known of VRM's desire to obtain a SLR. 17. In August 1999, VRM bought two Mercedes-Benz W194s. The W194 is the
predecessor to the SLR (W196s), and VRM is the only private owner of these important cars. Daimler worked closely with VRM to repair and restore the W194s. The purchase of these cars solidified VRM's status as an important collector of vintage Mercedes-Benz automobiles and helped establish the relationship between VRM and Daimler. 18. Daimler had a close working relationship with VRM and was fully aware of
VRM's excellent reputation in the classic car world, in part because of Daimler's knowledge of VRM's discrete purchase of rare and important pre-World War II cars in 2004.
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B.
The SLR is a Unique Good That Could Only be Obtained From a Very Small Number of Sellers. The SLR is considered by many the most significant racing car of the 1950s. The
19.
car garnered widespread acclaim when, in 1955, Stirling Moss won the prestigious Mille Miglia, a 1000-mile endurance race that took place in Italy from 1927 to 1957. A photograph of the SLR driven by Moss in the 1955 Mille Miglia is attached as Complaint Exhibit A. At an average speed of 97.96 mph over 994 miles, the record set by Moss in the SLR at the 1955 Mille Miglia has never been broken. 20. Mercedes-Benz produced only ten SLRs. Today, only eight exist in the world, and
Daimler owns all of those eight, with two on permanent loan to museums. Of the SLRs still in existence, only two or possibly three would ever be sold to a private owner. A copy of the "Status and Present Location of W196S 300SLRs" is attached as Complaint Exhibit B. 21. Daimler ultimately decided to sell VRM the SLR Chassis #2, which was used as a
test car for many important races. It was used as a training car for the Le Mans race in 1955, for the 1955 Mille Miglia and as a training car for the Targa Florio, an open road endurance race held in Sicily until the 1970s. 22. Based on VRM's serious interest in obtaining a SLR and with its knowledge of the
rarity of such a car, VRM determined to follow through on any offer to sell a SLR. C. Daimler Expressed a Strong Interest in Acquiring a Mercedes-Benz G4 for the Mercedes-Benz Museum in Stuttgart, Germany. In June 2004 at the Mercedes-Benz Kompressor Club meeting, Mr. von Pein,
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23.
acting on behalf of Daimler, met with Etienne Veen, an agent of VRM. At the meeting, Mr. von Pein asked Mr. Veen to help Daimler obtain a Mercedes-Benz G4, a car Daimler wanted for the Museum for over 20 years. 24. Mr. von Pein asked Mr. Veen about the G4 because he knew that in 2004 Mr.
Veen, along with VRM, had once bought a collection of rare pre-World War II cars that included a G4, though the G4 was withheld from purchase and remained with the seller. However,
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because of the purchase of the collection, Mr. Veen and VRM knew about and had access to the G4. 25. Mr. Veen, acting as an agent of VRM and also as a facilitator between Daimler
and VRM, set up a meeting between VRM and Daimler in the hopes that the parties would be able to arrange a deal in which VRM would receive a SLR and Daimler would receive a G4. D. In August 2005 at the Pebble Beach Auto Show, Daimler and VRM Entered into an Oral Contract Whereby VRM Would Provide a G4 Plus Cars and Cash Worth $10 Million in Consideration for a SLR. In August 2005, Mr. Veen, Mr. McCaw and Mr. von Pein met at the Pebble Beach
26. 9 10
Concours d'Elegance Auto Show in Carmel, California. At that meeting, Mr. von Pein explained that while he wanted to obtain a G4 for the Museum, Daimler simply did not have the cash to 11 purchase one. Mr. Veen then suggested that VRM and Daimler trade cars. 12 27. 13 acted on behalf of Daimler. 14 28. 15 whereby Daimler would provide a SLR to VRM. In exchange, VRM would provide a G4 plus 16 additional cash and cars to bring the value up to that of the SLR. 17 29. 18 the G4, VRM would owe an additional $10 million, either all in cash, or in some combination of 19 cars and cash, in exchange for the SLR. 20 30. 21 conditions. First, VRM had to receive notice as to which of the SLR racing cars Daimler would 22 provide. (Daimler had 5 or 6 SLRs in its possession.) Second, Daimler had to inspect the G4 23 itself. 24 31. 25 McCaw, on behalf of VRM, in Pebble Beach, California was thus as follows: 26 27 28
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It was understood that Mr. McCaw acted on behalf of VRM and that Mr. von Pein
Mr. von Pein and Mr. McCaw ultimately came to an agreement in Pebble Beach
The parties determined that based on the difference in value between the SLR and
In addition, the oral contract between VRM and Daimler contained certain
The agreement arrived at between Mr. von Pein, on behalf of Daimler, and Mr.
