Rupa Marya v. Warner Chappell Music Inc

Filing 172

[REDACTED] JOINT EVIDENTIARY APPENDIX IN SUPPORT OF NOTICE OF MOTION AND CROSS-MOTION AND MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT re APPLICATION for Leave to File Under Seal 158 VOLUME 3 OF 8 filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. (Attachments: # 1 Appendix VOLUME 3 OF 8, # 2 Appendix VOLUME 3 OF 8, # 3 Appendix VOLUME 3 OF 8, # 4 Appendix VOLUME 3 OF 8, # 5 Appendix VOLUME 3 OF 8, # 6 Appendix VOLUME 3 OF 8)(Manifold, Betsy)

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18.

Clayton Summy died on February 10, 1932, shortly after the incorporation of

Summy (DE). Ex. 93 at 1070.
19.

There is no documentation in the record that proves Summy (DE) paid Clayton

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Summy $150,000 plus accrued dividends to redeem Clayton Summy's Preferred Shares prior

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to Clayton Summy's death on February 10, 1932 or at any time thereafter.

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The Amendment to EMB in 1948
20.

Articles of Amendment to EMB were filed with the Illinois Secretary of State

on or about June 2, 1948. Ex. 59 at 744-748.
21.

Article Third of the Articles of Amendment states that 400 shares of common

in EMB were outstanding at the time of the 1948 Amendment. Id. at 746.
22.

However, as discussed in

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2 supra, only 200 shares of EMB' s common stock

were issued at the time of EMB' s incorporation.
23.

There is no documentation in the record that proves who was issued the

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additional 200 shares of common stock between EMB' s 1923 incorporation and the 1948

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amendment.

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24.

There is no documentation in the record that proves when the additional 200

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shares of EMB common stock were issued between EMB' s 1923 incorporation and the 1948

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amendment.

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25.

There is no documentation in the record that proves that any of the original

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EMB shareholders transferred any of their shares between EMB' s 1923 incorporation at the

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1948 amendment.

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26.

There is no documentation in the record that proves who owned the 400 shares

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of EMB 's common stock outstanding at the time of the 1948 amendment.

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The Summy (DE) Name Changes

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Ex. 23
537

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27.

On January 23, 1956, Summy (DE) filed a Certificate of Amendment of

Certificate of Incorporation with the Delaware Secretary of State. Ex. 62 at 760-762.
28.

The Certificate of Amendment changed the name of Summy Co. to Summy

Publishing Company ("SPC"). Id. at 760.
29.

On September 27, 1957, SPC filed a Certificate of Amendment of Certificate of

Incorporation with the Delaware Secretary of State. Ex. 65 at 800-802.
30.

The Certificate of Amendment changed the name of SPC to Summy-Birchard

Publishing Company (SBPC). Id. at 800.
31.

On December 22, 1961, SBPC filed a Certificate of Amendment of Certificate

of Incorporation with the Delaware Secretary of State. Ex. 66 at 804-806.
32.

The Certificate of Amendment changed the name of SBPC to Summy

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("Summy"). Id. at 804.

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The Death of John Sengstack on October 11,1970

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33.

John F. Sengstack died on October 11, 1970. Ex. 69 at 816.

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34.

There is no documentation in the record that proves who inherited John

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Sengstack's property, including any shares of stock that he may have owned in any

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corporation, including Summy, the Delaware corporation originally incorporated in 1931 as

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the Clayton F. Summy Co.

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TheAmendmenttoEMB in 1973

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35.

On July 31, 1973, EMB filed Articles of Amendment to the Articles of

Incorporation ofEMB with Illinois Secretary of State. Ex. 70 at 818-820.
36.

Article Third of the Articles of Amendment states that 367 shares of common

stock in EMB were outstanding at the time of the amendment. Id. at 820.
37.

Article Third of the Articles of Amendment also states that "[p]reviously there

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were 400 shares issued and outstanding, 33 of which were reacquired by the corporation,

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held as treasury stock, and subsequently retired." Id.

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38.

