`
`Plaintiffs,
`
`v.
`
`IN THE COURT OF CHANCERY FOR THE STATE OF DELAWARE
`____________________________________
`)
` )
`EDWARD DEANE,
`)
`GEORGE WIHBEY and
`)
`JASON CUNNINGHAM IN HIS
`)
`CAPACITY AS ATTORNEY-IN-FACT
`)
`FOR WILLIAM CUNNINGHAM,
`)
`for themselves and in the right and for the
`benefit of New Media Investors II-B, LLC, )
`and NEW MEDIA INVESTORS II-B, LLC, )
`
`)
`)
`)
` )
`)
`)
`)
`)
`)
`)
`)
`NEW MEDIA INVESTORS II-C, LLC
`)
`Nominal Defendant.
`____________________________________)
`
`ROBERT A. MAGINN, JR.,
`Defendant,
`
`and
`
`C.A. No. 2017-0346-LWW
`REDACTED PUBLIC VERSION
`Filed: January 4, 2022
`
`PLAINTIFFS’ AMENDED MOTION FOR COMMISSION
`
`Plaintiffs Edward Deane, George Wihbey, and Jason Cunningham (in his
`
`capacity as Attorney-in-Fact for William Cunningham) (collectively, “Plaintiffs”),
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`hereby move this Court, pursuant to the Rules of the Court of Chancery and 10 Del.
`
`C. § 368, for an Order, in the form attached hereto, for the issuance of a subpoena to
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`compel Denis Yannatos (“Mr. Yannatos”) to testify in this action beginning at 10:00
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`a.m. on December 31, 2021, or at an agreed-upon date in January 2022 with the
`
`EFiled: Jan 04 2022 04:29PM EST
`Transaction ID 67209311
`Case No. 2017-0346-LWW
`
`
`
`Court’s permission, in person in Massachusetts or via remote live streaming.1 This
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`Motion amends Plaintiffs’ December 24, 2021, Motion for Commission (Doc. No.
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`185) as identified at Exhibit A.
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`The grounds for this Motion are that Mr. Yannatos, who has apparently been
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`Mr. Maginn’s tax accountant from circa 2002 to current, is not a party to this action,
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`and resides in Massachusetts, but his testimony is relevant and material to the issues
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`involved herein. Compulsory process is required to compel Mr. Yannatos to testify.
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`Mr. Yannatos has also performed the accounting for each of New Media Investors
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`II, LLC (“New Media II”); New Media Investors II-B, LLC (“New Media II-B”);
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`New Media Investors II-C, LLC (“New Media II-C”); New Media Investors SP,
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`LLC; and other similarly named LLC from at least 2002 to at least 2016.
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`Mr. Yannatos’s deposition testimony is necessary to determine the business
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`assets, purposes, transactions, and values associated with the dealings between
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`Robert A. Maginn, Jr., (on one side) as Chief Executive Officer of Jenzabar and (on
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`the other side) Manager of New Media II; II-B; II-C; and New Media Investors SP,
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`LLC.
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`Mr. Yannatos’s testimony is necessary because he is a key percipient witness
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`as to Defendant’s awareness of the reasonableness of his fiduciary conduct and his
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`1 Plaintiffs’ Notice of Deposition of Denis Yannatos was served on counsel for
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`Defendant via File & ServeXpress on December 24, 2021.
`2
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`
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`duties, including in light of social cues. Documents sought for years by Plaintiffs,
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`and supposedly pursued by a dozen professionals at extreme cost, were seemingly
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`located just yesterday, December 27, 2021, and show Mr. Yannatos concerned at
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`Mr. Maginn’s treatment of Plaintiffs and the other New Media II and II-B Members.
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`See annotations on Exhibits B, C, and D hereto. Mr. Yannatos’s interactions with
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`Mr. Maginn and Jamison Barr are now apparently very important to this case, based
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`on the documents withheld for years now.
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`Mr. Yannatos is also likely to have knowledge of the business purposes and
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`material differences between the following classes of securities in Jenzabar, at least
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`as to the New Media entities’ interest in several complex exchanges of securities:
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`a. “Series B Preferred” (vintage January 1, 2004)
`b. “Series B Warrants” (vintage January 1, 2004)
`c. “Series 1 Preferred” (vintage June 29, 2004)
`d. “Common” (vintage June 29, 2004)
`e. “Series A Jr. Preferred” (vintage June 30, 2004)
`f. “Series A Jr. Warrant” (vintage June 30, 2004)
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`Mr. Yannatos is also likely to know the sum of all dollars taken in by
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`Jenzabar from New Media II-B or New Media II, and paid back by Jenzabar to
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`those New Media investors at any time. He is also likely to know of securities that
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`remained with New Media II and II-B after January 1, 2012, a time at which both
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`Mr. Maginn and Jenzabar claim there were no longer any Jenzabar securities
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`remaining within II and II-B.
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`3
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`
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`Mr. Yannatos was a direct participant in the creation of the New Media II-C
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`warrant and the porting of it from New Media II and II-B, the payment of the
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`premium for it by New Media II and II-B, and the later accounting to transfer all
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`value from New Media II and II-B into New Media II-C. He is therefore likely to
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`know the history of the New Media II-C warrant.
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`Mr. Yannatos is also likely to know the value of Jenzabar Common stock at
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`various times, as well as values claimed by Mr. Maginn and his affiliates,
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`including as represented to third parties including the United States Internal
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`Revenue Service and Massachusetts Department of Revenue.
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`This testimony is required because Plaintiffs have been unable to obtain
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`documents or materials from Mr. Maginn due to his claims of lack of memory and
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`lack of documents.
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`These matters are relevant to Plaintiffs’ claims of Mr. Maginn’s engineering
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`of warrants to be
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` and expire worthless; for Jenzabar to frustrate
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`warrants by disallowing cashless exercises that are properly “in the money;” and for
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`purposeless transactions to appear to have a business purpose, but really to be a
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`vehicle for destroying value for investors and enhancement of the holdings and value
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`of Mr. Maginn. They are also relevant to Plaintiffs’ claims that several types of
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`securities remained owned by New Media II and II-B after January 1, 2012, after all
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`had, according to Jenzabar and Mr. Maginn, been disposed or redeemed.
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`4
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`
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`WHEREFORE, Plaintiffs respectfully request that the Court issue an Order
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`directing that a Commission be issued permitting Plaintiffs to obtain a subpoena to
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`testify directed to Denis Yannatos in the Commonwealth of Massachusetts.
`
`Of Counsel:
`Colin R. Hagan*
`David J. Shlansky*
`Shlansky Law Group, LLP
`1 Winnisimmet Street
`Chelsea, MA 02150
`(617) 497-7200
`Colin.Hagan@slglawfirm.com
`David.Shlansky@slglawfirm.com
`
`Respectfully submitted,
`
` /s/ David H. Holloway
`David H. Holloway
`Shlansky Law Group, LLP
`1504 N. Broom Street
`Wilmington, DE 19806
`(302) 256-5011
`David.Holloway@slglawfirm.com
`
`Attorneys for Plaintiffs
`
`
`
`Words: 844
`
`Dated: December 28, 2021
`
`5
`
`
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