· ·
Daimler would provide a SLR. In exchange, VRM would provide a G4 plus cash and cars sufficient to equal the value of the SLR. Based on the difference in value between the SLR and the G4, -5COMPLAINT FOR BREACH OF CONTRACT
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VRM would provide approximately $10,000,000 in cars and/or cash, in addition to the G4. · · VRM had to receive notice as to which of the SLR racing cars Daimler would provide. Daimler had to inspect the G4 itself. 1. 32. The Daimler Board of Directors and the Daimler CEO Approved the Contract with VRM.
During the August 2005 meeting at Pebble Beach, Mr. von Pein explained to Mr.
McCaw that while there would be a number of steps to conclude the vehicle exchange, they did in fact have a concrete agreement. 33. Moreover, Mr. von Pein reiterated several times that he had explicit approval from
the Daimler Board of Directors and from the CEO, Prof. Hubbert, to enter into the contract. 34. The Board and the CEO, Prof. Hubbert, approved the deal because while the
Museum had several SLRs, it did not have any G4s, of which 50 were made and only three now exist. Moreover, the cash from the deal would allow the Museum to fix and maintain its inventory. 35. Finally, Prof. Hubbert has admitted that he gave permission to Mr. von Pein to
enter into the contract with VRM and has admitted that there was in fact an oral contract between Daimler and VRM. 2. 36. In December 2005, the Parties Agreed that Daimler Would Sell the SLR Chassis #2 to VRM.
In satisfaction of one of the conditions of the contract, in December 2005, the
parties agreed that Daimler would sell VRM the SLR Chassis #2, which was an airbrake car and was primarily a test car for many important races, such as the 1955 Mille Miglia, the 1955 Le Mans, and the Targa Florio. VRM approved the trade of the SLR Chassis #2 in exchange for the G4 plus cash or cars equaling $10,000,000.
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E.
In Reliance on the Contract, VRM Detrimentally Changed Its Position and Partially Performed the Contract by Inspecting and Acquiring a G4, by Selling an Irreplaceable 540K Autobahn Kurier, and by Purchasing a S-Class Car for the Deal. VRM undertook several actions in reliance its contract with Daimler. First, to
37.
satisfy Daimler's condition on the contract, VRM had a Mercedes-Benz Classic Center specialist inspect the G4 to ensure its authenticity. Subsequently, in reliance on the contract and in partial performance of the contract, VRM purchased the G4. VRM also sold a one-of-a-kind MercedesBenz 540K Autobahn Kurier in order to raise enough cash to complete its obligations under the contract. Finally, VRM bought a Mercedes-Benz S-Class car to include in the deal. 1. 38. VRM Brought a Mechanic from the Mercedes-Benz Classic Center in Germany to the U.S. to Inspect and Verify the Authenticity of the G4.
To verify the authenticity of the G4 for Daimler, VRM arranged through Mr. Veen
for an expert from the Mercedes-Benz Classic Center in Fellbach, Germany to come to the U.S. to inspect the G4. 39. The original expert, Helmut Pless, was unable to come. So instead, in November
2005, VRM arranged through Mr. Veen for Mr. Thomas Schönbrunn, who works for the Mercedes-Benz Classic Center and who serviced the G4 owned by the Spanish royal family, to come to the U.S. to inspect the G4. Mr. Schönbrunn went to Blackhawk Collection, Inc., the former owner of the G4, in Danville, California to inspect the G4. (In his inspection report, Mr. Schönbrunn represents that he inspected the car in San Francisco, California). After conducting his investigation, Mr. Schönbrunn verified that the G4 was in fact authentic, but also found that further inspection needed to occur at the Classic Center in Fellbach. A copy of Mr. Schönbrunn's G4 inspection report is attached as Complaint Exhibit C. 40. VRM spent approximately 9000 (approximately $10,500) to have Mr.
Schönbrunn come from Germany to inspect the G4. 2. VRM Brought a Metallurgist from Germany to the U.S. to Inspect and Verify the Authenticity of the G4.
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41.
