Re: Certificate 2142
13 Q. Now looking at exhibits 37 and 38 which are the letters
14 dated July 13th and July 20th respectively that are addressed
15 to the Depository Trust Company. Do any of those letters
16 refer to the letters you sent in May of 1998?
17 A. No, they don't.
18 Q. There's no mention of that whatsoever?
19 A. Correct.
20 Q. And in fact there's no mention of certificate number 2142
21 which is the certificate that you claim is mentioned in the
22 letter of May 22, 1998; is that correct?
23 A. I didn't follow you.
24 Q. Well, I'm looking at the letter of May 22nd, 1998, and
25 that was the letter that your counsel introduced last Friday.
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1 A. Right. I don't have a copy of that, Mr. Montal.
2 THE CLERK: Do you know what exhibit number it was?
3 MR. MONTAL: I don't know what that was marked.
4 THE COURT: What date is it? May --
5 MR. MONTAL: May 22.
6 THE COURT: May 22.
7 THE CLERK: lB.
8 MR. MONTAL: Exhibit lB.
9 BY MR. MONTAL:
10 Q. Now that May 22nd letter is the only letter that in these
11 series of letters that at any point mentions certificate
12 number 2142; is that correct?
13 A. Yes.
14 Q. And you claim you sent this letter to DTC on May 22nd, or
15 thereabouts, of 1998, correct?
16 A. Correct.
17 Q. But yet your July 13 and your July 20 letter makes no
18 reference whatsoever to certificate 2142 which is the only
19 certificate that DTC has in its possession?
20 A. We were notifying DTC of all the certificates that we
21 believed were generated from the original eight certificates.
22 Q. Okay. Now your July -- just so that I'm clear -- your
23 July 13 and your July 20 letter makes no reference whatsoever
24 to certificate 2142, correct?
25 A. That is correct.
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1 Q. And in fact you have no receipts whatsoever for this
2 certificate -- for the letters of May 22, May 8 and May 6,
3 1998, correct?
4 A. Correct.
5 Q. And in fact those letters were not attached to your
6 original complaint, correct?
7 A. Correct.
8 Q. And those letters were not attached to your amended
9 complaint, correct?
10 A. Correct.
11 Q. And those letters were not attached to any of your
12 preliminary injunction papers?
13 A. Correct.
14 Q. And so the first time we've ever seen any of these May
15 1998 letters which you claim are very important and that you
16 sent to all the participants and copies like that to Fidelity,
17 the first time anybody has seen those letters is Friday,
18 January 29, 1998 -- 1999, correct?
19 A. Incorrect.
20 Q. Well, they're not attached to your amended complaint?
21 A. No, they were given to Robert Qualey when he was supposed
22 to prepare the original complaint.
23 Q. Sir, they were not in the complaint. They were not in the
24 amended complaint. And they were not in your preliminary
25 injunction papers, correct?
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1 A. Correct.
2 Q. And in fact you have no receipts for them, correct?
3 A. Correct.
4 Q. And none of your letters in July say anything about the
5 May letters, correct?
6 A. Correct.
7 Q. And they don't mention the same certificate numbers,
8 right?
9 A. Correct.
10 Q. Okay. And between February 22nd which is the day that you
11 claimed you mailed this letter and July 13th, approximately
12 two months passed and there's not another single piece of
13 correspondence, correct?
14 A. Phone conversations.
15 Q. I asked if there's any correspondence. Is there?
16 A. No.
17 THE COURT: Counsel, if you will, as an accomodation
18 we have a lot of initials and sometimes it's hard to follow
19 those. I would appreciate it rather than using initials like
20 DTC and so forth if you'd use the entire name of the entity in
21 your examinations.
22 MR. MONTAL: Absolutely, your Honor. I'll try to do
23 that. I've spent many years referring to them as DTC. But I
24 will certainly make an effort today.
25 BY MR. MONTAL:
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1 Q. Now you claimed that you sent the May 22nd letter by
2 first-class mail. Did you mail that yourself?
3 A. Yes, I did.
4 Q. Do you have any independent recollection of that?
5 A. I go to the post office every night at 10:00, at about
6 five to 10:00 every night of the week to check the post office
7 box and to mail any packages every night.
