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NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 15-1558 ______________ UNITED STATES OF AMERICA v. STUART CHAMBERS Appellant ______________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. No. 2-10-cr-00774-001) District Judge: Hon. Paul S. Diamond ______________ Submitted Under Third Circuit L.A.R. 34.1(a) March 23, 2016 ______________ Before: GREENAWAY, JR., SHWARTZ, and RENDELL, Circuit Judges. (Filed: April 4, 2016) ______________ OPINION* ______________ SHWARTZ, Circuit Judge. * This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. Stuart Chambers seeks review of his sentence for conspiracy and bank fraud, arguing that the District Court erroneously denied him a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1 because, when combined with an unchallenged enhancement for obstruction of justice under § 3C1.1, he received an improper “double penalty.” Appellant’s Br. 13. Chambers, however, knowingly and voluntarily waived his appellate rights, and for the reasons that follow, we will affirm. I While on supervised release for a 2002 drug conviction, Chambers participated in a scheme to pass fraudulent checks at local banks. As a result, in 2010, Chambers was charged with conspiracy to commit bank fraud and three counts of bank fraud (collectively “the 2010 bank fraud charges”). In addition, Chambers was charged with having violated the conditions of supervised release imposed in connection with his 2002 conviction. Chambers agreed to plead guilty to the 2010 bank fraud charges in exchange for certain benefits, including the Government’s recommendation that he be granted a reduction for acceptance of responsibility under § 3E1.1. Chambers also agreed to “voluntarily and expressly waive[] all rights to appeal or collaterally attack [his] conviction, sentence, or any other matter relating to this prosecution,” unless the Government appealed the sentence, the sentence exceeded the statutory maximum for any count, or the sentencing judge “erroneously departed upward” under the Guidelines or “imposed an unreasonable sentence above the final Sentencing Guideline range 2 determined by the Court.”1 Suppl. App. 17-18. During his 2011 plea hearing, the Government described the waiver when summarizing the plea agreement, and the District Court twice asked Chambers if he understood this waiver and he indicated that he did. The District Court found that Chambers understood all of his rights, including his appellate rights, and knowingly and voluntarily waived them, and accepted the guilty plea. Chambers failed to appear at his sentencing and fled to New York. While in New York, Chambers was arrested for cocaine possession, convicted, and sentenced to two years’ imprisonment. After completing his New York prison term, he was returned to federal custody to face sentencing on the 2010 bank fraud and supervised release charges. The District Court held a sentencing hearing on both the 2010 bank fraud charges and the supervised release violation. The District Court first sentenced him to twenty- four months’ imprisonment on the violation of supervised release, without objection. Turning to the bank fraud charges, the District Court considered the sole contested issue, namely whether Chambers was entitled to a reduction for acceptance of responsibility. The District Court overruled Chambers’s objection, holding that his was not “the kind of extraordinary case” in which both obstruction of justice and acceptance of responsibility applied. App. 31. Finding Chambers to be a “one-man crime wave,” the District Court sentenced him to, among other things, the statutory maximum of sixty months’ imprisonment on the bank fraud conspiracy charge, to be served concurrently with a top 1 In the Acknowledgment of Rights form submitted in connection with his guilty plea, Chambers also indicated he understood that he waived his right to appeal. 3 of the Guidelines range sentence of seventy-one months’ imprisonment on the remaining bank fraud charges. App. 41. The District Court further ordered that the sentence on the 2010 bank fraud charges would be served consecutively to the twenty-four month sentence imposed for the violation of supervised release. After announcing its sentence, the District Court explicitly reminded Chambers of his right to appeal, but noted that it “may be affected by the terms of [his] plea agreement.” App. 49. Chambers appeals. II2 Chambers appeals only the District Court’s denial of a reduction for acceptance of responsibility. However, because Chambers waived his right to appeal the Guidelines sentence imposed by the District Court, we need not reach this issue. We will enforce an appellate waiver if we conclude that (1) the issue raised on appeal is within the scope of the waiver; (2) the waiver was knowing and voluntary; and (3) enforcing the waiver would not work a miscarriage of justice. See United States v. Grimes, 739 F.3d 125, 128-29 (3d Cir. 2014); United States v. Castro, 704 F.3d 125, 136 (3d Cir. 2013) (courts should decline enforcement due to a miscarriage of justice “sparingly and without undue generosity” (quotation marks and citation omitted)).3 We will consider each factor in turn. There is no dispute that Chambers’s arguments on appeal are within the scope of the appellate waiver and do not fall within its exceptions. The appellate waiver here 2 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. 3 The validity and scope of an appellate waiver is reviewed de novo. See United States v. Wilson, 707 F.3d 412, 414 (3d Cir. 2013). 4 contains limited exceptions under which Chambers may file an appeal, namely when the Government appeals, or when the court imposes a sentence above the statutory maximum, erroneously upwardly departs, or imposes an unreasonable sentence above the final Guidelines range. None of the exceptions are present in this case. Since the Guidelines issue here does not fall within the categories excluded from the waiver, it falls within its scope. The record also shows Chambers knowingly and voluntarily waived his appellate rights. To hold that an appellate waiver was “knowing” and “voluntary,” this Court must be “satisfied that the district court ‘inform[ed] the defendant of, and determine[d] that the defendant underst[ood] . . . the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.’” United States v. Mabry, 536 F.3d 231, 239 (3d Cir. 2008) (alterations in original) (quoting Fed. R. Crim. P. 11(b)(1)(N)). The written plea agreement, acknowledgment of rights, and hearing transcript all show Chambers was on notice of the waiver. Furthermore, the plea hearing transcript “countermands any suggestion that the waiver was not” knowingly entered. Id. at 238. The District Court engaged in a thorough and detailed plea colloquy with Chambers before accepting the guilty plea, which included an oral recitation and explanation of the waiver, and specific questions about whether Chambers and his counsel reviewed the agreement and whether Chambers fully understood the nature of the appellate rights being waived. Chambers told the District Court he understood the waiver and the District Court found he understood his rights. Accordingly, we conclude that the waiver was knowing and voluntary. 5 Finally, enforcing Chambers’s appellate waiver would not result in a miscarriage of justice. In determining whether the enforcement of a waiver works a miscarriage of justice, we assess the clarity of any error, its gravity and character, the impact of the error on the defendant, the impact of correcting the error, and the defendant’s acquiescence in the result. See id. at 242-43 (citing United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001)). We discern no error in the District Court’s application of the Sentencing Guidelines, let alone the kind of error that amounts to a miscarriage of justice. Even if the District Court committed an error, claims relating to Sentencing Guideline calculations are exactly the type of arguments to which a broad appellate waiver applies. See Castro, 704 F.3d at 141-42 (“[A] district court’s arguably erroneous calculation of a guidelines range ‘is precisely the kind of “garden variety” claim of error contemplated by an appellate waiver.’” (citations and alterations omitted)); see also United States v. Price, 558 F.3d 270, 284 (3d Cir. 2009) (written waiver precluded challenge to the Government’s refusal to request a reduction for acceptance of responsibility). Chambers raises only this type of claim, disagreeing with the District Court’s decision not to grant him a reduction under § 3E1.1 because he contends it resulted in double punishment. Under our caselaw, it is the type of issue to which the waiver applies. Moreover, his contention about double punishment has been specifically rejected by the Sentencing 6 Guidelines.4 See U.S.S.G. § 3E1.1 cmt. n.4. Therefore, enforcing the waiver here is not a miscarriage of justice. Because Chambers knowingly and voluntarily entered into his appellate waiver, and enforcement of the waiver would not amount to a miscarriage of justice, the appellate waiver bars Chambers from seeking a ruling on the merits of his appeal. Thus, we will enforce the waiver and affirm the sentence. III For the foregoing reasons, we will affirm the judgment of sentence. 4 Chambers wisely does not contest the applicability of the obstruction of justice enhancement as it clearly applies given his flight before sentencing. U.S.S.G. § 3C1.1 cmt. n.4(E) (identifying “willful[] fail[ure] to appear . . . for a judicial proceeding” as an example of conduct warranting the enhancement). Ordinarily, “[c]onduct resulting in an enhancement under § 3C1.1 . . . indicates that the defendant has not accepted responsibility for his criminal conduct,” though application of both sections may be warranted in “extraordinary cases.” U.S.S.G. § 3E1.1 cmt. n.4. Although we decline to reach the acceptance of responsibility issue, we note that even if we were to review it, we would see no clear error in declining to deem Chambers’s circumstances to present an extraordinary case where a court could grant a § 3E1.1 reduction to a defendant who received a § 3C1.1 enhancement. 7

107 F.3d 873 NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.William L. GREER, Petitioner-Appellant,v.Al C. PARKE, Respondent-Appellee. No. 96-2523. United States Court of Appeals, Seventh Circuit. Submitted Feb. 5, 1997.1Decided Feb. 14, 1997. Before FLAUM, MANION and EVANS, Circuit Judges. ORDER 1 William L. Greer was convicted by a jury in Indiana of attempted murder and robbery resulting in serious bodily injury. He was sentenced to consecutive prison terms of 80 years and 50 years, respectively, for the crimes. Greer filed a direct criminal appeal to the Supreme Court of Indiana in which he claimed the attempted murder jury instructions were erroneous and his robbery conviction violated the state and federal prohibitions against double jeopardy. A subclaim of his "double jeopardy" argument included a challenge to the sufficiency of the evidence to support the robbery conviction. 2 The Supreme Court of Indiana concluded that the jury instructions were wrong and it vacated the attempted murder conviction. The robbery conviction, however, was not disturbed. See Greer v. State, 643 N.E.2d 324, 327 (Ind.1994). Although a new trial was ordered on the attempted murder charge, we do not know if one actually occurred. 3 Greer filed this habeas corpus petition in federal district court challenging his robbery conviction. It was denied and Greer appeals. 4 Greer's conviction arose out of a botched attempt to rob a grocery store back in 1988. Greer entered the store, threatened two employees with a gun, and ordered them to put money from the cash register in a bag. While the robbery was in progress, a woman entered the store and noted what was going on. She retreated to her car and reported the robbery to her husband, an off-duty deputy sheriff. The deputy entered the store, identified himself, and tried to stop the robbery. At that point, Greer's accomplice, Franklin Rance, entered the store, and both Greer and Rance shot at the deputy, wounding him in the leg. Rance fled the scene and the deputy shot Greer in the neck and chest. 5 Greer claims that the state trial court found that the robbery was complete prior to the injury to the deputy and that therefore the evidence was insufficient to sustain a conviction for robbery "resulting in serious bodily injury" to another under Indiana law. Greer points to the sentencing hearing where the state judge discussed a presentence memorandum. During the sentencing hearing the state judge considered Greer's argument that he should not be sentenced for attempted murder and robbery because the same serious bodily injury supported both convictions. In rejecting this argument, which has been improperly labelled as a double jeopardy claim, the state trial judge said: 6 The Court believes in this instance, having heard the evidence in the trial, that there were distinct criminal states of mind that the burglary [sic], in effect, had concluded by the time the attempted murder had taken place.... 7 Motion for Dismissal of Attorney & Sentencing, State v. Rance & Greer, No. 91D01-88-CF-40, 91D01-88-CF-41, at 1236-37. Based on the "distinct states of mind," the state trial judge concluded that the convictions of both the attempted murder and class A felony robbery were proper.2 Greer contends that this "finding" must be presumed correct under 28 U.S.C. § 2254(e)(1) and that it establishes that there was insufficient evidence to prove that the robbery--as opposed to the attempted murder--resulted in serious bodily injury. In essence, Greer asserts that the robbery was complete before he shot and wounded the deputy. 8 A factual issue involves basic, primary, or historical facts. Thompson v. Keohane, 116 S. Ct. 457, 464 (1995) (citing to Townsend v. Sain, 372 U.S. 293 (1963)). Here, the trial court's statement that Greer had "distinct criminal states of mind" is not a recital of facts but a legal conclusion concerning the scope of the protection against double jeopardy in relation to Greer's two convictions. Thus, we are not required to presume the statement to be correct under the federal habeas statute. 9 The district court here correctly concluded, after reviewing the evidence in the light most favorable to the prosecution, that a rational jury could have found the essential elements of the robbery offense beyond a reasonable doubt and thus there was no constitutional due process violation. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). Greer shot the deputy in the course of robbing the store after the deputy identified himself and attempted to stop the crime. The robbery wasn't over when the shooting took place. As Indiana notes, "The responsibility for any bodily injury which occurs during the commission or attempted commission of a robbery rests on the perpetrators of the crime, regardless of who inflicts the injury, so long as it is a natural and probable consequence of the events and circumstances surrounding the robbery or attempt." Moon v. State, 419 N.E.2d 740, 741-42 (Ind.1981). Greer's assertion that the robbery had ceased before he shot the deputy is not supported by the facts. The events and circumstances surrounding the robbery establish just the opposite; the shooting of the deputy was a natural and probable consequence of the robbery.3 Double jeopardy doesn't even raise its head in this case, and the dismissal of Greer's habeas petition is AFFIRMED. 1 After an examination of the briefs and the record, we have concluded that oral argument is unnecessary. Accordingly, the appeal is submitted on the briefs and the record. See Fed.R.App. P. 34(a); Cir.R. 34(f) 2 See Flowers v. State, 481 N.E.2d 100, 106 (Ind.1985) (prohibition against double jeopardy not violated when there are distinct criminal states of mind) 3 We have retroactively applied the recent amendment to 28 U.S.C. § 2254(d) of the habeas corpus statute enacted under the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 100 Stat. 1214, in accordance with our holding in Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996) (en banc ). However, the outcome of this case is unaffected even if the Act were not applied retroactively, as Greer's sufficiency of the evidence claim would not merit relief under the former 28 U.S.C. § 2254

Dear Mr. Morgan: Our office has received you request for an Attorney General opinion for the following question: Can an institution of higher education possess certain drugs for the purpose of Drug Identification and Testing courses in the classroom setting? The answer to this question can be found in La.R.S. 40:992 which provides for the authorization of the use of controlled dangerous substances for the purpose of research. It states that the Department of Health and Hospitals is authorized to: Enter into contacts with public agencies or institutions of higher education, for the purpose of conducting research, demonstrations, or special projects which bear directly on misuse and abuse of controlled dangerous substances. As an institution of higher education, in order for South Louisiana Community College to be exempt from any type of prosecution for the possession of controlled dangerous substances, the institution should contact the department and seek to enter into contract for this type of authorization. I hope this enclosed opinion sufficiently answers your inquiry. If I may be of further assistance, please do not hesitate to contact our office. With warmest regards, I remain Very Truly Yours, RICHARD P. IEYOUB Attorney General By: ___________________________ INGRID F. JOHNSON Assistant Attorney General IFJ/vc/jy

793 P.2d 415 (1990) ESTATE LANDSCAPE AND SNOW REMOVAL SPECIALISTS, INC., Plaintiff and Appellee, v. MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, Defendant and Appellant. No. 880428-CA. Court of Appeals of Utah. May 24, 1990. *416 Floyd A. Jensen, Salt Lake City, for defendant and appellant. David D. Loreman and Lowell V. Summerhays, Murray, for plaintiff and appellee. Before DAVIDSON, JACKSON and LARSON,[1] JJ. OPINION LARSON, Judge: This is an action seeking to collect amounts alleged to be due under a contract for snow removal services rendered by Estate Landscape and Snow Removal Specialists, Inc. (Estate Landscape). Defendant Mountain States Telephone and Telegraph Company (Mountain Bell) appeals from a judgment in favor of Estate Landscape. Estate Landscape and Mountain Bell entered into a written contract which provided that Estate Landscape would remove snow from certain buildings occupied by Mountain Bell in return for payment at a specified rate. Estate Landscape performed its work suitably, and billed Mountain Bell twice, once for work through December 27 and again at the end of the snow season.[2] The billing separately listed each snow removal item by date. Mountain Bell paid the first bill, but considered the $30,162.90 total of the second bill to be excessive for the services at its Alta office. It therefore sent Estate Landscape a check for only $8,613. The check did not contain a restrictive endorsement or a waiver on its face. Upon receipt of the check, Estate Landscape responded by acknowledging partial payment and requesting the balance remaining, but Mountain Bell refused to pay the balance. Next, *417 Mountain Bell sent Estate Landscape a letter[3] explaining its position concerning the bill for the Alta office. According to the letter, the contract for the Alta office provided that Estate Landscape would remove snow when it reached a depth of four inches. From snowfall records for Alta, it appeared that Estate Landscape had billed for snow removal on days when the snowfall was less than four inches. On the basis of the snowfall records, therefore, Mountain Bell refused to pay for snow removal on certain days for which Estate Landscape had charged for its services. The letter specifically detailed all contested snow removal services by date. Mountain Bell's letter concluded: Based on the above identified billing discrepancies we have enclosed[[4]] a check for $8613.00 which is payment in full for satisfaction of contracted services. If you are not willing to accept that sum, $8613.00 in full satisfaction of sums due, DO NOT negotiate the check, for upon your negotiation of that check, we will treat the matter as fully paid. (Emphasis in original). When Estate Landscape received the letter, the check it had earlier received from Mountain Bell had not been cashed. Estate Landscape responded to Mountain Bell's letter by commencing this action against Mountain Bell. Initially, Estate Landscape complained for the entire $30,162.90 of its second bill for the winter of 1984-85. About two weeks after filing suit, Estate Landscape endorsed the check from Mountain Bell and cashed it, then amended its complaint against Mountain Bell to seek only the difference between the amount of the check and the amount billed. Mountain Bell moved for summary judgment on the grounds that its letter and check tendered to Estate Landscape were an accord and satisfaction of its obligation under the snow removal contract. The district court, per Judge Michael R. Murphy, denied the motion, noting that Mountain Bell admitted that it owed the amounts tendered in the check. The case proceeded to trial before the bench. At trial, Judge Timothy R. Hanson considered the earlier denial of summary judgment to have resolved the question of accord and satisfaction, and granted judgment to Estate Landscape for the amount of its bill, less certain charges for work not mentioned in the contract. The judgment included interest accruing before judgment, compounded annually. Mountain Bell appeals. Factual Standard of Review in Summary Judgment Mountain Bell now argues that the trial court erred in treating its motion for summary judgment as dispositive of its accord and satisfaction defense and thereafter refusing to reopen that issue at trial on the grounds that it was law of the case. Mountain Bell argues that the combined effect of the dispositive summary judgment and the refusal to try the issue was an unfairly skewed view of the facts in the district court. Mountain Bell argues that the court views the facts for summary judgment purposes in a light unfavorable to the moving party, and therefore, because the summary judgment was treated as conclusive against the movant, the movant here, Mountain Bell, never had a chance for a fair view of the facts on the issue. Mountain Bell, however, is not precisely correct in thus describing a court's factual viewpoint in deciding a motion for summary judgment. Although it may be true for most summary judgments that the *418 court views the facts in favor of the non-movant, that formulation takes into account only perhaps the most common outcomes of a motion for summary judgment, in which the moving party either receives the judgment it seeks, or all judgment is denied and the issue reserved for further consideration. However, in this case, Mountain Bell moved for summary judgment, and its motion was denied on the merits, and that denial effectively disposed of Mountain Bell's accord and satisfaction defense.[5] Later, that disposition was regarded as the law of the case, and the accord and satisfaction issue was not reopened.[6] Recognizing that the party adversely affected by the summary judgment has not had an opportunity for trial, the court views the facts in the light most favorable to that party.[7] In situations in which summary judgment is granted, the party adversely affected would be the party who did not move for summary judgment. If summary judgment is denied on the merits and a claim or defense of the movant thereby eliminated, then the facts are viewed in the light most favorable to the moving party. Summary judgment may also be denied without reaching the merits of any claim or defense, often because the court cannot reconcile the material elements of the parties' versions of the facts, and thus cannot grant a summary judgment under Utah R.Civ.P. 56(c).[8] Since any material difference in the parties' versions of the facts will preclude summary judgment, the shadings of light in which the facts are viewed cannot make a substantial difference in the result, even if the shading applied is erroneous. In this case, Mountain Bell was the movant for summary judgment on the accord and satisfaction issue. The district court's memorandum decision on Mountain Bell's *419 motion was clearly intended to lay the defense of accord and satisfaction to rest. Since a defense of Mountain Bell's was thereby eliminated, the facts should be viewed in the light favorable to Mountain Bell. The record does not explicitly note whether the district court thus viewed the facts; however on appeal, we view the facts supporting a summary judgment through the same lens filter as the trial court.[9] Therefore, since the issue of correctness of the summary judgment on its merits is before us, we proceed to review it in the light most favorable to Mountain Bell. Lack of an Accord In denying summary judgment on the merits, the district court reasoned that the contract for snow removal in this case was severable, and that the scope of the accord was therefore limited to only part of the contract. According to this reasoning, the accord and satisfaction did not fully discharge the contract.[10] Identifying which claim or claims are the subject of an accord and satisfaction depends on the manifested intent of the parties.[11] However, before we can determine the contractual intent of the parties, we must have a contract. There is no contractual intent to be discovered where there has been no mutual assent. In this case, the mutual assent for the would-be accord is lacking.[12] From Mountain Bell's point of view, the accord is contained essentially in its letter of June 14, 1985, to Estate Landscape. However, this letter is entirely unilateral; there is no indication that Estate Landscape assented to the letter as an accord. Its signature on the check is not an assent to an accord not found on the face of the check as a restrictive endorsement,[13] where the party to whom the accord is offered has expressly rejected the proposed accord, continued the dispute, and filed litigation to resolve it adversarially in court. It is therefore apparent that an accord was offered, a check tendered in anticipation that an accord would be reached, and a letter sent indicating what Mountain Bell intended and would do if the check were negotiated, but there is no indication of Estate Landscape's assent to the accord. Even in the light most favorable to Mountain Bell, the evidence simply falls short of demonstrating Estate Landscape's acceptance of Mountain Bell's offer to settle the account. It would, perhaps, be possible to offer an accord and provide in the offer that cashing an accompanying check would be acceptance of the offer, since the offeror can, within reason, specify the act that shall constitute acceptance.[14] However, the offeree can also reject the offer, after which there is nothing left to accept. We believe that the telephone conference continuing the dispute and the filing of litigation amount to a rejection of the offered accord. After the litigation was underway, there remained the question of what to do with Mountain Bell's tendered check in Estate Landscape's possession. Estate Landscape acted within its rights in cashing *420 check as payment of the portion of its claim that Mountain Bell agreed was owing; in fact, it may have had a duty so to act in order to properly mitigate its damages. Thus, even if we resolve any immaterial factual doubt in Mountain Bell's favor, this appears to be a situation in which one party asserts an accord to which the other party, for all that appears, never agreed. In such a case, accord and satisfaction is not a defense for lack of a binding accord. Compounding of Interest Mountain Bell's final argument is that, even if it is liable for the amount of the judgment, the interest on the judgment should not have been compounded. The general rule is that simple, not compound, interest accrues on a judgment, unless the parties contract otherwise,[15] which they have not in this case, or unless the statute providing for interest on judgments expressly requires compounding, which ours does not.[16] This rule against compound interest on judgments is consistent with the general judicial disfavor of interest on interest.[17] It is also of long standing and forms part of the backdrop against which the Legislature has statutorily provided for interest on judgments. We see no compelling reason to alter this longstanding gloss on the judgment interest statute.[18] We therefore decline the invitation to engraft onto the statute judicial discretion to allow compound interest[19] and reverse as to the award of compound interest. Except in regard to the interest provided in the judgment, the trial court's decision is affirmed. We vacate the provisions of the judgment relating to interest and remand for amendment of the judgment to provide for simple, rather than compound, interest. DAVIDSON, J., concurs. JACKSON, Judge (dissenting): The decision and order on summary judgment was entered in this case on December 29, 1986. The order denied Mountain Bell's motion, which asserted the affirmative defense of accord and satisfaction. The motion judge, who did not have before him our recent decisions in Cove View Excavating and Constr. Co. v. Flynn, 758 P.2d 474 (Utah Ct.App. 1988), and Masonry Equipment & Supply v. Willco Assocs., Inc., 755 P.2d 756 (Utah Ct.App. 1988), ruled that "this case is controlled by Marton Remodeling v. Jensen, 706 P.2d 607 (Utah 1985)." But the springboard for the judge's legal analysis was that each separate day of work pursuant to the written contract constituted a separate claim. The court expressed "[reluctance] to suggest that more than one claim exists in circumstances where the dispute arises under a single written contract," but felt compelled by Marton to do so. The motion judge stated, "In resolving this matter, the court cannot artificially bifurcate a single dispute in determining" whether there had been an accord and satisfaction. Contrary to that statement, the court did more than bifurcate the claim. The court treated the matter as one of multiple claims, i.e., each day's work was a claim. Thus, he considered the work on each of the thirty-one disputed days to support a separate claim for relief. I consider that premise untenable. While the lower court did not have the benefit of Cove View and Masonry Equipment, my colleagues do. They have nonetheless elected to completely ignore those opinions — as well as the lower court's reliance on Marton, a decision the majority opinion tucks away in a footnote — and engage in a "mutual assent" analysis. *421 I would rely on Cove View, where, as in this case, the parties simply disagreed over the total amount to be paid on a contract. The $8,613 check was tendered by Mountain Bell with the following condition attached, with the emphasis in the original: Based on the above identified billing discrepancies [sic] we have enclosed a check for $8613.00 which is payment in full for satisfaction of contracted services. If you are not willing to accept that sum, $8613.00 in full satisfaction of sums due, DO NOT negotiate the check, for upon your negotiation of that check, we will treat the matter as fully paid. This language clearly asserts a dispute over billing discrepancies, states three times that $8,613 is being tendered as full payment, and warns against negotiating the check. What more could Mountain Bell say to set up an offer of accord and satisfaction? Although the offer was found in Mountain Bell's letter, not on the check itself, Estate Landscape admitted knowing that the express conditions in the letter related to the $8,613 check, which it had received separately but had not yet negotiated. A creditor may not disregard the condition attached to a check tendered in full payment of a disputed claim. Cove View, 758 P.2d at 478 (citing Marton Remodeling, 706 P.2d at 609). Although the majority mysteriously finds "no indication" of Estate Landscape's assent to the offer of accord, negotiation of the $8,613 check was itself a conclusive manifestation of assent, resulting in an accord and satisfaction as a matter of law regardless of its subjective intent. See id. Estate Landscape negotiated the check. That is the end of the matter. I would reverse. NOTES [1] John Farr Larson, Senior Juvenile Court Judge, sitting by special appointment pursuant to Utah Code Ann. § 78-3-24(10) (Supp. 1989). [2] The contract required monthly statements, rather than a single statement at the end of the season. Mountain Bell claimed that Estate's failure to provide monthly billings was a breach, but the trial court found that the breach was not material, and thus, it did not excuse Mountain Bell from its obligations. See Nielson v. Droubay, 652 P.2d 1293, 1297 (Utah 1982); Darrell J. Didericksen & Sons, Inc. v. Magna Water and Sewer Improvement Dist., 613 P.2d 1116, 1119 (Utah 1980); 4 A. Corbin, Corbin on Contracts § 946 (1951). That finding is not contested on appeal. [3] The check for $8,613 was to have been sent with the letter; however, Mountain Bell's accounting department mailed the check without the letter. Upon learning that the check had already been mailed, Mountain Bell sent its letter, which reached Estate Landscape before it cashed the check from Mountain Bell. Estate Landscape admits that it knew that the letter was in reference to the check it had received from Mountain Bell but had not as yet cashed. [4] Note that the check was not enclosed, but rather had erroneously been sent earlier. Estate Landscape admitted, however, that it recognized that the letter referred to the check it had earlier received from Mountain Bell. [5] This course of action was not erroneous. See National Expositions v. Crowley Maritime Corp., 824 F.2d 131, 133 (1st Cir.1987); British Caledonian Airways Ltd. v. First State Bank, 819 F.2d 593, 595 (5th Cir.1987); Pueblo of Santa Ana v. Mountain States Tel. & Tel. Co., 734 F.2d 1402, 1408 (10th Cir.1984), reversed on other grounds, 472 U.S. 237, 105 S. Ct. 2587, 86 L. Ed. 2d 168 (1985); Giovanelli v. First Fed. Savs. & Loan Ass'n, 120 Ariz. 577, 587 P.2d 763, 768 (1978); 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2720 at 29-35 (1983); 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice ¶ 56.12 (1987). In the absence of a cross-motion, the trial court should, on its own initiative, assure that the moving party has had a fair opportunity to address the grounds for the adverse judgment. See Bonilla v. Nazario, 843 F.2d 34, 37 (1st Cir.1988). A careful practitioner would therefore file a cross-motion in an appropriate case, to avoid concerns over the adequacy of the movant's opportunity to address all of the material issues. In this case, the district court, and this court as well, hold that Mountain Bell failed to carry its burden in establishing an accord. Mountain Bell bore in essence that same burden both in seeking summary judgment in its favor and in avoiding an adverse summary judgment. We therefore conclude that it had ample opportunity to establish an accord but has not succeeded in doing so. [6] Mascaro v. Davis, 741 P.2d 938 (Utah 1987); Sittner v. Big Horn Tar Sands & Oil, Inc., 692 P.2d 735, 736 (Utah 1984); Salt Lake City Corp. v. James Constructors, Inc., 761 P.2d 42, 44-45 (Utah Ct.App. 1988); Conder v. A.L. Williams & Assocs., 739 P.2d 634, 636 (Utah Ct.App. 1987); see also State v. Lamper, 779 P.2d 1125, 1129 (Utah 1989) (extraordinary intervening circumstances justifying reconsideration of a decided issue). [7] See Branham v. Provo School Dist., 780 P.2d 810 (Utah 1989); Blue Cross & Blue Shield v. State, 779 P.2d 634, 636 (Utah 1989); Atlas Corp. v. Clovis Nat'l Bank, 737 P.2d 225, 299 (Utah 1987); Lantz v. National Semiconductor Corp., 775 P.2d 937 (Utah Ct.App. 1989). [8] Because a summary judgment motion can be denied for at least two reasons, either because judgment is not merited or because factual issues preclude a grant of summary judgment, a trial court decision denying summary judgment should be expressed in a brief, written statement, identifying the grounds for denying summary judgment. See Utah R. Civ.P. 52(a). In part because of the tentatively slanted view on the facts, findings are not ordinarily made in resolving a motion for summary judgment, even if the motion is resolved on the merits. The main purpose of findings is to resolve material factual issues, Acton v. J.B. Deliran, 737 P.2d 996 (Utah 1987), and summary judgment cannot be granted if such issues exist. See Taylor v. Estate of Taylor, 770 P.2d 163, 168 (Utah Ct.App. 1989). Moreover, since the favorable factual viewpoint applied for summary judgment purposes is valid only for the motion at hand, the finality attributed to findings would perhaps tend to give too general a validity to a view of the facts that is entirely ad hoc. [9] Wycalis v. Guardian Title of Utah, 780 P.2d 821, 824 (Utah Ct.App. 1989), cert. denied, 789 P.2d 33 (1990). [10] See Bennett v. Robinson's Medical Mart, Inc., 18 Utah 2d 186, 417 P.2d 761 (1966); Dillman v. Massey Ferguson, Inc., 13 Utah 2d 142, 369 P.2d 296 (1962); cf. Marton Remodeling v. Jensen, 706 P.2d 607, 608-09 (Utah 1985); Allen-Howe Specialties v. U.S. Constr., Inc., 611 P.2d 705 (Utah 1980). While we recognize that Mountain Bell's letter may have had the effect of severing the contract, we do not reach that question, because, for lack of mutual assent, there was no contract to be severed. [11] Quealy v. Anderson, 714 P.2d 667, 669 (Utah 1986) ("The scope of an accord and satisfaction is determined by the intention of the parties... ."); see Petersen v. Petersen, 709 P.2d 372, 375 (Utah 1985). [12] We therefore affirm, but for a reason differing somewhat from the trial court's grounds for its decision. See Cox v. Hatch, 761 P.2d 556, 561 (Utah 1988). [13] Cf. Cove View Excavating & Constr. Co. v. Flynn, 758 P.2d 474 (Utah Ct.App. 1988), in which the acceptance of the accord was effected by negotiating a check bearing an assent to the accord on its face. [14] Crane v. Timberbrook Village, Ltd., 774 P.2d 3, 4 (Utah Ct.App. 1989). [15] See Mountain States Broadcasting Co. v. Neale, 783 P.2d 551, 554-55 (Utah Ct.App. 1989) (construing a note as not providing for compound interest). [16] See Utah Code Ann. § 15-1-4 (1987); 47 C.J.S. Interest and Usury § 24 (1982). [17] Watkins & Faber v. Whiteley, 592 P.2d 613, 616 (Utah 1979); Mountain States Broadcasting Co., 783 jesse09@example.org. [18] See Hackford v. Utah Power & Light Co., 740 P.2d 1281, 1283 (Utah 1987). [19] See Stroud v. Stroud, 758 P.2d 905 (Utah 1988), aff'g 738 P.2d 649 (Utah Ct.App. 1987).