Because Mr. Schönbrunn would not do a chemical analysis of the metal of the G4
chassis, VRM arranged for a German metallurgist, Dipl.-Ing. Klaus Kukuk, to inspect the car. -7COMPLAINT FOR BREACH OF CONTRACT
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Mr. Kukuk is a well-known expert in the classic car world, and has been used by the MercedesBenz Classic Center itself. He is frequently asked by insurance companies and the police to conduct chemical research to verify cars' authenticity. 42. Mr. Kukuk verified that the metal of chassis, engine, gearbox, rear axle and body
was original metal from the 1930s or 1940s. A copy of Mr. Kukuk's metallurgic report is attached as Complaint Exhibit D. 43. VRM spent approximately 11.500 (approximately $13,800) to have Mr. Kukuk
come from Germany to inspect the G4. 3. VRM Purchased a G4 as Part of the Consideration to Obtain the SLR; VRM Would Not Have Purchased the G4 Had It Not Entered Into the Contract with Daimler for the SLR.
44. 45.
On January 25, 2006, VRM purchased the G4 in reliance on the contract. VRM would have provided all cash to Daimler in exchange for the SLR.
However, Mr. von Pein insisted that Daimler needed the G4. Based on Mr. von Pein's repeated statements that the most important aspect of the deal was the inclusion of a G4, VRM purchased the G4. 46. VRM had no interest in the G4 outside of its contract with Daimler. Therefore,
were it not for its reliance on the contract, VRM would not have bought the G4. 4. 47. VRM Sent the G4 to the Classic Center in Fellbach for Final Inspection.
In December 2005, Mr. von Pein explained that VRM needed to send the G4 to
Fellbach for inspection by the Mercedes-Benz's Classic Center. 48. VRM felt that the inspection by Mr. Schönbrunn, an expert from the Mercedes-
Benz Classic Center, was sufficient to satisfy the condition of the contract that Daimler inspect the G4 before going forward with the contract. Nonetheless, given Daimler's insistence that the G4 be inspected further at the Classic Center in Fellbach, VRM shipped the G4 to Fellbach at its own expense. The cost of shipping the G4 to Germany was approximately $25,000. 49. The Classic Center confirmed that the G4 was authentic. A copy of the Classic
Center's inspection report is attached as Complaint Exhibit E. -8COMPLAINT FOR BREACH OF CONTRACT
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5. 50.
In Reliance on the Contract, VRM Sold Its 540K Autobahn Kurier, the Only Car of Its Kind.
In order to procure enough cash to complete its end of the bargain, VRM sold its
Mercedes-Benz 540K Autobahn Kurier. This historically significant car is the only one of its kind to still exist today. VRM only sold the car in order to raise enough cash for its deal with Daimler, and were it not for the contract, VRM would never have sold such a car. Now, even if VRM wanted to buy back the 540K, it could not, because the buyer of the car made it clear that he will never sell the 540K. 6. 51. VRM Bought a S-Class Car, Either to Include as Consideration for Daimler or to Keep as a Companion Car to the SLR.
VRM purchased a vintage Mercedes-Benz S-Class car because Daimler expressed
interest in owning a car of that type. VRM intended to include it in the deal to make up part of the $10,000,000 in cash and cars VRM owed in addition to the G4. However, VRM felt that even if Daimler did not want the S-Class, and instead just wanted cash to make up the $10,000,000 in addition to the G4, VRM could keep the S-Class as a companion car to the SLR. F. 52. In December 2005, Daimler Sent a Signed Email Indicating that a Contract Had Been Made Between It and VRM. On December 19, 2005, Mr. von Pein sent an email to Mr. Veen reconfirming the
deal between Daimler and VRM. In that email signed by Mr. von Pein, Mr. von Pein indicates that a deal exists between Daimler and VRM and specifies the number and type of goods at issue in the contract. The email provides in part, "With respect to our conversation on December 16th, 2005, I would like to reconfirm to you our interest in the project as discussed, the G4 / 300SLR. I hope you will understand that before we are able to make any final decisions we would have to inspect the G4 in its originality by our own people in our own workshop in Fellbach. To do so it is important that the G4 will be brought, with out any charge from our side, to Stuttgart so we can do the necessary research. After that we are in the position to continue the final discussions of the difference in value of the G4 and the 300 SLR with Chassis #2." A copy of Mr. von's Pein's email in German and in English is attached as Complaint Exhibit F.
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G. 53.