There is no documentation in the record that proves who owned the 367

outstanding shares of common stock in EMB at the time of the 1973 amendment.

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Ex. 23
538

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39.

There is no documentation in the record that proves when and which

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shareholder(s) EMB acquired the 33 retired shares from.

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The 1973 Merger between Summy (Delaware) and EMB (Illinois)

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40.

On December 28, 1973, EMB filed Articles of Merger with the Illinois

Secretary of State to merge with Summy, the Delaware corporation. Ex. 71 at 824-828.
41.

Article Three of the Articles of Merger stated that "[t]he name of the surviving

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corporation shall be Summy-Birchard Company and it shall be governed by the laws of the

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State of Illinois". Id. at 825.

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42.

Article Four of the Articles of Merger stated that "[t]he plan of merger is as

follows: See Exhibit A attached hereto and made a part hereof." Ex. 71 at 825.
43.

The first sentence of the Plan and Agreement of Merger states that:

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THIS PLAN and AGREEMENT OF MERGER is made and entered into this
21st day of December, 1973,by and between SUMMY-BIRCHARD
COMPANY, a Delaware corporation (hereinafter called "SUMMY") and
EDUCATIONAL MUSIC BUREAU, an Illinois Corporation (hereinafter called
"EMB"). Ex. 72 at 830.

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44.

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Paragraph 1 of the Plan and Agreement of Merger states, in relevant part, that

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"SlnvfMY shall be merged into EMB as a single corporation which shall be the surviving

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corporation." Id.

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45.

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Article Five of the Articles of Merger states that 367 shares of common stock in

EMB were outstanding at the time of the merger. Ex. 71 at 826.
46.

Article Five of the Articles of Merger states that 1,500 shares of common stock

in Summy were outstanding at the time of the merger. [d.
47.

As discussed in Paragraphs 13-14, supra, Summy (fka Clayton F. Summy Co.)

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was originally capitalized with 1,500 shares of Preferred Stock with a par value of $10 each

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($150,000 total) and 1,500 shares of common stock. According to the August 7, 1931

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Agreement between Clayton F. Summy and John Sengstack, Summy owned the 1,500 shares

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of Preferred Stock and John Sengstack owned the 1,500 shares of common stock.

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Ex. 23
539

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48.

There is no documentation in the record to prove that the Delaware corporation

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paid $150,000 plus accrued dividends to Clayton Summy to redeem the 1,500 shares of

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Preferred Stock that were owned by Clayton Summy prior to or after Clayon Summy's death

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on February 10, 1932, which was just a few months after Clayton F. Summy Co. (Delaware)

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was incorporated.

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49.

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There is no documentation in the record to prove who owned the 367 shares of

EMB at the time of the merger.
50.

Even if the Defendants were able to prove that the Delaware corporation paid

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Clayton F. Summy (or his estate) the $150,000 plus accrued dividends to redeem his

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Preferred Shares, there is no documentation in the record to prove who owned the 1,500

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shares of Summy, the Delaware corporation, at the time of the merger because John

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Sengstack, who entered into the 1931 agreement with Clayton Summy to purchase the 1,500

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shares of Clayton F. Summy Co. (Delaware), died in 1970 and there is no documentation in

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the record to prove who inherited John Sengstack's shares of the Delaware corporation.

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51.

Paragraph 6(a) of the Plan and Agreement of Merger ("Merger Plan") stated

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that "on the effective date of the merger and without further act on the part of either the

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corporation or its stockholders, 2.712 shares of the common stock, without par value, of

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SUMMY issued and outstanding on the effective date of the merger shall be converted into

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one share [illegible] of EMB". Ex. 72 at 831.

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52.

Pursuant to Paragraph 6(a) of the Merger Plan, the 1,500 shares of common

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stock in Summy were converted into 553 shares ofEMB common stock on the effective date

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of the merger (1,500/2.712 = 553). Id.

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53.

Therefore, after the effective date of the merger, 920 shares of common stock

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in EMB were outstanding: 367 shares of common stock owned by the EMB shareholders

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prior to the effective date of the merger and 5?3 shares of common stock in EMB that were

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issued to the shareholders of Summy after the effective date of the merger.