300 So. 2d 288 (1974) Yolanda Jullen PRO, Appellant, v. Fred PRO, Appellee. No. 73-727. District Court of Appeal of Florida, Fourth District. September 20, 1974. Thomas E. Kingcade, of Jones, Paine & Foster, P.A., West Palm Beach, for appellant. Ronald Sales, of Sales, Metzger & Christiansen, Palm Beach, and Steve E. Moody, Fort Lauderdale, for appellee. DOWNEY, Judge. This interlocutory appeal involves a refusal of the trial court to require the husband to answer questions on his deposition regarding his alleged adultery. The appellee-husband sued for a dissolution of marriage. The appellant-wife answered admitting the allegations of the petition and counterclaimed for dissolution and alimony. The appellee answered the counterclaim and affirmatively charged appellant with adultery. Appellant replied to said answer and charged appellee with adultery. Upon the taking of the appellee's deposition appellant inquired about appellee's alleged adulterous conduct, specifically asking whether or not he had sexual relationships with any other person since November 15, 1972. Upon instruction of counsel appellee refused to answer and invoked the Fifth Amendment. On motion to require the appellee to answer said question or have sanctions imposed by striking his pleadings, the learned chancellor ruled that the question need not be answered because it is irrelevant. This appeal is from that order. Like so many other questions involving the philosophy and objectives of "no fault divorce" the precise point presented has not heretofore been considered. However, we believe the answer can be found in the opinion by Judge Walden in Oliver v. *289 Oliver, Fla.App. 1973, 285 So. 2d 638. This court there held that the husband was entitled to adduce testimony of the wife's misconduct since misconduct is one of the factors which might affect the court's ultimate determination of the proper award of alimony. With reference to what evidence might be pertinent on the issue of alimony vel non or the amount thereof, the court stated: "The equities, circumstances and the whole marital picture furnish and form the fabric from which the award is to be cut, and if the court limits itself solely to the economics of the matter, it deprives itself of valuable factors that may aid in doing justice to the problem." Section 61.08(2), F.S. 1973, authorizes the court, in determining a proper award of alimony, to consider any factor necessary to do equity and justice between the parties. In the present case, a showing that the husband was guilty of adultery or other gross misconduct, might well be a factor influencing the court's ultimate determination of the alimony question. Thus, we believe the wife's inquiry was reasonably calculated to lead to admissible evidence, and it was error not to require the husband either to answer the question as framed or to suffer sanctions. Stockham v. Stockham, Fla. 1964, 168 So. 2d 320; Minor v. Minor, Fla. 1970, 240 So. 2d 301. We are not unmindful of the decision of Vandervoort v. Vandervoort, Fla.App. 1972, 265 So. 2d 77, which affirmed the trial judge's holding that he had the discretion not to consider the issue of adultery as it might affect the award of alimony under § 61.08, F.S. 1973. However, it is our interpretation of said statute that it gives the trial court discretion as to the effect to be given to such evidence in the court's determination of the alimony issue; it does not give him the unbridled discretion to refuse to hear any evidence on the subject. Such a grant of power could not have been the intent of the legislature, since such an election by the trial court could never be reviewed as an abuse of discretion. Accordingly, the order appealed from is reversed and the cause is remanded for the entry of an order consistent with this opinion. WALDEN, J., concurs. CROSS, J., dissents without opinion.

SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 SCHEDULE 13D/A (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO § 240.13d-2(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934 (Amendment No. 34)* Smart Online, Inc. (Name of Issuer) Common Stock, par value $0.001 (Title of Class of Securities) 83171V100 (CUSIP Number) Avy Lugassy Atlas Capital, SA 118 Rue du Rhone CH-1204 Geneva Switzerland +1-470-291-4523 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) October 11, 2011 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 2401.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.o Note:Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits.See Rule 13d-7(b) for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). 13D/A CUSIP NO. 83171V 10 0 Pageof2 Pages 8 1 NAMES OF REPORTING PERSONS Atlas Capital, SA 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a)o (b)o 3 SEC USE ONLY 4 SOURCE OF FUNDS (See Instructions) OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)o 6 CITIZENSHIP OR PLACE OF ORGANIZATION Switzerland NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER 7,265,269 (1) 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 7,265,269 (1) 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,265,269 (1) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARESo 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 40% 14 TYPE OF REPORTING PERSON (See Instructions) CO 1) See Item 5 for a detailed explanation of the Reporting Person's beneficial ownership of Common Stock. 13D/A CUSIP NO. 83171V 10 0 Pageof3 Pages 8 This Amendment No. 34 (this "Amendment") amends the Report on Schedule 13D, originally filed on April 4, 2008, as amended on April 24, 2008, April 25, 2008, May 5, 2008, May 14, 2008, May 19, 2008, May 22, 2008, June 18, 2008, July 14, 2008, October 14, 2008, November 5, 2008, February 9, 2009, March 4, 2009, April 8, 2009, May 7, 2009, June 11, 2009, August 3, 2009, September 11, 2009, October 19, 2009, November 20, 2009, January 7, 2010, March 2, 2010, April 9, 2010, June 15, 2010, July 6, 2010, August 16, 2010, September 8, 2010, September 20, 2010, October 8, 2010, November 10, 2010, February 16, 2011, March 8, 2011, April 8, 2011 and September 9, 2011 (as amended, the "Schedule 13D").Except as provided herein, this Amendment does not modify any of the information previously reported on the Schedule 13D.Capitalized terms used and not otherwise defined have the meaning given to them in the Schedule 13D. Item 3. Source and amount of funds or other consideration. Item 3 is hereby amended and restated as follows: As of October 11, 2011, the Reporting Person has acquired, in the aggregate, 7,265,269 shares of Common Stock either from the Issuer or from other shareholders of the Issuer.The Reporting Person has paid an aggregate of $19,644,247.08 for these shares from corporate funds, including 56,206 shares acquired from Dennis Michael Nouri (the former President and Chief Executive Officer of the Issuer) pursuant to a note cancellation agreement.In exchange for the shares acquired from Mr. Nouri, the Reporting Person cancelled a note under which Mr. Nouri owed the Reporting Person principal and interest totaling $85,117. Item 4. Purpose of transaction. Item 4 is hereby amended and restated as follows: The Reporting Person acquired the shares of Common Stock for investment purposes.Subject to, among other things, the Issuer's business prospects, prevailing prices, and market conditions, the Reporting Person may purchase additional shares of Common Stock and/or other securities of the Issuer from time to time in the open market, in privately negotiated transactions, or otherwise.In addition, one of the Reporting Person's investment goals is diversification, which may require the Reporting Person to sell shares of Common Stock.Accordingly, the Reporting Person may, from time to time, make decisions to sell shares of Common Stock based upon then-prevailing market conditions. On November 14, 2007, in an initial closing, the Issuer sold convertible secured subordinated notes due November 14, 2010 (as amended through the date hereof, the "Notes") in the aggregate principal amount of $3.3 million to noteholders, including the Reporting Person (together with new investors in the Notes, the "Noteholders").In addition, the Noteholders committed to purchase Notes of up to an aggregate principal amount of $5.2 million, on a pro rata basis, upon approval and call by the Issuer's Board of Directors in future closings.On August 12, 2008, the Issuer exercised its option to sell Notes in the aggregate principal amount of $1.5 million with substantially the same terms and conditions as the Notes sold on November 14, 2007.In connection with the sale of the additional Notes, the Noteholders holding a majority of the aggregate principal amount of the Notes outstanding agreed to increase the aggregate principal amount of Notes that they committed to purchase from $8.5 million to $15.3 million.On November 21, 2008, the Issuer sold Notes in the aggregate principal amount of $500,000 to two new investors, and on January 6, 2009, the Issuer sold a Note in the principal amount of $500,000 to the Reporting Person, all on substantially the same terms and conditions as the previously issued Notes. 13D/A CUSIP NO. 83171V 10 0 Pageof4 Pages 8 On February 24, 2009, the Issuer sold a Note in the principal amount of $500,000 to the Reporting Person on substantially the same terms and conditions as the previously issued Notes.On the same date, the Noteholders holding a majority of the aggregate principal amount of the Notes outstanding agreed that the Issuer may sell additional convertible secured subordinated notes in an aggregate principal amount of up to $6 million to new investors or existing Noteholders at any time on or before December 31, 2009 with a maturity date of November 14, 2010 or later.In addition, the definition of "Maturity Date" for each of the Notes was changed from November 14, 2010 to the date upon which the Note is due and payable, which is the earlier of (1) November 14, 2010, (2) a change of control, or (3) if an event of default occurs, the date upon which Noteholders accelerate the indebtedness evidenced by the Notes. The formula for calculating the conversion price of the Notes was also amended such that the conversion price of each outstanding Note and any additional note sold in the future would be the same and set at the lowest applicable conversion price, as described below. On each of April 3, 2009 and June 2, 2009, the Issuer sold a Note in the principal amount of $500,000 to the Reporting Person on substantially the same terms and conditions as the previously issued Notes.On each of July 16, 2009, August 26, 2009, September 8, 2009, and October 5, 2009, the Issuer sold a Note in the principal amount of $250,000 to the Reporting Person on substantially the same terms and conditions as the previously issued Notes.On November 6, 2009, the Issuer sold a Note in the principal amount of $500,000, and on December 23, 2009, the Issuer sold a Note in the principal amount of $750,000, to the Reporting Person on substantially the same terms and conditions as the previously issued Notes.On February 11, 2010, the Issuer sold a Note in the principal amount of $500,000 to the Reporting Person on substantially the same terms and conditions as the previously issued Notes. On March 5, 2010, the Company and the Noteholders holding a majority of the aggregate principal amount of the Notes outstanding agreed to extend the maturity date for each of the Notes from November 14, 2010 to November 14, 2013, and amended each of the outstanding Notes and related documents to reflect this extension. On April 1, 2010, the Issuer sold a Note to the Reporting Person in the principal amount of $350,000, due November 14, 2013, upon substantially the same terms and conditions as the previously issued Notes.On June 2, 2010, the Issuer sold a Note to the Reporting Person in the principal amount of $600,000, on July 1, 2010, the Issuer sold a Note to the Reporting Person in the principal amount of $250,000, and on August 13, 2010, the Issuer sold a Note to the Reporting Person in the principal amount of $100,000, each of which Notes are due November 14, 2013, and were issued upon substantially the same terms and conditions as the previously issued Notes.On August 30, 2010, the Issuer sold a Note to the Reporting Person in the principal amount of $200,000, and on September 14, 2010, the Issuer sold a Note to the Reporting Person in the principal amount of $300,000, each of which Notes are due November 14, 2013, and were issued upon substantially the same terms and conditions as the previously issued Notes.On each of September 30, 2010 and November 9, 2010, the Issuer sold a Note to the Reporting Person, due November 14, 2013, in the principal amount of $300,000, each issued upon substantially the same terms and conditions as the previously issued Notes.On February 7, 2011, the Issuer sold a Note to the Reporting Person, due November 14, 2013, in the principal amount of $250,000, and on March 4, 2011, the Issuer sold a Note to the Reporting Person, due November 14, 2013, in the principal amount of $325,000, each issued upon substantially the same terms and conditions as the previously issued Notes.On April 6, 2011, the Issuer sold a Note to the Reporting Person, due November 14, 2013, in the principal amount of $400,000, upon substantially the same terms and conditions as the previously issued Notes.On September 6, 2011, the Issuer sold a Note to the Reporting Person, due November 14, 2013, in the principal amount of $500,000, upon substantially the same terms and conditions as the previously issued Notes.On October 11, 2011, the Issuer sold a Note to the Reporting Person, due November 14, 2013, in the principal amount of $300,000, upon substantially the same terms and conditions as the previously issued Notes. 13D/A CUSIP NO. 83171V 10 0 Pageof5 Pages 8 The Issuer is obligated to pay interest on the Notes at an annualized rate of 8% payable in quarterly installments commencing three months after the purchase date of the Notes.The Issuer does not have the ability to prepay the Notes without the approval of Noteholders holding at least a majority of the principal amount of the Notes then outstanding. On the earlier of November 14, 2013 or a merger or acquisition or other transaction pursuant to which the Issuer's existing stockholders hold less than 50% of the surviving entity, or the sale of all or substantially all of the Issuer's assets, or similar transaction, or event of default, each Noteholder in its sole discretion shall have the option to: oconvert the principal then outstanding on its Notes into shares of Common Stock, or oreceive immediate repayment in cash of the Notes, including any accrued and unpaidinterest. If a Noteholder elects to convert its Notes under these circumstances, the conversion price will be the lowest "applicable conversion price" determined for each Note.The "applicable conversion price" for each Note shall be calculated by multiplying 120% by the lowest of: othe average of the high and low prices of the Common Stock on the OTC Bulletin Boardaveraged over the five trading days prior to the closing date of the issuance of such Note, oif the Common Stock is not traded on the Over-The-Counter market, the closing price of the Common Stock reported on the Nasdaq National Market or the principal exchange on which the Common Stock is listed, averaged over the five trading days prior to the closing date of the issuance of such Note, or othe closing price of the Common Stock on the OTC Bulletin Board, the Nasdaq National Market or the principal exchange on which the Common Stock is listed, as applicable, onthe trading day immediately preceding the date such Note is converted, oin each case as adjusted for stock splits, dividends or combinations, recapitalizations or similar events. 13D/A CUSIP NO. 83171V 10 0 Pageof6 Pages 8 Payment of the Notes will be automatically accelerated if the Issuer enters voluntary or involuntary bankruptcy or insolvency proceedings. The Notes and Common Stock into which they may be converted have not been registered under the Securities Act of 1933, as amended (the "Securities Act"), or any state, local, or foreign securities laws.As a result, offers and sales of the Notes were made pursuant to Regulation D under the Securities Act and only to accredited investors. In addition, if the Issuer proposes to file a registration statement to register any of its Common Stock under the Securities Act in connection with the public offering of such securities solely for cash, subject to certain limitations, the Issuer must give each Noteholder who has converted its Notes into Common Stock the opportunity to include such shares of converted Common Stock in the registration.The Issuer has agreed to bear the expenses for any of these registrations, exclusive of any stock transfer taxes, underwriting discounts, and commissions. The Convertible Secured Subordinated Note Purchase Agreement, the Form of Convertible Secured Subordinated Promissory Note, the Registration Rights Agreement, and the Security Agreement are attached to the Quarterly Report of the Issuer on Form 10-Q filed on November 14, 2007, as, respectively, Exhibits 4.1, 4.2, 10.6 and 10.7 thereto, and are incorporated herein by reference.The First Amendment to Convertible Secured Subordinated Note Purchase Agreement is attached to the Quarterly Report of the Issuer on Form 10-Q filed on November 12, 2008 as Exhibit 4.1 thereto, and is incorporated herein by reference.The Second Amendment and Agreement to Join as a Party to Convertible Secured Subordinated Note Purchase Agreement and Registration Rights Agreement, the Third Amendment to Convertible Secured Subordinated Note Purchase Agreement and Registration Rights Agreement and Amendment to Convertible Secured Subordinated Promissory Notes, and the Form of Convertible Secured Subordinated Promissory Note to be issued post January 2009 are attached to the Annual Report of the Issuer on Form 10-K filed on March 30, 2009, as, respectively, Exhibits 4.5, 4.6 and 4.7 thereto, and are incorporated herein by reference.The Fourth Amendment to Convertible Secured Subordinated Note Purchase Agreement, Second Amendment to Convertible Secured Subordinated Promissory Notes and Third Amendment to Registration Rights Agreement, together with the Form of Convertible Secured Subordinated Promissory Note to be issued post March 5, 2010 is attached to the Form 8-K filed on March 8, 2010 as Exhibit 99.1 thereto, and is incorporated herein by reference. Except as may be set forth herein, the Reporting Person has no plans or proposals which would relate to or result in any of the matters set forth below: (a)the acquisition by any person of additional securities of the Issuer, or the disposition ofsecurities of the Issuer; (b)an extraordinary corporate transaction, such as a merger, reorganization, or liquidation,involving the Issuer or any of it subsidiaries; (c)a sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries; (d)any change in the present Board of Directors or management of the Issuer, including anyplans or proposals to change the number or term of the Issuer's Board of Directors or tofill any existing vacancies thereon; (e)any material change in the present capitalization or dividend policy of the Issuer; (f)any other material change in the Issuer's business or corporate structure; (g)changes in the Issuer's charter, bylaws, or instruments corresponding thereto or otheractions which may impede the acquisition of control of the Issuer by any person; (h)causing a class of securities of the Issuer to be delisted from a national securitiesexchange or to cease to be authorized to be quoted in an inter-dealer quotation system ofa registered national securities association; (i)a class of equity securities of the Issuer becoming eligible for termination of registrationpursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, as amended; or (j)any action similar to any of those enumerated above. 13D/A CUSIP NO. 83171V 10 0 Pageof7 Pages 8 Item 5. Interest in securities of the issuer. Item 5 is hereby amended and restated as follows: (a) The Reporting Person beneficially owns 7,265,269 shares of Common Stock, which represents approximately 40% of the issued and outstanding shares of Common Stock. (b) The Reporting Person has sole power to vote or to direct the vote and sole power to dispose or to direct the disposition of all 7,265,269 shares of Common Stock reported in Item 5(a) of this Schedule 13D. (c) The trading dates, number of shares of Common Stock purchased and price per share for all transactions in the Common Stock that were effected since the triggering date of the Reporting Person's most recently filed Schedule 13D amendment are set forth below.All transactions represent purchases of Common Stock on the OTC Bulletin Board by the Reporting Person. Date of Transaction Number of Shares Purchased

Fourth Court of Appeals San Antonio, Texas May 20, 2015 No. 04-15-00242-CV IN RE UNIVERSITY OF THE INCARNATE WORD Original Mandamus Proceeding 1 ORDER Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice On May 19, 2015, relator filed a motion for temporary relief seeking to stay the trial court’s order compelling discovery responses pending a ruling on relator’s petition for writ of mandamus. Relator’s motion for temporary relief is GRANTED. The trial court’s order of May 1, 2015 is temporarily STAYED until further order of this court. It is so ORDERED on May 20, 2015. PER CURIAM ATTESTED TO: _____________________________ Keith E. Hottle, Clerk 1 This proceeding arises out of Cause No. 2014-CI-07249, styled Valerie Redus, Individually and Robert Redus, Individually and as Administrator of the Estate of Robert Cameron Redus v. University of the Incarnate Word and Christopher Carter, pending in the 150th Judicial District Court, Bexar County, Texas, the Honorable David A. Canales presiding. 

Citation Nr: 0006521 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 98-13 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to reimbursement of medical expenses for the costs of private hospital care rendered on August 25, 1997. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Helinski, Counsel INTRODUCTION The veteran had active military service from January 1946 to February 1947. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the benefit sought on appeal. FINDINGS OF FACT 1. The veteran is currently assigned a total disability rating for service-connected schizophrenic reaction, chronic, undifferentiated type. 2. On August 25, 1997, the veteran underwent cataract surgery in the left eye, at the Greenville Hospital System. 3. Payment or reimbursement of the August 1997 hospital care at Greenville Hospital was not authorized by the VA prior to the surgery. 4. The unauthorized medical care was not for an adjudicated service-connected disability, or for a nonservice-connected disability associated with and held to have aggravated an adjudicated service-connected disability, and the veteran was not a participant in a rehabilitation program under Chapter 31 of Title 38, United States Code. 5. The veteran's August 1997 surgery was not a medical emergency of such nature that delay would have been hazardous to life or health. 6. The evidence does not reflect that VA or other Federal facilities were not feasibly available, and that an attempt to use them beforehand would not have been reasonable, sound, wise, or practical. CONCLUSION OF LAW The criteria for reimbursement or payment for the costs of private hospital care rendered on August 25, 1997, have not been met. 38 U.S.C.A. §§ 1703, 1728, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 17.52, 17.54, 17.120 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION In the present appeal, the veteran is claiming entitlement to reimbursement of private medical expenses incurred for surgery at the Greenville Hospital System on August 25, 1997. He maintains the he had to undergo emergency treatment for a cataract in his left eye, and that he was unable to travel to the closest VA hospital. In short, the veteran requests reimbursement for the portions of his medical bills that were not covered by Medicare. The Board has reviewed the veteran's claim in light of the applicable laws and regulations described below, but finds that there is no legal basis for the veteran's claim, and the appeal must be denied. The law provides, in pertinent part, that when VA facilities are not capable of furnishing the care or services required, the Secretary, as authorized under 38 U.S.C.A. § 1710, may contract with non-VA facilities in order to furnish hospital care for the following: for a veteran for the treatment of a service-connected disability; for a disability for which a veteran was discharged or released from the active military, naval, or air service; for a disability of a veteran who has a total disability permanent in nature from a service- connected disability; and for medical emergencies that pose a threat to the life or health of a veteran who is receiving medical services in a VA facility or nursing home care under section 1720. 38 U.S.C.A. §§ 1703(a), 1728(a) (West 1991 & Supp. 1999); 38 C.F.R. § 17.52(a)(1) (1999). The admission of a veteran to a non-VA hospital at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54. Moreover, in the case of veterans who are entitled to VA care but are forced to obtain treatment at a non-VA facility, the Secretary may, under certain circumstances, reimburse veterans for the reasonable value of such care or services for which such veterans have made payment. 38 U.S.C.A. § 1728(a). However, such reimbursement is only available where: (1) such care or services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; (2) such care or services were rendered to a veteran in need thereof for an adjudicated service- connected disability, for a nonservice-connected disability associated with and held to be aggravating a service- connected disability, for any disability of a veteran who has a total disability permanent in nature from a service- connected disability, or for any illness or injury in the case of a veteran who is participating in a rehabilitation program under Chapter 31 of Title 38, United States Code and who meets other criteria; and (3) VA or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical. 38 U.S.C.A. § 1728(a); 38 C.F.R. § 17.120. The United States Court of Appeals for Veterans Claims (Court) has held that all three of the foregoing statutory requirements must be met before reimbursement can be authorized. Malone v. Gober, 10 Vet. App. 539, 542 (1997). Initially, the Board notes that the veteran does not contend, nor does the record reflect otherwise, that prior to the surgery at issue in this appeal the VA contracted with Greenville Hospital and authorized them to provide care for the veteran at the VA's expense. Thus, the provisions of 38 U.S.C.A. § 1703 are not applicable in this appeal, and the Board will examine whether the veteran satisfied the criteria under 38 U.S.C.A. § 1728. A review of the record reveals that pursuant to an April 1974 rating decision, the veteran was awarded a total disability rating for his service-connected schizophrenic reaction, chronic, undifferentiated type. In August 1997, the veteran underwent cataract surgery in his left eye, at the Greenville Hospital System. In the preoperative assessment, it was noted that the veteran had an operable and symptomatic cataract in his left eye. It was further noted that alternative therapies had been explained to the veteran, which included "no surgery, risks of surgery." Additionally, it was noted that "[p]rocedure electives have also been discussed, which include spectacles, contact lenses, and intraocular lenses." In January 1998, the veteran's private medical treatment records from his surgery in August 1997 were reviewed by a VA examiner, who denied the veteran's claim for reimbursement of unauthorized medical care for the following reasons: the surgery was for a nonservice-connected condition; the surgery was for a condition that was unrelated to the veteran's service-connected disability; the surgery was not an emergency, and; a VA facility was available. In short, the VA examiner denied the veteran's claim on the basis that the surgery was elective, and there was VA care available. According to a statement submitted by the veteran's representative in July 1998, the veteran was under the assumption that the cataract surgery was an emergency. The veteran claims that he was told by the Department of Motor Vehicles that he would lose his driver's license, and he needed a driver's license to retain his employment. He maintains that he was told by the VA that there would be a three to six month wait just to be seen at the eye clinic, and probably another three to six month wait if surgery was necessary. In short, the veteran felt that the surgery was an emergency because if he had no sight correction, he would lose his license, and if he lost his license he would lose his job. In light of the foregoing evidence of record, the Board concludes that the veteran does not meet all the criteria under 38 U.S.C.A. § 1728(a). In that regard, the Board acknowledges the veteran's contention that the left cataract surgery was an emergency, in that he risked losing his job if he did not get the surgery. However, 38 U.S.C.A. § 1728(a)(1) contemplates "a medical emergency of such nature that delay would have been hazardous to life and health." 38 U.S.C.A. § 1728(a)(1). In the present case, although the surgery may have been an emergency to the veteran, as he did not want to lose his job, the evidence does not reflect that the surgery was necessary to cure a life-threatening condition. Rather, as noted above, the veteran was offered alternatives to surgery, such as no surgery, spectacles, and contact lenses. Moreover, the VA examiner who reviewed the veteran's records in January 1998, concluded that the surgery was not an emergency, but was elective. Based on the foregoing, the Board finds no evidence that the veteran's left eye cataract surgery was an emergency, within the meaning of 38 U.S.C.A. § 1728(a)(1). See also 38 C.F.R. § 20.101(b) (medical determinations, such as determinations of the need for an appropriateness of specific types of medical care and treatment for an individual, are not adjudicative matters, and are beyond the Board's jurisdiction). Additionally, the record reveals, and the veteran admits, that a VA facility was available for treatment. 38 U.S.C.A. § 1728(a)(3). The Board acknowledges the veteran's contention that he didn't want to wait the length of time necessary for treatment. However, in any event, the veteran's claim must fail because the Court has indicated that all three requirements set forth in 38 U.S.C.A. § 1728(a) must be met before reimbursement can be authorized. See Malone, 10 Vet. App. at 542. Therefore, in the absence of evidence that the veteran's August 25, 1997 left eye cataract surgery was an emergency, within the meaning of 38 U.S.C.A. § 1728(a), the veteran's claim must fail. 38 U.S.C.A. § 1728(a); 38 C.F.R. § 17.120. In conclusion, for the reasons set forth above, the Board finds that there is no legal basis to reimburse the veteran for unpaid medical expenses incurred for private hospital care rendered on August 25, 1997, and the appeal is denied. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (in the absence of legal merit, the appeal must be denied based on a lack of entitlement under the law). ORDER Reimbursement or payment of medical expenses for the costs of private hospital care rendered on August 25, 1997, is denied. BRUCE KANNEE Member, Board of Veterans' Appeals

