NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/05/2017 EXHIBIT F
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: Page 65 12/05/2017 2 Q Did you tell him to stop communicating 3 with you at any point in time? 4 A Yes. 5 Q What date was that? 6 A I have no idea. 7 Q Did you send him an E-mail that said 8 stop communicating with me? 9 A I can't recall the details of it. It 10 was a long time ago. 11 Q Was there an E-mail that said that? 12 MS. ADLER: Objection. 13 A I really don't recall. 14 MS. ADLER: It was asked and answered. 15 Q You said you don't recall whether 16 there was a communication telling him to cease 17 communicating with you, or you just didn't know 18 the date of that communication, but there was one 19 such communication. 20 A I think I mentioned earlier, but I 21 will- reiterate. 22 Q Please do. 23 A When he was forcing Ruder Finn on me I 24 told him absolutely no, that I don't have any 25 interest in selling my firm to Ruder Finn who he
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: Page 66 12/05/2017 2 was representing at the time. 3 Q Moving beyond that now and to the 4 subject of this lawsuit and V7 involvement, the 5 question on the table was did you ever tell him 6 stop communicating with me? 7 A Yes, I did about Ruder Finn. I don't 8 know if it was an E-mail. 9 Q Excuse me? 10 A I'm sorry. I don't recall. 11 Q What about V7? Did you tell him to 12 stop communicating with me about V7? 13 A I don't recall. 14 Q Really. During the period of time 15 that you were in communication with Vision 7 do 16 you remember who the first person of V7 it was 17 that you spoke to or communicated with? 18 A I believe there was a video conference 19 between myself, Darryl McCullough, who Art Stevens 20 had this relationship with, and the agreement. 21 There was a contract to that effect. And I 22 believe that Francis Trudeau was also part of that 23 video conference. 24 Q Was Frank Cerasoli part of that video 25 conference? 212-374-7700 " 516-678-0700 718-527-7700 fax: 516-678-4488
NYSCEF DOC. NO. 35 RECEIVED Page NYSCEF: 100 12/05/2017 2 A No, I don't think so. 3 MS. ADLER: Okay. 4 Q Did V7 have an expediter? 5 A A what? 6 Q An expediter. That's the phrase I am 7 using. 8 MS. ADLER: Finish your question. 9 Q Who was involved in this transaction? 10 MS. ADLER: An expediter. I am 11 objecting because I don't know what 12 expediter means. Maybe you can rephrase it. 13 Q Do you know what an expediter is in 14 the merger and acquisition of firms? Do you know 15 what that is? 16 A Like a Fed-Ex guy or someone who 17 like someone that moves something quickly like 18 that, or are you talking about UPS? 19 Q Not a truck driver, but you have it. 20 Someone who expedites. Someone what word you 21 j ust used. 22 A So did we use Federal Express? 23 Q No. I didn't mean did you use Federal 24 Express. Was there an expediter involved in this 25 case?
NYSCEF DOC. NO. 35 RECEIVED Page NYSCEF: 1012/05/2017 2 MS. ADLER: Answer it if you 3 understand it. 4 A I don't understand the question. I 5 mean, expediter, if you are asking me about a 6 postal service like Federal Express? 7 Q No. I am not talking about a delivery 8 person. 9 A What are you talking about? 10 Q Was there a person assisting your 11 firm or assisting V7 to expedite the transaction, 12 which means get documents obtained and delivered 13 to you and get documents obtained hand delivered 14 from you, either or both of those? Was there any 15 such person? 16 A I believe that the law firms had 17 delivered documents back and forth. 18 Q The law firm. You are talking about 19 at Davis and Gilbert or are you talking about the 20 firm where Ms. Adler was a partner? 21 - A K&L Gates and Davis and Gilbert had 22 definitely exchanged documents. 23 Q The two of them worked together would 24 you say? 25 A They exchanged documents between all '12-374-7700 516-678-0700 718-527-7700 fax: 516-678-4488
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: Page 135 12/05/2017 2 A If I recall, a lot of the due 3 diligence had been going on during that process 4 which normally does after a letter of intent, and 5 it altered the agreement from the first letter of 6 intent to the next. I don't remember all of the 7 specifics. 8 Q What were some of the specifics that 9 required a second letter of intent, any one that 10 you remember? 11 A I just don't recall the details. I 12 don't have this in front of me. 13 Q But the question is, you don't 14 remember any of them? 15 A There were time periods that moved 16 because of the holidays, there were meetings that 17 we were needing to have that we couldn't have 18 because of the holidays. Some of the numbers were 19 changing meaning the financials that were going 20 back and forth so -- 21 Q - What numbers- were changing?. 22 A I don't recall the details I told you. 23 Q Okay. Did V7 seem inclined to go 24 ahead with this deal when you communicated with 25 them prior to the second letter of intent??12-374-7700 516-678-0700 718-527-7700 fax: 516-678-4488
NYSCEF DOC. NO. 35 RECEIVED Page NYSCEF: 138 12/05/2017 2 Q Whatever was in their mind, did they 3 express their intent in a letter of intent yet a 4 second time? 5 MS. ADLER: Their intent to do what? 6 MR. SCHWARTZBERG: Whatever is set 7 forth in the letter of intent. 8 MS. ADLER: Did they send the letter 9 of intent? Is that your question? 10 MR. SCHWARTZBERG: Yes. 11 A They sent a second letter of intent, 12 yes. 13 Q Is that this exhibit there? May I 14 have it back? 15 A Yes, of course. 16 Q Do you know what was the reason that 17 the deal broke, if the deal broke? 18 A The deal did break. 19 Q But what was the reason? 20 A They lowered the price. 21 - Q Who was -they? 22 A Vision 7. 23 Q In what way did they lower the price? 24 MS. ADLER: I'm sorry? 25 A Well, the valuation of the company.