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54.

There is no documentation in the record to prove who owned any of the 920

outstanding shares of common stock in Summy (flkla EMB) after the merger.

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Ex. 23
540

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55.

New Summy-Birchard Company ("New Summy") was incorporated in the

State of Wyoming on March 8, 1976. Ex. 74 at 848, Ex. 75 at 855, Ex. 76 at 859.

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56.

There is no documentation in the record to prove who owned New Summy.

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57.

On March 19, 1976, New Summy filed Articles of Merger with the Wyoming

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Secretary of State. Ex. 75 at 854-857.
58.

Article One of the Articles of Merger states that:

The names of the corporations proposing to merge and the names of the States under
the law of which such corporations are organized, are as follows:

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SUMMY

Illinois

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NEW SUMMY

Wyoming

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Ex. 75 at 855.
59.

Article Three of the Articles of Merger states that "[t]he name of the surviving

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corporation shall be SUMMY-BIRCHARD COMPANY and it shall be governed by the laws

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of the State of Wyoming." Id.

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60.

Article Five of the Articles of Merger states that 953 shares of common stock in

Summy (Illinois) were outstanding prior to the merger. Id. at 856.
61.

As discussed in Paragraphs 37-38, supra, after the effective date of the 1973

merger, 920 shares of common stock in Summy (Illinois) were outstanding.
62.

There is no documentation in the record that proves Summy (Illinois) issued 33

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shares of common stock after the effective date of the 1973 merger until the time of the 1976

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merger or to whom those shares were issued.

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63.

Article Five of the Articles of Merger states that 10 shares of common stock in

New Summy (Wyoming) were outstanding prior to the merger. Ex. 75 at 856.
64.

There is no documentation in the record that proves who owned the 10 shares

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of common stock in New Summy (Wyoming) that were outstanding prior to the merger or

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what happened to those shares after the merger.

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Ex. 23
541

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65.

The Plan of Merger states that " ... the parties hereto agree that SUMMY-

BIRCHARD COMPANY, be merged into NEW SUMMY ..." Ex. 76 at 859-860.
66.

Paragraph C(I) of the Plan of Merger states that:

The shares of Common Stock of the surviving corporation, whether authorized
or issued on the effective date of the merger shall not be converted or
exchanged as a result of the merger, but upon said date all shares of Common
Stock of the surviving corporation theretofore authorized (whether issued or
unissued) shall be deemed to be shares of Common Stock of the surviving
corporation, and all such shares of the surviving corporation outstanding on the
effective date of the merger shall remain outstanding, shall be and be deemed
fully-paid and non-assessable and shall retain all rights to accrued and unpaid
dividends, if any.
Id. at 860-861.

67.

Pursuant to Paragraph C(1) of the Plan of Merger, the owner(s) of the 10 shares

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of common stock outstanding in New Summy (Wyoming) prior to the merger owned 10

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shares of common stock of Summy (Wyoming) after the effective date of the merger. Id

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68.

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Each share of Common Stock of the absorbed corporation issued and
outstanding on the effective date of the merger, and all rights in respect thereof,
shall, on said date, be converted into and exchanged for one share of the
presently authorized and unissued Common Stock of the surviving corporation.

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Paragraph C(2) of the Plan of Merger states that:

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Ex. 76 at 861.

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shares of common stock outstanding in Summy (Illinois) prior to the merger owned 953

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shares of common stock of Summy (Wyoming) after the effective date of the merger. Id.

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70.

Pursuant to Paragraph C(2) of the Plan of Merger, the owner(s) of the 953

There is no documentation in the record that proves who owned the 963 shares

of common stock in Summy (Wyoming) after the effective date of the merger.
71.

Summy (Wyoming) filed Articles of Amendment to Articles of Incorporation

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with the Wyoming Secretary of State on November 9, 1978. Ex. 77 at 867-869

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SUMCO Corporation. Id. at 867.

72.

The Articles of Amendment changed the name of Summy (Wyoming) to

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Ex. 23
542

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73.