RUBICON MINERALS CORPORATION Consolidated Financial Statements (Stated in Canadian Dollars) December 31, 2007 and December 31, 2006 RUBICON MINERALS CORPORATION MANAGEMENT’S RESPONSIBILITY FOR FINANCIAL REPORTING Management of Rubicon Minerals Corporation is responsible for the integrity and fair presentation of the financial information contained in this annual report which has been approved by the board of directors. Where appropriate, the financial information, including financial statements, reflects amounts based on the best estimates and judgments of management. The financial statements have been prepared in accordance with accounting principles generally accepted in Canada and reconciled to accounting principles generally accepted in the United States as set out in note 17. Financial information presented elsewhere in the annual report is consistent with that disclosed in the financial statements. Management is responsible for establishing and maintaining adequate internal control over financial reporting. Any system of internal control over financial reporting, no matter how well designed, has inherent limitations. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation. Management has a process in place to evaluate internal control over financial reporting based on the criteria established by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control - Integrated Framework. Based on that evaluation, management has concluded that internal control over financial reporting was effective as of December 31, 2007. The Board of Directors oversees management’s responsibility for financial reporting and internal control systems through an Audit Committee, which is composed entirely of independent directors. The Audit Committee meets periodically with management and the independent auditors to review the scope and results of the annual audit and to review the financial statements and related financial reporting and internal control matters before the financial statements are approved by the Board of Directors and submitted to the shareholders. De Visser Gray LLP, an independent registered public accounting firm of Chartered Accountants, appointed by the shareholders, have audited our financial statements in accordance with generally accepted auditing standards in Canada and the Public Company Accounting Oversight Board (United States), and have expressed their opinion in the auditors’ report. “David Adamson” “Robert Lewis” David Adamson Robert Lewis President Chief Financial Officer D EV I S S E RG R A YL L P CHARTERED ACCOUNTANTS 401 - 905 West Pender Street Vancouver, BC Canada V6C 1L6 REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM To the Shareholders of Rubicon Minerals Corporation We have audited the consolidated balance sheets of Rubicon Minerals Corporation (“the Company”) as at December 31, 2007 and 2006, and the consolidated statements of operations and deficit, comprehensive loss and cash flows for each of the years in the three-year period ended December 31, 2007. We have also audited the Company’s internal control over financial reporting as of December 31, 2007 based on the criteria established in the Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). The Company’s management is responsible for these financial statements, for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting. Our responsibility is to express an opinion on these financial statements and an opinion on the Company’s internal control over financial reporting based on our audits. We conducted our audits in accordance with generally accepted auditing standards in Canada and the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement and whether the effective internal control over financial reporting was maintained in all material respects. Our audits of the financial statements included examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions. A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements. Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate. In our opinion, these consolidated financial statements present fairly, in all material respects, the financial position of the Company as at December 31, 2007 and 2006 and the results of its operations and cash flows for each of the years in the three year period ended December 31, 2007 in accordance with Canadian generally accepted accounting principles. Also, in our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2007, based on the criteria established in the Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). “De Visser Gray LLP” CHARTERED ACCOUNTANTS Vancouver, British Columbia March 31, 2008 RUBICON MINERALS CORPORATION Consolidated Balance Sheets (Stated in Canadian Dollars) As at December 31 2007 2006 Assets Current assets Cash and cash equivalents $ 14,791,309 $ 7,233,680 Temporary investments (note 6) 15,082,513 4,019,398 Amounts receivable 1,708,000 1,218,865 Prepaid expenses 43,498 28,748 31,625,320 12,500,691 Investment in companies spun-off (note 3) 439,629 2,147,933 Equipment (note 7) 157,786 89,450 Other investments (note 8) 2,637,877 1,435,227 Mineral property costs (note 9) (schedule) 66,157,058 15,712,278 $ 101,017,670 $ 31,885,579 Liabilities Current Liabilities Accounts payable and accrued liabilities $ 811,130 $ 824,066 Corporate income tax payable (note 12) 74,000 152,000 885,130 976,066 Future Income Taxes (note 12) 14,774,288 - Shareholders’ equity Share capital (note 10(a)) 103,572,229 47,991,901 Contributed surplus (note 10(b)) 3,082,261 2,547,075 Deficit (21,845,844 ) (19,629,463 ) Accumulated other comprehensive income (note 11) 549,606 - 85,358,252 30,909,513 $ 101,017,670 $ 31,885,579 See accompanying notes to the consolidated financial statements Commitments (Note 14) Subsequent events (Note 17) Approved by the Board of Directors: “David Adamson” “John R. Brodie” David Adamson, Director John R. Brodie, FCA, Director RUBICON MINERALS CORPORATION Consolidated Statements of Operations and Deficit (Stated in Canadian Dollars) For the years ended December 31 2007 2006 2005 Expenses Amortization $ 52,304 $ 21,442 $ 17,412 Consulting 85,569 95,346 138,847 General mineral exploration 189,027 236,278 283,391 Investor relations 397,115 592,141 496,172 Office 270,288 221,251 218,868 Professional fees 353,126 281,364 304,741 Rent 54,586 81,207 84,418 Salaries 1,032,130 784,731 629,701 Stock-based compensation (notes 4 and 10(b)) 576,605 220,964 683,671 IPO costs of subsidiary - - 2,913 Re-organization costs (note 3) 64,691 925,439 129,210 Transfer agent and regulatory filing fees 130,141 103,383 112,797 Travel and accommodation 122,457 41,000 28,804 Write-off of deferred property costs 224,696 258,823 1,715,674 Loss before other items: (3,552,735 ) (3,863,369 ) (4,846,619 ) Interest and miscellaneous income 941,330 355,300 82,232 Option and administration fees in excess of property costs 317,801 448,998 119,606 Gain on sales of investments 7,822 128,880 76,765 Other gains and losses 128,779 142,223 101,251 Loss on disposal of equipment - (3,226 ) - Loss on equity investments (75,938 ) (1,338,877 ) (288,323 ) Current income tax expense (7,000 ) (152,000 ) - Future income tax recovery (note 12) 23,560 477,400 1,043,943 Allocation of subsidiary’s loss to minority interest - 16,751 66,861 Net loss for the year (2,216,381 ) (3,787,920 ) (3,644,284 ) Deficit, beginning of year (19,629,463 ) (15,841,543 ) (12,197,259 ) Deficit, end of year $ (21,845,844 ) $ (19,629,463 ) $ (15,841,543 ) Basic and diluted loss per common share $ (0.02 ) $ (0.05 ) $ (0.06 ) Weighted average number of common shares outstanding 118,158,856 73,500,891 60,223,727 See accompanying notes to the consolidated financial statements. RUBICON MINERALS CORPORATION Consolidated Statements of Comprehensive Loss (Stated in Canadian Dollars) For the years ended December 31 2007 2006 2005 Net Loss for the year $ (2,216,381 ) $ (3,787,920 ) $ (3,644,284 ) Other comprehensive income Fair value adjustment to financial instruments: Temporary investments (19,852 ) - - Investments in public company shares 784,505 - - Change in fair value of investment in spun-off companies (423,600 ) - - Other comprehensive income in the year 341,053 - - Comprehensive loss for the year (1,875,328 ) (3,787,920 ) (3,644,284 ) Adjustment to accumulated other comprehensive income on adoption of new standard (note 5) 208,553 - - Accumulated comprehensive loss, beginning of the year (19,629,463 ) (15,841,543 ) (12,197,259 ) Accumulated comprehensive loss, end of the year* $ (21,296,238 ) $ (19,629,463 ) $ (15,841,543 ) * Comprised of operating deficit and accumulated other comprehensive income See accompanying notes to the consolidated financial statements. RUBICON MINERALS CORPORATION Consolidated Statements of Cash Flows (Stated in Canadian Dollars) For the years ended December 31 2007 2006 2005 Cash Provided by (Used for): Operating Activities Net loss for the year $ (2,216,381 ) $ (3,787,920 ) $ (3,644,284 ) Adjustment for items which do not involve cash: Amortization 52,304 21,442 17,412 Stock-based compensation 576,605 220,964 683,671 Write-off of deferred property costs 224,696 258,823 1,715,674 Gain on sale of investments (176,201 ) (271,103 ) (76,765 ) Loss on disposal of equipment - 3,226 - Loss on equity investments 75,938 1,338,877 288,323 Interest and miscellaneous income 135,318 35,318 - Future income tax recovery (23,560 ) (477,400 ) (1,043,943 ) Allocation of subsidiary’s loss to minority interest - (16,751 ) (66,861 ) (1,351,281 ) (2,674,524 ) (2,126,773 ) Changes in non-cash working capital components: Prepaid expenses (14,750 ) (9,665 ) 40,829 Amounts receivable (157,694 ) (293,247 ) (663,479 ) Accounts payable and accrued liabilities 66,749 (499,095 ) (525,011 ) Corporate tax payable (78,000 ) 152,000 - (1,534,976 ) (3,324,531 ) (3,274,434 ) Investing Activities* Temporary investments (11,218,285 ) (4,019,398 ) - Deferred property costs (11,415,083 ) (3,661,518 ) (6,354,538 ) Purchase of equipment (120,640 ) (82,592 ) (12,036 ) Proceeds on disposal of equipment - 3,750 - Purchase of investments (24,190 ) (870,845 ) (4,151,793 ) Proceeds on sales of investments 1,659,211 755,758 804,233 (21,118,987 ) (7,874,845 ) (9,714,134 ) Financing Activities* Common shares issued for cash 27,737,051 13,904,766 8,200,368 Share issue costs (534,122 ) (876,764 ) (902,328 ) Recovery of property costs incurred 2,844,874 2,430,434 1,495,182 Management and administration fees received 163,789 164,117 64,001 30,211,592 15,622,553 8,857,223 Net cash provided (used) during the year 7,557,629 4,423,177 (4,131,345 ) Cash and cash equivalents, beginning of year 7,233,680 2,810,503 6,941,848 Cash and cash equivalents, end of year $ 14,791,309 $ 7,233,680 $ 2,810,503 *Supplemental Disclosure of Non-Cash Investing and Financing Activities – Refer to Note 15. See accompanying notes to the consolidated financial statements. RUBICON MINERALS CORPORATION Consolidated Statements of Mineral Property Costs (Stated in Canadian Dollars) Balance December 31 2005 Gross Expenditures 2006 Write-off, Recovery or Sold 2006 (note 3) Balance December 31 2006 Gross Expenditures 2007 Write-off or Recovery 2007 Balance December 31 2007 CANADA ONTARIO RED LAKE MINING DIVISION Phoenix Gold Project Acquisition and option payments $ 3,392,440 $ 259,100 $ - $ 3,651,540 $ 75,000 $ - $ 3,726,540 Exploration costs Geological and geochemical 1,410,683 233,666 - 1,644,349 187,437 - 1,831,786 Drilling 5,675,629 327,957 - 6,003,586 2,514,748 - 8,518,334 Geophysical 101,147 - - 101,147 - - 101,147 Travel and accommodation 183,041 10,547 - 193,588 14,917 - 208,505 Other 32,056 - - 32,056 60,846 - 92,902 10,794,996 831,270 - 11,626,266 2,852,948 - 14,479,214 Other Red Lake Properties Acquisition and option payments 473,677 60,684 - 534,361 66,000 (121,750 ) 478,611 Exploration costs Geological and geochemical 954,813 245,477 (15,974 ) 1,184,316 235,667 (138,097 ) 1,281,886 Drilling 623,119 1,019,495 (975,803 ) 666,811 1,857,096 (1,807,559 ) 716,348 Geophysical 280,310 - - 280,310 - (10,506 ) 269,804 Travel and accommodation 79,663 31,657 (19,801 ) 91,519 17,650 (8,003 ) 101,166 Other 35,474 5,421 - 40,895 13,962 (2,153 ) 52,704 Administration fees (earned) (459,694 ) - (66,116 ) (525,810 ) - (116,410 ) (642,220 ) 1,987,362 1,362,734 (1,077,694 ) 2,272,402 2,190,375 (2,204,478 ) 2,258,299 McCuaig JV Project Acquisition and option payments 109,940 9,950 - 119,890 6,000 - 125,890 Exploration costs Geological and geochemical 449,370 1,672 - 451,042 85,394 (5,115 ) 531,321 Drilling 1,144,229 2,003 - 1,146,232 1,873,932 (746,104 ) 2,274,060 Geophysical 27,425 - - 27,425 - - 27,425 Travel and accommodation 32,192 - - 32,192 6,028 (2,411 ) 35,809 Other 2,000 - - 2,000 - - 2,000 Administration fees (earned) (27,635 ) - - (27,635 ) - (47,379 ) (75,014 ) 1,737,521 13,625 - 1,751,146 1,971,354 (801,009 ) 2,921,491 English Royalty Division Acquisition and option payments 75,000 109,057 (184,057 ) - 481,142 (481,142 ) - Exploration costs Geological and geochemical 358,748 - (305,510 ) 53,238 3,370 (56,608 ) - Travel and accommodation 9,119 - - 9,119 - (9,119 ) - Other 107 - - 107 14,293 (14,400 ) - 442,974 109,057 (489,567 ) 62,464 498,805 (561,269 ) - See accompanying notes to the consolidated financial statements. RUBICON MINERALS CORPORATION Consolidated Statements of Mineral Property Costs (Stated in Canadian Dollars) Balance December 31 2005 Gross Expenditures 2006 Write-off, Recovery or Sold 2006 (note 3) Balance December 31 2006 Gross Expenditures 2007 Write-off or Recovery 2007 Balance December 31 2007 NEWFOUNDLAND GOLD PROPERTIES StarTrack Trend Properties Acquisition and option payments $ 244,242 $ - $ (244,242 ) $ - $ - $ - $ - Exploration costs - Geological and geochemical 488,475 21,888 (510,363 ) - Drilling 124,058 - (124,058 ) - Geophysical 482 - (482 ) - Travel and accommodation 10,762 29 (10,791 ) - Other 3,580 - (3,580 ) - 871,599 21,917 (893,516 ) - Golden Promise Trend Properties Acquisition and option payments 203,338 (81,293 ) (122,045 ) - Exploration costs Geological and geochemical 404,776 77,529 (482,305 ) - Drilling 178,459 943,471 (1,121,930 ) - Geophysical 55,329 - (55,329 ) - Travel and accommodation 10,749 4,515 (15,264 ) - Other - Administration fees (earned) (190,701 ) - 190,701 - 661,950 944,222 (1,606,172 ) - Avalon Trend Properties Acquisition and option payments 68,938 6,375 (75,313 ) - Exploration costs Geological and geochemical 195,805 2,568 (198,373 ) - Drilling - Travel and accommodation 4,055 - (4,055 ) - Other - Administration fees (earned) (16,451 ) - 16,451 - 252,347 8,943 (261,290 ) - Glenwood-Botwood Trend Properties Acquisition and option payments 675,532 195,577 (871,109 ) - Exploration costs Geological and geochemical 1,540,751 317,814 (1,858,565 ) - Drilling 666,098 418,228 (1,084,326 ) - Geophysical 259,029 32,248 (291,277 ) - Travel and accommodation 15,241 2,515 (17,756 ) - Administration fees (earned) (67,724 ) - 67,724 - 3,088,927 966,382 (4,055,309 ) - See accompanying notes to the consolidated financial statements. RUBICON MINERALS CORPORATION Consolidated Statements of Mineral Property Costs (Stated in Canadian Dollars) Balance December 31 2005 Gross Expenditures 2006 Write-off, Recovery or Sold 2006 (note3) Balance December 31 2006 Gross Expenditures 2007 Write-off or Recovery 2007 Balance December 31 2007 NEWFOUNDLAND GOLD PROPERTIES (continued) New World Trend Property Acquisition and option payments $ 107,540 $ - $ (107,540 ) $ - $ - $ - $ - Exploration costs Geological and geochemical 330,458 21,368 (351,826 ) - Drilling 2,150 - (2,150 ) - Geophysical - 92,844 (92,844 ) - Travel and accommodation 1,874 - (1,874 ) - 442,022 114,212 (556,234 ) - Base Metal Properties Acquisition and option payments 49,989 93,249 (143,238 ) - Exploration costs Geological and geochemical 369,731 217,316 (587,047 ) - Drilling 484,898 61,628 (546,526 ) - Geophysical 82,637 - (82,637 ) - Travel and accommodation 21,987 169 (22,156 ) - Other 225 1,035 (1,260 ) - 1,009,467 373,397 (1,382,864 ) - UNITED STATES OF AMERICA ALASKA Alaska Properties (McEwen Acquisition) Acquisition and option payments - 37,200,284 - 37,200,284 Exploration costs Geological and geochemical - 777,287 - 777,287 Drilling - 1,800,184 - 1,800,184 Travel and accommodation - 8,320 - 8,320 Other - 423,960 - 423,960 - 40,210,035 - 40,210,035 Palmer Property Acquisition and option payments 209,415 - (209,415 ) - Exploration costs Geological and geochemical 374,841 - (374,841 ) - Drilling 682,215 - (682,215 ) - Travel and accommodation 18,003 - (18,003 ) - Other 18,013 - (18,013 ) - Administration fees (earned) (76,483 ) - 76,483 - 1,226,004 - (1,226,004 ) - See accompanying notes to the consolidated financial statements. Balance December 31 2005 Gross Expenditures 2006 Write-off, Recovery or Sold 2006(note 3) Balance December 31 2006 Gross Expenditures 2007 Write-off or Recovery 2007 Balance December 31 2007 UNITED STATES OF AMERICA (continued) NEVADA Nevada Properties (McEwen Acquisition) Acquisition and option payments $- $- $- $- $6,176,343 $- $6,176,343 Exploration costs Geological and geochemical - 79,449 - 79,449 Geophysics - 31,809 - 31,809 Other - 418 - 418 - 6,288,019 - 6,288,019 Toquima Properties Acquisition and option payments 291,643 - (291,643) - Exploration costs Geological and geochemical 154,832 - (154,832) - 446,475 - (446,475) - Mineral Property Costs $ 22,961,644 $ 4,745,759 $(11,995,125) $15,712,278 $54,011,536 $(3,566,756) $66,157,058 Property Costs Written-off The composition of the write-off figures by property classification is as follows: 2005 2006 2007 Other Red Lake Properties $- $- $224,696 Avalon Trend Properties 195,554 259,210 - Golden Promise Trend Properties 6,186 6 - Other Newfoundland Properties 38 (393) - Other Properties 1,513,896 - - Total costs written-off 1,715,674 258,823 224,696 Costs recovered through Toquima plan of arrangement - 1,672,479 - Costs transferred to Paragon Minerals pursuant to the Plan of Arrangement - 6,979,705 - Aggregate cost recoveries and administration fees received 1,791,809 3,084,118 3,342,060 Gross write-offs and recoveries $3,507,483 $11,995,125 $3,566,756 See accompanying notes to the consolidated financial statements RUBICON MINERALS CORPORATION Notes to the Consolidated Financial Statements (Stated in Canadian Dollars) 1.NATURE AND CONTINUANCE OF OPERATIONS The Company is incorporated in British Columbia, Canada and has been primarily involved in the acquisition and exploration of mineral property interests in Canada.At the date of these financial statements, the Company has not been able to identify a known body of commercial grade ore on any of its properties and the ability of the Company to recover the costs it has incurred to date on these properties is dependent upon the Company being able to identify a commercial ore body, to finance its exploration and development costs and to resolve any environmental, regulatory, or other constraints which may hinder the successful development of the property.The Company is in the development stage with no source of operating revenue and is dependent upon equity financing to maintain its current operations. 2.MCEWEN PROPERTY ACQUISITION AND FINANCING On May 18th, 2007 the Company closed the McEwen acquisition and financing with Robert McEwen (“McEwen”), Evanachan Limited, Lexam Explorations Inc. and McEwen Capital Corp. (companies controlled by McEwen) pursuant to which the Company acquired two property groups totaling approximately 535,000 acres in Alaska and from Lexam Explorations Inc., a 225,000 acre property in the northeastern part of Nevada, extending into Utah. The purchase price totaled $28 million consisting of 40 million common shares of the Company at a deemed price of $0.70 per share. In addition, McEwen made a private placement in the Company for $10 million and arranged a further $5 million private placement by other persons for total proceeds of $15 million. The placements totaled 21.4 million units consisting of one common share and one half of one share purchase warrant, exercisable for two years at $1.50 per whole warrant. McEwen and the associated companies, will have a right of first refusal on all future equity or debt financings as long as, together, they control greater than 10% of the issued and outstanding capital of the Company.Refer also to notes 9 and 10. 3.RE-ORGANIZATION On December 8, 2006, the Company completed a corporate restructuring by way of a Plan of Arrangement (“POA”), which had the result of dividing its existing assets into three separate public companies. Following the corporate restructuring, the Company continues to hold its Ontario properties in the Red Lake area while its Newfoundland properties were distributed into a new public company called Paragon Minerals Corporation (“Paragon”) which trades on the TSX Venture Exchange.Each Rubicon shareholder received one Paragon common share for every six Rubicon common shares held on December 19th, 2006.The Company transferred its approximately 39.6% shareholdings in Africo Resources Ltd. into a new TSX-listed company, which adopted the name Africo Resources Ltd. (“New Africo”).New Africo controls an option to acquire a 75% interest in a copper-cobalt resource located in the Democratic Republic of Congo.Under the POA, all other holders of Africo shares exchanged their shares for New Africo common shares on a 1:1 basis, while each Rubicon shareholder received 0.0925 of a New Africo common share for each Rubicon common share held on December 19th, 2006.Pursuant to the POA, the rights of pre-existing Rubicon option and warrant holders were maintained through agreements with the new companies to settle with their own shares their pro-rata portions of these instruments at a pro-rata share of the original exercise price. In the case of New Africo, any exercise proceeds are to be returned to Rubicon and Rubicon also has the right to exercise any of the warrants or options which expire, for a period of 30 days after the expiry date.As New Africo must remit all such proceeds to Rubicon, the exercise price to Rubicon is effectively nil in respect to these warrants and options. As no substantive ownership change occurred on transferring the assets, the transfers were recorded at their carrying values in the accounts of the Company, with the warrant and option rights and related compensation incurred pursuant to the terms of the POA recorded at current fair values, summarized as follows: $ Newfoundland Properties transferred to Paragon (6,979,704 ) Office equipment transferred to Paragon (15,952 ) Adjusted cost of Africo Resources (BC) Ltd. shares transferred to New Africo (5,807,438 ) Net residual fair value of options/warrants transferred 2,205,667 Net reduction to share capital on POA (10,597,427 ) RUBICON MINERALS CORPORATION Notes to the Consolidated Financial Statements (Stated in Canadian Dollars) 3. RE-ORGANIZATION (continued) The adjustment of rights of warrant and option holders created certain rights and obligations in Rubicon which were initially valued at fair values at the POA date, and then adjusted to fair value at December 31, 2006, as follows: $ Share receivable from Africo at fair value, net of option/warrant liabilities 2,047,097 Fair value of Paragon options/warrants net of option/warrant liabilities 100,836 Net investment of Rubicon at December 31, 2006 2,147,933 Africo and Paragon shares and related cash proceeds realized in 2007 (1,284,704 ) Adjustment to fair value of net investment at December 31, 2007 (423,600 ) Net investment of Rubicon at December 31, 2007 439,629 4. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES Basis of Accounting and Consolidation These consolidated financial statements are prepared in accordance with generally accepted accounting principles (“GAAP”) in Canada.As described in note 16, these principles differ in certain respects from principles and practices generally accepted in the United States (“US”) and requirements promulgated by the Securities and Exchange Commission.Summarized below are those policies considered particularly significant to the Company.References to the Company included herein are inclusive of the accounts of the parent company and its 100% owned subsidiaries, 1304850 Ontario Inc., 0691td., Rubicon Alaska Holdings Inc., Rubicon Alaska Corp., Rubicon Minerals Nevada Inc., Rubicon Nevada Corp. and, to July 13, 2006, its 64% owned subsidiary, Toquima Minerals Corporation (“Toquima”). The investment in Constantine Metal Resources Ltd. was accounted for on the equity basis until July 2007 when it ceased to qualify as an equity accounted investment. Upon completion of the Plan of Arrangement, in December of 2006, Africo Resources Ltd. ceased to be an investment of the Company. All inter-company balances have been eliminated. Use of Estimates The preparation of financial statements in conformity with Canadian generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of any contingent assets and liabilities as at the date of the financial statements, as well as the reported amounts of revenues earned and expenses incurred during the period.Actual results could differ from those estimates. The Company’s investments in marketable securities are items that, due to expected market volume and price fluctuations, may yield net realizable values that are materially different from their current book values at any point in time.Other items involving substantial measurement uncertainty are the carrying costs of mineral property interests and the determination of stock-based compensation. Cash and Cash Equivalents Cash and cash equivalents are comprised of cash and short-term notes and bank deposits with an original maturity of three months or less. Investments The Company’s investments in shares receivable of Africo and other public company shares have been categorized as available for sale financial instruments and as such are carried at fair value. These investments are considered non-current assets as the Company intends to hold them for a period of greater than one year.Adjustments to fair value are recorded in other comprehensive income unless there is a loss in value that is other than temporary, in which case the adjustment to fair value is included in income and not reversed on future fair value changes. The Company’s investments in Paragon options/warrants, as well as vested option and warrant liabilities have been categorized as held-for-trading and as such are recorded at fair value with changes being recorded in income. RUBICON MINERALS CORPORATION Notes to the Consolidated Financial Statements (Stated in Canadian Dollars) 4. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued) Equipment Equipment is recorded and amortized over their estimated useful economic lives using the declining balance method at annual rates of 20% for office furniture and equipment, 30% for computer equipment, 50% for software and straight line over the remaining period of the lease plus one renewal period for leasehold improvements. Mineral Property Costs Acquisition, option payments and direct exploration costs are deferred until the properties are placed into production, sold or abandoned, at which time theses deferred costs will either be amortized on a unit-of-production basis, charged to operations if sold, or written-off. Mineral property cost includes any cash consideration and advance royalties paid, and the fair market value of shares issued, if any, on the acquisition of mineral property interests.Properties acquired under option agreements, whereby payments are made at the sole discretion of the Company, are recorded in the accounts when the payments are made.The recorded amounts of property claim acquisition, option payments and direct exploration costs represent actual expenditures incurred and are not intended to reflect present or future values. The Company reviews capitalized costs on its property interests on a periodic and annual basis for impairment in value based upon current exploration results and upon management’s assessment of the future probability of profitable revenues from the property or from the sale of the property.Management’s assessment of the property’s estimated current fair market value may also be based upon a review of other property transactions that have occurred in the same geographic area as that of the property under review. Administration and management fees earned, which generally range from 8% to 10% of the allowable expenditures associated with exploration on certain properties, are offset against the historical costs deferred on those properties.Administrative costs are expensed as incurred. Asset Retirement Obligations The fair value of a liability for an asset retirement obligation is recognized on an undiscounted cash flow basis when a reasonable estimate of the fair value of the obligation can be made.The asset retirement obligation is recorded as a liability with a corresponding increase to the carrying amount of the related long-lived asset.Subsequently, the asset retirement cost is allocated to expense using a systematic and rational method and is adjusted to reflect period-to-period changes in the liability resulting from the passage of time and from revisions to either expected payment dates or the amounts comprising the original estimate of the obligation.As at December 31, 2007, the Company does not have any significant asset retirement obligations. Foreign Currency Translation The Canadian dollar is the functional currency of all of the Company’s operations which are classified as integrated for foreign currency translation purposes, and under this method translation gains or losses are included in the determination of net income or loss. Monetary assets and liabilities have been translated into Canadian dollars at the exchange rate in effect at balance sheet date.Non-Monetary assets, liabilities, revenues and expenses have been translated into Canadian dollars at the rate of exchange prevailing on the respective dates. Joint Ventures The Company conducts some of its mineral property exploration activities in conjunction with other companies in unincorporated joint ventures.The Company accounts for its interests in joint ventures using the proportionate consolidation method. Financial Instruments and Financial Risk The Company’s financial instruments consist of cash, short term investments amounts receivable, accounts payable and accrued liabilities and the assets and liabilities associated with options and warrants that are based on shares of companies other than Rubicon.Short term investments and option/warrant assets and liabilities are adjusted to fair value at period ends.All other financial instruments have fair values which approximate their carrying amounts due to the short-term nature of these instruments. 4. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued) Share Capital Common shares issued for non-monetary consideration are recorded at the fair market value based upon the lower of the trading price of the Company’s shares on the Toronto Stock Exchange on the date of the agreement to issue the shares and the date of share issuance.Flow-through shares are common shares which are issued under an agreement that, as provided for in the Canadian Income Tax Act, the Company transfers to the purchaser of the shares the benefits of the exploration expenditures that are financed by the proceeds of the share issue. Stock-based Compensation All stock and stock option based awards made to employees and consultants are recognized in these consolidated financial statements and measured using a fair value based method. Consideration received on the exercise of stock options and compensation options and warrants is recorded as share capital.The related contributed surplus originally recognized when the options or warrants were earned, is transferred to share capital. Income Taxes The Company accounts for tax consequences of the differences in the carrying amounts of assets and liabilities and their tax bases using tax rates expected to apply when these temporary differences are expected to be settled.When the future realization of income tax assets does not meet the test of being more likely than not to occur, a valuation allowance in the amount of the potential future benefit is taken and no net asset is recognized.The Company has taken a valuation allowance against all such potential tax assets. Flow-through Shares The