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: Page 149 12/05/2017 2 A Well -- 3 Q I can value this Dr. Pepper at $1. 4 They may be selling it for $2.50 5 MS. ADLER: Answer the question as 6 best you can, but I am going to let you 7 answer, and then I will object to the next 8 quest ion. 9 A Sotherewereproposed numbers in here 10 that were based on a fair market valuation of the 11 company. I don't remember what details there 12 were. 13 Q Proposed numbers, does that mean the 14 same as the price? 15 A I think what you are trying to do is 16 block me into a position of a price, and this was 17 really not a contract. It was a negotiation. 18 Q Was there a price of acquisition 19 therein? 20 A No. Mr. Schwartzberg, I am not sure 21 if you lived through deals like this,- but it was 22 an earn out, so the proposal was an earn out, and 23 the ultimate price is sort of negotiable because 24 this is not really a price. 25 Q There were terms in there which
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/05/2017 Page 153 2 MR. SCHWARTZBERG: Let the witness 3 answer it. 4 A Can I finish my statement? 5 Q Not if it is a speech. 6 A You are not grasping the concept. I 7 am answering your question Mr. Schwartzberg. 8 Q Answer it yes or no. 9 A You are not grasping the concept. 10 Q I am. 11 A This is a outline of specifics that 12 are very complicated and don't add up to a single 13 number. When you held up a bottle of Dr. Pepper 14 and said I might buy this for a buck and a half, 15 but its value is different. This is a very 16 complex and different situation than valuing a 17 bottle of Dr. Pepper. 18 Q Tell me when you are done. 19 A When you pin it down on a number which 20 I can't remember you just are asking a silly 21 question. 22 Q No, ma'am. The question is extremely 23 clear and simple. Is there on the fifth page here 24 of a sentence which reads, and of course I am 25 saying blank for the portions that were blocked
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: Page 154 12/05/2017 2 out by your attorney, maximum purchase price, the 3 maximum aggregate total purchase price, blank, 4 which is blocked out for the record, shall be U.S. 5 dollars blank, blocked out for the record? That's 6 the only question. It was like me asking you is 7 this a piece of paper with white, black, and 8 yellow on it. Is it there, just yes or no? 9 A It is right there. 10 Q Thank you. Now if we can move on, at 11 the point in time subsequent to the letter of 12 intent, number 1, the one that we just both 13 handled and is dated December 23, did there come a 14 time that you -- when I say you, you meaning 15 either Charlotte Wray or Frank Cerasoli, expressed 16 this agreement with its terms? 17 A Expressed this agreement? Sorry? 18 MR. SCHWARTZBERG: Repeat it. She is 19 saying she is sorry. 20 A No, as in I don't undertand the "21 question. 22 Q Which means perhaps there is something 23 faulty with my use of the King's English or 24 perhaps the question was not heard by her. 25 MS. ADLER: Objection.