8 Q. Do you know what day of the week that was, May 22nd?
9 A. I can't recall.
10 Q. If I showed you a calendar I'm sure we can figure it out.
11 MR. MONTAL: Your Honor, I have not marked this as an
12 exhibit but I'd like to show it to the witness for purposes of
13 refreshing his recollection.
14 May I cross-examine the witness from here, your Honor?
15 THE COURT: You may.
16 THE WITNESS: Friday.
17 BY MR. MONTAL:
18 Q. Now May 22nd is a Friday, correct?
19 A. Correct.
20 Q. And that's the -- approaching the last weekend in May of
21 1998, correct?
22 A. Correct.
23 Q. And that's in fact Memorial Day weekend that Monday; is
24 that right?
25 A. I don't know.
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1 MR. MONTAL: Well, your Honor, I'd ask that the Court
2 take judicial notice of that fact.
3 THE COURT: The Court will take judicial notice.
4 BY MR. MONTAL:
5 Q. And so if you mailed the letter on May 22nd, at about
6 10:00 at night, the earliest it could possibly have been
7 received at DTC in New York, at the Depository Trust Company
8 in New York, is on Tuesday. I believe it is the 26th of May;
9 is that right?
10 A. Correct.
11 Q. And so the first time, even according to your testimony,
12 that DTC could possibly have had notice about any problem with
13 certificate to 2142 is on May 26, 19987
14 A. No. Because we mentioned to them any certificates by that
15 name. That's why we kept calling all the time and telling
16 them that so they would make sure that there was no problem.
17 MR. MONTAL: Move to strike, your Honor.
18 THE COURT: Well, I think it was responsive, counsel.
19 Let's move on.
20 BY MR. MONTAL:
21 Q. So it's your testimony that prior to May 22nd you had
22 phone conversations with DTC referring to certificate 21427
23 A. Referring to the whole situation.
24 Q. Referring to -- so you told them that any shares that come
25 in with respect to Amazon, they should not take. Is that your
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1 testimony?
2 A. There would be no more shares coming in; that's correct.
3 Because there was no more being issued because we had a clamp
4 on the transfer agent at that point.
5 Q. Well, isn't it true that there were outstanding shares
6 that were not being issued at that time but that individual
7 investors held that could have been deposited at DTC?
8 A. No.
9 Q. There was not a single certificate like that?
10 A. There's only 780,000 real shares.
11 Q. And it's your testimony that there was not a single
12 certificate of Amazon that was held by any individuals that
13 they had in their own possession that could have been
14 deposited at the Depository Trust Company?
15 A. That is correct.
16 THE COURT: Counsel, I'm going to do something a
17 little unusual because of the nature of the hearing because
18 I'm trying to understand. You're referring to certificate
19 number 21427
20 MR. MONTAL: Correct, your Honor.
21 THE COURT: And was that the certificate for 4
22 million dollar -- 4 million shares?
23 MR. MONTAL: That is one certificate for 4 million
24 shares. And that is the only certificate that ever made its
25 way to the Depository Trust Company.
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1 THE COURT: Okay. And do you agree to that?
2 THE WITNESS: Yes. And that certificate --
3 THE COURT: Okay. There are a number of other
4 certificate numbers and I presume that they are newly created,
5 may come from this accumulation of shares. It doesn't
6 necessarily mean that there were created new shares. 2142 was
7 the initial 4 million dollar -- is that true or is that --
8 MR. MONTAL: That's incorrect. It's actually the
9 other w~y around. With the indulgence of the Court I'd like
10 to explain that.
11 THE COURT: Go ahead. And if there's disagreement
12 then let me know. I'm just trying to understand.
13 MR. MONTAL: I appreciate that, your Honor.
14 Certificate number -- the certificates are generally issued in
15 number sequence and as the certificate numbers -- the higher
16 the number, the later the certificate number. And the
17 original shares that were issued to the Mann entities, to
18 White Cliff, I don't remember the other names.
19 THE COURT: Shoreline.
20 MR. MONTAL: The ones that were at issue in this case
21 are certificate numbers that precede certificate number 2142.
22 THE COURT: Okay. And it was 2142 that went to --
23 MR. MONTAL: Depository Trust Company. And any of
24 the other certificates that were registered to other
25 individuals or entities or which the plaintiff sent letters
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1 about, never made its way to the Depository Trust Company.
2 THE COURT: Okay. I think I'm getting the picture.
- Jeff |