618 S.W.2d 655 (1981) James Edmond FLOWERS, Appellant, v. STATE of Missouri, Respondent. No. 62310. Supreme Court of Missouri, En Banc. July 14, 1981. *656 W. H. Winchester, III, Sikeston, for appellant. John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent. SEILER, Judge. In 1976 appellant Flowers pleaded guilty to a charge of assault with intent to kill with malice aforethought under § 559.180, RSMo 1969 and was sentenced to a term of twenty years. Later in 1976 Flowers filed two pro se motions, which were consolidated by the trial court and treated as a motion to vacate under rule 27.26. We will refer to this as the 1976 motion. These motions alleged police beatings, refusal to allow a telephone call or access to doctor or lawyer, and failure of appointed counsel to consult with him prior to trial. After a hearing, these motions were overruled, December 2, 1976. Flowers, pro se, filed a timely notice of appeal. He was given leave to proceed as a poor person and counsel was appointed to handle the appeal. However, nothing further was done on the appeal and in 1977 it was dismissed by the court of appeals, southern district. In 1978, the trial court granted Flowers leave to file a successive motion under 27.26. We will refer to this as the 1978 motion. Among the grounds raised in this motion was the charge that prior counsel had failed to perfect the appeal from the denial of the 1976 motion. It is to this charge that we address ourselves. The 1978 motion was also denied by the trial court and the denial was affirmed on appeal by the court of appeals. We granted Flowers' application for transfer. In Morris v. State, 603 S.W.2d 938 (Mo. banc 1980), this court discussed the different considerations involved in determining the issue of alleged ineffectiveness of counsel in proceedings before the appellate courts as contrasted to the case where counsel simply fails to perfect the appeal. The Morris case points out the unique vantage of the appellate court in the first situation, quoting from Hemphill v. State, 566 S.W.2d 200, 208 (Mo. banc 1978), that "`It is there the briefs are presented, argument heard and the effect of the conduct of appellate counsel as it bears on the issue of "ineffective assistance" may best be determined.'" 603 dakota20@example.org. In such cases, a motion to recall the mandate is appropriate. However, where the claim is that counsel did not perfect the appeal, Morris points out *657 that no special vantage resides in the appellate court, that "a question central to appellant's 27.26 claim remains unanswered on the face of the motion: whether appellant's counsel abandoned appellant on appeal or whether appellant indicated he did not wish to pursue the appeal?" Id. at 940. In such circumstances, jurisdiction lies in the trial court to hear and determine the 27.26 motion. An evidentiary hearing is required, which the trial court is best suited to handle. Rule 27.26(d) forbids second or successive motions where the ground raised in the second motion was raised in the prior application or where it could have been raised in the prior motion. Neither stricture applies here. It was not possible for Flowers to have raised in his 1976 motion the ground that his lawyer would abandon him on the appeal therefrom. Permitting Flowers to have a determination of whether he should be permitted to proceed with his first and only appeal from the denial of his original 27.26 motion does not establish any unsound precedent or open the door to endless successive claims. Flowers is not asserting an absurd or patently meritless claim. It is undisputed that his appeal was dismissed and he blames it on the failure of his appointed counsel to proceed. Flowers is not attempting to raise in the 1978 motion now before us the same or essentially the same points as raised in his 1976 motion. The judgment dismissing the 1978 motion is reversed and the cause is remanded to the trial court with directions to conduct an evidentiary hearing and to make findings of fact and conclusions of law on whether Flowers' counsel abandoned him on appeal from the denial of the 1976 motion or whether Flowers indicated he did not wish to pursue, or waived, the appeal. If the trial court finds the former, then the court should vacate the 1976 judgment and enter a new judgment therein, with the time for appeal commencing to run from the date thereof. If the trial court finds the latter, then the 1976 judgment should remain undisturbed and the court should enter judgment against Flowers in the present case. RENDLEN and MORGAN, JJ., concur. BARDGETT, J., concurs in separate concurring opinion filed. WELLIVER and HIGGINS, JJ., concur and concur in separate concurring opinion of BARDGETT, J. DONNELLY, C. J., dissents in separate dissenting opinion filed. BARDGETT, Judge, concurring. I concur in the principal opinion; however, I do not want to be understood as rejecting consideration of the proposed rule set out in the dissenting opinion of Donnelly, C. J. I will certainly give consideration to that proposal in due course. DONNELLY, Chief Justice, dissenting. I respectfully dissent. The question in this case is whether the holding of Morris v. State, 603 S.W.2d 938 (Mo. banc 1980), should be extended to a situation, as here, where movant complains that his attorney did not perfect his appeal from denial of a prior 27.26 motion. I think not. To borrow from Judge Wasserstrom in Williams v. State, 507 S.W.2d 664, 666 (Mo.App.1974): "Were a prisoner permitted to challenge the effectiveness of his legal counsel at the first 27.26 hearing by means of filing a second 27.26, then he could likewise challenge his representation at the second hearing by filing a third 27.26, and so on ad infinitum. That patent absurdity would intolerably clutter the courts and would reduce the whole legal process to ridicule." See also McCormick v. State, 502 S.W.2d 324 (Mo.1973); Huffman v. State, 487 S.W.2d 549 (Mo.1972); and Crosswhite v. State, 438 S.W.2d 11 (Mo.1969). Further, I submit the following observations with respect to the topic of post-conviction relief: *658 In 1963, the United States Supreme Court evidenced its view that state court judges could not be trusted to protect the rights given the people of their states by the Constitution of the United States. See Townsend v. Sain, 372 U.S. 293, 312, 318, 83 S. Ct. 745, 756-57, 760, 9 L. Ed. 2d 770 (1963). In 1964, Judge Hollingsworth of this Court sought to make our Rule 27.26 (as it then existed) effectual by requiring evidentiary hearings on motions to vacate sentences. See State v. Pickel, 376 S.W.2d 181 (Mo.1964), and State v. Herron, 376 S.W.2d 192 (Mo.1964). In 1966, the Pickel-Herron requirement of an evidentiary hearing was reasserted. See State v. Gee, 408 S.W.2d 1 (Mo.1966). In 1967, this Court promulgated its present comprehensive Rule 27.26 in an attempt to preserve "the delicate balance of federalism so foremost in the minds of the Founding Fathers and so uniquely important in the field of law enforcement." Fay v. Noia, 372 U.S. 391, 445, 83 S. Ct. 822, 852, 9 L. Ed. 2d 837 (1963) (Clark, J., dissenting). The attempt proved to be an exercise in futility. See State v. Brizendine, 445 S.W.2d 827 (Mo. banc 1969). Finally, in 1979, the coup de grace was delivered—the United States Supreme Court rejected the presumption that trial jurors will act rationally and held "that in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254—if the settled procedural prerequisites for such a claim have otherwise been satisfied—the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." (Emphasis mine). Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2792, 61 L. Ed. 2d 560, reh. den., 444 U.S. 890, 100 S. Ct. 195, 62 L. Ed. 2d 126 (1979). On the effective date of Jackson, supra, our Rule 27.26 insofar as it affected the proscriptions of the Constitution of the United States, ceased to serve a useful purpose; and, to that extent, rendered unconscionable the burden it placed on Missouri lawyers. And, inevitably, on February 8, 1981, in a speech to an American Bar Association meeting in Houston, Texas, the Chief Justice of the United States declared that "crime has permeated the fabric of American life," and deplored the lack of finality in criminal prosecutions. Of course, a person restrained of his liberty within Missouri in violation of the Constitution of the United States or the Constitution of Missouri may prosecute a writ of habeas corpus. See Rule 91. Further, a claim that a judgment of conviction was entered by a trial court in violation of the Constitution of the United States or the Constitution of Missouri must be entertained and determined in Missouri appellate courts on direct appeal. However, a post-conviction remedy (such as Rule 27.26), which would give the "right to collaterally attack a final judgment of conviction," is not mandated by the Constitution of the United States. United States v. MacCollom, 426 U.S. 317, 323, 96 S. Ct. 2086, 2090, 48 L. Ed. 2d 666 (1976). In this situation in Missouri state courts, I would limit the assertion of violations of the Constitution of the United States to direct appeals and habeas corpus. I would repeal Rule 27.26 and would promulgate a new Rule 27.26 and a new Rule 27.27: 27.26 JUDGMENT AND SENTENCE UNLAWFUL—MOTION TO VACATE OR CORRECT—NOTICE TO DEFENDANT OF AVAILABILITY— FORM AND SCOPE OF MOTION— NOTICE OF PROSECUTING ATTORNEY —APPOINTMENT OF COUNSEL —HEARING—ORDER—EFFECT OF ORDER—APPEAL—UNTIMELY AND SUCCESSIVE MOTIONS. A defendant under sentence for a felony who claims the judgment and sentence imposed *659 after trial violate the Constitution and Laws of this State, or that the court imposing such sentence was without jurisdiction to do so, or that such sentence was in excess of the maximum sentence authorized by law, may file in the court which imposed such sentence a motion to vacate, set aside or correct said judgment and sentence. (a) NATURE OF REMEDY. This Rule is intended to provide the exclusive procedure by which a defendant sentenced after trial may seek relief in the sentencing court on the basis of any of the attacks enumerated above. (b) WHO MAY FILE. The provisions of this Rule may be invoked by a defendant, convicted on a trial, claiming the right to have the judgment and sentence vacated, set aside or corrected. (c) NOTICE OF AVAILABILITY OF POST-JUDGMENT PROCEEDING. Immediately after pronouncement of sentence and entry of judgment, the court shall inform defendant of his right to file a motion hereunder attacking the validity of the judgment and sentence. The court shall question defendant in open court on the record and determine that defendant understands the availability and nature of the proceeding provided herein, the timetable for filing and processing same, that he must assert in such motion every ground for relief known to him, that every such ground not asserted is waived, and that neither probation, parole, nor suspension of execution of sentence shall extend or delay the time for filing a motion hereunder. (d) MOTION FOR POST-JUDGMENT RELIEF. Defendant shall have ten (10) days from the time notice of availability of this proceeding is given by the sentencing court in which to file a motion requesting post-judgment relief. Time for filing the motion may be extended for an additional period of ten (10) days. This motion must conform substantially to the form appended hereto as Appendix A. The motion shall include every ground known to defendant for vacating, setting aside or correcting the judgment and sentence. Defendant shall verify the motion, declaring that he has listed all grounds for relief known to him, and acknowledging his understanding that he waives any ground for relief known to him which is not listed in the motion. The motion may be amended with leave. No cost deposit shall be required. (e) RIGHT TO COUNSEL. Counsel representing a defendant at trial shall continue to represent him in the post-judgment proceeding and on any appeal taken unless relieved by order of court. Counsel shall be relieved if ineffectiveness of counsel at trial is alleged. If counsel is relieved by the trial court, the court shall appoint a new counsel to represent defendant unless defendant is able to employ counsel. (f) BAIL PENDING POST-JUDGMENT PROCEEDINGS. The court shall commit defendant pending post-judgment proceedings unless he has been admitted to bail, in which case the court may continue or modify bail. Time spent in custody by defendant for the duration of the post-judgment proceedings shall be credited toward service of his sentence. (g) NOTICE OF HEARING. Defendant shall file his motion in duplicate with the clerk of the trial court and the clerk shall immediately deliver a copy thereof to the prosecutor. Upon receipt of defendant's motion, the clerk also shall notify the sentencing judge, who shall set a hearing date not more than fifteen (15) days from the date the motion is filed and shall cause the clerk to immediately notify all parties in the case. Any response to the motion by the prosecutor shall be filed not less than five (5) days before the hearing. (h) POST-JUDGMENT HEARING. The hearing on issues raised in defendant's motion shall be of record and both defendant and the prosecution shall be given the opportunity to present testimony. Upon a showing of good cause the court may continue the hearing. (i) BURDEN OF PROOF. Defendant shall have the burden of establishing *660 grounds for relief by a preponderance of the evidence. (j) PRESENCE OF DEFENDANT. Defendant shall have the right to be present at any hearing on a motion filed under (d) of this Rule. (k) JUDGMENT. The court shall make written findings of fact and conclusions of law on all issues presented. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was illegal, or that there was such a denial or infringement of the rights given defendant by the Constitution of Missouri as to render the judgment subject to collateral attack, the court shall vacate and set aside the judgment and shall discharge defendant or resentence him or grant a new trial or correct the judgment and sentence as appropriate. (l) APPEAL. The filing of a motion under the provisions of this Rule shall stay the execution of that portion of the judgment which requires that defendant be delivered into the custody of the Department of Corrections, shall constitute a waiver of defendant's right to appellate review until final determination of the issues raised by the motion, and shall extend the time for filing notice of appeal from judgment and sentence until such final determination of the motion for post-judgment relief by the trial court. An order sustaining or overruling a motion filed under the provisions of this Rule shall be deemed a final judgment for purposes of appeal. An appeal may be taken from the order entered on the motion as authorized by Rule 30. If defendant appeals, it may be from the judgment of conviction, from the order on the motion, or from both. He shall file a single notice of appeal which shall specify the judgment or order from which he appeals. Notice of appeal must be filed within ten days of the court's order determining the motion for post-conviction relief. The transcript of both trial and post-conviction proceedings shall constitute the record for purposes of appellate review except when the State appeals hereunder and an abbreviated transcript is ordered and approved by counsel or by the sentencing court. Appellate review of the court's action on the motion filed under this Rule shall be limited to a determination of whether the findings and conclusions are clearly erroneous. (m) COSTS. If the sentencing court finds that a defendant desiring to appeal is an indigent person, it shall authorize an appeal in forma pauperis and furnish without cost a record of all proceedings for appellate review. The sentencing court, when the appeal is taken, shall order the official court reporter to promptly prepare the appellate record necessary for appellate review without requiring a letter from defendant's counsel ordering same. If the sentencing court finds against defendant on the issue of indigency, it shall, if requested by defendant, certify and transmit to the appellate court a transcript of the evidence, on that issue only, so as to permit review of that issue by the appellate court. (n) UNTIMELY OR SUCCESSIVE MOTIONS. A person who has failed to file a timely post-judgment motion after notice of availability of this proceeding is given by the sentencing court, or who files such a timely motion but is denied relief thereon, and desires to file an untimely or successive post-judgment motion, may apply to the circuit court of the county in which he was sentenced for leave to file such motion. The court, in its discretion, may give such leave, and determine the issues thereafter presented, if it believes (1) there has been a significant change in the law, either substantive or procedural, which was applied in the process leading to applicant's conviction or sentence, which change in law is retrospective in application, or (2) that for some other reason there has been a miscarriage of justice. The person shall have no right of appeal from a denial of leave to file such a motion. If leave to file the motion has been given in the circuit court, and a determination *661 of the issues made, the person shall have no right of appeal unless the circuit court or the appellate court to which an appeal, if allowed, would go issues a certificate of probable cause (Cf. 28 U.S.C. Section 2253). 27.27 JUDGMENT AND SENTENCE UNLAWFUL—MOTION TO VACATE —FORM AND SCOPE OF MOTION —LEAVE TO FILE MOTION— NOTICE TO PROSECUTING ATTORNEY —HEARING—APPOINTMENT OF COUNSEL—ORDER—EFFECT OF ORDER—APPEAL—COSTS— AND SUCCESSIVE MOTIONS. A person in custody under sentence for a felony who claims the judgment and sentence imposed violate the Constitution and Laws of this State, or that the court imposing such sentence was without jurisdiction to do so, or that such sentence was in excess of the maximum sentence authorized by law, may seek relief in the court which imposed such sentence by filing therein a motion for leave and a motion to vacate. (a) NATURE OF REMEDY. This Rule is intended to provide the exclusive procedure by which a person sentenced after a plea of guilty may seek relief in the sentencing court on the basis of any of the attacks enumerated above. (b) WHEN REMEDY MAY BE INVOKED. The provisions of this Rule may be invoked by a person, convicted on a plea of guilty, claiming the right to have the judgment and sentence vacated, set aside or corrected. (c) MOTION FOR POST-JUDGMENT RELIEF. A motion for leave and to vacate must conform substantially to the form appended hereto as Appendix B. The motion to vacate shall include every ground known to movant for vacating, setting aside or correcting the judgment and sentence. The movant shall verify the motion, declaring that he has listed all grounds for relief known to him, and acknowledging his understanding that he waives any ground for relief known to him which is not listed in the motion. The motion may be amended with leave. No cost deposit shall be required. (d) LEAVE TO FILE MOTION. A person who desires to file a motion to vacate under this Rule may apply to the circuit court of the county in which he was sentenced for leave to file such motion. The court, in its discretion, may give such leave, and determine the issues presented, if it believes (1) there has been a significant change in the law, either substantive or procedural, which was applied in the process leading to movant's conviction or sentence, which change in law is retrospective in application, or (2) that for some other reason there has been a miscarriage of justice. The movant shall have no right of appeal from a denial of leave to file such a motion. (e) NOTICE OF HEARING. If leave to file the motion to vacate is given in the circuit court, the clerk of the circuit court shall immediately deliver a copy thereof to the prosecutor and the judge shall set a hearing date not more than fifteen (15) days from the date leave to file is given. The clerk shall immediately notify all parties in the case. Any response to the motion by the prosecutor shall be filed not less than five (5) days before the hearing. (f) HEARING. The hearing on issues raised in the motion shall be of record and both the movant and the prosecution shall be given the opportunity to present testimony. Upon a showing of good cause the court may continue the hearing. (g) BURDEN OF PROOF. The movant shall have the burden of establishing grounds for relief by a preponderance of the evidence. (h) PRESENCE OF THE MOVANT. The movant shall have the right to be present at any hearing on a motion filed under this Rule. (i) RIGHT TO COUNSEL. Counsel representing the movant when the plea was taken shall continue to represent him in the *662 post-judgment proceeding and on any appeal allowed unless relieved by order of court. If such counsel is permitted by the trial court to withdraw, said court shall appoint new counsel to represent movant unless the movant is able to employ counsel. (j) JUDGMENT. The court shall make written findings of fact and conclusions of law on all issues presented. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was illegal, or that there was such a denial or infringement of the rights given movant by the Constitution of Missouri, as to render the judgment subject to collateral attack, the court shall vacate and set aside the judgment and shall discharge the movant or resentence him or order a trial or correct the judgment and sentence as appropriate. (k) APPEAL. If leave to file the motion has been given in the circuit court, a hearing is held, and the motion is denied by the circuit court, the movant shall have no right of appeal unless the circuit court or the appellate court to which an appeal, if allowed, would go issues a certificate of probable cause (Cf. 28 U.S.C. Section 2253). If appellate review is allowed, that review shall be limited to a determination whether the findings and conclusions of the circuit court are clearly erroneous. (1) COSTS. If the court finds that a movant allowed an appeal is an indigent person, it shall authorize an appeal in forma pauperis and furnish without cost a record of all proceedings for appellate review. The circuit court, when the appeal is taken, shall order the official court reporter to promptly prepare the appellate record necessary for appellate review without requiring a letter from the movant's counsel ordering same. If the sentencing court finds against the movant on the issue of indigency, it shall, if requested by the movant, certify and transmit to the appellate court a transcript of the evidence, on that issue only, so as to permit review of that issue by the appellate court. (m) SUCCESSIVE MOTIONS. The circuit court shall not entertain successive motions. APPENDIX A IN THE CIRCUIT COURT OF ______________ COUNTY STATE OF MISSOURI ) _____________________________ ) Movant-Defendant, ) ) vs. ) No. ______________ ) STATE OF MISSOURI, ) ) Respondent. ) MOTION FOR POST-JUDGMENT HEARING Notice is hereby given that movant-defendant hereby requests that the court hold a post-judgment hearing, pursuant to the procedures outlined in Rule 27.26. Movant brings to the court the following grounds for relief: (1) ............... (2) ............... (3) ............... ______________________________ Movant ______________________________ Movant's Attorney ______________________________ Attorney's Address *663 STATE OF MISSOURI ) SS COUNTY OF ______________ ) I, ___________________________, movant in this case, state that the above information is, to the best of my knowledge, true and correct; that I have listed every ground known to me for vacating, setting aside or correcting the conviction and sentence attacked in this motion; and that I understand that I waive any ground for relief known to me which I have not listed in this motion. ______________________________ Movant SUBSCRIBED AND SWORN to before me this ______________ day of ________________________, 19____. ______________________________ Notary Public My commission expires: ______________________________ (month) (day) (year) APPENDIX B IN THE CIRCUIT COURT OF ______________ COUNTY STATE OF MISSOURI ) _____________________________ ) Movant, ) ) vs. ) No. ______________ ) STATE OF MISSOURI, ) ) Respondent. ) MOTION FOR LEAVE Movant hereby requests leave to file the following MOTION FOR HEARING: MOTION FOR HEARING Notice is hereby given that movant hereby requests that the court hold a hearing, pursuant to the procedures outlined in Rule 27.27. Movant brings to the court the following grounds for relief: (1) ............... (2) ............... (3) ............... ______________________________ Movant ______________________________ Movant's Attorney ______________________________ Attorney's Address *664 STATE OF MISSOURI ) SS COUNTY OF______________ ) I, __________________________________________, movant in this case, state that the above information is, to the best of my knowledge, true and correct; that I have listed every ground known to me for vacating, setting aside or correcting the conviction and sentence attacked in this motion; and that I understand that I waive any ground for relief known to me which I have not listed in this motion. ______________________________ Movant SUBSCRIBED AND SWORN to before me this ______________ day of ________________________, 19____. ______________________________ Notary Public My commission expires: ______________________________ (month) (day) (year)

292 So. 2d 747 (1974) Lucille LANDRY, widow of George T. VICKNAIR v. SOUTHERN FARM BUREAU CASUALTY INSURANCE CO. and Magnolia Plantation, Inc. No. 5737. Court of Appeal of Louisiana, Fourth Circuit. April 11, 1974. Rehearing Denied May 23, 1974. Writ Refused July 1, 1974. *748 Porteous, Toledano, Hainkel & Johnson, New Orleans, James L. Donovan, Metairie, for defendants-appellants. Kronlage, Dittmann & Caswell, Albert S. Dittmann, Jr., New Orleans, for plaintiff-appellee. Before LEMMON, J., and FEDOROFF and GAUTHIER, JJ. Pro Tem. LEMMON, Judge. Magnolia Plantation, Inc. and its workmen's compensation insurer have appealed *749 from a judgment awarding death benefits and funeral expenses to the widow of Magnolia's employee, George Vicknair. Principal issues are (1) whether Vicknair's services, at the time of his fatal coronary occlusion, arose out of and were incidental to his employer's trade, business or occupation, as required by R.S. 23:1035, and (2) whether Mrs. Vicknair proved the attack was caused, aggravated or accelerated by employment activities. Magnolia Plantation, Inc. was a closely held corporation, totally owned by the Caldwell family. The corporation primarily engaged in sugar cane farming. Vicknair had worked as a mechanic and general handyman on plantations owned by the Caldwell family for 45 years prior to his death and for Magnolia since it was incorporated in 1966. In 1969 Vicknair and the overseer were Magnolia's only regular, full time employees, although several other employees worked for hourly wages as their services were required. Vicknair worked six to seven days per week and was always on call. He performed whatever services were required or requested at any time by Albert Caldwell, the plantation manager who was also a corporate officer, director and major shareholder. As manager, Caldwell directed all labor operations on the plantation for the corporation. On Sunday, August 17, 1969 Caldwell dispatched three Magnolia employees to Grand Isle to prepare his personally owned camp for Hurricane Camille, which was approaching the island. Vicknair, Victor McElroy, the plantation overseer, and Isaac Brown, a laborer, reached the island during squally wind and driving rain. They picked up Caldwell's boat from the public dock and then removed air conditioning units from the camp, boarded up the windows and doors, and loaded several packages into the truck. They immediately left the camp and traveled approximately one-half mile on their return trip to the plantation, whereupon Vicknair suffered his fatal attack and died instantly. Defendants first argue that under R.S. 23:1035 an accident or incident is not compensable unless it arises out of or is incidental to the employer's regular trade, business or occupation, and that Vicknair at the pertinent time was performing an activity which did not constitute part of Magnolia's regular business. Compensation coverage may still attach even though the employee, at the time of the injury, was not performing the exact duty for which he was primarily hired or a task normally incidental to the regular business of the employer. When an employee is following the direct order of a person in authority to perform a task outside of his normal employment duties for the benefit of his employer or of the superior, and is injured in the course of that work, the injury is usually compensable. In Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932) a pipefitter, who had been ordered to perform work at the residence of one of the company officials, was held entitled to compensation for an injury which occurred after he had done that work and was returning to the mill. In Dobson v. Standard Acc. Ins. Co., 228 La. 837, 84 So. 2d 210 (1955) an injury sustained by a truckdriver, employed by an oil distributor, while the employee was demolishing a fence around his employer's residence, was held compensable. In Brown v. Hartford Acc. & Indem. Co., 240 La. 1051, 126 So. 2d 768 (1960) the owner and operator of a bookbindery sent a handyman normally employed at the bookbindery to do carpentry work at the owner's apartment building. The employee was injured during the hours he usually worked at the bookbindery. Additionally, he was on the bookbindery's payroll during the period of this work. The court held the owner was estopped from claiming the *750 services were not incidental to the injured employee's duties at the bookbindery. The rationale underlying the above decisions is that the employer or person in authority has implicit power to enlarge the normal course of the employee's employment by assigning particular tasks or duties. Once the superior exercises this authority, the employee has no practical choice but to perform the assigned task. Our courts cannot condone a rule of law which would hold that the employee's compliance under subtle coercion forfeits compensation coverage. See generally 1 Larson, The Law of Workmen's Compensation § 27.40 (1972). Defendants, however, citing several cases[1], quote from Section 102 of Malone, Louisiana Workmen's Compensation Law and Practice (1951), that the "Act does not extend to injured employees unless their work is a regular part of the business, trade or occupation of the employer." The cited cases were concerned either (1) with a claimant (employee or independent contractor) who was not employed in the employer's regular business, but was specially hired to perform a certain task outside of the regular business, or (2) with a determination of the hazardous nature of the employer's business, which is another requirement of R.S. 23:1035. Whether or not Magnolia's business was hazardous is not pertinent in the present case.[2] Also inapplicable are the cases which concern a special employee, not regularly employed by the employer, who is hired to perform a special task. When, as in the present case, an employer uses his regular employee for a job outside of the employer's regular business, compensation coverage depends upon the facts and circumstances of each case. Professor Malone discusses the problem in Section 175 as follows: "Employee Performing Personal Errand for Employer "An employee who is doing work which is part of his employer's business may be directed by the latter to perform a purely personal errand for the employer or one of his representatives. If he is injured while so doing, is he entitled to compensation? This may appear superficially to present only the question of whether the employee at such a time was acting within the course of his employment, and the problem is usually phrased in these terms by the courts. This, however, is not always a satisfactory way of stating the matter. There can be no question that an employee is within the course of his employment when he is acting pursuant to his employer's orders. The true difficulty lies in the fact that the order relates to something that is not a part of the employer's regular business. Thus, in those jurisdictions where it is *751 not necessary that the employee's work be part of the business of the employer there is no difficulty with this question. "Where the employee is performing a personal errand for his employer the former's position is a difficult one. If he accedes to his employer's request, he runs the risk that any accident during the performance of the mission will be excluded from compensation coverage. If he refuses, he runs the more serious risk of being discharged for insubordination. Thus he has little free choice in the matter. It is probably compassion for his predicament that has induced courts wherever possible to find that the errand was related in some way to the employer's business. Or, if the employee has completed the errand and is returning to the regular work premises, it may be found that he has resumed his employment in the business. Furthermore, if the errand is of short duration and comes at a time when the employee might otherwise be idly standing by or enjoying a rest or recreation period, it can be appropriately treated as a mere incident of the regular employment. For example, if an employee could cross the street to get a package of cigarettes for himself during a free period without losing his right to compensation, there is no reason why a different result should follow if he were buying cigarettes for his employer pursuant to the latter's request. "Until recently the Louisiana cases on this problem were few and inconclusive. However, the question was definitely put to rest in 1955 in the case Dobson v. Standard Accident Ins. Co. The employer operated a gasoline service station and had secured compensation insurance covering this occupation. He directed claimant, a service station employee, to demolish a fence on the employer's private premises, and the claimant was injured while so doing. The court held that it was sufficient that the employee was acting purusant to his employer's orders at the time of the accident. The compensation insurer further insisted that this injury was not incurred in the course of a service station operation, which was the only occupation it had insured. In answer the court observed that the insurer undertook to insure against any liability imposed by the statute and could not complain if the activity in which the employee was engaged at the time of the accident is regarded by the court as within the course of claimant's employment in service station work. The rule of the Dobson case has since been affirmed and followed." (Emphasis supplied, footnotes omitted.) Using this reasoning, we find compensation coverage under the facts and circumstances of the present case. Perhaps we would reach a different result if a corporate officer requested a corporate employee to perform, outside of his regular working hours, a certain job for the personal benefit of the officer, who personally paid additional wages for the special job. In the present case, however, Vicknair followed direct orders issued by the plantation manager, worked with other corporate employees and used a truck and fuel furnished by the corporation. Each employee involved apparently considered this assignment to be part of his regular duties, and each had performed work at the camp before as part of his employment duties. Neither Vicknair nor the overseer received additional wages from the corporation for performing the special assignment, because their regular monthly salary encompassed additional assignments; however, Caldwell did not pay or agree to personally pay them any extra wages. Significantly, the laborer was paid extra wages by the corporation for the work done that day. Under these circumstances we conclude that Vicknair's attack occurred at a time which constituted working hours and at a place where as part of his normal duties he had been ordered to go by the corporation executive to perform a task for the executive's benefit. We accordingly hold the attack was compensable. *752 As to proof of the causal relationship between the employment and the attack, the only physician presented testified he was certain, from the co-employee's history of the incident, that Vicknair suffered a severe coronary attack which resulted in his immediate death. The doctor also stated that physical exertion can cause a coronary occlusion, although there are other causes. Causation, like other elements of a civil case, need only be proved by a preponderance of the evidence. The party assigned the burden of proof has established the requisite preponderance if the evidence, taken as whole, shows that the fact or causation sought to be proved is more probable than not. Jordan v. Travelers Ins. Co., 257 La. 995, 245 So. 2d 151 (1971). The testimony of medical experts seldom contains unqualified statements of probability or likelihood.[3] Such evidence must be weighed in the light of other credible evidence of a non-medical character, such as a sequence of symptoms or events, in order to judicially determine probability. The skimpy medical testimony here contained no specific statement as to the probability that work activity caused Vicknair's heart attack. However, the testimony did fairly establish that it is virtually impossible in a specific case to determine how much, if at all, physical exertion contributes to an occlusion, but that physical exertion, tension and excessive worry are factors which can cause, contribute to, or influence the onset of an occlusion. Vicknair performed physical labor continuously for two hours under pressure of haste and adverse weather conditions just prior to suffering the fatal attack. Furthermore, his wife and daughter testified that he had a lifelong fear of bad weather and was apprehensive about going to Grand Isle in the face of an approaching hurricane. When a person in apparent good health performs strenuous labor under tension and immediately thereafter suffers a heart attack, and the medical evidence establishes that strenuous work under tension can cause this type of heart attack, the inference arises that the attack is not just a coincidence, but is causally related to the work activities. The trial judge apparently was satisfied that the numerous factors present in this case, when working together, influenced the onset of Vicknair's attack. We concur that the evidence, taken as a whole, established that it was more probable than not that the exertion, tension and worry, all of which were present at the time and all of which are possible contributing causes of coronary occlusion, precipitated, hastened, aggravated or in some manner played a part in Vicknair's heart attack, which occurred in the course of his employment. By answer to the appeal, Mrs. Vicknair seeks penalties and attorney's *753 fees for the unreasonable denial of her claim.[4] While we believe the virtually undisputed facts clearly establish Vicknair's entitlement to compensation, we recognize that the language in R.S. 23:1035 and in previous appellate opinions could justify a liability defense against a claim in which the employee was performing a special task for a corporate officer outside the regular business of the corporation. Furthermore, the medical evidence in support of causation was far from overwhelming, and we note that each side subpoenaed medical experts who were not called to testify. Under the foregoing circumstances we conclude that the defense was presented in good faith and on reasonable grounds. Finally, defendants contend the award of $45.00 per week was in excess of the statutory amount. R.S. 23:1232 provides that payment of death benefits to the widow alone shall be computed at 32½% of wages. At the beginning of trial, counsel stipulated that Vicknair's wages were $400.00 per month, $300.00 being wages and the balance attributable to a home and utilities furnished by the corporation. Therefore, the award must be reduced to 32½% of Vicknair's weekly wages.[5] Accordingly, the judgment is amended to decrease the amount of weekly benefits to $32.50. As amended, the judgment is affirmed. Amended and affirmed. RICHARD H. GAUTHIER, J. Pro Tem., dissents and assigns reasons. RICHARD H. GAUTHIER, Judge, Pro Tem. (dissenting). I respectfully dissent from the majority opinion and decree for I am of the opinion that the plaintiff failed to establish a causal connection between the death of George Vicknair and his employment activities. In order to receive workmen's compensation benefits the plaintiff must show the existence of a causal connection between the decedent's employment activities and his resulting death from a heart attack. Our courts have established that the plaintiff must prove this causal connection by a preponderance of evidence as in any other civil case. In discussing what is meant by "preponderance of evidence", the Supreme Court in the case of Guillory v. New Amsterdam Casualty Company, 244 La. 225, 152 So. 2d 1, said that "speculation, conjecture, near possibility and even unsupported probabilities are not sufficient." In Bernard v. Louisiana Wildlife & Fisheries Commission, La.App., 152 So. 2d 114, the Third Circuit said that such proof must be a reasonable probability, and that mere possibility is not sufficient. This court in the case of Brown v. Kaiser Aluminum & Chemical Corporation, La. App., 250 So. 2d 99, held that plaintiff's right to recover was dependent upon the existence of the causal connection and that in determining this issue "The court must be primarily guided by the testimony of the medical experts." The only medical evidence in the record was the deposition of Dr. Nicholas S. Musso, a general practitioner and Deputy Coroner of Lafourche Parish. Dr. Musso's testimony reveals that he made no statement confirming a causal connection between Mr. Vicknair's employment activities and the heart attack. He was never asked the specific causal connection question, nor did he testify as to any causal connection between Vicknair's death and his activity. *754 He ventured no opinion whatsoever except as to the cause of death. A careful review of his testimony, as well as the entire record, convinces me that the plaintiff failed to prove by a preponderance of the evidence that there was a causal connection between Mr. Vicknair's death and his employment activities. I believe it would be pure conjecture to conclude that Vicknair's physical activities contributed to or accelerated his death without benefit of medical testimony. NOTES [1] Defendant cites Lyons v. Pirello, 194 So. 2d 147 (La.App. 1st Cir. 1967), in which defendant, a real estate broker, was held liable when the court found he engaged in constructing and remodeling buildings, a hazardous business, and plaintiff was injured during construction; Story v. Globe Indemnity Co., 223 La. 689, 66 So. 2d 611 (1953), a direct action against the insurer of a hardware business owner, in which plaintiff (the owner's father-in-law) was killed in the construction of a camp belonging to the owner, the court finding that decedent was never employed in the employer's regular business; Scott v. Young Women's Christian Assn., 263 So. 2d 367 (La. App. 4th Cir. 1972), which solely involved a determination as to whether the business of renting rooms on a daily basis was hazardous; Fontenot v. Travelers Ins. Co., 236 So. 2d 889 (La.App. 3rd Cir. 1970), in which recovery was denied to a painter, not otherwise employed by defendant, who was injured while painting a farmer's residence; and Stigler v. Bell, 276 So. 2d 799 (La.App. 4th Cir. 1973), in which defendant, whose business was managing rental property, employed a painter especially to paint a cabinet at defendant's residence. [2] When the employer carries insurance, the insurer is estopped from denying liability for an employee's injury, arising "within the scope of the employer's business," on the grounds that the employment was not hazardous. R.S. 23:1166. [3] As this court stated in Marty v. Western Auto Supply Company, 269 So. 2d 583 (La. App. 4th Cir. 1972), quoting from 3 Larson, The Law of Workmen's Compensation, § 80.32, p. 289 (1971): "The distinction between probability and possibility should not follow too slavishly the witnesses' choice of words, as sometimes happens in respect to medical testimony. A doctor's use of such words as `might', `could', `likely', `possible' and `may have', particularly when coupled with other credible evidence of a non-medical character, such as a sequence of symptoms or events corroborating the opinion, is in most states sufficient to sustain an award. It is a common experience of compensation and personal injury lawyers to find that the more distinguished a medical witness is, the more tentative and qualfied are his statements on the witness stand. He will testify that the sledge-hammer blow on claimant's head might have caused claimant's headache, but hesitates to say positively that this was the only possible cause, and may concede on cross-examination that there could conceivably be other causes. The weight of such testimony, however, should not be too sharply discounted because of the disposition of the highly-trained scientific mind to refrain from unqualified statements or opinions on such matters as causation." [4] Defendants argued she should have appealed separately, rather than answering the appeal. However, an answer to the appeal is the equivalent to an appeal on the answering party's part from any portion of the judgment rendered against him in favor of the appellant. C.C.P. art. 2133. [5] If the employee is paid on a monthly basis, his weekly wages are determined by dividing his monthly salary by four. R.S. 23:1021 (11)(b).