NYSCEF DOC. NO. 35 RECEIVED Page NYSCEF: 157 12/05/2017 2 lawyers, or any other representative? 3 A I don't remember. I don't recall. 4 Q That's good. Thank you. I will now 5 deal with Plaintiff's Exhibit 4 which is A through 6 I. For the record Bates sequential stamp 10 7 through 18. 8 MS. ADLER: 18 or 17? 9 MR. SCHWARTZBERG: Well, I have 4-1 as 10 18. 11 Q I would like to direct your attention 12 to this, and it is dated February 25, 2016 so that 13 you know I am being clear on this. The copy I am 14 giving to you is unsigned, repeat unsigned, by 15 Charlotte Wray, unsigned by Brett Marchand, and 16 unsigned by Frank Cerasoli. Notwithstanding it is 17 unsigned I want to show you Exhibit 4-F which is 18 for the record Bates 15. Take a look at what is 19 Roman Numeral X therein. Take your time. Show it 20 to your lawyer please. 21 MS. ADLER: There are a couple of 22 Roman X's. 23 MR. SCHWARTZBERG: Roman X. 24 THE WITNESS: Well, there are two. 25 MS. ADLER: You said on Bates 15 as
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: Page 166 12/05/2017 2 your directions to invite some advice from 3 business brokers like yourself? Did you ever 4 rescind it in the year 2015? 5 A I don't remember. 6 Q The year 2016, same question. If you 7 want him to repeat it? 8 A I don't remember. 9 Q That's fine. And in the year 2017, 10 the early part of 2017, did you ever rescind it? 11 A I don't recall. 12 Q That's fine. Thank you. 13 A But I think earlier on I advised Mr. 14 Schwartzberg that I had. 15 MS. ADLER: Mr. Stevens? 16 A Mr. Stevens, sorry. That I was not 17 interested in working with him on the deals that 18 he was representing at the time. 19 Q When did you do that? 20 A I don't recall the dates. 21 Q Was it before or after December 23? 22 A It was in reference 23 Q 2016? 24 A It was in reference to the Ruder Finn 25 deal. I was very specific.
NYSCEF DOC. NO. 35 RECEIVED Page NYSCEF: 167 12/05/2017 2 Q That was the Ruder Finn deal? 3 A That's the same answer. 4 Q Did you ever tell him that, what you 5 just swore to, as in regard to the V7 deal from 6 the beginning of the V7 deal to the end of the V7 7 deal? 8 A Mr. Stevens wasn't really involved in 9 the V7 deal. 10 Q In any of the E-mail communications 11 from you to Mr. Stevens was the V7 deal discussed 12 in any way? 13 A I don't recall. 14 Q In the E-mails from Mr. Stevens to you 15 during 2015 and 2016, we will leave out 2017 for 16 now, was the V7 deal discussed by Mr. Stevens to 17 you? 18 A When you say the deal what exactly do 19 you mean? 20 Q The deal, the negotiations, the 21 acquisition, the purchase by V7 of Rx. 22 MS. ADLER: You mean the prospective 23 24 MR. SCHWARTZBERG: You can call it 25 prospective if you wish.
Page 200 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/05/2017 2 MS. ADLER: About what? 3 MR. SCHWARTZBERG: About the 2/27/17 4 at 12:09 p.m. communication from Frank 5 Cerasoli to Rebecca Ng which resulted in the 6 next communication from Rebecca Ng saying no 7 further deal. 8 MS. ADLER: Wait. So your -- sorry. 9 If you understood the question go ahead. 10 A I think what you are saying -- let me 11 repeat it so I can give you an accurate answer. 12 Are you asking if I had any subsequent 13 communication with anyone at Vision 7 after 14 Frank's E-mail of 2/27? 15 Q That is my question. 16 A Yes. 17 Q Can you describe those communications? 18 MS. ADLER: But your question was 19 about -- your question, if I understand, was 20 not about any subject. It was about Frank's 21 ' -- 22 Q I don't mean about the Easter parade. 23 I mean about these business dealings between 24 V7 and Rx. 25 A Oh, I don't recall.
Page 211 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/05/2017 2 want to ask the witness any questions? 3 MS. ADLER: Yes. 4 EXAMINATION BY 5 MS.-ADLER: 6 Q Ms. Wray, at the time that Dr. 7 Cerasoli sent the E-mail that we have discussed, 8 that is Plaintiff's Exhibit 3-A, was it Rx 9 Medical's intent to try to get to an acceptable 10 deal between Medical Dynamics and Vision 7? 11 A Yes. Our goal was to keep a line of 12 communication open certainly. 13 Q Is that to your understanding why the 14 E-mail that Dr. Cerasoli sent on, I think it was 15 February 27, 2017, says, "This is a surprising and 16 disappointing proposal? We remain open to discuss 17 a proposal that better reflects the value of 18 Medical Dynamics today and in the future?" 19 A Yes, that's accurate. 20 Q Is the reason that no deal ever was 21 consummated or completed between Rx Medica-l 22 Dynamics and Vision 7 was because the parties 23 could not agree on mutually acceptable financial 24 terms? 25 A Correct. That's accurate.