On March 09, 2010 a
Letter,Correspondence
was filed
involving a dispute between
Kuplesky, Harold, Individually And On Behalf Of Starrett City Preservation Llc, Derivatively,
Rudman, Harvey, Individually And On Behalf Of Starrett City Preservation Llc, Derivatively,
and
Carol Gram Deane,
Dd Shopping Center Llc,
Dd Spring Creek Llc,
Disque D. Deane,
Salt Kettle Llc,
Sk Shopping Center Llc,
Sk Spring Creek Llc,
Spring Creek Plaza Llc,
Starrett City Preservation Llc,
St. Gervais Llc,
for Commercial Division
in the District Court of New York County.
Preview
WARNER PARTNERS, P.C.
ATTORNEYS AT LAW
950 THIRD AVENUE
NEW YORK, NEW YORK 10022
‘TELEPHONE
(212) 393-8000
TELECOPIER
(212) 593-9058 August 19, 2014
Hon. Shirley Werner Kornreich, Justice
Supreme Court, New York County
60 Centre Street
New York, New York 10007
Re: Rudman et ano. v. Deane et al.; Index No. 650159/10
Dear Justice Kornreich:
Section 5.5(a) of the Preservation Agreement includes a chart listing the reductions in a
Member’s Sharing Ratio, depending on the “effective date” of that Member’s removal from the
Board, (e.g., 70% or 60%, if 2008 or 2009, respectively). The five specified bases for removal
all occur upon a Member leaving employment with the “Deane Interests.” Section 5.5(b)
exempts from a Sharing Ratio reduction a Member who was terminated (i.¢., fired) if certain
specified “discussions” occurred prior to such termination (the removal date is irrelevant for this
purpose). A copy of §5.5 is enclosed. As the Court correctly stated: “Assuming as all parties do
(for purposes of this motion only) that Kuplesky was fired in December 2008, his Sharing Ratio
could not have been reduced unless the discussions that ‘resulted in’ the refinancing had not
begun before his termination.” Decision at 28 (original emphasis); see also Decision at 28
(“termination had to have occurred before ‘discussions began that resulted in a Funding Event’”).
The Court’s Decision should be amended in two places because the Decision
inadvertently misstates the foregoing: 1) referring to the question of when Kuplesky was
removed from the Board, the Decision characterizes that date as “a fact which both bears on the
issue of whether discussions about refinancing has [sic.] begun before that date and whether
Kuplesky's Sharing Ratio should have only been reduced by 60% rather than 70%.” Decision at
30 (emphasis added). But the date of removal bears only on the percentage reduction in Sharing
Ratio; it is completely unrelated to the the timing of “discussions” in §5.5(b); and 2) the Decision
lists open issues of fact, including “3) whether the discussions held with the government prior to
the date of his removal “resulted in” the refinancing transaction. . .” Decision at 31 (emphasis
added). The Decision should have used “termination,” not “removal.”
Plaintiffs are responsible for this unnecessary correspondence; they should have
conceded the foregoing errors. Plaintiffs’ frivolous contentiousness warrants the sanctions Your
Honor indicated you would impose in these circumstances. Section 5.5 is well known to
counsel, its language is plain and clear, and my August 15 cover letter fully explained the
removal/termination distinction. Indeed, plaintiffs criticized our proposed Order for purportedly
“rearguing” the Decision because it corrected this error. I devoted one hour of time to analyze
and draft this letter, including discussion with co-counsel. My hourly rate is $750.
Respectfully,
Kenneth E. Warner
cc: All Counsel of Record (via e-filing)Sharing Ratio to be less than 80% of the Sharing Ratio such Member had upon admission to the
Company or less than 100% of the Sharing Ratio such Member had upon becoming a Removed
Member (as defined in Section 5.5). Without the consent of the Managing Member, no such
admission shall reduce the combined Sharing Ratios of the Members other than the Office
Members to less than 50.1%.
5.5 Removal from Board. (a) The Managing Member may remove a Member from the
Board (as defined in Section 7.2) if such Member has resigned, been terminated from all or
substantially all positions held with SCA and/or other enterprises owned or controlled by Disque
Deane, his heirs or successors, or trusts for the benefit of his heirs, his children or Carol G Deane
(collectively, the "Deane Interests"), died, become Disabled (as hereinafter defined) or otherwise
has ceased to be actively engaged on a substantially full time basis with the Deane Interests.
The Member so affected (the "Removed Member") shall thereupon cease being a member of the
Board and shall, subject to Section 5.6, thereafter have a Sharing Ratio equal to the Sharing
Ratio he had immediately prior to being removed from the Board reduced by the applicable
percentage set forth on the following table:
Period During Which the Effective < Portion of Sharing Ratio That is Eliminated if
Date of Removal Occurs £ -—=> Removal Occurs During This Period
January 1, 2006 to December 31, 2006 90%
January 1, 2007 to December 31, 2007 80%
January 1, 2008 to December 31, 2008 70%
January 1, 2009 to December 31, 2009 60%
January 1, 2010 to December 31, 2010 50%
January 1, 2011 to December 31, 2011 40%
January 1, 2012 to December 31, 2012 30%
January 1, 2013 to December 31, 2013 20%
January 1, 2014 to December 31, 2014 10%
(b) Notwithstanding Section 5.5(a), a Member who was removed due to termination in (a)
above shall maintain his full Sharing Ratio without reduction if such termination occurred after
discussions began that resulted in a Funding Event.