128 F.3d 530 1997-2 Trade Cases P 71,950 FEDERAL TRADE COMMISSION, Plaintiff-Appellee,v.Robert J. FEBRE, individually and as an officer of AcePublishing, Inc., and Ace Publishing, Inc., doingbusiness as Pase Corporation,Defendants-Appellants. No. 97-1230. United States Court of Appeals,Seventh Circuit. Argued Sept. 10, 1997.Decided Oct. 17, 1997. Joanne L. Levine (argued), Federal Trade Commission, Washington, DC, for Plaintiff-Appellee. H. Kent Heller, David Stevens (argued), Heller, Holmes & Associates, Mattoon, IL, Jerome S. Lamet, Lamet & Associates, Chicago, IL, for Defendants-Appellants. Before BAUER, COFFEY, and EASTERBROOK, Circuit Judges. BAUER, Circuit Judge. 1 The Federal Trade Commission ("FTC" or "Commission") filed a complaint against Robert J. Febre ("Febre") and Ace Publishing, Inc. ("Ace") for violations of Section 5 of the Federal Trade Commission Act ("FTCA"), 15 U.S.C. § 45. The district court granted summary judgment in favor of the Commission, finding that Febre and Ace had violated the FTCA by using unfair and deceptive practices in advertising, promoting, and selling work-at-home opportunities and financial services. The district court issued a permanent injunction pursuant to Section 13(b) of the FTCA, 15 U.S.C. § 53(b), preventing Febre and Ace from engaging in those types of deceptive practices. The district court also entered judgment against Febre and Ace in the amount of $16,096,345. Febre and Ace do not challenge: (1) the district court's finding that they violated Section 5 of FTCA; (2) the issuance of the permanent injunction; or (3) the district court's power to award monetary relief. However, Febre and Ace contest the actual amount of damages awarded by the district court. For the reasons set forth below, we affirm the district court's order of equitable relief in the amount of $16,096,345. Background 2 Robert J. Febre is the president, director, and sole-shareholder of Ace Publishing, Inc., doing business as Pase Corporation, which advertised and sold work-at-home opportunities and certain financial services, such as loans and grants.1 The FTC investigated the business practices of Febre and Ace. Typically, the business opportunities advertised by Febre and Ace claimed that consumers could make large sums of money by purchasing these programs and making initial payments of between $9.95 and $89.00 in order to participate. However, after making the initial payments, the consumers received additional information that disclosed significant additional costs for continued participation in the programs. Many consumers did not invest any further time or money, but others continued to pay the money demanded, still hopeful of realizing the income the advertisements promised. 3 In June 1994, the Commission filed a complaint for permanent injunctive relief and monetary damages, alleging that Febre and Ace violated Section 5 of the FTCA which prohibits "unfair or deceptive acts in or affecting commerce." 15 U.S.C. § 45(a)(1). The complaint alleged that the representations made by Febre and Ace to consumers in the course of advertising, promoting, and selling the work-at-home opportunities and financial services were false and misleading and failed to disclose material information. The Commission focused on eight of Ace's programs. 4 Various motions and memorandums were filed in support of and in opposition to the entry of preliminary injunctions against both Febre and Ace. In July 1994, Magistrate Judge Lefkow held an evidentiary hearing with respect to the FTC's request for preliminary injunctive relief. Based upon the pleadings, the stipulations of the parties, the exhibits received into evidence, and the testimony of the witnesses, Magistrate Judge Lefkow submitted a report which included proposed findings of fact and recommended to the district court that it grant injunctive relief. 5 In her report, Magistrate Judge Lefkow concluded that since at least 1989, Ace has been engaged in deceptive business practices by advertising, promoting, offering for sale, selling, or inducing consumers to participate in work-at-home opportunities in which consumers would use the Ace programs to earn money. Ace sold its programs using false and misleading practices which deceived consumers, and consumers never achieved the promised earning potential. Subsequently, on July 11, 1994, Judge Marvin E. Aspen adopted her recommendations, and the district court granted FTC's motion and entered its Order for Preliminary Injunction with Asset Freeze Against Defendant Ace Publishing, Inc. Subject to Bankruptcy Court's Dominion over the Assets. Then, on July 15, 1994, the district court again granted FTC's Motion for Preliminary Injunction and entered its Order for Preliminary Injunction with Asset Freeze Against Febre. 6 After entry of the preliminary injunctions against both Febre and Ace, Febre filed a Motion for Partial Summary Judgment on November 25, 1994 with the Commission filing a motion in opposition on December 20, 1994. Meanwhile, the FTC filed its Motion for Summary Judgment on October 31, 1995 which included a Local Rule 12(M) statement of material facts as to which there was no genuine dispute. Febre and Ace, in their response to the Commission's Motion for Summary Judgment which was filed the same day, failed to file a statement of disputed facts as required by Local Rule 12(N) of the rules for the Northern District of Illinois. 7 On January 9, 1996, the district court granted FTC's Motion to Transfer its Motion for Summary Judgment to Magistrate Judge Lefkow to conduct another evidentiary hearing. Relying upon the findings of fact as reported in her July 1994 Report and Recommendation, Magistrate Judge Lefkow submitted her Report to Judge Manning on March 20, 1996, recommending denial of Febre's Motion to Lift the Preliminary Injunction. Magistrate Judge Lefkow further recommended that Febre's Motion for Partial Summary Judgment also be denied. The district court accepted these recommendations on April 23, 1996. 8 On July 2, 1996, Magistrate Judge Lefkow filed another Report and Recommendation, recommending that the district court grant FTC's Motion for Summary Judgment. Febre and Ace filed objections to the magistrate judge's report on July 12, 1996,2 and the FTC responded to their objections on July 22, 1996. The FTC also filed its Proposed Order for Permanent Injunction and Final Judgment Against Febre and Ace on the same day. 9 The district court entered its Memorandum and Order on September 25, 1996, fully adopting the magistrate judge's Report and Recommendation granting the permanent injunction and ordering Febre and Ace to pay $16,096,345 as equitable restitution to compensate the consumers. The FTC filed a new proposed order on October 8, 1996. However, more than three months later, a final written order still had not been entered, and Febre and Ace filed their notice of appeal on January 21, 1997. The FTC immediately filed its Motion for Entry of Final Judgment on January 30, 1997. 10 The district court granted the FTC's motion and entered its Order for Permanent Injunction and Final Judgment against Febre and Ace Publishing, Inc. on February 6, 1997. The final judgment granted the permanent injunction, ordered Febre and Ace to pay more than $16,000,000 in damages, and specified that if any money could not be distributed to the victims, then the excess should be paid to the United States Treasury as disgorgement of defendants' unjust enrichment. 11 Febre and Ace now appeal this award of equitable monetary relief. They argue that the district court abused its discretion by: (1) awarding damages at summary judgment without a hearing; (2) using the figures generated from the Pase Consumer database and the figures asserted by Pase employees to calculate damages; (3) calculating damages by consumers' losses rather than defendants' profits; and (4) ordering equitable disgorgement of damages to the United States Treasury. Analysis A. Jurisdictional Statement 12 As a threshold matter, an initial question arose as to whether we have jurisdiction to hear this appeal. Pursuant to the Federal Rules of Appellate Procedure, "a notice of appeal filed after the court announces a decision or order but before the entry of the judgment or order is treated as filed on the date of and after the entry." Fed. R.App. Pro. 4(a)(2). In FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., the appellant filed a notice of appeal after the district court had granted summary judgment and requested the parties to submit a final order, but before the court had entered final judgment. FirsTier Mortg. Co. v. Investors Mortg. Ins. Co., 498 U.S. 269, 111 S. Ct. 648, 112 L. Ed. 2d 743 (1991). The United States Supreme Court held that the subsequent entry of a final judgment validated the appeal under Federal Rule of Appellate Procedure 4(a)(2). Id. at 277, 111 S.Ct. at 653. Thus, the notice of appeal filed by Febre and Ace on January 21, 1997 was properly validated on February 6, 1997 when the district court entered its order and final judgment. Accordingly, we have jurisdiction to hear this appeal. B. Standard of Review 13 We also should clarify that this appeal involves only a question regarding the actual amount of damages awarded by the district court. We do not review the district court's grant of summary judgment, nor do we examine the power of the court to grant relief in this case.3 We review only the narrow issue of whether the actual amount of damages awarded by the district court, $16,096,345, was calculated properly. We review a district court's grant of equitable relief for abuse of discretion. Weinberger v. Romero-Barcelo, 456 U.S. 305, 320, 102 S. Ct. 1798, 1807, 72 L. Ed. 2d 91 (1982) (the proper standard for appellate review is whether the district court abused its discretion in denying equitable relief); SEC v. Advance Growth Capital Corp., 470 F.2d 40, 53 (7th Cir.1972) (trial court's decision whether to grant injunctive relief reviewed for abuse of discretion). 14 C. Power of the Court to Award Monetary Relief at Summary Judgment 15 First, Febre and Ace argue that the actual amount of consumer redress as calculated by consumer losses is in dispute and not ripe for decision at the summary judgment stage of the proceedings. Section 13(b) of the Federal Trade Commission Act plays an important role in enabling the FTC to enforce consumer protection laws and often is used by the FTC to pursue violations of Section 5 of the FTCA. Section 13(b) provides "[t]hat in proper cases the Commission may seek, and after proper proof, the court may issue, a permanent injunction." 15 U.S.C. § 53(b). 16 The district court's authority to grant a permanent injunction also includes the power to grant other ancillary relief sought by the Commission. FTC v. World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1026 (7th Cir.1988). A district court has authority to "order any ancillary equitable relief necessary to effectuate the exercise of the granted powers." FTC v. Amy Travel Service, Inc., 875 F.2d 564, 572 (7th Cir.1989). The power to grant ancillary relief includes the power to order repayment of money for consumer redress as restitution or recession. Id. at 571. The district court found that Febre and Ace violated Section 5 of the FTCA and permanently enjoined them from engaging in deceptive business practices. Accordingly, the district court has the authority to grant equitable ancillary relief at summary judgment to effectuate the permanent injunction. 17 D. Factual Disputes that Should Be Resolved Before Damages Are Calculated 18 Next, Febre and Ace assert that there are genuine issues of material fact regarding: (1) the numbers used in the calculations; (2) the appropriate formula for calculation of the damages; and (3) the actual amount of restitution awarded. 19 1. The Figures Used to Calculate the Damages 20 Febre and Ace argue that the data from the Pase Consumer Database cannot be used because the information contained in the database is not complete.4 They suggest that other departments at Pase retained archived data and that some relevant consumer records had been erased from the computer records. This argument does not help appellants whatsoever. In fact, it illustrates that there may be even more customers to whom defendants owe restitution. If any records were erased, defendants claim that customer refunds were not properly calculated, and thus the calculation of damages is too high. This argument also has no merit. Febre and Ace seem to miss the point that if customers have been erased from the database, then the initial money they paid for the programs would not be included in the calculation of the damages. Therefore, the fact that a refund may not have been deducted is of no consequence because the initial payment by the consumer was not included in the calculations. 21 As we stated earlier, the FTC sought summary judgment and requested entry of a permanent injunction and an award of more than $16,000,000 in equitable relief. The court granted summary judgment, ordered the permanent injunction, and awarded damages in the amount requested, based upon the FTC's assertions that $16,096,345 was the total amount of consumer losses. The Commission must show that its calculations reasonably approximated the amount of customers' net losses, and then the burden shifts to the defendants to show that those figures were inaccurate. See, e.g., SEC v. Lorin, 76 F.3d 458, 462 (2d Cir.1996); United States Department of Housing & Urban Development v. Cost Control Marketing & Sales Mgmt. of Virginia, Inc., 64 F.3d 920, 927 (4th Cir.1995). 22 Febre and Ace do not offer any evidence as to why or how the Commission's calculations are not appropriate nor do they challenge the accuracy of the higher number.5 Febre and Ace's contention that the computer database lacked necessary information does not automatically mean that the Commission's calculations are not reliable. "[T]he risk of uncertainty should fall on the wrongdoer whose illegal conduct created the uncertainty." SEC v. First City Financial Corp., Ltd., 890 F.2d 1215, 1232 (D.C.Cir.1989). As the Third Circuit has said: 23 [W]here defendants' record keeping has "so obscured matters that lawful gains cannot be distinguished from the unlawful without incurring inordinate expense, it is well within the district court's power to rule that the measurement of disgorgement will be the more readily measurable amount of losses incurred by the defendants' customers in the unlawful transactions." CFTC v. American Metals Exchange Corp., 991 F.2d 71, 77 (3rd Cir.1993) (quoting CFTC v. American Bd. of Trade, Inc., 803 F.2d 1242, 1252 (2d Cir.1986)). 24 The FTC detailed the consumer sales of the eight programs as maintained by Ace in Pase Corporation's records in its statement of uncontested facts. It substantiated these numbers with statements from Pase employees Denise Brown, Deborah M. Richardson, and Efraim Arenas; FTC computer specialist Francis M. Curtin; and certified public accountant William H. Thullen. See Exhibits in Support of Plaintiff's Motion for Summary Judgment. As provided in FTC's statement of uncontested facts, it is clear how the Commission arrived at a total consumer loss of $16,096,345.6 25 In support of its summary judgment motion, the FTC filed a Rule 12(M) statement of undisputed facts based upon the findings of fact contained in Magistrate Judge Lefkow's July 1994 Report. Febre and Ace failed to respond with a Rule 12(N) statement. Local Rule 12(M) of the General Rules of the United States District Court for the Northern District of Illinois requires a party moving for summary judgment to file "a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to judgment as a matter of law." Local Rule 12(M). Each statement is to be supported by references to affidavits, parts of the record, or other supporting materials. Id. Local Rule 12(N) provides a corresponding requirement for the nonmoving party to respond to each statement made by the moving party, noting any disagreement and referring to the record in support of any disagreement. Local Rule 12(N). Material facts set out by the moving party "will be deemed to be admitted unless controverted by the statement of the opposing party." Id. The non-moving party is also to supply a statement of any additional facts that require denial of summary judgment, and correspondingly, any material facts set forth by the nonmoving party will be deemed admitted unless controverted by the statement of the moving party. Id. 26 We have upheld strict compliance with Local Rule 12 on numerous occasions. See, e.g., Bourne Co. v. Hunter Country Club, Inc., 990 F.2d 934 (7th Cir.1993) (where defendant denied the materiality of plaintiff's statement of facts, defendant failed to deny material facts, and they were properly deemed admitted); Schulz v. Serfilco, Ltd., 965 F.2d 516, 519 (7th Cir.1992) (upholding district court's decision to deem admitted defendant's Rule 12 facts to which plaintiff failed to specifically respond, even where plaintiff generally disputed those facts throughout its briefs); Maksym v. Loesch, 937 F.2d 1237, 1240-41 (7th Cir.1991) (approving strict enforcement of Rule 12). The magistrate judge properly accepted the calculations as set forth in FTC's statement of facts which were supported by the record, and the district court adopted those recommendations. Accordingly, there was no abuse of discretion in awarding $16,096,345 in damages where the amount was properly supported in the record and defendants failed to dispute the facts in a timely and appropriate manner. 2. The Formula for Calculation of Damages 27 Next, Febre and Ace argue that the proper formula to calculate damages is defendants' profits and not consumers' losses. They suggest that "the usual measure" of disgorgement is the amount of profits. Yet, they do not provide an explanation or any support for their suggestion that net profits are the usual measure of damages. See Magistrate Judge Lefkow Report and Recommendation of July 3, 1996, FTC v. Febre, 1996 WL 396117 at * 7 (N.D.Ill.1996). Febre and Ace suggest that a court may award consumer redress in the amount of consumer losses only if the amount of defendants' profits are not readily calculable. Febre and Ace argue that calculating damages is impossible at this stage because there is conflicting testimony whether documents existed which would allow the calculation of profits. Another useless argument. The existence of these records is immaterial; these documents would have no impact upon the calculation of damages. 28 A major purpose of the Federal Trade Commission Act is to protect consumers from economic injuries. Courts have regularly awarded, as equitable ancillary relief, the full amount lost by consumers. See, e.g., FTC v. Gem Merchandising Corp., 87 F.3d 466 (11th Cir.1996) (affirming an award of damages as calculated by consumers' losses and an order of disgorgement to the Treasury); FTC v. Amy Travel Service, Inc., 875 F.2d at 570 (affirming restitution award of $6,629,100, the amount consumers paid for travel certificates). The district court accepted the magistrate judge's determination that consumers' net payments to defendants provided the appropriate measure of restitution, without any consideration of defendants' profits, and similarly concluded that "consumer redress in the amount of purchase price of the relevant product or business [is] appropriate monetary relief." FTC v. Febre, 1996 WL 556957 at * 3 (N.D.Ill.1996); July 1996 Report and Recommendation, FTC v. Febre, 1996 WL 396117 at * 7 (N.D.Ill.1996). See also FTC v. US Sales Corp., 785 F. Supp. 737, 753 (N.D.Ill.1992). Thus, the defendants' profits were not taken into consideration, and Febre and Ace's argument challenging the calculation formula fails. E. The Nature of the Damages 29 Finally, Febre and Ace argue that an award of more than $16,000,000 without the benefit of a hearing is punitive in nature. They argue that because Section 13(b) of the FTCA does not provide for an award of punitive damages, the district court decision should be reversed. Punitive damages are damages awarded above and beyond what will compensate the victim for his losses. The damages awarded by the district court were calculated directly from defendants' records and statements given by Pase employees. The FTC calculated damages based upon what consumers lost. Here, the consumer will not receive anything greater than what was originally paid for the programs. 30 Additionally, Febre and Ace argue that such disgorgement amounts to a penalty that exceeds the authority of the court as provided by Section 13(b) of the FTCA. They cite the Ninth Circuit's opinion in FTC v. Figgie Intern., Inc., 994 F.2d 595, 607-08 (9th Cir.1993), cert. denied, 510 U.S. 1110, 114 S. Ct. 1051, 127 L. Ed. 2d 373 (1994), in support of this assertion. Figgie involved a different statutory provision, Section 19(b) of the FTCA, which expressly precluded an award of exemplary or punitive damages. 15 U.S.C. § 57b(b). In contrast, Section 13(b) has no such limitation. See 15 U.S.C. § 45. Febre and Ace's reliance on Figgie is misplaced. 31 Disgorgement to the United States Treasury does not transform compensatory damages into punitive damages. To ensure that defendants are not unjustly enriched by retaining some of their unlawful proceeds by virtue of the fact that they cannot identify all the consumers entitled to restitution and cannot distribute all the equitable relief ordered to be paid, the FTC often requests orders directing equitable disgorgement of the excess money to the United States Treasury. See, e.g., SEC v. Blavin, 760 F.2d 706, 713 (6th Cir.1985) (funds remaining after all claims have been satisfied shall revert to the U.S. Treasury). 32 This court has held that disgorgement is designed to be remedial and not punitive. Rowe v. Maremont Corp., 850 F.2d 1226, 1241 (7th Cir.1988). "[D]isgorgement does not penalize, but merely deprives wrongdoers of ill-gotten gains." CFTC v. Hunt, 591 F.2d 1211, 1222 (7th Cir.1979). As an equitable remedy, disgorgement is meant to place the deceived consumer in the same position he would have occupied had the seller not induced him to enter into the transaction. Disgorgement also prevents the defendant from being unjustly enriched by his fraud. Randall v. Loftsgaarden, 478 U.S. 647, 671-72, 106 S. Ct. 3143, 3157-58, 92 L. Ed. 2d 525 (1986). 33 The Eleventh Circuit specifically addressed this issue of disgorgement in FTC v. Gem Merchandising Corp., 87 F.3d 466 (11th Cir.1996). The FTC filed suit against Gem Merchandising Corporation for violations of Section 5 of the FTCA for engaging in illegal telemarketing practices. Id. at 467. Upon finding that Gem Merchandising engaged in unfair and deceptive practices, the district court held that the defendants must reimburse the consumers for their losses and to the extent that repayment was not feasible, the remainder to be paid to the United States Treasury. Id. The Eleventh Circuit affirmed the district court decision and concluded that "because it is not always possible to distribute the money to the victims of defendant's wrongdoing, a court may order the funds paid to the United States Treasury." Id. at 469-70. 34 We agree with the Eleventh Circuit and find its conclusion consistent with the general purpose of the FTCA, which enables the FTC to enforce consumer protection laws, and the specific provisions of Section 13(b), which authorizes the court to provide equitable relief. We conclude that Section 13(b) permits a district court to order a defendant to disgorge illegally obtained funds. Accordingly, the district court did not abuse its discretion by ordering disgorgement of the damages. Conclusion 35 For the foregoing reasons, the district court did not abuse its discretion by awarding monetary equitable relief and ordering disgorgement to the United States Treasury. Accordingly, we A FFIRM the district court's award of damages in the amount of $16,096,345. 1 Ace provided four work-at-home opportunities: (1) the "Home Inquiry Tabulator" program which asserted that consumers could earn $764 in a few hours for a minimal amount of work; (2) the "Amazing Pase Photo System" program which claimed that consumers could earn up to $1800 in one day; (3) the "High-Tech 900" program which claimed that a consumer could earn over $250,000 per year in proven income; and (4) the "Mailing Postcards" program which stated that a consumer could earn up to $15,000 per day just by mailing postcards. Ace also promoted the "Mailing List Compiler" program which presumably allowed consumers to compile names and addresses from readily available sources. Ace also provided three financial services programs: (1) the Grant program; (2) the Self-Liquidating Loan program; and (3) the Fortunecard program 2 We would like to note, as Judge Manning did in her Memorandum and Order, that the defendants did not object to the magistrate judge's findings regarding liability and directed the court's attention to the matter of damages 3 The appellants do not appeal the finding of liability nor do they challenge the entry of the permanent injunction. Febre and Ace recognize that entry of the permanent injunction was proper. Furthermore, they recognize that the district court has the authority to act as it did and to grant monetary equitable relief necessary to effectuate the permanent injunction 4 Using the information stored in the database, Francis M. Curtin, a computer specialist employed by the FTC, submitted a summary report based upon the Pase Consumer Records computer database which contained information on customer payments, commissions, and refund payments regarding the eight kfletcher@example.org. His report concluded that there were 195,499 customers who had paid $13,116,021 with refunds and commissions reducing the net amount received to $13,077,655 5 In oral arguments, appellants did not contest the calculations as generated from the Pase consumer database which resulted in damages in the amount of $13,077,655. Appellants' counsel only contested the award of an additional $3,019,310 in damages 6 FTC's Rule 12(M) Statement provides that between January 1, 1989 and December 31, 1993, consumers paid defendants a total of $16,615,424 for the eight kfletcher@example.org. FTC's 12(M) Statement at p 136, pp 130-135. Additionally, consumers received $498,409 in refunds. Id. at p 141. Thus, in subtracting the amount of refunds from the total consumer sales, the remainder is $16,096,345, which is the amount of damages requested by the Commission

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 05-1615 ___________ Jeffrey Alan Olson, * * Appellant, * * Appeal from the United States v. * District Court for the * District of Minnesota. Gerald O. Williams, Attorney at Law; * United States Senate; United States * [UNPUBLISHED] Congress, * * Appellees. * ___________ Submitted: October 7, 2005 Filed: October 20, 2005 ___________ Before BYE, McMILLIAN, and RILEY, Circuit Judges. ___________ PER CURIAM. Jeffrey Olson appeals the district court’s1 dismissal of his complaint. We agree with the district court that Olson failed to comply with an earlier district court order prohibiting him from filing specified complaints prior to receiving permission to do so. 1 The Honorable Michael J. Davis, United States District Judge for the District of Minnesota. Accordingly, we affirm. See 8th Cir. R. 47B. ______________________________ -2- 

Case 4:21-cv-00204-AW-MAF Document 6 Filed 07/27/21 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION HENRY ANTHONY WASHINGTON BROWN, Plaintiff, v. Case No. 4:21-cv-204-AW-MAF LEON COUNTY DETENTION CENTER, Defendant. _______________________________/ ORDER ADOPTING REPORT AND RECOMMENDATION I have considered the magistrate judge’s June 25, 2021 report and recommendation, ECF No. 5, to which there has been no objection. Having considered the matter, I now adopt the report and recommendation and incorporate it into this order. The clerk will enter a judgment that says, “Plaintiff’s complaint is dismissed (i) as an impermissible shogun pleading, (ii) because it fails to state a claim, and (iii) because Plaintiff has abandoned the case and failed to comply with a court order.” The clerk will then close the file. SO ORDERED on July 27, 2021. s/ Allen Winsor United States District Judge 

63 Wash. 2d 945 (1964) 389 P.2d 888 GUILLERMO NICACIO, Appellant, v. YAKIMA CHIEF RANCHES, INC., Respondent.[*] No. 36946. The Supreme Court of Washington, Department One. March 5, 1964. Merges, Brain & Hilyer and Gale P. Hilyer, Jr., for appellant. Roger K. Garrison (of Boose & Garrison), for respondent. OTT, C.J. September 2, 1957, Guillermo Nicacio was injured while operating a tractor and trailer for his employer, Yakima Chief Ranches, Inc. *946 September 24, 1959, he commenced this action for damages against his employer, through his attorneys, Pomeroy and Ross, alleging, inter alia, that his injuries were due to its negligence. December 4, 1959, Yakima Chief Ranches, Inc., answered the complaint, denied the allegations of negligence, pleaded three affirmative defenses, and prayed that the claim be dismissed. Subsequently, pretrial depositions were taken. September 13, 1960, the defendant moved for summary judgment. October 14, 1960, while the court had the motion for summary judgment under advisement, plaintiff filed his reply to the affirmative matters pleaded in defendant's answer. January 16, 1961, the court filed its memorandum opinion stating that the reply raised issues of fact which could be resolved only by a trial on the merits, and that "For the reasons hereinabove stated, the defendant's motion for a summary judgment will be denied." No formal order denying the motion was entered. June 27, 1962, Merges, Brain and Hilyer filed notice of appearance as additional attorneys for the plaintiff, and note for trial docket which stated: "Please take notice that this case is now at issue and the clerk is requested to note this cause on the trial docket to be brought on for trial at the time set by the court." September 24, 1962, defendant moved for dismissal for want of prosecution, as provided by Rule of Pleading, Practice and Procedure 41.04W, RCW Vol. 0. October 26, 1962, defendant's motion for dismissal was heard, and, on the same day, plaintiff presented to the court a proposed order denying the motion for summary judgment. November 16, 1962, the court entered the following order of dismissal without prejudice: "The above entitled matter having come on duly and regularly for hearing the 5th day of October, 1962, and having been continued to October 19, 1962, and thereafter until October 26, 1962; and the Plaintiff not having been present in person but represented by his attorney, Gale *947 P. Hilyer; and the Defendant having been represented by its attorney, Roger K. Garrison, and "It having been made to appear to the satisfaction of the Court that the Plaintiff was injured September 2, 1957, and that the Plaintiff commenced this action September 24, 1959, by filing his Complaint with the Court, and that Summons and Complaint were served upon the Defendant the following day, September 25, 1959; that Defendant's answer was served upon the Plaintiff November 26, 1959, and filed with the Court December 4, 1959; that on September 1, 1960, Defendant filed motion for Summary Judgment; that the Defendant's motion for Summary Judgment came on for argument September 30, 1960, and was continued for further argument on October 7, 1960, and was thereafter taken under advisement by the Court, and "It further appearing that the Court filed a Memorandum Opinion in the above entitled cause on January 16, 1961, denying said motion for Summary Judgment; that the Defendant did not move for reconsideration or further argument; that no order other than the Court's Memorandum Opinion denying the motion has ever been filed; and "It further appearing that the case was noted for trial on June 26, 1962, and that the defendant did file a Motion to Dismiss Plaintiff's Complaint without prejudice under Rule 41.04, Rules of Pleading, Practice and Procedure, and the plaintiff having given due and proper notice of the presentation of an order pursuant to the court's memorandum decision of January 16, 1961, said notice of presentation being for October 26, 1962, and the court having orally ruled on October 26, 1962, that Defendant's motion for dismissal should be granted, rendering plaintiff's notice of presentation moot, now, therefore, "IT IS HEREBY ORDERED, ADJUDGED and DECREED that the Plaintiff's Complaint shall be, and the same is hereby, dismissed, without prejudice, pursuant to Rule 41.04, Rules of Pleading, Practice and Procedure." The plaintiff appeals. The appeal presents a single issue: Did the trial court err in dismissing appellant's cause of action? Rule of Pleading, Practice and Procedure 41.04W (a), RCW Vol. 0, provides: "Any civil action shall be dismissed, without prejudice, for want of prosecution whenever the plaintiff, counterclaimant, cross-claimant, or third-party plaintiff neglects to *948 note the action for trial or hearing within one year after any issue of law or fact has been joined, unless the failure to bring the same on for trial or hearing was caused by the party who makes the motion to dismiss. Such motion to dismiss shall come on for hearing only after notice to the adverse party." [1] A motion for summary judgment, timely filed, tolls the operation of Rule of Pleading, Practice and Procedure 41.04W. Storey v. Shane, 62 Wn. (2d) 640, 384 P. (2d) 379 (1963). In the cited case, we said: "... But a ruling on a motion for summary judgment, if granted, though it is a ruling of law to the effect that no issues of fact exist to be tried, is in the nature of a trial as it may finally resolve all of the issues raised by the parties in their pleadings, and a judgment granted pursuant to the motion may be final and, therefore, appealable. Any proceeding which, under the rules of procedure, may produce in due course a final adjudication on the merits is a trial or hearing within the rule." This court held that the operation of the rule is tolled until the trial court hands down its order. [2] In the instant case, the court filed its memorandum opinion on the motion for summary judgment January 16, 1961. A memorandum opinion is not an order. It is an expression of the court's intention relative to the issue. The issue is not resolved until an order is entered. Chandler v. Doran Co. 44 Wn. (2d) 396, 267 P. (2d) 907 (1954). October 26, 1962, a formal order resolving the issues joined by the motion for summary judgment was presented to the court for signature. The court refused to sign the formal order for the reason that the issues were "moot." The issues were not moot. The memorandum opinion was not a final order on the motion for summary judgment. The motion for summary judgment tolled the operation of Rule of Pleading, Practice and Procedure 41.04W until the issues raised thereby were resolved by the entry of an order. Storey v. Shane, supra; Chandler v. Doran Co., supra. The order of dismissal without prejudice is reversed, and *949 the cause remanded with instructions to reinstate the cause of action. HILL, ROSELLINI, and HALE, JJ., and MURRAY, J. Pro Tem., concur. April 30, 1964. Petition for rehearing denied. NOTES [*] Reported in 389 P. (2d) 888.

11487 South 700 East Salt Lake City, UT 84020 February 3 , 2014 Securities and Exchange Commission Attn: Anne Nguyen Parker, Branch Chief Division of Corporation Finance Washington, D.C. 20549 RE: Nutranomics, Inc. Amendment No. 3 to Current Report on Form 8-K Filed January 13, 2014 File No. 0-53551 Dear Ms. Parker, Nutranomics, Inc. (the “Company”) provides the following response (the “Response Letter”) to the comments contained in the letter (the “Comment Letter”) of the staff of the Division of Corporation Finance (the “Staff”) of the U.S. Securities and Exchange Commission (the “Commission”) dated January 23, 2014, relating to the above referenced filing. In response to the Comment Letter, we respectfully submit the following response: 1. We note your disclosure on page 26 in response to our prior comment 7 and reissue the comment. Please include the amounts outstanding and the amounts available to be drawn in your discussion of outstanding debt instruments. RESPONSE : We have revised as instructed. 2. In response to prior comment 9, we note you have amended the Form 8-K to include the financial statements of Health Education Corporation that were originally included in the 8-K, filed on September 24, 2013, for the years ending July 31, 2013 and 2012. We are unable to concur with your presentation of stockholders’ equity and earnings per share with respect to these financial statements. The acquisition of Health Education Corporation by Buka Ventures, Inc. is considered to be a capital transaction in substance rather than a business combination. It is viewed to be a reverse recapitalization transaction, and in order to reflect the change in capitalization, the equity section of your balance sheet, stockholders’ equity and earnings per share should be recast for all historical periods to reflect the exchange ratio. As such, we reissue prior comment 17 from our letter dated October 21, 2013. RESPONSE : Per our accountant, auditors, and attorney’s January 28, 2014 conversation with the Staff, including Leslie Overton, Brad Skinner,Karl Hiller, Jenifer Gallagher and John Cannarella, we have retained our SEC Response Letter Nutranomics, Inc. February 3, 2014 Page 2 financial statement presentation from our Amendment No. 3 to Current Report on Form 8-K/A, filed January 13, 2014. We appreciate the Staff’s assistance and time devoted to this issue. In connection with this response, we acknowledge that: · the company is responsible for the adequacy and accuracy of the disclosure in the filing; · staff comments or changes to disclosure in response to staff comments do not foreclose the Commission from taking any action with respect to the filing; and · the company may not assert staff comments as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States. Thank you for your assistance and review. Sincerely, Nutranomics, Inc. /s/ Tracy Gibbs Tracy Gibbs Chief Executive Officer

115 HRES 502 EH: Providing for the concurrence by the House in the Senate amendments to H.R. 601, with an amendment. U.S. House of Representatives 2017-09-06 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain. IV 115th CONGRESS 1st Session H. RES. 502 In the House of Representatives, U. S., September 6, 2017 RESOLUTION Providing for the concurrence by the House in the Senate amendments to H.R. 601, with an amendment. That upon the adoption of this resolution the House shall be considered to have taken from the Speaker's table the bill, H.R. 601, with the Senate amendments thereto, and to have— (1)concurred in the Senate amendments numbered 1, 2, 3, 4, 5, 7, and 8; and (2)concurred in the Senate amendment numbered 6 with the following amendment: In lieu of the matter proposed to be inserted by Senate amendment numbered 6, insert the following: (C)there is the greatest opportunity to reduce childhood and adolescence exposure to or engagement in violent extremism or extremist ideologies.. BDisaster Relief Appropriations Act, 2017 The following sums are appropriated, out of any money in the Treasury not otherwise appropriated, for disaster relief for the fiscal year ending September 30, 2017, and for other purposes, namely: DEPARTMENT OF HOMELAND SECURITYFederal Emergency Management AgencyDisaster Relief FundFor an additional amount for Disaster Relief Fund for major disasters declared pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.), $7,400,000,000, to remain available until expended: Provided, That such amount is designated by the Congress as being for an emergency requirement pursuant to section 251(b)(2)(A)(i) of the Balanced Budget and Emergency Deficit Control Act of 1985: Provided further, That the amount designated under this heading as an emergency requirement pursuant to section 251(b)(2)(A)(i) of the Balanced Budget and Emergency Deficit Control Act of 1985 shall be available only if the President subsequently so designates such amount and transmits such designation to the Congress.SMALL BUSINESS ADMINISTRATIONDisaster Loans Program Account(Including Transfer of Funds)For an additional amount for the Disaster Loans Program Account for the cost of direct loans authorized by section 7(b) of the Small Business Act, $450,000,000, to remain available until expended: Provided, That up to $225,000,000 may be transferred to and merged with Salaries and Expenses for administrative expenses to carry out the disaster loan program authorized by section 7(b) of the Small Business Act: Provided further, That none of the funds provided under this heading may be used for indirect administrative expenses: Provided further, That the amount provided under this heading is designated as an emergency requirement pursuant to section 251(b)(2)(A)(i) of the Balanced Budget and Emergency Deficit Control Act of 1985: Provided further, That the amount designated under this heading as an emergency requirement pursuant to section 251(b)(2)(A)(i) of the Balanced Budget and Emergency Deficit Control Act of 1985 shall be available only if the President subsequently so designates such amount and transmits such designation to the Congress. This division may be cited as the Disaster Relief Appropriations Act, 2017. Karen L. Haas,Clerk.

