STATE OF NEW YORK SUPREME COURT COUNTY OF MONROE In re Eileen E. Buholtz on behalf of Rochester Philharmonic Orchestra, Inc.

. and other similarly situated members of Rochester Philharmonic Orchestra, Inc., Plaintiff, v. The Board of Directors of Rochester Philharmonic Orchestra, Inc., Defendant.

VERIFIED COMPLAINT INDEX NO.: 13/648 Assigned Judge: Hon. Matthew A. Rosenbaum, JSC

Plaintiff states upon knowledge as to her own actions and upon information and belief as to all other matters stated below, as follows: 1. Plaintiff is a resident of the County of Monroe and was a member of Rochester Philharmonic Orchestra, Inc. (RPO, Inc.) in an amount of at least $75 paid between Jan. 1, 2012 and December 21, 2012. 2. RPO, Inc.s principal place of business is 108 East Avenue in the City of Rochester and County of Monroe. 3. RPO, Inc. is a not-for-profit membership corporation whose principal place of business is 108 East Avenue, Rochester NY under the laws of New York, a charitable organization under Internal Revenue Code 501(3)(c), and is subject to the jurisdiction of the New York Charities Bureau. 4. Defendant is the Board of Directors of RPO, Inc. as of 5 pm on December 21, 2012 and as defined by bylaws Art. III, 2. 5. For the courts reference, Charles Owens is CEO and President of RPO, Inc. Elizabeth Rice is chair of defendant. Jules Smith is secretary of defendant. EXHIBITS 6. The following are attached as exhibits:

A. The by-laws of RPO, Inc. B. Notice of Annual Meeting of RPO, Inc. for January 23, 2013. C. Ballot accompanying annual notice of meeting. D. December 19, 2012, 10:25 am, memo of phone call from Plaintiff to Ellen Beck at RPO, Inc. E. December 19, 2012, 3:36 pm, memo of phone call from Ellen Beck (RPO, Inc.) to Plaintiff F. January 11, 2012 letter from Thomas Fink to C. Owens and E. Rice. G. December 20, 2012, 1:48 pm email from Thomas Fink to plaintiff. H. January 7, 2013 letter from plaintiff to RPO, Inc. I. January 11, 2013 letter by email from Thomas Fink to C. Owens, E. Rice, and J. Smith. J. Email string in reverse chronological order, re documents to be produce by RPO, Inc.: January 15, 2013, 6:53 pm plaintiff to Rice January 15, 2013, 4:11 pm, Rice to plaintiff January 15, 2013, 3:34 pm, Rice to plaintiff January 15, 2013, 2:11 pm, plaintiff to Rice January 15, 2013, 12:18 pm, Rice to Mr. Fink. K. Post-it note attached to minutes of meeting, which were supplied on January 17, 2013, for cost of copying 11 pages at ten cents per page. [Meeting minutes totaling eleven pages are being provided under separate cover: Board of Directors meeting October 31, 2012 (four pages); Board of Directors meeting October 3, 2012 (three pages); Executive Committee Meeting Oct. 24, 2012 (two pages); and Executive Committee Meeting September 27, 2012 (two pages).] L. January 17, 2013 memo from RPO, Inc. s accompanying listing of current members from September 1, 2012 through January 11, 2013. [Membership list is being provided under separate cover.] M. Email string in reverse chronological order: January 18, 2013, 10:59 am, email from E. Rice to plaintiff

 January 17, 2013, 6:13 pm, email from plaintiff to E. Rice, J. Smith, C. Owens, with attachments (same as at exh. F above). N. Roberts Rules of Order Newly Revised 11th Ed. (2011): title page, copyright pages and list of prior editions. O. Roberts Rules of Order Revised, 75th ed. (1951): Title page and table of contents (title page through page 4); 46 Voting (pp. 188-201); 47 Votes that are Null and Void even if Unanimous (pp.201-202); 48 Motions requiring more than a Majority Vote (pp.202-206); 66 Nominations and Elections (pp.263-264. RELIEF REQUESTED 7. An order is requested: A. Adjourning and staying the annual meeting of the members of Rochester Philharmonic Orchestra, Inc. currently scheduled for January 23, 2013 at 5:00 pm until further order of this court. B. Staying the expiration of the terms of any members of defendant that would have expired upon the election of new directors, until further order of this court and after such time as new directors are duly elected and qualified. C. Directing to defendant to establish properly the record date of December 21, 2012 for determining the members entitled to vote at defendants annual meeting, in compliance with defendants by-laws. D. Directing defendant to supply to plaintiff and any similarly situated member of defendant, including their agents or attorneys, the opportunity to inspect the membership list of defendant for the time period January 1, 2012 through December 21, 2012 and to provide a copy of said membership list all contact information associated with said members including but not limited to addresses, phone numbers, fax numbers, and email addresses, the copy of said information to be provided in hard copy and in electronic comma-separated-variable or similar format, within a specified reasonable period of time after the date hereof. E. Directing defendant to set an adjourned date of the annual meeting of members and to

provide due notification to its members of said adjourned meeting date in compliance with defendants by-laws and subject to this courts approvals. F. Permitting the write-in of an alternate slate of directors, as authorized and required by Roberts Rules of Order, on defendants ballot issued herein. G. Granting such other, further and different relief as to this Court may seem just and proper including costs, disbursements, and attorneys fees as may be incurred.