(c) Upon removal, a Removed Member (including any estate, guardian or other legal
tepresentative) shall have no right to vote or consent to any action and shall have only the right
to receive distributions in accordance with the Sharing Ratio then held by such Removed
Member.
-10-
KL2-2392583.16
Preview
WARNER PARTNERS, P.C. ATTORNEYS AT LAW 950 THIRD AVENUE NEW YORK, NEW YORK 10022 ‘TELEPHONE (212) 393-8000 TELECOPIER (212) 593-9058 August 19, 2014 Hon. Shirley Werner Kornreich, Justice Supreme Court, New York County 60 Centre Street New York, New York 10007 Re: Rudman et ano. v. Deane et al.; Index No. 650159/10 Dear Justice Kornreich: Section 5.5(a) of the Preservation Agreement includes a chart listing the reductions in a Member’s Sharing Ratio, depending on the “effective date” of that Member’s removal from the Board, (e.g., 70% or 60%, if 2008 or 2009, respectively). The five specified bases for removal all occur upon a Member leaving employment with the “Deane Interests.” Section 5.5(b) exempts from a Sharing Ratio reduction a Member who was terminated (i.¢., fired) if certain specified “discussions” occurred prior to such termination (the removal date is irrelevant for this purpose). A copy of §5.5 is enclosed. As the Court correctly stated: “Assuming as all parties do (for purposes of this motion only) that Kuplesky was fired in December 2008, his Sharing Ratio could not have been reduced unless the discussions that ‘resulted in’ the refinancing had not begun before his termination.” Decision at 28 (original emphasis); see also Decision at 28 (“termination had to have occurred before ‘discussions began that resulted in a Funding Event’”). The Court’s Decision should be amended in two places because the Decision inadvertently misstates the foregoing: 1) referring to the question of when Kuplesky was removed from the Board, the Decision characterizes that date as “a fact which both bears on the issue of whether discussions about refinancing has [sic.] begun before that date and whether Kuplesky's Sharing Ratio should have only been reduced by 60% rather than 70%.” Decision at 30 (emphasis added). But the date of removal bears only on the percentage reduction in Sharing Ratio; it is completely unrelated to the the timing of “discussions” in §5.5(b); and 2) the Decision lists open issues of fact, including “3) whether the discussions held with the government prior to the date of his removal “resulted in” the refinancing transaction. . .” Decision at 31 (emphasis added). The Decision should have used “termination,” not “removal.” Plaintiffs are responsible for this unnecessary correspondence; they should have conceded the foregoing errors. Plaintiffs’ frivolous contentiousness warrants the sanctions Your Honor indicated you would impose in these circumstances. Section 5.5 is well known to counsel, its language is plain and clear, and my August 15 cover letter fully explained the removal/termination distinction. Indeed, plaintiffs criticized our proposed Order for purportedly “rearguing” the Decision because it corrected this error. I devoted one hour of time to analyze and draft this letter, including discussion with co-counsel. My hourly rate is $750. Respectfully, Kenneth E. Warner cc: All Counsel of Record (via e-filing)Sharing Ratio to be less than 80% of the Sharing Ratio such Member had upon admission to the Company or less than 100% of the Sharing Ratio such Member had upon becoming a Removed Member (as defined in Section 5.5). Without the consent of the Managing Member, no such admission shall reduce the combined Sharing Ratios of the Members other than the Office Members to less than 50.1%. 5.5 Removal from Board. (a) The Managing Member may remove a Member from the Board (as defined in Section 7.2) if such Member has resigned, been terminated from all or substantially all positions held with SCA and/or other enterprises owned or controlled by Disque Deane, his heirs or successors, or trusts for the benefit of his heirs, his children or Carol G Deane (collectively, the "Deane Interests"), died, become Disabled (as hereinafter defined) or otherwise has ceased to be actively engaged on a substantially full time basis with the Deane Interests. The Member so affected (the "Removed Member") shall thereupon cease being a member of the Board and shall, subject to Section 5.6, thereafter have a Sharing Ratio equal to the Sharing Ratio he had immediately prior to being removed from the Board reduced by the applicable percentage set forth on the following table: Period During Which the Effective < Portion of Sharing Ratio That is Eliminated if Date of Removal Occurs £ -—=> Removal Occurs During This Period January 1, 2006 to December 31, 2006 90% January 1, 2007 to December 31, 2007 80% January 1, 2008 to December 31, 2008 70% January 1, 2009 to December 31, 2009 60% January 1, 2010 to December 31, 2010 50% January 1, 2011 to December 31, 2011 40% January 1, 2012 to December 31, 2012 30% January 1, 2013 to December 31, 2013 20% January 1, 2014 to December 31, 2014 10% (b) Notwithstanding Section 5.5(a), a Member who was removed due to termination in (a) above shall maintain his full Sharing Ratio without reduction if such termination occurred after discussions began that resulted in a Funding Event. (c) Upon removal, a Removed Member (including any estate, guardian or other legal tepresentative) shall have no right to vote or consent to any action and shall have only the right to receive distributions in accordance with the Sharing Ratio then held by such Removed Member. -10- KL2-2392583.16