Q1 2011 First Quarter Report Financial and Operating Highlights Three Three months ended months ended March 31, 2011 March 31, 2010 Financial ($000, except as otherwise indicated) Sales including realized hedging $ $ per share (1) $ $ per boe $ $ Funds from operations $ $ per share (1) $ $ per boe $ $ Net income (loss) $ ) $ per share (1) $ ) $ Expenditures on property, plant and equipment $ $ Working capital deficit (2) $ $ Bank indebtedness $ $ Convertible debentures (face value) $ $ Shares outstanding at end of period (000) Basic weighted average shares (000) Operating Daily Production Natural gas (mcf/d) Crude oil and NGLs (bbls/d) Total boe/d @ 6:1 Average prices (including hedging) Natural gas ($/mcf) $ $ Crude oil and NGLs ($/bbl) $ $ based on basic weighted average shares outstanding working capital deficit includes trade and other receivables, prepaid expenses and deposits, trade and other accrued liabilities, and the current portion of capital lease obligations MESSAGE TO SHAREHOLDERS Production Growth Continues with Reduced Costs and Hedging Gains Ø Production for the first quarter of 2011 averaged 24,775 boe/d, an increase of 19% as compared to the first quarter of 2010, after adjusting for non-core asset dispositions. Advantage’s daily production for March 2011 exited at approximately 30,000 boe/d, due to stronger than expected well performance at Glacier and earlier commissioning of the Glacier gas plant expansion to a production capacity of 100 mmcf/d. Ø Funds from operations for the first quarter of 2011 was $40.2 million or $0.24 per share, lower as compared to the $49.7 million or $0.30 per share for the first quarter of 2010. Funds from operations during the first quarter of 2011 was supported by increased production, reduced costs and hedging gains of $6.9 million which partially offset a 29% decrease in realized natural gas pricing. Ø Operating expense for the first quarter of 2011 decreased 13% to $10.08/boe as compared to $11.64/boe during the first quarter of 2010 and a decrease of 5% as compared to $10.56/boe for the fourth quarter of 2010. Operating expense per boe has decreased considerably over the last several years as a result of the increasing contribution of low cost production from Glacier, the continued optimization of our other properties, and the disposition of higher cost non-core assets. We anticipate corporate operating expense will decline further in 2011 as a result of increased newmankenneth@example.net. Ø The royalty rate for the first quarter of 2011 as a percentage of sales was 14.3% as compared to 14.7% during the first quarter of 2010. We anticipate that our corporate royalty rate will decline further due to increasing production from Glacier where the effective royalty rate for a new Glacier Montney well is estimated to be approximately 5% over the life of the well. Ø As at March 31, 2011, Advantage’s bank debt was $347.4 million on a credit facility of $525 million resulting in an unutilized capacity of approximately $173.9 million. Our bank indebtedness increased during the first quarter due to ongoing capital activity at Glacier, Alberta that culminated in the completion of our Phase III Montney development program at the end of March. Ø A total of $148.5 million of convertible debentures remain outstanding of which $62.3 million will mature in December 2011 and the balance of $86.2 million will mature in January 2015. Ø Capital expenditures during the first quarter of 2011 amounted to $77.0 million. Approximately 83% of our 2011 capital spending has been invested at Glacier where we completed Phase III of our development program in the first quarter of 2011 ahead of time and on-budget. The Phase III development program at Glacier consisted of drilling 28 net (28 gross) horizontal wells and expanding our Glacier gas plant and gathering system capacity to 100 mmcf/d. Successful Phase III Development Program at Glacier Positions Advantage with a Multi-Decade Montney Drill Inventory Ø Our Phase III capital development program at Glacier was completed ahead of schedule and on-budget during the first quarter of 2011 which resulted in a March 2011 exit rate of 100 mmcf/d. Ø Production performance at Glacier has been higher than anticipated with average daily natural gas production in excess of 60 mmcf/d during the first quarter of 2011 and exiting March 2011 at 100 mmcf/d (16,600 boe/d). Ø Operating costs at Glacier are forecast to decrease to approximately $1.80/boe ($0.30/mcf) due to efficiencies created by increased production through Advantage’s 100% owned Glacier gas plant and the utilization of multi-well production well pads on our land block which simplifies field operations. Ø All Montney horizontal wells drilled at Glacier after May 1, 2010 qualify for a royalty incentive of $2.7 to $3.4 million based on a typical Glacier Montney horizontal well (total length of 4,200 to 4,500 metres). As a result, the effective royalty rate for a new Glacier Montney well is anticipated to be approximately 5% over the life of the well. Phase III Montney Drilling Results Ø In the Upper Montney, drilling results in the extreme northeast and southeast areas of our land block exceeded our expectations and has confirmed the continuation of high quality Upper Montney reservoir characteristics which further proved up significant undrilled acreage. As an example, a four well pad located in the northeast area of our land block tested at an average combined rate of 36 mmcf/d. These results are better than expected and our technical team is currently integrating this into our Montney database that will provide additional information to re-calibrate the future growth potential of our land block. Overall, a total of 24 gross (24 net) Upper Montney wells were drilled as part of our Phase III program which resulted in an average per well test rate of 8.2 mmcf/d which exceeded expectations. Ø In the Lower Montney, Advantage has drilled a total of 12 gross (8.7 net) horizontal wells since 2008 including 4 gross (4 net) wells as part of our Phase III program. The Lower Montney wells to date demonstrate a lower average 30 day initial production rate but exhibit shallower declines which indicates significant reserve potential. We believe that opportunities exist to increase the initial well productivity through improved frac design technology. The Lower Montney is present over the entire Glacier land block and provides a significant opportunity for future reserves growth. Advantage Oil & Gas Ltd. - 2 Ø As part of the Phase III program, two of the Upper Montney wells were partially drilled into the Middle Montney formation. Advantage is encouraged by the resource potential in this horizon. Further evaluation and delineation of this formation is required to prove up reserves in this zone as no reserves were assigned in our 2010 year-end Sproule Reserve Report. Ø Since 2008, a total of 60.0 net Montney horizontal wells (51.3 net Upper Montney and 8.7 net Lower Montney) have been drilled on our 80 net section land block. This results in a drilling density of less than 1 well per section and with a total Montney formation pay thickness of approximately 290 meters, Advantage believes our Montney well inventory could be in excess of 800 wells. Ø Glacier is a unique asset which provides the opportunity for Advantage to develop a large, scaleable natural gas resource play which contains decades of drilling inventory and with one of the lowest cost structures in the Western Canadian Sedimentary Basin. Commodity Hedging Program Ø Advantage’s hedging program includes 28.4 mmcf/d of natural gas for 2011 hedged at an average price of Cdn$6.25 AECO per mcf and 1,500 bbls/d of crude oil for 2011 hedged at an average price of Cdn$91.05 per bbl. Ø Additional details on our hedging program are available at our newmankenneth@example.net. Creation of Longview Oil Corp. Ø On March 7, 2011 Advantage announced that Longview Oil Corp. (“Longview”), a wholly-owned subsidiary of the Corporation, filed a preliminary prospectus on March 4, 2011 for an initial public offering (the “Offering”), to raise gross proceeds of $172.5 million including an over-allotment option of up to 15% of the base offering size, exercisable 30 days following the closing of the Offering. The final prospectus was filed on April 6, 2011, the Offering closed on April 14, 2011 and the over-allotment option was exercised in full on April 28, 2011. Ø Concurrent with closing of the Offering, Longview purchased certain oil-weighted assets from Advantage with consideration comprised of $245.5 million and 29,450,000 common shares of Longview representing a 63% equity ownership. The assets had first quarter 2011 average production of 6,070 boe/d, and December 31, 2010 proved reserves of 20.1 mmboe and proved plus probable reserves of 36.9 mmboe. Advantage used the cash proceeds to reduce outstanding bank indebtedness. Ø As the disposition of the assets to Longview occurred after March 31, 2011 and is not reflected within Advantage’s financial and operating results for the current quarter, we have provided the following supplemental information summarizing production, operating income and expenditures on property, plant and equipment for the three months ended March 31, 2011 relating to the specific assets subsequently owned by each of Advantage and Longview. ADVANTAGE LONGVIEW Three months ended Three months ended March 31, 2011 March 31, 2011 Daily production Natural gas (mcf/d) Crude oil (bbls/d) NGLs (bbls/d) Total (boe/d) Natural gas (%) 91

Exhibit 10.21   AMENDMENT NO. 2, dated as of June 24, 2003 (this “Amendment”), to the AMENDED AND RESTATED LIMITED LIABILITY LIMITED PARTNERSHIP AGREEMENT (as previously amended, supplemented or otherwise modified, the “Partnership Agreement”) of VIVENDI UNIVERSAL ENTERTAINMENT LLLP (the “Partnership”) dated as of May 7, 2002, by and among USI ENTERTAINMENT INC., a Delaware corporation, as general partner, USANI HOLDINGS XX, INC., a Delaware corporation, UNIVERSAL PICTURES INTERNATIONAL HOLDINGS BV, a corporation organized under the laws of The Netherlands, UNIVERSAL PICTURES INTERNATIONAL HOLDINGS 2 BV, a corporation organized under the laws of The Netherlands, NYCSPIRIT CORP. II, a Delaware corporation, INTERACTIVECORP (formerly known as USA Interactive and, prior thereto, as USA Networks, Inc.), a Delaware corporation, USANi SUB LLC, a Delaware limited liability company, NEW-U STUDIOS HOLDINGS, INC., a Delaware corporation, and BARRY DILLER, as limited partners, VIVENDI UNIVERSAL, S.A., a société anonyme organized under the laws of France, UNIVERSAL STUDIOS, INC., a Delaware corporation (“Universal”), and, SUB I - USA Holding LLC, a Delaware limited liability company, USI - USA Holding LLC, a Delaware limited liability company, USIE - USA Holding LLC, a Delaware limited liability company, and V - USA Holding LLC, a Delaware limited liability company.   A. The Partnership intends to enter into the VUE Term Loan Agreement (as defined below).   B. As a condition to the VUE Term Loan Agreement, the Partners are required to amend certain provisions of the Partnership Agreement as set forth herein.     C. Each capitalized term used and not otherwise defined herein shall have the meaning assigned to such term in the Partnership Agreement.   Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:   SECTION 1. Amendments.   (a) Section 1.01 of the Partnership Agreement is hereby amended by amending and restating the following definitions therein:   ““VUE Term Loan Agreement” shall mean the Loan Agreement, dated as of June 24, 2003, by and among the Partnership, Bank of America Securities, N.A and J.P. Morgan Chase Bank as, co-administrative agents, Barclays Bank plc, as syndication agent, J.P. Morgan Chase Bank, as collateral agent and paying agent and the Lenders from time to time party thereto.”   --------------------------------------------------------------------------------     ““VUE Security Agreement” shall mean the Amended and Restated Guarantee and Security Agreement, dated as of June 24, 2003, among the Partnership, the guarantors party thereto and JPMorgan Chase Bank, as administrative agent.”   (b) Article XIII of the Partnership Agreement is hereby amended and restated in its entirety to read as follows:   “SECTION 13.06. VUE Term Loan Agreement. The Partnership shall not at any time on or prior to the 91st day following the date on which all of the Release Conditions (as defined in the VUE Security Agreement) are satisfied, take any action of the sort contemplated by Section 7(e)(iii) of the VUE Term Loan Agreement with respect to the Partnership or any of its Subsidiaries (as defined in the VUE Term Loan Agreement) or the assets of any of the foregoing without the prior written agreement of all Partners holding Common Interests at such time.”   (c) Section 10.03(c) of the Partnership Agreement is hereby amended by deleting in its entirety the second sentence thereof and replacing it with the following sentence:   “Except as set forth in Section 10.03(e), the purchase and sale of the Selling Party’s Common Interests shall be consummated at a closing the date and time of which shall be selected by the Purchasing Party and provided in writing at least seven days prior thereto; provided that, in the case of a Diller Put or a Diller Call, such date shall not be later than the 20th Business Day following the date of receipt by the relevant party of the applicable exercise notice, and in all other cases the such date shall not be later than the 20th Business Day following the date of the determination of the Appraised Value.”   (d) Section 10.03(d)(iii) of the Partnership Agreement is hereby amended and restated in its entirely as follows:   “(iii) notwithstanding anything to the contrary in clauses (i) or (ii) of this Section 10.03(d), the Appraised Value of the Partnership with respect to a Diller Put or a Diller Call shall be determined as of April 1, 2003 by a single Investment Bank that is mutually agreeable to Universal and Diller (each acting in its sole discretion). In the event that Universal and Diller are unable to mutually agree for any reason on the Investment Bank within 5 days following the date of receipt by the relevant party of the applicable exercise notice, Universal and Diller hereby agree that for purposes of Section 10.03(b) of the Partnership Agreement, the purchase price with respect to the Diller Put and the Diller Call shall be $275,000,000.”   (e) Section 10.03(e) of the Partnership Agreement is hereby amended and restated in its entirety to read as follows:   “(e) At the election of the Purchasing Party and in accordance with this Section 10.03(e), payment of the purchase price upon the exercise of a Call or a Put may be made in Vivendi Ordinary Shares. In order for the Purchasing Party to elect to deliver Vivendi Ordinary Shares, the Purchasing   --------------------------------------------------------------------------------   Party shall specify that it is electing to deliver Vivendi Ordinary Shares in lieu of cash in the written notice of the Purchasing Party designating the closing date pursuant to Section 10.03(c) (without giving effect to the proviso therein) (the “Closing Date Notice”). In the event that the Purchasing Party elects to deliver Vivendi Ordinary Shares pursuant to this Section 10.03(e), the Selling Party shall be entitled to the rights set forth in Section 10.03(f), and the closing of the Put or Call shall take place over a consecutive 15 Business Day period commencing on the closing date specified in the Closing Date Notice; provided that the closing date specified in the Closing Date Notice shall be a date within 20 Business Days following the date of receipt by the relevant party of the Closing Date Notice. On each day during the 15 Business Day closing period, the Purchasing Party shall deliver to USAi or its Affiliates or Diller, as the case may be, 1/15th of the applicable purchase price set forth in Section 10.03(a) or Section 10.03(b) in Vivendi Ordinary Shares (or, if Diller requests, other common equity securities of Vivendi listed on an exchange other than that on which the Vivendi Ordinary Shares are listed and representing an equivalent number of Vivendi Ordinary Shares) valued based on the closing price on that day of Vivendi Ordinary Shares on the primary exchange on which it trades, as reported by Bloomberg in U.S. dollars. Any Vivendi Ordinary Shares (or other common equity securities of Vivendi) delivered by the Purchasing Party pursuant to this Section 10.03(e) shall be delivered no later than one hour after the primary exchange on which the Vivendi Ordinary Shares (or other common equity securities of Vivendi) being delivered hereunder closes free and clear of all Liens and shall, in the case of Vivendi Ordinary Shares, be listed for trading on the Paris Bourse and freely transferable on the Paris Bourse. Solely for purposes of this Section 10.03(e), the Selling Party shall be required to deliver the assignments and bills of sale referenced in Section 10.03(c) assigning 1/15th of its Common Interests to the Purchasing Party free and clear of any Liens, on each day of the 15 Business Day closing period described herein. The ability of Vivendi or any successor or new parent entity to Vivendi to issue any shares hereunder shall be subject to (i) satisfaction of the listing provisions of the definition of Vivendi Ordinary Shares, (ii) the Selling Party receiving over the 15 Business Day closing period securities that represent less than 5% of the publicly-traded common stock or ordinary shares of Vivendi or such successor or new parent entity immediately prior to such 15 Business Day period, assuming, for purposes of calculating compliance with such 5% threshold, that the number of securities issued is calculated based on the closing price of such securities on the primary exchange on which such securities trade on the date of the Closing Date Notice, and (iii) Vivendi’s (or such successor’s or such new parent entity’s) continued ownership and control of the Partnership and the cable assets contained therein. For purposes of this Section 10.03(e), a Business Day means any day other than a Saturday, Sunday, a U.S. Federal holiday or a day on which banks in France are closed.”   SECTION 2.        Effectiveness. This Amendment shall be effective as of the date first set forth above.   SECTION 3.        Effect of Amendment. Except as expressly set forth herein, this   --------------------------------------------------------------------------------     Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of any of the parties to the Partnership Agreement, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Partnership Agreement, all of which are hereby ratified and affirmed in all respects and shall continue in full force and effect.   SECTION 4.        Counterparts. This Amendment may be executed in multiple counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Delivery of any executed counterpart of a signature page of this Amendment by facsimile transmission shall be as effective as delivery of a manually executed counterpart hereof.   SECTION 5.        Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.   SECTION 6. Jurisdiction. Each of the Partners (i) consents to and submits itself and its property to the personal jurisdiction of any Federal or state court located in the State of Delaware in the event of any dispute arising out of or relating to this Amendment, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (iii) agrees that it will not bring any action relating to this Agreement in any court other than a Federal or state court sitting in the State of Delaware and (iv) hereby waives any rights such Partner may have to personal service of summons, complaint or other process in connection therewith, and agrees that service may be made by registered or certified mail addressed to such Partner and sent in accordance with the provisions of Article XIV of the Partnership Agreement. It is hereby expressly understood by the parties hereto that this Section 6 shall also be applicable to Amendment No. 1, dated as of November 25, 2002, to the Partnership Agreement.       --------------------------------------------------------------------------------   IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.   USI ENTERTAINMENT, INC. By: /s/ KAREN RANDALL   Name: Karen Randall   Title: Executive Vice President   USANI HOLDING XX, INC. By: /s/ KAREN RANDALL   Name: Karen Randall   Title: Executive Vice President   UNIVERSAL PICTURES INTERNATIONAL HOLDINGS BV By: /s/ AD HESKES   Name: Ad Heskes   Title: Vice President, Legal   UNIVERSAL PICTURES   INTERNATIONAL HOLDINGS 2 BV   By: /s/ AD HESKES   Name: Ad Heskes   Title: Vice President, Legal   NYCSPIRIT CORP. II   By: /s/ AUTHORIZED REPRESENTATIVE   Name:     Title:     --------------------------------------------------------------------------------   INTERACTIVECORP, By: /s/ DARA KHOSROWSHAHI   Name: Dara Khosrowshahi   Title: Executive Vice President and Chief Financial Officer    USANi SUB LLC, By: /s/  DARA KHOSROWSHAHI   Name: Dara Khosrowshahi   Title: Vice President     NEW-U STUDIOS HOLDINGS, INC.,   By: /s/  DARA KHOSROWSHAHI   Name: Dara Khosrowshahi   Title: Vice President     BARRY DILLER   /s/ Barry Diller   UNIVERSAL STUDIOS, INC.,   By: /s/ Karen Randall   Name: Karen Randall   Title: Executive Vice President and General Counsel   --------------------------------------------------------------------------------

At a former day of this term this appeal was dismissed because of a defective appeal bond. This defect has been remedied. The judgment of dismissal is set aside, and the case now considered on its merits. Appellant testified herein that at the urgent solicitation and request of the prosecuting witness, who was a guest at the hotel in which appellant was a porter, and who begged appellant to get him whisky because he was sick, he went and procured some whisky for said witness. He further testified that he paid a man from whom he got said whisky the same amount of money which he collected from the prosecuting witness therefor. Upon the trial the charge of the court below was excepted to for its failure to submit to the jury the issue as to the sale of the liquor in question being for medicinal purposes. The attention of the learned trial court being called to this matter by the exception mentioned, it was his duty to submit the issue to the jury, instructing them that if they believed that the sale was made for medicinal purposes and not for profit or otherwise, they should acquit. For the failure of the court below to so instruct the jury, the judgment will be reversed and the cause remanded. Reversed and remanded. *Page 122