In Early 2006, Daimler Confirmed the Existence of the Contract by Allowing Veen to Inspect and Photograph the SLR Chassis #2. In an email from January 2006, Mr. Veen asked Mr. von Pein if he could look at
and photograph the SLR Chassis #2 while Mr. Veen was in Fellbach. Mr. von Pein said that he could. A copy of the emails between Mr. Veen and Mr. von Pein are attached as Complaint Exhibit G. Mr. Veen consequently inspected and photographed the SLR Chassis #2 at issue. 54. In addition, Peter Legler, Technical Manager of the Mercedes-Benz Classic
Center, sent Mr. Veen an email on January 9, 2006, which translated says "As far as the present situation on [SLR] # 2 you are most welcome to check the present situation of the car during your visit on Wednesday 11th of January [2006] at 10.00 am. If you want I can send you some pictures. The car is presently dismantled and partially restored. We have for quite a long time now had the order to restore the car as original as possible and into driving condition. The body is off the chassis and partly restored. The chassis drive train, and brake system is partly restored. The engine is restored. The plan is to have the restoration ready in 2006 and to have it ready in driving condition in 2007. Kind regards from Fellbach." A copy of the email, in the original German and in English, is attached as Complaint Exhibit H. H. 55. In August 2006 at the Pebble Beach Auto Show, Daimler Orally Confirmed the Contract with VRM. Mr. McCaw and Mr. von Pein met again in August 2006 at the Pebble Beach
Concours d'Elegance Auto Show. During this meeting Mr. von Pein reconfirmed that "we have a deal," thereby confirming the existence of the oral contract between Daimler and VRM. In addition, the parties confirmed that VRM was satisfied with the SLR Chassis #2 and that Daimler had satisfactorily inspected the G4 and wanted to go forward with the contract. I. A Few Weeks After the Meeting at Pebble Beach, Daimler Suggested a Modification to the Contract Whereby VRM Would Provide a G4 Plus $12.5 Million for the SLR, and VRM Agreed to the Modification. In September 2006, Daimler, through Mr. von Pein and his successor, Mr. Michael
56.
Bock, suggested a modification to the contract whereby VRM would provide a G4 plus
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$12,500,000 in exchange for the SLR. Daimler felt the modification was necessary because it claimed that the G4 was in fact worth less than the original estimated amount. 57. Mr. McCaw felt that the amount VRM actually paid for the G4 should be the
amount used in calculating the difference between the SLR and the G4. However, because Mr. McCaw wanted the SLR deal to be completed, he agreed to the modification on behalf of VRM. Therefore, for a variety of reasons, the parties agreed to modify the contract such that VRM would provide a G4 plus $12,500,000 in exchange for the SLR. J. 58. VRM, Through its Agent Veen, Confirmed the Agreement to Modify the Contract in an Email to Daimler on September 15, 2006. Mr. Veen, on behalf of VRM, confirmed the modification of the contract in an
email to Mr. von Pein on September 15, 2006. A copy of the email from Mr. Veen to Mr. von Pein confirming the modification to the contract is attached as Complaint Exhibit I. K. 59. On October 31, 2006, Daimler Repudiated the Contract. On October 31, 2006, Mr. Bock told Mr. Veen that Daimler would not follow
through with its end of the bargain. 60. In response to several emails and letters from Mr. Veen and from Mr. Koopmans,
Mr. McCaw's attorney, on April 17, 2008, Daimler sent a letter stating "Dear Mr. Koopmans: Our colleagues have asked us, the legal department, to respond to your letter. As Messrs. Dr. Göttgens and Bock already informed your client with their letter dated March 05, 2008, the circumstances and legal situation are clear. Our company did not conclude a purchase agreement with your client. As already communicated in writing, written correspondence documenting our position exists, including correspondence from representatives of your client." A copy of this letter is attached as Complaint Exhibit J. 61. Despite Daimler's repudiation of the contract, Mr. von Pein continues to agree that
Daimler entered into a contract. Moreover, Prof. Jurgen Hubbert admitted that he gave permission to Mr. von Pein to enter into the contract with VRM on behalf of Daimler and has reiterated that there was in fact an oral contract between Daimler and VRM.
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L. 62.