Paragraph Third of the Articles of Amendment state that 963 shares of common

stock were outstanding as of the date of the Amendment. fd. at 867.

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74.

SUMCO Corporation (Wyoming) filed Articles of Amendment to Articles of

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Incorporation dated May 1,1979, with the Wyoming Secretary of State on an unknown date

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in 1979. Ex. 78 at 871-872.
75.

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(Wyoming) to Summy. fd. at 871.

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76.
77.
78.

Pursuant to the Articles of Amendment, Summy changed its name to The Birch

Tree Group Ltd. fd. at 874.

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Summy (Wyoming) filed Articles of Amendment to Articles of Incorporation

with the Wyoming Secretary of State on August 3, 1979. Ex. 79 at 874-875.

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Paragraph Third of the Articles of Amendment state that 963 shares of common

stock were outstanding as of the date of the Amendment. fd.

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The Articles of Amendment changed the name of SUMCO Corporation

79.

Paragraph Third of the Articles of Amendment state that 963 shares of common

stock were outstanding as of the date of the Amendment. Ex. 79 at 874.

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80.

The Birch Tree Group Ltd. filed Articles of Amendment to Articles of

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Incorporation with the Wyoming Secretary of State on October 12, 1979.

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878.

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81.

Ex. 80 at 877-

Pursuant to the Articles of Amendment, The Birch Tree Group Ltd. changed its

name to Birch Tree Group Ltd. fd. at 877.
82.

Paragraph Third of the Articles of Amendment state that 963 shares of common

stock were outstanding as of the date of the amendment. fd.
83.

Birch Tree Group Ltd. filed Articles of Amendment to Articles of Incorporation

with the Wyoming Secretary of State on December 27, 1988. Ex. 82 at 949-951.
84.

Pursuant to the Articles of Amendment, Birch Tree Group Ltd. changed its

name to Summy-Birchard, Inc. fd. at 949.
85.

Paragraph 4 of the Articles of Amendment state that 953 shares of common

stock were outstanding as of the date of the amendment. fd. at 949.

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Ex. 23
543

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86.

There is no documentation in the record that proves how the outstanding

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common stock of the Wyoming corporation was reduced from 963 outstanding shares as of

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October 12, 1979 to 953 outstanding shares as of December 27, 1988.

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89.

State of Wyoming. Ex. 85 at 957.

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90.
91.

On January 8, 2010, Summy-Birchard, Inc. filed Articles of Merger with the

Wyoming Secretary of State. Id. at 957-96l.

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On September 14, 2009, Summy-Birchard, Inc. was incorporated in the State of

Wyoming. Ex. 85 at 957.

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On May 31, 2006, Summy-Birchard, Inc. was administratively dissolved by the

92.

Pursuant to the Articles of Merger, the Summy-Birchard, Inc. dissolved in 2006

was merged into Summy-Birchard, Inc. that was incorporated on September 14,2009. Id.

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I hereby declare under the penalty of perjury under the laws of the United States that

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the foregoing statements are true and correct to the best of my knowledge, information, and

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belief.

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Executed this 25st day of November, 2014, at New York, NtJYO,rk.

I~~.

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)

~

By:~~
,.
RANDALL S. NEWMAN

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WARNERlCHAPPELL:21360.RSN.decl.

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Ex. 23
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EXHIBIT 24

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EXHIBIT 25 NON-PAPER EXHIBIT

[PURUSANT TO L.R. 11-5.1 MANUALLY LODGED AND FILED]

Ex. 25

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EXHIBIT 26 NON-PAPER EXHIBIT

[PURUSANT TO L.R. 11-5.1 MANUALLY LODGED AND FILED]

Ex. 26

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EXHIBIT 27 [PROVISIONALLY LODGED & FILED UNDER SEAL]

Ex. 27
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[PAGES 534-535 INTENTIONALLY
OMITTED - FILED UNDER SEAL]

EXHIBIT 28

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EXHIBIT 30 NON-PAPER EXHIBIT

[PURUSANT TO L.R. 11-5.1 MANUALLY LODGED AND FILED]

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