199 Ga. App. 559 (1991) 405 S.E.2d 558 ANDERSON v. THE STATE. A91A0269. Court of Appeals of Georgia. Decided April 17, 1991. Robert H. Suttles, for appellant. Robert E. Keller, District Attorney, Lisa C. Curia, Assistant District Attorney, for appellee. BIRDSONG, Presiding Judge. Appellant was convicted of operating a motor vehicle after being declared a habitual violator and appeals, enumerating as error the insufficiency of the evidence, the introduction of evidence regarding his parole status and the sentence imposed. Held: 1. The State presented evidence showing appellant met with a substitute parole officer. The parole officer and appellant talked for ten to 15 minutes, and appellant left; the parole officer decided to follow because he suspected appellant might be driving a car, which he was prohibited from doing as a habitual violator. The parole officer's view of appellant was sometimes obstructed for short intervals, *560 but he observed appellant get into a foreign compact car and drive away. Kenneth Johnson testified appellant lived with him, and he often drove appellant to work and to meetings with his parole officer, because appellant had no driver's license. Johnson could not remember specific dates or times, or how many times he drove appellant, but he did recall parking in the gravel parking lot next to the parole officer while he was driving a friend's silver Datsun. During the time appellant resided with Johnson, he did not have a car and Johnson never saw him drive one. Appellant testified that on the date in question he remembered the parole officer calling and telling him to report to his office, and that Johnson drove him there in a silver Datsun. He stated that when he left the meeting he crossed the street and walked down a dirt pathway to where the car was parked in the gravel parking lot, and that he entered the car on the passenger side and waited several minutes for Johnson to return and drive him home. Appellant contends that because the parole officer did not observe him the entire time, he could have mistaken the identity of the person he saw driving. "We reject [appellant's] argument that the evidence was insufficient to support the conviction. The direct testimony of the [parole] officer was sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560). `The jurors must weigh and resolve any conflicts presented by the evidence. The appellate court must view the evidence in the light most favorable to the jury's verdict. (Cit.) Based on the evidence presented at trial, we are satisfied that any rational trier of fact could have found the [appellant] guilty beyond a reasonable doubt.' [Cit.]" Williams v. State, 197 Ga. App. 368, 369 (1) (398 SE2d 427). 2. Appellant asserts the trial court erred in denying his motion for mistrial as his character was placed in evidence by testimony that appellant was on parole. Testimony was received, without objection or timely motion for mistrial, that the chief parole officer met with defendant at the parole office after being asked to speak to him "by his parole officer." After several other questions were posed and answered, appellant requested an out-of-court hearing during which he made a motion for mistrial, because by stating appellant was on parole, the parole officer implied appellant had a criminal record which put his character in issue. "A motion for mistrial not made at the time the testimony objected to is given is not timely and will be considered as waived because of the delay in making it." Thaxton v. State, 260 Ga. 141, 143 (5) (390 SE2d 841); compare Dye v. State, 177 Ga. App. 824, 825 (341 SE2d 314). 3. Appellant complains that the trial court erroneously sentenced him as a recidivist under OCGA § 17-10-7 (b), as he must have been *561 indicted for recidivism in order to have recidivist punishment imposed. During the sentencing phase of the trial, the State introduced four previous felony convictions of appellant in aggravation of punishment. Appellant was served notice that evidence in aggravation would be used and was provided a list of the prior convictions through his counsel the day before the trial began. Under OCGA § 17-10-2 (a), "such evidence in aggravation as the state has made known to the defendant prior to his trial shall be admissible." Appellant was sentenced pursuant to OCGA § 17-10-7 (b), which provides that any person who has been convicted of three felonies, other than a capital felony, must upon conviction of a fourth or subsequent offense serve the maximum sentence. The Supreme Court established in State v. Hendrixson, 251 Ga. 853, 854 (310 SE2d 526), "that the only purpose for inclusion of prior offenses in an indictment `is to give to the accused unmistakable advance warning that the prior convictions will be used against nmoore@example.com.' The trial court in sentencing cannot consider prior offenses unless the same was made known to defendant prior to trial (id. pp. 854-855); notice to defendant of intent to prosecute as a recidivist performs the function of any such notice in an indictment. The language of the specific recidivist statute in Hendrixson, supra, is `merely a direction as to the imposition of punishment under specified aggravated circumstances' and does not require an allegation of a prior offense in the indictment. Id. p. 854. The same is true of the general recidivist statute at OCGA § 17-10-7. In fact, section (d) of the statute provides: `This Code section is supplemental to other provisions relating to recidivist offenders.'" Anderson v. State, 176 Ga. App. 255, 256 (335 SE2d 487). Thus, "it is not required that the prior convictions be included in the indictment but only that the accused received notice of the [S]tate's intention to seek recidivist punishment and of the identity of the prior convictions. [Cits.]" Favors v. State, 182 Ga. App. 179 (1) (355 SE2d 109). Since appellant received such notice, the sentence imposed was lawful and proper. Compare State v. Freeman, 198 Ga. App. 553, 556 (3) (402 SE2d 529) (1991). Judgment affirmed. Pope and Cooper, JJ., concur.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION In this quiet title action. the plaintiff claims title by adverse possession to a parcel of land in the Town of Washington, Connecticut. The defendant is the successor administrator c.t.a. to the estate of Kenneth H. Pensoneault, which is the record title owner of the subject parcel.1 The parcel is .233 acres and described as "parcel to be conveyed to Donald Deitz and Clarinda Deitz" in Schedule A to the complaint. The plaintiff orally withdrew count three at time of trial and any claim under General Statutes § 47-41. All actions to quiet title are governed by General Statutes § 47-31, the provisions of which are mandatory. DeVita v.Esposito, 13 Conn. App. 101, 103-04 (1987), cert. denied207 Conn. 807 (1988); Fanfesti v. Englehardt, 27 Conn. Sup 349 (1967). The statute supersedes any commnon law action brought to determine record title or to claim an interest in real property.13 Conn. App. at 104. CT Page 14778 General Statutes § 47-31 requires that the complaint describe the property in question, state the plaintiff's claim, interest or title and the manner in which the plaintiff acquired the interest, title, or claim. It also must name each party claiming an adverse interest or estate. Koennick v. Maiorano,43 Conn. App. 1, 9 (1996). The plaintiff here has met those requirements. "A person who claims title by adverse possession is claiming that although he does not have record title. his proof of possession which is adverse, open, notorious and continuous for the entire statutory period entitles him, in an action to quiet title to a judgment of ownership". Konikowski v. Everson,42 Conn. App. 658, 659 (1996). In order to establish title through adverse possession, the plaintiff must prove by clear and convincing evidence that the defendant "shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open. visible and exclusive possession of the claimant without license or consent of the defendant." OakLeaf Marina, lnc. v. Ertel, 23 Conn. App. 91, 94 (1990), citingCounty Federal Savings Loan Assn. v. Eastern Associates,3 Conn. App. 582, 586 (1985) and General Statutes § 52-575. The plaintiff has produced such evidence here. The following facts are found by clear and convincing evidence. The plaintiff acquired a parcel of land contiguous to the disputed parcel on July 24. 1972. Since August 1972, the plaintiff has used and enjoyed the two parcels. As to the disputed parcel, a corner of the house inhabited by the plaintiff and her family encroaches upon the disputed parcel. The present septic system and the prior leach field are also located on the disputed parcel. Among other things. since 1972, the plaintiff maintained the lawn, raked, cleared, and erected a squirrel's house and a deer station all on this disputed parcel. The plaintiff cleaned up a garbage dump used by the previous owner. The plaintiff's children played on the yard in the disputed parcel. Since 1975. the plaintiff has paid property taxes to the Town of Washington on both the disputed parcel and the parcel conveyed by deed. The court finds by clear and convincing evidence that the plaintiff possessed the disputed parcel openly, adversely, exclusively, visibly and continuously. The plaintiff has established title to the disputed parcel by adverse possession. CT Page 14779 Judgment may enter in favor of the plaintiff accordingly on counts one and two with no costs awarded to either party and no compensatory damages. The parties are to prepare a legal description of the parcel identified on Schedule A of the complaint as the .233 acres parcel to be conveyed to Donald Deitz and Clarinda Deitz within 30 days of their judgment for approval by the court. DIPENTIMA, J.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K x ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended September 30, 2012 o TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to Commission File Number 002-90539 APPLIED DNA SCIENCES, INC. (Exact name of registrant as specified in its charter) Delaware 59-2262718 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 25 Health Sciences Drive, Suite 215 Stony Brook, New York 209.282.9954 (Address of principal executive offices) (Zip Code) (Registrant’s telephone number, including area code) Securities registered under Section 12(b) of the Act: None Securities registered under Section 12(g) of the Act: None Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. oYesxNo Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. oYesxNo Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. xYesoNo Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). xYesoNo Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. x Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. Large accelerated filer o Accelerated filero Non-accelerated filero Smaller reporting company x Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).oYesxNo The aggregate market value of the Registrant’s common stock held by non-affiliates of the Registrant, based upon the last sale price of the common stock quoted on the OTC Bulletin Board as of the last business day of the Registrant’s most recently completed second fiscal quarter (March 31, 2012), was approximately $23.8 million.Shares of the Registrant’s common stock held by each executive officer and director and by each entity or person that, to the Registrant’s knowledge, owned 5% or more of the Registrant’s outstanding common stock as of March 31, 2012 have been excluded in that such persons may be deemed to be affiliates of the Registrant.This determination of affiliate status is not necessarily a conclusive determination for other purposes. As of December 20, 2012, the Registrant had outstanding 656,935,238 shares of Common Stock, par value $0.001 per share. TABLE OF CONTENTS Page PART I ITEM 1. BUSINESS 1 ITEM 1A. RISK FACTORS 16 ITEM 1B. UNRESOLVED STAFF COMMENTS 23 ITEM 2. PROPERTIES 24 ITEM 3. LEGAL PROCEEDINGS 24 ITEM 4. MINE SAFETY DISCLOSURES 24 PART II ITEM 5. MARKET FOR COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES 25 ITEM 6. SELECTED FINANCIAL DATA 25 ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS 25 ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK 33 ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA 33 ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE 33 ITEM 9A. CONTROLS AND PROCEDURES 33 ITEM 9B. OTHER INFORMATION 34 PART III ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE 35 ITEM 11. EXECUTIVE COMPENSATION 41 ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS 45 ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE 48 ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES 49 PART IV ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES 50 i PART I Forward-looking Information This Annual Report on Form 10-K (including the section regarding Management’s Discussion and Analysis of Financial Condition and Results of Operations) contains forward-looking statements including statements using terminology such as “can”, “may”, “believe”, “designated to”, “will”, “expect”, “plan”, “anticipate”, “estimate”, “potential” or “continue”, or the negative thereof or other comparable terminology regarding beliefs, plans, expectations or intentions regarding the future.You should read statements that contain these words carefully because they: ● discuss our future expectations; ● contain projections of our future results of operations or of our financial condition; and ● state other “forward-looking” information. We believe it is important to communicate our expectations.However, forward-looking statements involve risks and uncertainties and our actual results and the timing of certain events could differ materially from those discussed in forward-looking statements as a result of certain factors, including those set forth under “Risk Factors,” “Business” and elsewhere in this report.All forward-looking statements and risk factors included in this document are made as of the date hereof, based on information available to us as of the date thereof, and we assume no obligations to update any forward-looking statement or risk factor, unless we are required to do so by law. ITEM 1. BUSINESS. Overview We are a provider of botanical-DNA based security and authentication solutions that can help protect products, brands and intellectual property of companies, governments and consumers from theft, counterfeiting, fraud and diversion.SigNature® DNA, SmartDNA®, DNANet®, BioMaterial Genotyping™, digitalDNA™, and Cashield®, our principal anti-counterfeiting and product authentication solutions, can be used in numerous industries, including cash-in-transit (transport and storage of banknotes), microcircuits and other electronics, homeland security, textiles and apparel, identity cards and other secure documents, law enforcement, pharmaceuticals, wine, and luxury consumer goods. SigNature DNA.We use the DNA of plants to manufacture highly customized and encrypted botanical DNA markers, or SigNature DNA Markers, which we believe are virtually impossible to replicate.We have embedded SigNature DNA Markers into a range of our customers’ products, including various inks, dyes, textile treatments, thermal ribbon, thread, varnishes and adhesives.These items can then be tested for the presence of SigNature DNA Markers through an instant field detection or a forensic level authentication.Our SigNature DNA solution provides a secure, accurate and cost-effective means for users to incorporate our SigNature DNA Markers in, and then quickly and reliably authenticate and identify, a broad range of items, such as recovered banknotes, branded textiles and apparel products, microcircuits and other electronics, pharmaceuticals and cosmetic products, identity cards and other secure documents, digital media, artwork and collectibles and fine wine.Having the ability to reliably authenticate and identify counterfeit versions of such items enables companies and governments to detect, deter, interdict and prosecute counterfeiting enterprises and individuals. SmartDNA.SmartDNA is a unique and patented security system based on botanical DNA, a new and effective crime protection system for stores, warehouses, banks, pharmacies, ATMs and the protection of valuables.The system contains a water-based, non-toxic spray which may be triggered during a crime, marking the perpetrator and remaining on their person for weeks after the crime.Each SmartDNA product is designed to be unique to each store, warehouse or sting operation allowing the police and prosecutors to link criminals to the crimes. DNANet.We have recently developed DNANet tactical DNA products for law enforcement, in the form of DNA-marked sprays and liquids.These products, which are being marketed to global police forces, were created to help link criminals to crimes.DNANet is a tactical forensic system providing unique DNA codes for covert operations that require absolute proof of authentication.DNANet is now included in the SmartDNA family of products. 1 BioMaterial GenoTyping.Our BioMaterial GenoTyping solution refers to the development of genetic assays to distinguish between varieties or strains of biomaterials, such as cotton, wool, tobacco, fermented beverages, natural drugs and foods, that contain their own source DNA.We have developed two proprietary genetic tests (FiberTyping™ and PimaTyping™) to track American Pima cotton from the field to finished garments.These genetic assays provide the textile industry with what we believe to be the first authentication tools that can be applied throughout the U.S. and global textile industry by cotton growers, mills, wholesalers, distributors, manufacturers and retailers through trade groups and government agencies. digitalDNA. digitalDNA is a DNA-secured form of the QR (“quick read”) code.digitalDNA is a new security tool that utilizes the flexibility of mobile communications, the instant accessibility of secure, cloud-based data, and the absolute certainty of DNA to make item tracking and authentication fast, easy and definitive, while providing the opportunity to create a new and exciting customer interface.The product uses forensic authentication of a botanical DNA marker, sequence-encrypted within a secure QR code, and physically included within the ink used to digitally print the code.The resulting pattern or “rune” can be scanned via an Apple-approved app with an iPhone to assure originality.These mobile scans can be performed anywhere along the supply chain without limit.Tracking information is fed into “tunable algorithms” that use pattern recognition to automatically identify supply-chain risks, for counterfeits or product diversion.Rapid-reading reporters, associated with the DNA marker, are also embedded in the ink, and prevent the secure code from being digitally copied. The digitalDNA platform is designed to meet compliance specifications defined by the PCI (Payment Card Industry) Security Standards Council, the new and strict standards developed for handling credit card transactions, and HIPAA (Health Insurance Portability and Accountability Act), the stringent requirements for protecting personal health information. Cashield.Cashield is a family of cash degradation inks that permanently stain banknotes stolen from cash-handling or ATM systems.Cashield extends our offering beyond our prior singular product, AzSure®, to a family of security inks that include Red, Violet, Green, Teal, Indigo, and the original AzSure® Blue.Current degradation dyes suffer from a critical technical weakness, as the dyes may be removed by the use of solvents.We initiated the development of Cashield in response to demand for a more effective carrier for our SigNature DNA markers.Cashield has been certified for use in the European Union by the Laboratoire National de Métrologie et d’Essais (LNE) and passed all 47 individual dye penetration and wash-out-resistance tests.Additionally, a CViT study presented by the University of Leeds cited Cashield AzSure Blue ink as having improved performance versus staining inks from other suppliers.In this study, the AzSure Blue ink was tested across a range of currencies, including British pounds, Euros, and U.S. dollars.The evaluation involved exposure to numerous industrial solvents.Final analysis of the results concluded that the AzSure Blue ink was bound strongly in five seconds or less to a variety of banknotes, and could not be removed with any solvent. Corporate History We are a Delaware corporation, which was initially formed in 1983 under the laws of the State of Florida as Datalink Systems, Inc.In 1998, we reincorporated in Nevada, and in 2002, we changed our name to our current name, Applied DNA Sciences, Inc.In December 2008, we completed our reincorporation from Nevada to the State of Delaware. In November 2005, our corporate headquarters were relocated from Los Angeles, California to the Long Island High Technology Incubator at Stony Brook University in Stony Brook, New York, where we established laboratories for the manufacture of DNA markers and product prototypes, and DNA authentication.The address of our corporate headquarters is 25 Health Sciences Drive, Suite 215, Stony Brook, New York 11790, and our telephone number is 209.282.9954.We maintain a jduran@example.org where general information about us is available. To date, we have had a limited operating history, and as a result, our operations have produced limited revenues. Industry Background The Company is focusing its efforts on the cash-in-transit, microcircuit and other electronics and textile and apparelbusinesses and the general anti-counterfeiting industry. Cash-in-transit businesses transport and store cash and ATM cassettes.In the U.K. alone, there is an estimated £500 billion being transported each year, or £1.4 billion per day.The nature of this business makes cash-in-transit an attractive target for criminals, and as a result the industry invests in excess of £100 million per year in security equipment and devices.Currently, a system of cash degradation, using a smoke or liquid dye to permanently mark and essentially destroy stolen cash, is used. Microcircuits and other electronics.In 2011, the General Accounting Office (GAO) issued, under the name of an imaginary OEM, open RFPs on the internet for electronic parts.All of the part numbers requested were either post-production or entirely fictional.The GAO received seven prototype parts in response to its RFP: every single one was counterfeit.The U.S. Chamber of Commerce estimates that the global market for counterfeit electronics may be as large as $10 billion.The explicit costs of counterfeits to the primes start with loss of revenue, licensing fees, and royalties, which in semiconductors are estimated to be about 2% of TAM (Total Addressable Market) (Jack Stradley, Jack Stradley Consulting, “The Cost of Counterfeiting,” p. 6, presentation delivered at Center for Advanced Life Cycle Engineering, Winter, 2012).In the over $300 billion semiconductor global market for 2011 this would amount to $15 billion (IHS iSupply, “Preliminary Worldwide Ranking of Top Twenty Suppliers of Semiconductors in 2011”). 2 Textiles and Apparel.Products containing premium Extra Long Staple cotton, like Egyptian Giza, Peruvian and American Pima, are recognized by retailers and consumers as being the highest quality cotton in the industry.These refined high end cottons are well regarded due to their durability and quality which, in turn, typically commands premium pricing. According to Havocscope and the Coalition Against Counterfeiting and Piracy, the market value of counterfeit clothing is $12 billion.In recent years, apparel accounted for 14% of the total counterfeit goods seized by U.S. agencies. Counterfeiting, product diversion, piracy, forgery, identity theft, and unauthorized intrusion into physical locations and databases create significant and growing problems to companies in a wide range of industries as well as governments and individuals worldwide.The International Anticounterfeiting Coalition (IACC) reports that counterfeiting and piracy cost the U.S. economy between $200-$500 billion per year, or an estimated 750,000 American jobs, and pose a real threat to consumer health and safety.The IACC also estimates that the loss associated with counterfeiting has increased 10,000 percent in the past twenty years, to as much as $650 billion per year globally.Additionally, the ICC (International Chamber of Commerce) in February 2011 issued an updated report on counterfeiting and piracy that states that the global economic and social impacts of counterfeiting and piracy could reach $1.7 trillion by 2015 and put 2.5 million legitimate jobs at risk each year. Governments are increasingly vulnerable to counterfeiting, terrorism and other security threats at least in part because currencies, identity and security cards and other official documents can be counterfeited with relative ease.For instance, Havocscope reports that the value of counterfeit identification and passports is currently $100 million.Governments must also enforce the various anti-counterfeiting and anti-piracy regimes of their respective jurisdictions which becomes increasingly difficult with the continued expansion of global trade. The pharmaceutical industry also faces major problems relative to counterfeit, diluted, or falsely labeled drugs that make their way through healthcare systems worldwide, posing a health threat to patients and a financial threat to drugmakers and distributors Counterfeit prescription pharmaceuticals are a growing trend, widely recognized as a public health risk and a serious concern to public health officials, private companies, and consumers.The Food and Drug Administration estimates that counterfeit drugs account for 10% of all drugs sold in the United States.The World Health Organization (WHO) estimates the annual worldwide “take” from counterfeit drugs to be £13 billion (approximately $20 billion USD), a figure that is expected to double by the end of this decade.In some countries, counterfeit prescription drugs comprise as much as 70 percent of the drug supply and have been responsible for thousands of deaths in some of the world’s most impoverished nations, according to the WHO.Counterfeit pharmaceuticals are estimated to be a billion-dollar industry, though some estimate it to be much larger.The Center for Medicine in the Public Interest estimates that in 2010, activities related to counterfeit drugs generated $75 billion, based on information obtained from government organizations.This is expected to grow by 20 percent annually in the coming years.In 2012, the WHO reported that in over 50% of cases, medicines purchased over the Internet from illegal sites that conceal their physical address have been found to be counterfeit.According to the WHO, counterfeiting can apply to both branded and generic products and counterfeit pharmaceuticals may include products with the correct ingredients but fake packaging, with the wrong ingredients, without active ingredients or with insufficient active ingredients.The challenges presented by traditional counterfeiters have recently been supplemented by the many websites, from direct retailers to auction sites, that offer counterfeit prescription drugs online.As a result, the pharmaceutical industry and regulators are examining emerging anti-counterfeit technologies, including radio-frequency identification tags and electronic product codes, known as EPCs, to help stem the wave of counterfeit drugs and better track legitimate drugs from manufacturing through the supply chain. The digital and recording media industry, including the segment that records computer software on compact discs, has long been a victim of piracy, or the production of illegal copies of genuine media or software, and the counterfeiting and distribution of imitation media or software.Compact discs, DVDs, videotapes, computer software and other digital and recording media that appears identical to genuine products are sold at substantial discounts by vendors at street and night markets, via mail order catalogs and on the internet at direct retail websites or at auction sites.In 2012, the Business Software Alliance (“BSA”) reported that the rate of global software piracy was 42% percent in 2011, holding steady from the previous year, which was the second highest rate in the study’s history. The BSA also reported the commercial value of unlicensed software put into the market in 2011 totaled over $63 billion. According to IACC and ICC, currently digitally pirated music, movies and software account for between $30 billion and $75 billion. The artworks and collectibles markets are also particularly vulnerable to counterfeiting, forgery and fraud.New works are produced and then passed off as originating from a particular artistic period or source, authentic fragments are pieced together to simulate an original work, and existing works are modified in order to increase their purported value.Such phony artwork and collectibles are then often sold with fake or questionable signatures and “provenance,” or documented ownership histories that confirm authenticity. 3 As more and more companies in each of these markets begin to address the problem of counterfeiting, we expect that different systems will compete to be the leading standards by which products can be tracked across world markets.Historically, counterfeiting, product diversion and other types of fraud have been combatted by embedding various authentication systems and rare and easily distinguishable materials into products, such as radio frequency identification (“RFID”) devices and banknote threads in packaging, integrated circuit chips and magnetic strips in automatic teller machine cards, holograms on currency, elemental taggants in explosives, and radioactivity and rare molecules in crude oil.These techniques are effective but have generally been reverse-engineered and replicated by counterfeiters, which limit their usefulness as forensic methods for authentication of the sources of products and other items. Our Offerings SigNature DNA We believe our SigNature DNA offering is as broadly applicable, convenient and inexpensive as existing authentication systems, while highly resistant to reverse-engineering or replication, so that it can either be applied independently or supplement existing systems in order to allow for a forensic level of authentication of the sources of a broad range of items, such as electronics, microcircuits, textiles, cash-in-transit, artwork and collectibles, fine wine, consumer products, digital and recording media, pharmaceuticals, financial instruments, identity cards and official documents.Each SigNature DNA Marker is first designed and manufactured to be a highly customized and encrypted botanical DNA marker.The SigNature DNA Marker is then encapsulated and stabilized so that it is resistant to heat, organic solvents, chemicals and most importantly, ultraviolet, or UV radiation.Once it has been encapsulated, our SigNature DNA Embedment system can be used to embed the SigNature DNA Marker directly onto products or other items or into special inks, threads and other media, which in turn can be incorporated into packaging or products.Once it is embedded, our SigNature polymerase chain reaction (PCR) Kits can provide rapid forensic level authentication of specific SigNature DNA Markers. We believe that the key characteristics and benefits of the SigNature DNA offering are as follows: We Believe Our SigNature DNA Markers Are Virtually Impossible to Copy In creating unique SigNature DNA Markers, we use DNA segments from one or more botanical sources, rearrange them into unique encrypted sequences, and then implement one or more layers of anti-counterfeit techniques.Because the portion of DNA in a SigNature DNA Marker used to identify the marker is so minute, it cannot be detected unless it is replicated billions of times over, or amplified.This amplification can only be achieved by applying matching strands of DNA, or a primer, and polymerase chain reaction (PCR) techniques to the SigNature DNA Marker.The sequence of the relevant DNA in a SigNature DNA Marker must be known in order to manufacture the primer for that DNA.As a result, we believe the effort required to find, amplify, select and clone the relevant DNA in a SigNature DNA Marker would involve such enormous effort and expense that SigNature DNA Markers are virtually impossible to copy without our proprietary systems. Simple and Rapid Authentication We offer rapid readers capable of instantly testing for the presence or absence of any of our SigNature DNA Markers.In addition, when a forensic level of authentication is necessary, we offer in-house forensic DNA authentication that will confirm authentication sequences in approximately 2 to 4 hours. Low Cost and High Accuracy The costs associated with the DNA required to manufacture our SigNature DNA Markers are not significant since the amount of DNA required for each marker is so minute (for instance, only 3-5 parts per million when incorporated in an ink).We manufacture the identifying segment of DNA to be used in a SigNature DNA Marker by cloning them inside microorganisms such as yeast or bacteria, which are highly productive and inexpensive to grow.As a result, SigNature DNA Markers are relatively inexpensive when compared to other anti-counterfeiting devices such as RFIDs, electronic product codes (“EPCs”), integrated circuit chips, and holograms.The probability of mistakenly identifying a SigNature DNA Marker is less than 1 in 1 trillion, so we believe our authentication systems are highly accurate, and in fact, our SigNature PCR Kits can authenticate to a forensic level. Easily Integrated with Other Anti-Counterfeit Technologies Our SigNature DNA Markers can be embedded onto RFID devices, banknote threads, labels, serial numbers, holograms, and other marking systems using inks, threads and other media.We believe that combined with other traditional methods, our SigNature DNA solution provides a significant deterrent against counterfeiting, product diversion, piracy, fraud and identity theft. 4 Broad Applicability and Ingestible Our SigNature DNA Markers can be embedded into almost any consumer product, and virtually any other item.For instance, we believe the indelible SigNature DNA Ink we produce is safe to consume and can be used in pharmaceutical drug tablets and capsules.Use of our SigNature DNA in ingestible products and drugs may require approval of the U.S. Food and Drug Administration. SmartDNA Introduced in 2011, SmartDNA is a unique and patented security system based on botanical DNA, a new and effective crime protection system for stores, warehouses, banks, pharmacies, ATMs and the protection of valuables.The system contains a water-based, non-toxic spray which may be triggered during a crime, marking the perpetrator and remaining on their person for weeks after the crime.Each SmartDNA product is designed to be unique to each store, warehouse or sting operation allowing the police and prosecutors to link criminals to the crimes. DNANet In 2010, we developed DNANet tactical DNA products for law enforcement, in the form of DNA-marked fixative sprays and liquids as well as transferable grease.These products, being marketed to global police forces were created to help link criminals to crimes.DNANet is a tactical forensic system providing unique DNA codes for covert operations that require absolute proof of authentication.DNANet is now included in the SmartDNA family of products. BioMaterial Genotyping We believe our BioMaterial Genotyping solution offers a unique means for determining the authenticity of biomaterials, such as cotton, wool, tobacco, fermented beverages, natural drugs and foods.Just as a person’s DNA specifies all of their unique qualities, biomaterials typically contain genomic DNA or fragments thereof that can be utilized to authenticate originality.We have initially developed two proprietary genetic-based assays and protocols to identify DNA markers that are endogenous (internal) to a particular product in order to differentiate between biological strains.In a process we call Fibertyping™, we are able to differentiate between Pima cotton (G. barbadense) and upland cotton (G. hirsutum).Our FiberTyping offering enables our customers and potential clients to cost-effectively give assurance to manufacturers, suppliers, distributors, retailers and end-users that their products are authentic, that they are made from the fibers and textiles as labeled.In a process we call Pimatyping™, we are able to differentiate between Pima cotton grown in different regions of the world.Cotton classification and the authentication of cotton geographic origin are issues of global significance, important to brand owners and to governments that must regulate international cotton trade.Similar offerings are currently being developed for use in biomaterials other than cotton.Biomaterials can now be tracked from field to final purchase guaranteeing the authenticity of the item.As we are testing for innate genomic DNA, we believe these assays cannot be counterfeited. We believe our BioMaterial Genotyping allows us to: ● Identify U.S. produced Pima cotton; ● Establish an authentication protocol for cotton and other biomaterials; and ● Deter counterfeits and protect the integrity of brands. We believe our two genetic assays accurately distinguish between: ● Pima cotton (G. barbadense) and upland cotton (G. hirsutum) (cultivars in mature cotton fibers and in cotton fabrics (Fibertyping); and ● American Pima and Extra Long Staple (ELS) Pima cotton (Pimatyping). We believe that our DNA extraction protocol and methodologies are more effective than existing forensic systems.We believe that the combination of our SigNature DNA and BioMaterial Genotyping solutions covers the total authentication market, is applicable to multiple industry verticals, and can mark physical products on the front end and authenticate forensic DNA sequences on the back end. 5 digitalDNA digitalDNA is a DNA-secured form of the QR (“quick read”) code.digitalDNA is a new security tool that utilizes the flexibility of mobile communications, the instant accessibility of secure, cloud-based data, and the absolute certainty of DNA to make item tracking and authentication fast, easy and definitive, while providing the opportunity to create a new and exciting customer interface.The product uses forensic authentication of a botanical DNA marker, sequence-encrypted within a secure QR code, and physically included within the ink used to digitally print the code.The resulting pattern or “rune” can be scanned via an Apple-approved app with an iPhone to assure originality.These mobile scans can be performed anywhere along the supply chain without limit.Tracking information is fed into “tunable algorithms” that use pattern recognition to automatically identify supply-chain risks, for counterfeits or product diversion.Rapid-reading reporters, associated with the DNA marker, are also embedded in the ink, and prevent the secure code from being digitally copied. The digitalDNA platform is designed to meet compliance specifications defined by the PCI (Payment Card Industry) Security Standards Council, the new and strict standards developed for handling credit card transactions, and HIPAA (Health Insurance Portability and Accountability Act), the stringent requirements for protecting personal health information. Cashield Cashield is a family of cash degradation inks that permanently stain banknotes stolen from cash-handling or ATM systems.Cashield extends our offering beyond our prior singular product, AzSure®, to a family of security inks that include Red, Violet, Green, Teal, Indigo, and the original AzSure Blue.Current degradation dyes suffer from a critical technical weakness, as the dyes may be removed by the use of solvents.We initiated the development of Cashield in response to demand for a more effective carrier for our SigNature DNA markers.Cashield has been certified for use in the EU by the Laboratoire National de Métrologie et d’Essais (LNE) and passed all 47 individual dye penetration and wash-out-resistance tests.Additionally, a CViT study presented by the University of Leeds cited Cashield AzSure Blue ink as having improved performance versus staining inks from other suppliers.In this study, the AzSure Blue ink was tested across a range of currencies, including British pounds, Euros, and U.S. dollars.The evaluation involved exposure to numerous industrial solvents.Final analysis of the results concluded that the AzSure Blue ink was bound strongly in five seconds or less to a variety of banknotes, and could not be removed with any solvent. Our Strategy To date, the substantial portion of our revenues has been generated from sales of our Signature DNA and BioMaterial Genotyping, our principal anti-counterfeiting and product authentication solutions.We expect to continue to grow revenues from sales of our SigNature DNA, Cashield, DNANet, SmartDNA, digitalDNA and BioMaterial Genotyping offerings.Key aspects of our strategy include: Customize and Refine our Solutions to Meet Potential Customers’ Needs We are continuously improving and expanding our product offerings by testing the incorporation of our technologies into different media, such as newly configured labels, inks or packing elements, for use in new applications.Each prospective customer has specific needs and employs varying levels of existing security technologies with which our solution must be integrated.Our goal is to develop a secure and cost-effective system for each potential customer that can be incorporated into that potential customer’s products or items themselves or their packaging so that they can, for instance, be tracked throughout the entire supply chain and distribution system. Continue to Enhance Detection Technologies for Authentication of our SigNature DNA Markers We have also identified and are further examining opportunities to collaborate with companies and universities to develop a new line of detection technologies that will provide faster and more convenient ways to authenticate our SigNature DNA Markers. Target Potential High-Volume Markets We will continue to focus our efforts on target vertical markets that are characterized by a high level of vulnerability to counterfeiting, product diversion, piracy, fraud, identity theft, and unauthorized intrusion into physical locations and databases.Today our target markets include homeland security, cash-in-transit, textile and apparel authentication, secure documents, pharmaceuticals, consumer products, fine wine, law enforcement, art and collectibles, and digital and recording media.If and when we have significantly penetrated these markets, we intend to expand into additional related high volume markets. 6 Pursue Strategic Acquisitions and Alliances We intend to pursue strategic acquisitions of companies and technologies that strengthen and complement our core technologies, improve our competitive positioning, allow us to penetrate new markets, and grow our customer base.We also intend to work in collaboration with potential strategic partners in order to continue to market and sell new product lines derived from, but not limited to, DNA technology. Target Markets We have begun offering our products and services in Europe and the United States and are targeting the following principal markets: Homeland Security The U.S. military is facing the challenge of the increasing intrusion of counterfeit electronics and other parts into its supply lines.This problem is not limited to electronics.Foreign suppliers using substandard materials could be producing rivets, bolts and screws that hold together everything from missile casings to ship ladders.The explosion of counterfeit parts is being driven by an expanding global economy and an emphasis on low-price contracting — both of which come as the U.S. Department of Defense is relying more heavily on older platforms, with parts that are becoming obsolete. On September 9, 2010, Homeland Security Newswire published an article “Fake chips from China threaten U.S. military systems” in which a U.S. Chamber of Commerce estimate finds that the global market for counterfeit electronics may be as large as $10 billion.While these references include daunting statistics, the underlying problem has not changed because there is no satisfactory technological solution.Senate hearings in November 2011 revealed the discovery of over 1,800 incidents, totaling over 1 million parts, of counterfeit electronic parts in the defense supply chain.According to the semiconductor industry, counterfeiting results in a $7.5 billion loss in revenue annually as well as a loss of 11,000 U.S. jobs. DNA-marking protects the consumer, the government and our service men and women.The manufacturers can ensure that only properly screened, original product goes to users.The same DNA marking can then protect the manufacturers themselves in the form of returned product which they must replace or repair.Broadly applicable, DNA marking could be disseminated as industry best practices and military standards. The Defense Logistics Agency, a component of the U.S. Department of Defense, has launched a new requirement that defense contractors provide items that have been marked with botanically-generated DNA produced by us or our authorized licensees.DNA marking must begin on items falling within Federal Supply Class (FSC) 5962, Electronic Microcircuits, which have been determined to be at high risk for counterfeiting.A new clause at Defense Logistics Acquisition Directive (DLAD) 52.211-9074, Deoxyribonucleic Acid (DNA) Marking on High Risk Items, will be included in new solicitations and contracts for FSC 5962 items when the item description states that the item requires DNA marking. Our SigNature DNA solution can provide secure, forensic, and cost-effective anti-counterfeiting, anti-piracy and identification solutions to military organizations and other companies supplying microelectronics and similar products globally in need of securing their supply chains. Cash-in-Transit Cash-in-transit businesses transport and store bank notes and ATM cassettes.In the U.K. alone, there is an estimated £500 billion being transported each year, or £1.4 billion per day.The nature of this business makes cash-in-transit an attractive target for criminals, and as a result the industry invests in excess of £100 million per year in security equipment and devices.Currently, a system of cash degradation, using a smoke or liquid dye to permanently mark and essentially destroy stolen bank notes, is used.The UK boasts the highest levels of cash-in-transit crime in Europe. We are able to incorporate our SigNature DNA Markers in cash degradation inks, including our Cashield degradation inks that are used in the cash-in-transit industry.This solvent-based ink marks bank notes if the cash box is compromised and has the ability to penetrate the bank notes rapidly and permanently.We believe our SigNature DNA Markers are more resilient and detectable than other competing products.We believe that our Cashield degradation inks have exhibited superior penetration, binding, fluorescence and wash resistant properties than other competing products. Textile and Apparel Authentication Cotton classification and the authentication of cotton geographic origin are issues of global significance, important to brand owners and to governments that must regulate international cotton trade.We believe that our SigNature DNA and BioMaterial Genotyping solutions could have significant potential applications for the enforcement of cotton trade quotas in the U.S. and across the globe, and for legislated quality improvement within the industry.We believe that similar issues face the wool and other natural product industries and have begun to introduce our products to these markets as well. 7 SigNature DNA can be incorporated at any point in the textile supply chain as a means to link a genuine product to its original source of manufacture.Our botanical DNA markers can easily be applied to raw cotton fiber, thread, yarn, woven labels or to the finished garment.Our technology has proven useful in determining the authenticity of such commonly counterfeited products as Pima cotton and Yorkshire wool. Products containing premium Extra Long Staple cotton, like Egyptian Giza, Peruvian and American Pima, are recognized by retailers and consumers as being the highest quality cotton in the industry.These refined high end cottons are well regarded due to their durability and quality which, in turn, typically commands premium pricing.In order to preserve the quality and performance of premium cotton products, cotton growers and manufacturers are using state-of-the-art technology, known as FiberTyping™, to verify that the original Extra Long Staple cotton fibers are used in the finished product. In addition, our digitalDNA system can be used to provide track and trace capability for labels on finished garments to protect against counterfeiting and diversion. Secure Documents Governments worldwide are increasingly faced with the problems of counterfeit currencies, official documents, and identity and security cards, as well as terrorism and other security threats.Governments must also enforce the various anti-counterfeiting and anti-piracy regimes of their respective jurisdictions which becomes increasingly difficult with the continued expansion of global trade.Our SigNature DNA solution can provide secure, forensic, and cost-effective anti-counterfeiting, anti-piracy and identification solutions to local, state, and federal governments as well as the defense contractors and the other companies that do business with them.Our SigNature solution can be used for all types of identification and official documents, such as: ● passports; ● lawful permanent resident, or “green” cards; ● visas; ● drivers’ licenses; ● Social Security cards; ● military identification cards; ● national transportation cards; ● security cards for access to sensitive physical locations; and ● other important identity cards, official documents and security-related cards. Pharmaceuticals The pharmaceutical industry also faces major problems relative to counterfeit, diluted, or falsely labeled drugs that make their way through healthcare systems worldwide, posing a health threat to patients and a financial threat to drugmakers and distributors.As a result, the pharmaceutical industry and regulators are examining emerging anti-counterfeit technologies, including RFID tags and EPCs to help stem the wave of counterfeit drugs and better track legitimate drugs from manufacturing through the supply chain.Our SigNature DNA Markers can easily be embedded directly into pharmaceutical packaging or into RFID tags or EPCs attached to packaging, and since they are ingestible, may be applied as part of a unit dose.According to the IACC, approximately 10% of pharmaceuticals worldwide are counterfeit.In some developing countries this figure rises to 70%. Consumer Products Counterfeit items are a significant and growing problem with all kinds of consumer packaged goods, especially in the retail and apparel industries.According to the International Trademark Association, up to 22% of all branded apparel and footwear sold worldwide is counterfeit and Havocscope values the counterfeit clothing market at $12 billion.We have developed and are currently marketing a number of solutions aimed at brand protection and authentication for the retail and apparel industries, including the clothing, accessories, fragrances and cosmetics segments.Our SigNature DNA solution can be used by manufacturers in these industries to combat counterfeiting and piracy of primary, secondary and tertiary packaging, as well as the product itself, and to track products that have been lost in transit, whether misplaced or stolen. 8 Fine Wine Vintners and purveyors of fine wine are also vulnerable to counterfeiting or product diversion.We believe our SigNature and BioMaterial Genotyping solutions can provide vintners, purveyors of fine wines and organizations within the wine community several benefits: ● Verified authenticity increases potential customers’ confidence in the product and their purchase decision; ● For the vintner, the SigNature and BioMaterial Genotyping solutions can strengthen brand support and recognition, and offers the potential for improved marketability and sales; and ● SigNature DNA Markers can be embedded in bottles, labels, or both at the winery, and easily authenticated at the location of the wine distributor or auctioneer; BioMaterial Genotyping allows the identification of wine based on the varietal of grape and the region in which it is grown. Law Enforcement Law enforcement organizations are always looking for a system they can use which will provide absolute proof of authentication.Specifically developed for covert operations, DNANet products form an invisible coating when applied to skin, plastics, metals, glass, wood and fabric.We believe that DNANet enhances law enforcement effectiveness by providing forensic quality evidence. Art and Collectibles The fine art and collectibles markets are particularly vulnerable to counterfeiting, forgeries and fraud.Phony artwork and collectibles are often sold with fake or questionable signatures or attributions.We believe our SigNature DNA Markers can safely be embedded directly in, and so can be used to designate and then authenticate, all forms of artwork and collectibles, including paintings, books, porcelain, marble, stone, bronzes, tapestries, glass and fine woodwork, including frames.We believe they can also be embedded in any original supporting documentation related to the artwork or collectible, the signature of the artist and any other relevant material that would provide provenance, such as: ● A signed certificate or statement of authenticity from a respected authority or expert on the artist; ● An exhibition or gallery sticker attached to the art or collectible; ● An original sales receipt; ● A film or recording of the artist talking about the art or collectible; ● An appraisal from a recognized authority or expert on the art or collectible; and ● Letters or papers from recognized experts or authorities discussing the art or collectible. Digital and Recording Media The digital and recording media industry, including the segment that records computer software on compact discs, faces significant threats from piracy and the counterfeiting and distribution of imitation media or software.In 2012 the Business Software Alliance (“BSA”) reported that in 2011, the United States software industry lost $9.8 billion as a result of software piracy.An independent study conducted by IDC for the BSA reported that 20 percent of software in the United States is unlicensed.Our SigNature DNA Markers can be embedded onto digital and recording media products, such as CDs, DVDs, videotapes and computer software, as well as the packaging of these products. 9 Our Technology Every living organism has a unique DNA code that determines the character and composition of its cells.The core technologies of our business allow us to use the DNA of everyday plants to mark objects in a unique manner that we believe cannot be replicated, and then identify these objects by detecting the absence or presence of the DNA.Our scientific team was able to develop genetic based assays and protocols to identify DNA markers that are endogenous to a particular plant in order to differentiate between biological strains of cotton and we are now employing the same methodology in wool, wine and other natural products.In addition, in the case of Pima cotton, we have developed proprietary technologies to differentiate between Pima (G. barbadense) and Non-Pima (G. hirsutum) cotton with absolute certainty.In the process, we were also able to develop an approach to attach an exogenous DNA marker to a finished textile product.Cotton classification and the authentication of cotton geographic origin are issues of global significance, important to brand owners and to governments that must regulate the international cotton trade.The use of DNA to identify the cotton fiber content of finished textiles is a significant opportunity for license holders to control their brand and for governments to improve their ability to enforce compliance with trade agreements between nations.In addition to the global cotton trade, the markets for BioMaterial Genotyping include biotherapeutics, nutraceuticals, natural foods, wines and fermented alcohols and other natural textiles. SigNature DNA Encryption Our patent pending encryption system allows us to isolate strands of botanical DNA and then fragment and reconstitute them to form unique “DNA chimers”, or encrypted DNA segments, whose sequences are known only to us. SigNature DNA Encapsulation Our patented encapsulation system allows us to apply a protective coating to encrypted DNA chimers, creating a SigNature DNA Marker that is resistant to heat, organic solvents, chemicals and UV radiation, and so can be identified for hundreds of years after being embedded directly, or into media applied or attached to the item to be marked. SigNature DNA Embedment Our patented embedment system allows us to incorporate our SigNature DNA Markers into a broad variety of media, such as inks, dyes, textile treatments, thermal ribbon thread, laminates, glues, threads, varnishes, adhesives and petroleum and petroleum derivatives. SigNature DNA Authentication Our patent pending forensic level authentication methods allow us to unlock the encrypted DNA chimers by using PCR techniques and proprietary primers that were specifically designed by us to detect the DNA sequences we encrypted and embedded into the product or other item.Detection of the DNA chimers unique to a particular item or series of items allows us to authenticate its or their origin. Products and Services Our SigNature DNA solution consists of three steps: creating and encapsulating a specific encrypted DNA segment, applying it to a product or other item, and detecting the presence or absence of the specific segment.We plan for the first two steps to be controlled exclusively by us and our certified agents to ensure the security of SigNature DNA Markers.Once applied, the presence of any of our SigNature DNA Markers can be detected by us or a customer in a simple spot test, or a sample taken from the product or other item can be analyzed forensically to obtain definitive proof of the presence or absence of a specific type of SigNature DNA Marker (e.g., one designed to mark a particular product). Creating a Customer or Product-Specific SigNature DNA Marker Our SigNature DNA Markers are botanical DNA segments custom manufactured by us to identify a particular class of or individual products or items.During this manufacturing process, we scramble and encrypt a naturally occurring botanical DNA code segment or segments, and then encapsulate the resulting DNA segment utilizing our proprietary SigNature DNA Encapsulation system.We then record and store the sequence of the DNA segment in a secure database in order that we can later detect it. 10 Embedding the SigNature DNA Marker Our SigNature DNA Markers may be directly embedded in products or other items, or otherwise embedded into media that is incorporated in or attached to the product or item.For example, we can embed SigNature DNA Markers directly in paper, metal, plastics, stone, ceramic, and other materials.Media in which we can embed SigNature DNA Markers include: SigNature DNA Ink:Our SigNature DNA Ink can be applied directly or on a label that is then affixed to the product or item.SigNature DNA Ink is highly durable and degradation resistant.SigNature DNA Ink can be visible (colored) or invisible.This makes it possible to mark products with a visible, or overt, and/or invisible, or covert, SigNature DNA Marker on any tangible surface such as a label.The location of covert Signature DNA Markers on a product are recorded and stored in a secure database.Similar media like varnish and paints can also be used instead of ink.Examples of where our SigNature DNA Inks can be used include: ● electronics, microchips; ● artwork and collectibles (paintings, artifacts, antiques, stamps, coins, documents, collectibles and memorabilia); ● corporate documents (confidential, date and time dependent documents or security clearance documents); ● financial instruments (currency, stock certificates, checks, bonds and debentures); ● retail items (event tickets, VIP tickets, clothing labels, luxury products); ● pharmaceuticals (tablet, capsule and pill surface printing); and ● other miscellaneous items (lottery tickets, inspection stamps, custom seals, passports and visas, etc.). We have also developed a portfolio of SigNature DNA containing thermal transfer ribbons.These products will allow retailers to protect at the point-of-sale by printing price labels, hang tags, event tickets and even credentials with customized SigNature markers.We are also able to mark cartridges of laser printers with SigNature DNA. SigNature DNA Thread:Our SigNature DNA Thread, which can consist of any fabric from cotton to wool, is embedded with SigNature DNA Markers and can be used to mark and authenticate products and other items incorporating textiles.For example, SigNature DNA Thread can be incorporated in a finished garment, bag, purse, shoe or other product or item.SigNature DNA Thread can help textile vendors, clothing and accessory manufacturers and governments authenticate thread, yarn and fabric at any stage in the supply chain.We can also embed our SigNature DNA Markers into raw cotton fiber before manufacture of a finished cotton textile product (e.g., a t-shirt) and authenticate a finished cotton product.We have completed our feasibility studies with the Textile Centre of Excellence consortium of companies (Leeds, UK) to demonstrate how our SigNature DNA can be used to authenticate textiles at all points of the supply chain through to the end user.In addition, we have demonstrated the integration of SigNature DNA with existing manufacturing processes to produce threads, labels and fabrics manufactured by Yorkshire-based companies and are beginning to work on commercial projects with these companies. Cashield Security Ink:In 2010, we developed a new product line, Cashield, which is a family of cash degradation inks that permanently stain bank notes stolen from cash-handling or ATM systems.Cashield extends our offering beyond our prior singular product, AzSure®, to a family of security inks that include Red, Violet, Green, Teal, Indigo, and the original AzSure® Blue.Current degradation dyes suffer from a critical technical weakness, as the dyes may be removed by the use of solvents.We initiated the development of Cashield in response to demand for a more effective carrier for our SigNature DNA markers.Cashield has been certified for use in the EU by the Laboratoire National de Métrologie et d’Essais (LNE) and passed all 47 individual dye penetration and wash-out-resistance tests.Additionally, a CViT study presented by the University of Leeds cited Cashield AzSure Blue ink as having improved performance versus staining inks from other suppliers.In this study, the AzSure Blue ink was tested across a range of currencies, including British pounds, Euros, and U.S. dollars.The evaluation involved exposure to numerous industrial solvents.Final analysis of the results concluded that the AzSure Blue ink was bound strongly in five seconds or less to a variety of banknotes, and could not be removed with any solvent. DNANet: In 2010, we developed DNANet tactical DNA products for law enforcement, in the form of DNA-marked fixative sprays and liquids as well as transferable grease.These products, being marketed to global police forces were created to help link criminals to crimes.DNANet is a tactical forensic system providing unique DNA codes for covert operations that require absolute proof of authentication. 11 SmartDNA: In 2011, we introduced SmartDNA is a unique and patented security system based on botanical DNA, a new and effective crime protection system for stores, warehouses, banks, pharmacies, ATMs and the protection of valuables.The system contains a water-based, non-toxic spray which may be triggered during a crime, marking the perpetrator and remaining on their person for weeks after the crime.Each SmartDNA product is designed to be unique to each store, warehouse or sting operation allowing the police and prosecutors to link criminals to the crimes.In 2012 DNANet was incorporated into the SmartDNA family of products. Other Security Devices:Our SigNature DNA Markers can also be embedded onto printed barcodes, RFID tags, optical memory strips, holograms, tamper proof labels and other security devices incorporated into products and other items for various security-related purposes. SigNature DNA Detection and Product Authentication We now offer a full range of detection options from instant rapid screening to more detailed forensic level authentication: Level 1 “Spot Test” Detection:We offer rapid readers capable of instantly testing for the presence or absence of any of our SigNature DNA Markers. Level 2 Forensic DNA Authentication:When a forensic level of authentication is necessary, we offer in-house PCR based DNA analysis in approximately 2 - 4 hours. Level 3 Forensic DNA Authentication:When a forensic level of authentication is necessary, we offer in-house forensic DNA authentication that will confirm authentication sequences in approximately 24 hours. Sales and Marketing As of December 20, 2012, we had nine employees engaged in sales and marketing.We expect to hire additional sales directors and/or consultants to assist us with sales and marketing efforts with respect to our target vertical markets. Research and Development Our research and development efforts are primarily focused on incorporating DNA into carriers (such as ink or textile treatments), and authenticating DNA from the markedsubstrates. As part of this effort, we typically conduct feasibility and pilot testing to ensure that DNA application methods are compatible with the customer’s manufacturing and logistic processes, and that theycan be implemented in a cost effective manner. In some cases, the DNA application methods may undergo wash-out and/or adherence tests to ensure that DNA can be authenticated even if it is subjected to aggressive removal techniques. We are also actively involved in identifying new formulation development,and new application methods that provide even better adhesion of DNA to substrates, and more homogeneous distribution of the DNA onto the surface. In short, we have considerable experience working with a wide range of carriers and substrates, and authenticating them even years after they have been applied onto the surface. We believe that our continueddevelopment of new and enhanced technologies relating to our core businessis essential to ourfuture success. Raw Materials and Suppliers Our sources of raw materials include botanical sources of DNA that are readily available in nature, which we are able to replicate to use in our product offerings.In general, our customers provide their materials to us in their own packaging to which we include our DNA products and return to them in their own packaging.In addition, Printcolor Screen Ltd. supplies the ink for our Cashield products, and SKS Bottle & Packaging supplies us with the plastic bottles used in packaging our DNANet sprays and liquids. Manufacturing We have the capability to manufacture SigNature DNA Markers, covert DNA Ink, and SigNature PCR Kits at our laboratories in Stony Brook.We rely upon other companies to manufacture our overt color-changing DNA Ink.We also have in-house capabilities to complete all BioMaterial Genotyping authentications. Distribution of our Products and Commercial Agreements Cash-in-Transit.We can use our SigNature DNA platform to offer a forensic security solution for banks and institutions operating in the cash-in-transit industry, including automated teller machine (ATM) operations and banknote transportation and storage.We can embed our SigNature DNA Marker into cash degradation inks that are placed in cash-in-transit boxes.If a cash box is compromised or illegally accessed, the security device discharges the liquid cash degradation dye into the banknotes, which can be detected after the banknotes are recovered by police.Since January 2008, we have been engaged with Loomis Group U.K., a cash-handling company, and Spinnaker International, a cash-in-transit box manufacturer, pursuant to which we provide signature DNA for use in boxes and authentication and expert witness reports.In July 2009, we joined Banknote Watch, a national U.K.-based crime prevention initiative. 12 3SI Agreement.On August 9, 2011, we entered into a Supplier Agreement, dated as of August 3, 2011 (the “Supplier Agreement”), with 3SI Security Systems, Inc., a manufacturer and seller of asset protection security systems based on ink and smoke staining as well as GPS technology (“3SI”).On the same date, we also entered into a License Agreement with 3SI, dated as of August 3, 2011 (the “License Agreement”).Under the terms of the Supplier Agreement, 3SI will purchase DNA markers and related products (“Markers”) from us to be incorporated into products subject to certain patents (“Licensed Patents”) owned by 3SI (the “Products”).Pursuant to the License Agreement, 3SI granted a nonexclusive irrevocable license to us to make, have made, use, import, offer to sell and sell the Products.Under the terms of the Supplier Agreement, 3SI is permitted to purchase the Products from us from time to time pursuant to purchase orders.The purchase price for the Products will be as set forth in an applicable product schedule for the purchase orders and may be adjusted from time to time pursuant to the terms of the Supplier Agreement.Under the terms of the License Agreement, we agreed to pay an initial payment and royalties to 3SI based on the number of Products sold, with such royalties being subject to adjustment pursuant to the terms of the License Agreement.The terms of the Supplier Agreement and the License Agreement will continue until the expiration of the Licensed Patents, unless earlier terminated under the terms of the respective agreements.Under the terms of the Supplier Agreement, 3SI has the right to immediately terminate upon written notice to us in the event that we fail to continuously maintain a minimum number of Markers to be incorporated into the Products, or upon 30 days written notice to us.Under the terms of the License Agreement, 3SI has the right to immediately terminate upon written notice to us in the event that we fail to continuously maintain a minimum number of Markers, or fail to sell Markers to 3SI for incorporation into the Products for a certain time after being ordered. Printcolor Agreement.On September 16, 2009, we entered into a Supply and Distribution Agreement, pursuant to which Printcolor Screen Ltd. has agreed to manufacture and supply to us on an exclusive basis AzSure security ink for an initial period of five years, unless the agreement is mutually terminated by the parties or terminated for material breach. Textile Centre of Excellence.On August 11, 2008, we entered into an Agreement with Huddersfield and District Textile Training Company Limited.We agreed to undertake a study to demonstrate how our SigNature DNA can be used to authenticate textiles at all points of the supply chain through to the end user and the integration of SigNature DNA with existing manufacturing processes to produce threads, labels and fabrics manufactured by Yorkshire-based companies.In June 2010, we received our first order as part of our participation in the multi-year contract funded by the European Regional Development Fund and Yorkshire Forward.Since that time, we have received additional orders from the Textile Centre of Excellence. Nissha Agreement.On December 14, 2009, we entered into a Supply Agreement with Nissha Printing Co., Ltd. (“Nissha”), an international printing company.In the agreement, we agreed to supply our authentication marks to Nissha to be incorporated into their printing ink.We will receive an initial fee, annual fee and authentication mark fee for each unique authentication mark purchased.Additional fees may be received if more than 10 authentications per year are ordered by Nissha. On November 1, 2011, we entered into an Exclusive Sales Agreement with Nissha, pursuant to which we granted Nissha an exclusive right to sell their printing inks and related products incorporating our SigNature DNA authentication markers, initially for fish and fruit products, publications and wood applications, in various countries in Asia for an initial period of three years.The exclusivity rights granted to Nissha are conditioned upon Nissha achieving minimum sales targets (or, if below the specified thresholds, paying the shortfall) and payment of annual fees.We also granted Nissha the non-exclusive right to sell their printing inks and related products incorporating our SigNature DNA authentication markers for cosmetics products in the same geographic area during the term of the agreement.We have agreed to supply our SigNature DNA authentication markers to Nissha on pricing terms and conditions to be set forth in the applicable purchase orders. C.F. Martin & Co. Agreement.On July 18, 2011, we entered into a Joint Development Agreement, dated as of June 30, 2011 with C.F. Martin & Co., Inc., a designer and manufacturer of acoustic guitars, strings for acoustic guitars, and related guitar components and accessories (“Martin”).Under the terms of the agreement, we and Martin will jointly develop, create and apply new techniques and know-how for labeling and authenticating guitars, guitar strings and related guitar components and accessories using DNA security markers created by us.Each party shall bear and be responsible for its own expenses and costs of the development and creation of the techniques and know-how.The agreement also provides that Martin shall purchase DNA security markers exclusively from us during the term of the agreement.The term of the agreement will continue until the parties agree that the development and creation of techniques or know-how for labeling guitars or guitar strings with DNA security markers is complete, unless either party terminates the agreement by giving at least sixty (60) days written notice to the other party. 13 Disc Graphics Agreement.On July 8, 2011, we entered into an agreement, dated as of July 7, 2011 (the “Agreement”) with Disc Graphics Inc., a provider of specialty packaging (“DG”).Under the terms of the agreement, DG will purchase DNA security markers (“Markers”) from us to be incorporated into coatings for DG’s products.Additionally, DG will be our exclusive distributor in North America of Markers for the folding carton offset print sector and non-exclusive distributor of Markers for pressure sensitive labels.We are obligated to provide Markers for up to a fixed amount of coatings.We received an initial fee upon entering the agreement, and are entitled to an annual fee for the Markers, as well as fees for any authentication services provided by us.The initial term of the agreement is three years and will automatically renew for successive one year periods, unless either party terminates the agreement by giving written notice to the other party at least ninety (90) days prior to the end of the third year.After the initial term, we have the right to terminate if DG does not pay the annual fee. Defense Logistics Agency.On June 17, 2011, we received approval and permission to disclose from the Defense Logistics Agency of the U.S. Department of Defense (the “DLA”) a time and material subcontract (the “Subcontract”) that we entered into on June 2, 2011 with the Logistics Management Institute (“LMI”).Under the terms of the Subcontract, we will perform work and services for LMI and the DLA relating to a program to demonstrate the functional, technical and business viability of DNA marking technology as an anti-counterfeiting measure by using it in the DLA microcircuit supply chain.The program is divided into six tasks and involves the preparation, implementation and evaluation of marking materials for microcircuit chips and packages, creation of a business case analysis, development of a pricing and transition plan and identification of feasible techniques to apply DNA marks in conjunction with laser marking.The period of performance of the Subcontract is from May 26, 2011 through November 26, 2012.The Company is entitled to receive payments for performance under the Subcontract through November 26, 2012, for a total amount not to exceed $913,400 (with no minimum), assuming the successful completion of the six tasks of the program. DivineRune.We acquired rights to certain software and intellectual property pursuant to an agreement we entered into with DivineRune Inc., a secure cloud-computing specialist, on January 25, 2012.DivineRune was issued a 3 year warrant to pursuant one million shares of our common stock at an exercise price of $0.071 per share vesting in full on the first anniversary of the date of grant as compensation for a license to DivineRune’s patent portfolio.We will also share revenues on any future sales of products generated as a result of this agreement.We expect that the partnership will enhance and extend our core anti-counterfeiting, anti-diversion, and security systems into the digital track-and-trace sphere.James A. Hayward, our President, Chairman and Chief Executive Officer, and Yacov Shamash, a member of our Board of Directors, were among the early investors in DivineRune. Competition The principal markets for our offerings are intensely competitive.We compete with many existing suppliers and new competitors continue to enter the market.Many of our competitors, both in the United States and elsewhere, are major pharmaceutical, chemical and biotechnology companies, or have strategic alliances with such companies, and many of them have substantially greater capital resources, marketing experience, research and development staff, and facilities than we do.Any of these companies could succeed in developing products that are more effective than the products that we have or may develop and may be more successful than us in producing and marketing their existing products.Some of our competitors that operate in the anti-counterfeiting and fraud prevention markets include: American Bank Note Holographics, Inc., Applied Optical Technologies, Authentix, Collectors Universe Inc., Collotype, Data Dot Technology, De La RuePlc., Digimarc Corp., DNA Technologies, Inc., ID Global, Informium AG, Inksure Technologies, Kodak, L-1 Identity Solutions, Media Sec Technologies, opSec Security Group plc., SmartWater Technology, Inc., Sun Chemical Corp, Tracetag, Prooftag SAS, and Warnex. Some examples of competing security products include: ● fingerprint scanner (a system that scans fingerprints before granting access to secure information or facilities); ● voice recognition software (software that authenticates users based on individual vocal patterns); ● cornea scanner (a scanner that scans the iris of a user’s eye to compare with data in a computer database); ● face scanner (a scanning system that uses complex algorithms to distinguish one face from another); ● integrated circuit chip and magnetic strips (integrated circuit chips that receive and, if authentic, send a correct electric signal back to the reader, and magnetic strips that contain information, both of which are common components of debit and credit cards); ● optically variable microstructures (these include holograms, which display images in three dimensions and are generally difficult to reproduce using advanced color photocopiers and printing techniques, along with other devices with similar features); ● elemental taggants and fluorescence (elemental taggants are various unique substances that can be used to mark products and other items, are revealed by techniques such as x-ray fluorescence); and ● radioactivity and rare molecules (radioactive substances or rare molecules which are uncommon and readily detected). 14 We expect competition with our products and services to continue and intensify in the future.We believe competition in our principal markets is primarily driven by: ● product performance, features and liability; ● price; ● timing of product introductions; ● ability to develop, maintain and protect proprietary products and technologies; ● sales and distribution capabilities; ● technical support and service; ● brand loyalty; ● applications support; and ● breadth of product line. If a competitor develops superior technology or cost-effective alternatives to our products, our business, financial condition and results of operations could be significantly harmed. Proprietary Rights We believe that our 16 patents, 6 patents pending, 14 provisional patents, 12 registered trademarks, and 3 registered trademarks pending, and our trade secrets, copyrights and other intellectual property rights are important assets for us.Our patents will expire at various times between 2012 and 2024.The duration of our trademark registrations varies from country to country.However, trademarks are generally valid and may be renewed indefinitely as long as they are in use and/or their registrations are properly maintained. However, there are events that are outside of our control that pose a threat to our intellectual property rights as well as to our products and services.For example, effective intellectual property protection may not be available in every country in which our products and services are distributed.The efforts we have taken to protect our proprietary rights may not be sufficient or effective.Any significant impairment of our intellectual property rights could harm our business or our ability to compete.Protecting our intellectual property rights is costly and time consuming.Any increase in the unauthorized use of our intellectual property could make it more expensive to do business and harm our operating results.Although we seek to obtain patent protection for our innovations, it is possible we may not be able to protect some of these innovations.Given the costs of obtaining patent protection, we may choose not to protect certain innovations that later turn out to be important.There is always the possibility that the scope of the protection gained from one of our issued patents will be insufficient or deemed invalid or unenforceable.We also seek to maintain certain intellectual property as trade secrets.This secrecy could be compromised by third parties, or intentionally or accidentally by our employees, which would cause us to lose the competitive advantage resulting from these trade secrets. Additionally, litigation regarding patents and other intellectual property rights is extensive in the biotechnology industry.In the event of an intellectual property dispute, we may be forced to litigate.This litigation could involve proceedings instituted by the U.S. Patent and Trademark Office or the International Trade Commission, as well as proceedings brought directly by affected third parties.Intellectual property litigation can be extremely expensive, and these expenses, as well as the consequences should we not prevail, could seriously harm our business.If a third party claims an intellectual property right to technology we use, we might need to discontinue an important product or product line, alter our products and processes, pay license fees or cease our affected business activities.Although we might under these circumstances attempt to obtain a license to this intellectual property, we may not be able to do so on favorable terms, jduran@example.org see Item 3.Legal Proceedings for a discussion of pending litigation. 15 Employees We currently have 26 full-time employees and three part-time employees, including two in management, seventeen in operations, nine in sales and marketing and one in investor relations.We expect to increase our staffing dedicated to sales, product prototyping, manufacturing of DNA markers and forensic authentication services. Expenses related to travel, marketing, salaries, and general overhead will be increased as necessary to support our growth in revenue. In order for us to attract and retain quality personnel, we anticipate we will have to offer competitive salaries to future employees. We anticipate that it may become desirable to add additional full and or part time employees to discharge certain critical functions during the next 12 months. This projected increase in personnel is dependent upon our ability to generate revenues and obtain sources of financing. There is no guarantee that we will be successful in raising the funds required or generating revenues sufficient to fund the projected increase in the number of employees. As we continue to expand, we will incur additional costs for personnel.As of June 23, 2012, we began working with Insperity Inc. to help us manage many of our back-end administrative human resources responsibilities.This change is being done to provide Fortune 500 type benefits to our current employees, making us more attractive to new hires as well as saving us money by not having to build out an internal HR department at this point in time.Insperity Inc. is a publicly traded company (NYSE:NSP) that supports businesses with payroll, medical benefits, 401k, online-training, and human resources services and support. Available Information We are subject to the informational requirements of the Securities Exchange Act of 1934 (the “Exchange Act”), which requires us to file our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, amendments to such reports and other information with the Securities and Exchange Commission (“SEC”).This information is available at the SEC’s Public Reference Room at treet, NE, Washington, D.C. 20549.Information on the operation of the Public Reference Room can be obtained by calling the jduran@example.org we file documents electronically with the SEC, you may also obtain this information by visiting the SEC’s jduran@example.org website is jduran@example.org. ITEM 1A.