VRM Continues to Have Access to the G4 and Is Prepared to Honor the Contract. The G4 is currently stored under bond at the warehouse of import brokers CARS
UK in Chedburgh, UK. All expenses associated with keeping the G4 in England are paid by VRM or an associated company. VRM continues to have access to the G4 in order to honor its obligations under the contract with Daimler. 63. Because of the money VRM spent in order to acquire the G4 for Daimler, it has
been unable to invest in other cars it would have otherwise purchased. Moreover, in order to obtain the money to buy the G4 for Daimler, VRM sold the one-of-a-kind Mercedes-Benz Autobahn Kurier, which it otherwise would not have sold. Finally, VRM continues to own a Mercedes-Benz S-Class. V. CAUSE OF ACTION
First Cause of Action Breach of Contract 64. VRM realleges and incorporates herein by reference the allegations contained in
paragraphs 1 through 63 above, as though set forth in full. 65. contract: · · · · 66. Daimler was to provide the Mercedes-Benz 300 SLR Chassis #2. In exchange, VRM was to provide a Mercedes-Benz G4 plus $12,500,000, either all in cash or in some combination of cars and cash. Daimler had to inspect the G4 itself. VRM had to receive notice of which SLR racing car Daimler was to provide. Daimler's Classic Center in Fellbach inspected the G4, and after the inspections, VRM and Daimler entered into a valid and binding contract. Pursuant to the
determined to continue with the contract, satisfying the first condition of the contract. 67. VRM received notice of and approved of Daimler's offer to sell the 300 SLR
Chassis #2, satisfying the second condition of the contract. 68. Mr. von Pein, on behalf of Daimler, confirmed the contract in a signed writing, as
evidenced by his December 19, 2005 email to Mr. Veen. See Complaint Exhibit G.
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69.
VRM procured the G4, a specially manufactured good, specifically for Daimler on
the basis of its contract with Daimler. VRM, before notice of Daimler's repudiation of the contract, committed to the procurement, and in fact, procured the G4 for Daimler's benefit. The G4 is not a good that is suitable for sale to others in the ordinary course of VRM's business. 70. VRM relied on the contract and partially performed the contract by purchasing the
G4, a car it otherwise would not have bought, thereby detrimentally changing its position in reliance on the contract. 71. VRM detrimentally changed its position in reliance on the contract by selling a
one-of-a-kind Mercedes-Benz 540K Autobahn Kurier in order to have the cash to follow through with its obligations under the contract. VRM is unconscionably injured because the buyer of the 540K Autobahn Kurier will never sell it back, and because that is the only 540K Autobahn Kurier still in existence today. VRM would not have sold the 540K Autobahn Kurier car were it not for its contract with Daimler. 72. Daimler, directly or though its agents or representatives, did not honor its
obligations under the contract by repudiating the contract and failing to deliver the SLR Chassis #2 to VRM. 73. As a direct and proximate result of Daimler's breach of the contract, VRM has
been damaged in that it has not obtained the SLR Chassis #2, a unique good, for which it cannot obtain cover in the open market. VI. PRAYER
WHEREFORE, Plaintiff, Vintage Racing Motors, Inc., respectfully prays: (a) That the Court enter an Order awarding judgment in favor of VRM and against Defendants Daimler AG, Mercedes-Benz Museum GmbH, and Mercedes-Benz Classic Center; That VRM be granted specific performance against Defendants, requiring Defendants to transfer to VRM the Mercedes-Benz 300 SLR Chassis #2; That VRM be granted its reasonable attorneys' fees and expenses; and
(b) (c)
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(d)
That VRM be granted such other and further relief as the Court deems equitable, just, and proper.
FOLGER LEVIN & KAHN LLP
Loni A. Mahanta Attorneys for Plaintiff Vintage Racing Motors, Inc.
JURY DEMAND Plaintiff Vintage Racing Motors, Inc. hereby demands a trial by jury of all issues triable before a jury. Dated: June 19, 2008 FOLGER LEVIN & KAHN LLP
Loni A. Mahanta Attorneys for Plaintiff Vintage Racing Motors, Inc.
63048\4001\603350.7
-14-
COMPLAINT FOR BREACH OF CONTRACT
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Exhibit A
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Exhibit B
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MERCEDES-BENZ W196S 300SLR 1955 RACE RESULTS
RACE ORTEST CIRCUITIDATE DRIVER RESULT START NO. CHASSIS NO.