STATEMENT OF FACTS The salient facts from these exhibits are as follows: A. The By-laws of RPO, Inc. contain various provisions cited below. B. Defendants Notice of Annual Meeting of RPO, Inc. states that the membership year is commences January 1, 2012 through the record date of December 21, 2012 at 5 pm: [m]embers are individuals who contributed a minimum of $75 and corporations which contributed a minimum of $300, during the period from January 1, 2012 through the record date, December 21, 2012. C. The Ballot presents eight names for directors. Exh. B. D. On December 19, 2012, at 10:25 am, plaintiff called RPO, Inc. and left a message in the voice mail of Ellen Beck, administrative assistant to CEO/President Owens asking the record date for membership for the annual meeting. E. On December 19, 2012 at 3:36 pm, Ellen Beck returned Plaintiffs call and advised that the board chair says that the board is establishing that date and that Ms. Beck would call me. Plaintiff gave Ms. Beck plaintiffs cell phone number. F. On December 20, 2012 at 12:38 pm, Ellen Beck called plaintiff on plaintiffs cell phone and advised that record date is December 21, 2012 at 5 pm. G. On December 19, 2012 Thomas Fink wrote Mr. Owens and Ms. Rice objecting to the termination of Arild Remmereit, noting that the termination was one month after the by-law cut-off date for submission of an opposing slate of directors per bylaws, requesting adjournment of the January 23, 2013 annual meeting, and requesting that the location for the annual meeting be moved from the small Hatch Hall to a larger venue. The next day, December 20, 2012, Mr. Fink received a

phone call from Kyle Polite (RPO, Inc.), who sent Mr. Fink statements from five musicians who are opposed to Maestro Remmereit. Mr. Fink told Mr. Polite that Mr. Fink had seen those statements and nevertheless wanted an answer to his letter of December 19, 2012. Mr. Fink thereafter received a letter from defendants Secretary Jules Smith declining Mr. Finks requests (see Fink letter at exhibit I). H. By letter dated January 7, 2013, plaintiff wrote to RPO, Inc. requesting a certified list of the members entitled to vote at the annual meeting and requesting arrangement with Eastman School of Music for overflow attendees to the annual meeting. Plaintiff received no response. I. By letter dated January 11, 2013 from Mr. Fink to C. Owens, E. Rice, and J. Smith, Mr. Fink reiterated his request for an adjournment of the annual meeting, confirmed that Mr. Smith had declined Mr. Finks request of December 19, 2012 (exh. F), and formally request the names and addresses of all members under Art. XI, 2(4) of the by-laws so that the membership could be notified of additional nominees to be offered at the annual meeting. J. On January 15, 2013, Ms. Rice emailed Mr. Fink that she had received his January 11, 2013 letter on January 14, 2013 and that she would provide a current list of members by Thursday, January 17, 2013 after 3 pm for a cost of $66. Plaintiff responded that Mr. Fink was out of town and that plaintiff would pick up the list on Thursday, January 17. Plaintiff requested a copy of the minutes of any meetings and any waivers of consents to any meetings of the Board and the Executive Committee that were held or solicited between Sept. 1, and January 15, 2013. Ms. Rice responded that the minutes would be ready on January 21, 2013 but then advised that the copies of the minutes would be available at the same time as the list of members. K. On January 17, 2013 at 3:45 pm, plaintiff picked up an envelope with the meeting minutes totaling eleven pages: Board of Directors meeting October 31, 2012 (four pages); Board of Directors meeting October 3, 2012 (three pages); Executive Committee Meeting Oct. 24, 2012 (two pages); and Executive Committee Meeting September 27, 2012 (two pages). Those minutes are being provided under separate

cover. On top of the minutes was a post-it note attached with the charge 11 copies @ $0.10 per copy = $1.10. Plaintiff paid the $1.10 charge. L. During the same visit to RPO, Inc. on January 17, 2013, plaintiff received an envelope addressed to Mr. Fink that contained a memo from RPO, Inc. with a list of current members names, for September 1, 2012 through January 15, 2013, ostensibly in satisfaction of Mr. Finks request. The membership list is being provided to the court and defendant under separate cover. M. By email on January 17, 2013 at 6:30 pm, plaintiff emailed Ms. Rice, Mr. Smith, and Mr. Owens objecting to membership list regarding its format (no alphabetized), content (no addressed) and time frame (Sept. 1, 2012 - Jan 15, 2013, not Jan. 1 Dec. 21, 2012). On January 18, 2013, at 10:59 am, Ms. Rice responded that RPO,