Millc Migli;~
Rrrscia-Komc-Rrcsci;~/ 30 April-l May 1955
L~ngii> Kling Hcrrm:tnn+Eger Moss+Jcnkinson F:rngto Mosc Kling Fnngio+Moss Kling+Simoti Lcvcgl~+Fitch Llngio Moss Ulilenliaut Fnngin+Kling Moss+Fitch \.on Trips+Sinion
2~Il RTD RTD I s-r
658 70 1 704 722 1 2 3 19 24 20 21
Eifclrennen
Nilrburgring/29 May 1955
Is r 2~1)
~ T H
6
.n (
LC Mans 24 Hours
Sarthc/l l 12Junc 1955
RTD RTD RTD
Swcdish GP
Kristiansrnd/7 Augo~sr 1955
Is r
~ N D
I
2
15
DNS 2~11 I. v
~ R O
RAC Tlurist Trophy
DundrcnI117 Septctnbcr 1955
9
10 11 104 106 112
I sr
~ N D
4111
STATUS & PRESENT LOCATION OF W196S 300SLRs
CHASSIS NO. REGISTRATION STATUS PRESENT LOCATION
000 01/54 000 02/55 000 03/55 000 04155 000 05/55 000 06/55 00007/55 Coupe 000 08/55 Ccli~pc 000 09/55 000 10155
Test ant1 Pr:~cticcCar Prilctice Car Te:lm Car Tcam Car Team Car Team Chr UhIenh:~ut'sStaff C:ar Nor Used Rchuilr ;IS Another Ciir ? Not Rzlced, LIc\lelopmcnt Car
Merccdes-Benz Museum, Stuttgarr Mercedes-Bcnz Museum, Scuttgart Dcutsches Museum, Munich Merccdcs-Benz Museum, Stuttgart MusCc National de 1 'Automobile, Mulhoi~sc Wrecked at LC Mans 24 Hours Mercetles-Benz Museum, Stuttgnn Mcrcedes-Benz Museum, Sruttgart Unknown Mcrcedcs-Bcnz Museum, Stuctg:lrt
MERCEDES-BENZ GRAND PRlX RACING/SPORTS CAR SPECIFICATIONS
YEAR MODEL ENGINE CYL. VALVE LAYOUT LAYOUT BORW STROKE DlSPL SUPERPSlrpm (cc) CHARGERS
(mm)
(mm)
WHEEL WHEEL BASE TRACK FlR(mm)
WEIGHT (kg)
W25 W25 W25 Short Car Wl25 W154 W154 W165 W194 300SL W196R STRML . W196R LWB W196R MWB W196R SWR W196S 300SLR
: u~~crcl~;~wcr s
00042
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Exhibit C
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Mr. Etienne S.L. Veen Chalet Bergahorn, Waldmatte CH-3778 Schijnried Schweiz
Legler
Jan. 4th, 2006
Inspection of G4 in San Francisco
Dear Mr. Veen, Below please find a summarizing report on the visit t o the USA
The G4 was inspected on November 21, 2005 in San Francisco, Blackhawk Drive, on premises owned by the Blackhawk Collection. The inspection was attended by Mr. Don Williams and Mr. Etienne Veen The vehicle was found to be in a cosmetically restored condition. According to Don Williams, the vehicle once belonged to an American interior decorator for movies. Apart froin the cosmetic restoration, the vehicle also underwerit partial technical restor-ation (at an earlier stage?).
Inspection: No vehicle number was found on the frame, neither punched in nor on a riveted plate. Most of the frame area which would most likely bear the vehicle number was hidden by sheet-metal paneling. Several deviations were detected concerning the dimensions of the frame. This will have t o be investigated more exhaustively. The engine displays a G4 engine number (406528) on the right-hand side of the engine block. The engine data plate is missing. The transmission, intermediate transmission, rear axles and other powertrain components can be allocated to a G4. on first inspection.
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:he execuliori of the restoration wor-k does not correspond to our standard and c;la~nltc nnglnail~~. The blue-black high-gloss paint was applied in a very thick layer in some areas; an excesslve!v large number of parts were chrome-plated at a later date; detail features such as the plastic dashboard insert in a mother-of-pearl desigri and others are in no way in keeping with the GJ. In the pal-tral restorat~on the technical features, several non-original parts were fitted, among of them a stainless-steel exhaust and a modern electrical auxiliary fuel pump; additional deviations were detected with respect to technical details. Overall, it is doubtful whether- the restoration work was carried out at all - it is assurrleci that numel-ous par-ts were merely cosmetically revised. The engine was started for a brief period; a test I-un was not made, however.
Conclusions: At the curl-ent state of knowledge, the frame cannot be allocated to a specific vehicle nurnDer Stylistic and geometric features I-equire additional investigations; a final verdict can only be made once the material tests have been pelformed and the detected deviations clarified. As far as could be seen, important assemblies such as engine, transmission, intermediate transmission, rear axles, etc. were those you would expect on a G4. 4 significantly more extensive and more detailed investigation in the workshop of the Classic Center- is required to arrive at an assessment of originality. It is only in the Classic Center's workshop that the detected deviations can be checked and el~aluated,and a precise comparison can be made with any existing (restoration) docurnentat~o!~ in cooperation with the Corporate Archives, the Ivlaterials Testing department and the workshop specialists. In view of the outstanding historical and monetary value of a G4, a final assessment by DaimlerChrysler AG should only be submitted once a complete appraisal has been compiled by the manufacturer and all the necessary investigations have been carried out.
Best regards 9aimlerChr.vsler AG Metcedes-Ben? Classic Center
'Schonbrunn
I ' '
,- --
/
-
--4
00097
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Exhibit D
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Exhibit E
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Exhibit F
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-----Original Message----From: [email protected] [mailto:[email protected]] On Behalf Of [email protected] Sent: Monday, December 19,2005 430 PM To: [email protected] Subject: Antwort: re; G4
Dear Mr. Veen, With respect to our conversation on December 16th, 2005, I would like to reconfirm to you our interest in the project as discussed, the G4 / 300SLR. I hope you will understand that before we are able to make any final decisions we would have to inspect the G4 on its originality by our own people in our own workshop in Fellbach. To do so it is important that the G4 will be brought, with out any charge from our side, to Stuttgart so we can do the necessary research. After that we are in the position to continue the final discussions of the difference in value of the G4 and the 300 SLR with Chassis #2. With the kindest regards, Max Von Pein
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Exhibit G
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.
Page: 1 Printed By: Thor Thorson Subject: FW: re; 300SLR # 2 Date: Monday, February 26,2007 10:31:27 AM Sender: Etienne S.L. Veen [email protected]> 'To: Thor Thorson
4/ 2108 3:31:16 PM
Thor, this is translated as, Dear Max,
1;m in Fellbach next Wednesday with Peter Legler. Can I take a look at the 300 SLR # 2 ? and take a few pictures?
Thanks,
Kind Regards, Etienne
From: Etienne S.L. Veen jmailto:[email protected]~ Sent: Monday, January 09,2006 10:55AM To: Max Gerrit von Pein ([email protected]) Subject: re; 300SLR # 2
1Hallo Lieber Max,
Ich bin Mitwoch in Fellbach bei Peter Legler. Darf Ich mich ma1 den 300SLR #2 anschauwen? und ein pahr Bildern machen ? Danke, Viele Grusse, Etienne
00075
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Printed By: Thor Thorson Page: 1 Subject: FW: Antwort: re; 300SLR # 2 Date: Monday, February 26,2007 10:32:09 AM Sender:Etienne S.L. Veen [email protected]> )TO: Thor Thorson [email protected]>. Translated as,
4/2/08 3:31:34 PM
.......I have nothing against it.
Regards, Max -----Original Message----From: [email protected] [mailto:ing.rid.feiler-sz [email protected] Behalf Of [email protected] Sent: Monday, January 09,2006 3:54 PM To: [email protected] Cc: peter.leg;le&daimlerchrvsler.com Subject: Antwort: re; 300SLR # 2
.....ich hab nichts dagegen.
G d
i 'MAX
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Exhibit H
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Printed By: Thor Thorson Page: 1 Subject: FW: Info #2 Date: Monday, February 26,2007 11:15:42 AM Sender: Etienne S.L. Veen [email protected]> To: Thor Thorson [email protected]> Thor, This is a message from Peter Legler with a cc to Peter Spieth who is now manager of the MB Classic Center.
4/ 2/ 08 3:33:06 PM
I translate as follows:
Hallo Etieme, As far as the present situation on # 2 you are most welcome to check the present situation of the car during your visit on Wednesday 11th of January 2005 at 10.00 am, If you want I can send you some pictures. The car is presently dismantled and partially restored. We have for quite a long time now the order to restore the car as original as possible and into driving condition. The body is off the chassis and partly restored. The chassis drive train, and brake system is partly restored. The engine is restored. The planning is to have the get the restoration ready in 2006 and to have it ready in driving conditioning in 2007. Kind regards from Fellbach. If you have any more questions, I'm most willing to help. Peter Legler -----Original Message----From: [email protected] ~mailto:[email protected]~ Sent: Monday, January 09,2006 6:16 PM To: [email protected] Cc: [email protected] Subject: Infos #2 Hallo Etienne, l%er den derzeitigen Zustand der #2 kannst Du dich gerne am Mittwoch 11.01.05 10.00 Uhr personlich iiberzeugen, ich kann dir aber auch Bilder zukommen lassen. as Fahrzeug ist derzeit zerlegt und teilweise restauriert.