Inc. had provided all that Mr. Fink was entitled to and declined to provide membership list for anything other than for the current fiscal year, which runs from Sept. 1, 2012 to Aug. 31, 2013. N. The by-laws, art. XII, 2 states that all meetings of members shall be conducted in accordance with Roberts Rules of Order-Revised. The 2011 edition of Roberts Rules (which is entitled Roberts Rules of Order Newly Revised) lists the various Roberts Rules of Order. This table demonstrates that the last edition of Roberts Rules of Order Revised, is the 75th Anniv. (6th) Ed. (1951). O. The salient provisions of the 1951 Seventy-Fifth Edition of Roberts Rules of Order Revised are attached as Exhibit O. The most important provision is 66 Nominations and Elections (p. 263), which provides that at elections where ballots are used, there are no nominations made viva voce at the meeting, and members may write in the name(s) of any members for the position at issue on the ballots. RPO, Inc.s bylaws required that directors be chosen by ballot. The by-laws then attempt to require nominations of any opposing directors by October 31 and further attempt to cut off motions from the floor. The by-laws do not prohibit the writing in of names on the ballot, however, and write-ins are expressly provided for by Roberts Rules of Order Revised. INVALID RECORD DATE

8. Defendant failed to establish the record date of December 21, 2012 by a meeting of the Board or of the Executive Committee. The record date is therefore invalid and the Annual Meeting is improperly called. The Annual Meeting should be stayed and the current directors on defendant should be continued until proper elections for directors are duly held. 9. The minutes of meetings that RPO, Inc. supplied on January 17, 2013 (exh J and minutes that are being supplied to this court under separate cover) show that there was no meeting of either the Board or the Executive Committee between October 31, 2012 (being the date of the last meeting provided by RPO, Inc. on January 17, 2013) and December 21, 2012 at 5 pm (being the record date ostensible set by the Board). The annual meeting should therefore be stayed and, if the meeting is not stayed, any action that may be taken at said meeting should thereafter be declared null and void ab initio. 10. The by-laws provide as follows: A. Every member of record who has paid the minimum amount for support of RPO, Inc. in any membership year as determined by defendant is entitled to one vote at every meeting of the members during that membership year. Exh. A, Art. I, 5(a). B. The membership year, unless otherwise determined in advance of the start of the membership year by the Board of Directors, shall be the fiscal year of the Corporation. Exh. A, Art. I, 1. C. The Board may fix a date as the record date for the purpose of determining the members entitled to vote at any meeting of members or any adjournment thereof. Exh. A, Art. I, 5(b). D. Any corporate action to be taken by the Board of Directors means action at a meeting of the Board. Exh. A, Art. III, 8.

E. When the Board of Directors is not in session, the Executive Committee shall have the power and authority of the Board, and particularly shall have charge of the activities of the Corporation, and [a]ny reference in these By-laws to the Board of Directors shall include the Executive Committee, unless it is expressly otherwise provided, or unless the context clearly indicates the contrary. Art. V, 2. 11. Since October 31, 2012 was the last meeting of either the Board or the Executive Committee, and none of the four sets of minutes references the record date, defendant failed to set the record date for membership for the annual meeting, making respondents notice of annual meeting invalid. 12. Plaintiff requests that the annual meeting should therefore be stayed until defendant sets December 21, 2012 by a duly called meeting of defendant or defendants executive committee, and that the directors that constitute defendant remain as constituted on December 21, 2012 until further order of the court. LIST OF MEMBERS 13. Plaintiff is entitled to a list of members for the time frame January 1, 2012 through the ostensible record date of December 21, 2012 with all contact information for said members, and to have that information not only in hard-copy format alphabetized by last name but also in comma-separated-variable or equivalent format. Roberts Rules of Order Revised authorizes the members of RPO, Inc. to write in other directors on the members ballots. RPO, Inc.s by-laws do not prohibit written-in names on the ballot. Plaintiff is therefore entitled to contact all eligible members of RPO, Inc. to advise them of their right to right in names and of the names of the six people who are willing to serve as directors. 14. Lastly, plaintiff is entitled to such other and further relief as the court may deem just

and proper. WHEREFORE, plaintiff seeks the relief requested under the heading Relief Requested above. ____s/ Eileen E. Buholtz____________ Eileen E. Buholtz

STATE OF NEW YORK) COUNTY OF MONROe) SS: Eileen E. Buholtz, being duly sworn, deposes and says: Deponent is the plaintiff in the within action; deponent has read the foregoing complaint and knows the contents thereof; the same is true to deponent's own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters deponent believes them to be true. _s/ Eileen E. Buholtz_______________________

Sworn to be fore me this 22nd day of January, 2013 s/ Richard E. Butts _______________________ Notary Public Monroe County Commn expires 1/7/2016