)"
Wir haben seit lkgerem den Auftrag Bas Fahrzeug #2
00077
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Printed By: Thor Thorson originalgetreu und fahrbereit aufzubauen.
.
Page: 2
4/2 / 08 3:33:06 PM
, Die Karosserie ist demontiert und
teilinstandgesetzt. !Das Fahnverk, Antriebsstrang und Bremsanlage ist teilweise revidiert. Der Motor ist fertiggestellt. Derzeit ist fiir 2006 ist die Fertigstellung des Fahrzeugaufbaus; fur 2007 die Fertigstellung des fahrbereiten Fahrzeugs geplant. GriiiJe aus Fellbach Fur Ruckfragen stehe ich gerne zur Verfiigung DaimlerChrysler AG Communications Mercedes-Benz Classic Center Peter Legler
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Exhibit I
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Printed By: Thor Thorson Page: 1 Subject FW: G4/ SLR Date: Monday, February 26,2007 12:20:39 PM Sender: Etienne S.L. Veen [email protected]> - jTo: Thor Thorson [email protected]~ "Attachments:TextlO.htm (8KB)
412108 3:38:39 PM
From: Etienne S.L. Veen [mailto:[email protected]~ Sent: Friday, September 15,2006 1:10 PM To: Max Gerrit von Pein (max-~errit.vonvein@daimlerc Subject: G4/ SLR Hallo Lieber Max,
I talked with Bruce and in principle he agrees to the concept of the transaction. He understands the merit of the idea and how you want to perform the deal. He is also willing to honor your new request with regard to a 6 cylinder car. He has a nice, all matching number, 60;S61; Rennsport, technically and optically in very good condition with interesting history which he is willing to put into the deal. How ever he in not very pleased with your valuation of the G4.
)
In his recollection the question for the G4 came from your side and the only thing he did was to honor your request. If you would not have asked the question, he would never had bought the car in the first place but simply pay your price for the SLR. To say now that the value for this car is less as what he has paid for, is in his words 60;quite disappointing61;, and I must say I do not completely disagree. From the beginning on, we have always made clear the price he paid for the G4 and he knew the price he had to pay for the SLR. He never questioned the difference and that was fine with him, so why this change? Max, don57;t get me wrong, Bruce wants to do this deal, and he is very much willing to accommodate you in any way he can. He also understands the position you57;re in, but I think he has a point, and don57;t forget, he also has to pay the import duties on the car which are quite steep70;70; Please think about it and give me a call so we can discus. Thanks. I57;m in Switzerland so you can reach me on: 0041-33-744 8733. Kind regards, Etienne
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Exhibit J
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Filed DAIMLER 06/19/2008
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Daimler AG . 70546 Stuttgart
Koop Inc. P.S. Mr. David R. Koopmans P.O.Box 3745 Bellevue, WA 98009-3745 USA
Telefon/Phone Telefax/Fax
+497 11 17-
+49 7 11 17-
Hauspost-Code Internal Code
9 37 92
Unser Zeichen, unsere Nachricht vom Our reference Name E-Mail
9 44 48
0422
Datum/Date
Ihr Zeichen, Ihre Nachricht vom Your reference
L/DS Pa/lte
00034/2008
Ute Pazer [email protected]
17.04.2008
Your letter dated April 2, 2008
Dear Mr Koopmans: Our colleagues have asked us, the legal department, to respond to your letter. As Messrs. Dr. Gottgens and Bock already informed your client with their letter dated March 05, 2008, the circumstances and legal situation are clear. Our company did not conclude a purchase agreement with your client. As already communicated in writing, written correspondence documenting our position exists, including correspondence from representatives of your client.
Sincerely yours
n
Daimler AG, Stuttgart/Germany Sitz und Registergericht/Domicile and Court of Registry: Stuttgart, HRB-Nr./Commercial Register No.: 19360 Vorsitzender des Aufsichtsrates/Chairman of the Supervisory Board: Manfred Bischoff Vorstand/Board of Management: Dieter Zetsche, Vorsitzender/Chairman; Gijnther Fleig, Riidiger Grube, Andreas Renschler, Bodo Uebber, Thomas Weber
Daimler AG
70546 Stuttgart Telefon/Phone +49 7 11 17-0 Telefax/Fax +49 7 11 17-2 2 2 44
[email protected]
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