EXHIBIT 32.1 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION -OXLEY ACT OF 2002 In connection with the quarterly report of StrikeForce Technologies, Inc. (the "Company") on Form 10-QSB for the period ending June 30, 2007, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Mark L. Kay, acting in the capacity as the Chief Executive Officer of the Company, certify to the best of my knowledge, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that: (1) The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and (2) The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company. A signed original of this written statement required by Section 906 has been provided to StrikeForce Technologies, Inc. and will be retained by StrikeForce Technologies, Inc. and furnished to the Securities and Exchange Commission or its staff upon request. /s/ Mark L. Kay Mark L. Kay Chief Executive Officer August 14, 2007

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 23, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 02-11083 Conference Calendar ADRIAN GUTIERREZ MARTINEZ, Plaintiff-Appellant, versus EULON ROSS-TAYLOR, Doctor, Medical Director; SCHOCK, Behavioral Assessment Psychologist, Defendants-Appellees. -------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 5:01-CV-189-BG -------------------- Before DAVIS, BARKSDALE, and STEWART, Circuit Judges. PER CURIAM:* Adrian Gutierrez-Martinez, Texas prisoner # 562996, appeals the dismissal of his Americans With Disabilities Act (ADA) claim for failure to state a claim. He argues that his pre- disciplinary mental status exams violated psychiatric policy and therefore caused him to be disciplined for conduct that was a manifestation of his mental illness and for which he should not have been held accountable. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-11083 -2- Gutierrez’s self-styled ADA claim is in fact a thinly veiled challenge to the validity of his disciplinary convictions. Absent proof that his disciplinary convictions have been overturned or otherwise declared invalid, Gutierrez cannot bring a civil action seeking damages based on a finding of guilt on his disciplinary charges, because success on his civil claim would necessarily imply the invalidity of his disciplinary convictions. Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (en banc). He has therefore failed to state a claim upon which relief could be granted. Gutierrez’s appeal is without arguable merit and is dismissed. See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). The dismissal of this appeal as frivolous counts as a strike for purposes of 28 U.S.C. § 1915(g), in addition to the strike for the district court’s dismissal. See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Gutierrez has also had a second civil rights suit dismissed as frivolous. See Gutierrez Martinez v. Leher, No. 02-10491 (5th Cir. Sept. 17, 2002) (unpublished). He is BARRED from bringing any civil action or appeal in forma pauperis while he is incarcerated or detained in any facility unless he shows that he is under imminent danger of serious physical injury. APPEAL DISMISSED; THREE-STRIKES BAR IMPOSED.

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC SHELDON MORSE, Case No. 1:18-cv-00890-EPG 12 Plaintiff, 13 v. ORDER GRANTING EXTENSION OF TIME AND SETTING ORAL 14 NANCY A. BERRYHILL, ARGUMENT ON PLAINTIFF’S APPEAL Acting Commissioner of Social Security, 15 (ECF No. 17) 16 Defendant. 17 18 The parties have filed a stipulation for a thirty-day extension of time for Defendant to file 19 her responsive brief. (ECF No. 17.) The Court finds good cause for granting a fourteen-day 20 extension of time. The Court also sets oral argument on Plaintiff’s appeal. 21 IT IS ORDERED that Defendant’s responsive brief shall be filed on or before June 19, 22 2019, and that all other deadlines are extended accordingly. IT IS FURTHER ORDERED that 23 the Court will hear oral argument on Plaintiff's appeal of the decision by the Commissioner of 24 Social Security denying benefits. Said hearing is scheduled for August 15, 2019, at 02:00 p.m., 25 in Courtroom 10 (EPG) before Magistrate Judge Erica P. Grosjean. Although personal 26 appearance is encouraged, telephonic appearance is granted to anyone not within one hour of 27 the Court, with said party(ies) to use the following dial-in number and passcode: 1-888-251- 28 2909; passcode 1024453. The parties should be prepared to address all arguments raised in 1  1 Plaintiff's briefing with citations to the record. The parties should set aside one hour for the 2 argument. 3 IT IS SO ORDERED. 4 5 Dated: June 5, 2019 /s/ UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 

Filed 11/26/13 Hafen v. Nielsen CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE THOMAS HAFEN, as cotrustee, etc., et al., G047689 Plaintiffs and Appellants, (Super. Ct. No. 05CC07279) v. OPINION RHONDA NIELSEN, Defendant and Respondent. Appeal from an order of the Superior Court of Orange County, John C. Gastelum, Judge. Affirmed. Mazur & Mazur, Janice R. Mazur and William E. Mazur, for Plaintiffs and Appellants. Edward M. Picozzi for Defendant and Respondent. * * * Thomas and Renee Hafen, as trustees of the Hafen Trust (the Hafens), appeal from the trial court’s attorney fee award in favor of Rhonda Nielsen. The Hafens contend the trial court abused its discretion by awarding Nielsen $65,898 of the $179,000 in fees she requested. Specifically, the Hafens argue the trial court abused its discretion in apportioning Nielsen’s fees between her defense involving a fee-bearing agreement that the Hafens alleged created an equitable servitude on her property and her defense against the Hafens’ claims involving prescription and an alleged equitable servitude arising from an agreement without a fee provision. In essence, the Hafens challenge the sufficiency of the evidence to support the trial court’s order, and they attack in particular the credibility of Nielsen’s attorney, Edward M. Picozzi, in attesting to his fee allocations for the work he performed. We affirm the order. I FACTUAL AND PROCEDURAL BACKGROUND This action concerns adjoining, hilltop parcels in Trabuco Canyon, California. The Hafens own a single-family residence with panoramic views in all directions on one parcel, located at 30021 Canyon Creek Drive (30021). The best views from that residence are to the west across the undeveloped, adjacent parcel located at 30022 Canyon Creek Drive (30022). The only flat area readily suitable for building a home on 30022 is the portion nearest 30021. Development on this flat area would significantly impact the view west from the Hafens’ home on 30021. Nielsen purchased 30022 in May 2005 from Michael Meacher. The next month, in June 2005, Meacher faxed Nielsen a copy of a purported January 2005 agreement he entered with the Hafens (the Meacher agreement), calling for an exchange of the flat area on 30022 for an unspecified portion of the Hafens’ property. The 2 Meacher agreement also referenced a 2001 agreement (the Moshenko agreement) between former owners of 30021 and 30022 that similarly called for a land-exchange between the two parcels to “keep” the views from each “unobstructed.” The Moshenko agreement included an attorney fee provision; the Meacher agreement did not. Nielsen refused to be bound by either agreement because the land exchange would preclude building a residence on her property and she knew nothing of the agreements before her purchase. The Hafens sued Nielsen in June 2005. The operative second amended complaint alleged five causes of action against Nielsen on the theory both the Meacher agreement and Moshenko agreement were enforceable against her as equitable servitudes.1 The first and second causes of action sought specific performance and declaratory relief regarding the land exchange and view easements described in the Meacher agreement. The third cause of action alleged the Hafens acquired a prescriptive easement for the nonexclusive use of 30022’s flat area because the Hafens and their predecessors continually used the area for approximately 20 years. If the Meacher agreement’s land exchange and view easements could not be enforced for any reason, the fourth and fifth causes of action sought specific performance and declaratory relief regarding the Moshenko agreements’ view easements. 1 “An equitable servitude is a restriction on the use of real property that is enforceable even though not imposed as a covenant in the manner provided by law. The doctrine of equitable servitudes arose as a means of giving effect to restrictions that did not meet the stringent legal standards required for covenants running with the land.” (8 Miller & Starr, Cal. Real Estate (3d ed. 2009) § 24:1 at p. 24–4.) When a covenant does not run with the land, it nonetheless may be enforced against a subsequent owner as an equitable servitude if (1) the subsequent owner took title with knowledge of the covenant’s terms, and (2) it would be inequitable to permit the subsequent owner to avoid the restrictions the covenant imposed. (Marra v. Aetna Constr. Co. (1940) 15 Cal. 2d 375, 378; Richardson v. Callahan (1931) 213 Cal. 683, 686–687.) 3 Following a bench trial, the trial court declined to enforce either the Moshenko agreement or the Meacher agreement as an equitable servitude and entered judgment in Nielsen’s favor. In its statement of decision, the trial court found Nielsen had no actual or imputed knowledge of the Meacher agreement and the evidence did not create a duty for her to investigate the existence of an agreement regarding view easements or a land exchange. The trial court also found that (1) the Meacher agreement could not be enforced as a covenant running with the land because the parties failed to record it and (2) the Moshenko agreement could not be enforced because the Meacher agreement rescinded it. The trial court made no express ruling in its statement of decision on the Hafens’ prescriptive easement cause of action. The Hafens appealed, omitting any challenge regarding their prescriptive easement claim, and we affirmed the judgment in an unpublished opinion. (Hafen v. Nielsen (G043337, June 30, 2011) [nonpub. opn.] (Hafen I).) Based on the Moshenko agreement attorney fees provision, Nielsen filed a motion to recover the attorney fees she incurred defending the Hafens’ claims. The trial court granted the motion, but awarded just $1,050 of the $179,900 Nielsen sought, apportioning three hours of attorney time billed at Nielsen’s lawyer’s $350 hourly rate. The court’s minute order explained, “The only basis for recovery of attorney fees is contained in the 2001 Moshenko agreement. That agreement had been expressly rescinded and never was recorded so could not be enforced against [Nielsen]. The fees attributable to that agreement must be apportioned.” When Nielsen appealed, we affirmed the necessity of apportioning her attorney fees to (1) issues relating exclusively to the Moshenko agreement or (2) issues common to the Moshenko agreement and the Meacher agreement or the prescriptive 4 easement claim. (Hafen v. Nielsen (G044204, Nov. 28, 2011) [nonpub. opn.], p. 13 (Hafen II).) We reversed the trial court’s apportionment of just $1,050 to these matters because the court mistakenly concluded the absence of a formal covenant running with the land virtually eliminated attorney fees. The trial court had reasoned, “‘This issue [] I think could have been done in a half hour. [¶] . . . [¶] As soon as someone told me, hey, there’s a statute that says covenants running with the land have to be recorded, that’s the end of [that aspect of] the case. [¶] . . . [¶] The amount of time you would have to address [the Moshenko agreement claims] compared to the rest of the case is almost zero. It’s very minimal. That cause of action would have been out in a minute.’” (Hafen II, supra, at p. 11.) We explained, however, that an agreement running with the land, although unrecorded, may nevertheless be enforced as an equitable servitude, provided the subsequent owner took title with knowledge of the covenant’s terms and it would be inequitable to permit the subsequent owner to avoid the covenant’s restrictions. (Id. at p. 12; see fn. 1 ante.) On remand to reapportion the fees, the former trial judge had retired, leaving the new judge in, as he noted, “the unenviable position of ruling on a motion for attorney fees on a case in which it was never involved pre-judgment.” The parties submitted their briefing and declarations concerning fees, but the trial court had to continue the hearing because Nielsen’s attorney, Edward Picozzi, forgot to attach his billing statements. After the parties submitted supplemental declarations and briefing, including Picozzi’s billing statements, the trial court concluded in its tentative decision that Nielsen was entitled to approximately $66,000 of her nearly $180,000 in claimed fees, but the tentative awarded no fees for time spent in trial because Picozzi “provide[d] absolutely no hours [apportioning his trial time] despite a second chance to do so via the 5 Supplemental Declaration.” At the hearing, the trial court granted Picozzi’s request to file a further declaration, which he did, and the parties again briefed the issue, and the trial court re-heard the matter, taking it under submission. The trial court issued a very detailed order denying Nielsen her fees during trial, but awarding nearly $66,000 in pretrial fees supported by Picozzi’s billing statement and declarations.2 The court’s order explained: “The Court finds a total of 188.28 hours were spent on issues relating exclusively to the 2001 [Moshenko] Agreement and issues common to the 2001 [Moshenko] Agreement and either the 2005 [Meacher] Agreement or the prescriptive easement claim. The court also finds Mr. Picozzi’s hourly rate of $350 an hour over the course of five years to be very reasonable. Therefore, the total amount of fees allowed is $65,898.00.” The trial court meticulously specified the allocations for which it allowed and disallowed fees. For example, “[a]s to procedural issues such as Mediation[,] Status Conferences, CMCs, Telephone Conferences with Client, Telephone Conferences with Counsel: The Court will allow all time and fees requested by Mr. Picozzi, . . . since these things pertain to the entire case, and allocation is absolutely impossible. [¶] Mediation: 10.2 [hours] [¶] Status Conferences, MSC: 58.20+6.5 = 65.70 [¶] Telephone Conferences w/ client: 14.95 [¶] Telephone Conferences w/ Counsel: 14.85.” (Original underlining.) The other categories in which the court allowed fees consisted of: “As to the Plaintiff’s Ex Parte TRO and Preliminary Injunction Efforts: The Court will also allow the 46.7 hours as sought by Mr. Picozzi. If this TRO was sought at the outset of the litigation, Plaintiffs would have used the existence of both agreements to show the 2 The trial court also awarded Nielsen $19,250 in fees for her appeal in Hafen II, and the Hafens do not challenge that fee award. 6 existence of an easement. This is something which does not appear easy to allocate. [¶] . . . [¶] Time for Site Inspection in the amount of 10.88 hours is allowed as viewing the land would go to all causes of action. . . . [¶] As to Depositions, Mr. Picozzi suggests 58 hours were spent. He essentially guesses at how much time is spent on the fee- allowing agreement and cross-over issues. He suggests 70 percent, but this is a guess. Because Mr. Picozzi does not give a number of specific hours, the Court will allow 25 hours time — which represents about half of the time sought.” (Original underlining.) The trial court rejected Nielsen’s fee request in the following categories: “As to Legal research, it is difficult to see how very many issues would overlap. It should not have taken 14.6 hours to discover the 2001 [Moshenko] Agreement (which allowed for fees) was essentially rescinded by virtue of the 2005 [Meacher] Agreement being signed. As research has not been broken down specifically to 2001 [Moshenko] Agreement and overlap, the Court will deny the request for 14.6 hours. [¶] . . . [¶] As for time spent for trial, Mr. Picozzi provides absolutely no meaningful evidentiary support for fees for time spent in trial, despite various opportunities to do so via Supplemental Declarations. Mr. Picozzi does not support his claim for apportionment with anything other than his own recollection and figures. There is no real reference to billing statements, court transcript[s], etc. Therefore, fees for trial are not allowed.” (Original underlining.) Concluding its order, the trial court explained: “Adding up all the hours, the Court arrives at the sum of 188.28 total hours spent on fee-allowing agreement and cross-over issues which are so inextricably linked that allocation is impossible.” The trial court awarded Nielsen attorney fees at $350 an hour multiplied by 188.28 hours for a 7 total of $65,898, and the Hafens now appeal. Nielsen does not appeal the hours disallowed. II DISCUSSION A. Standard of Review As we noted in Hafen II, the standard of review is well-established. “‘California courts have long held that trial courts have broad discretion in determining the amount of a reasonable attorney’s fee award. This determination is necessarily ad hoc and must be resolved on the particular circumstances of each case.’ [Citation.] In exercising its discretion, the trial court may accordingly ‘consider all of the facts and the entire procedural history of the case in setting the amount of a reasonable attorney’s fee award.’ [Citation.]” (Bernardi v. County of Monterey (2008) 167 Cal. App. 4th 1379, 1394.) “An attorney fees award ‘“will not be overturned in the absence of a manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.”’” (Ibid.) “Where a cause of action based on the contract providing for attorney’s fees is joined with other causes of action beyond the contract, the prevailing party may recover attorney’s fees under [Civil Code] section 1717 only as they relate to the contract action. [Citations.]” (Reynolds Metals Co. v. Alperson (1979) 25 Cal. 3d 124, 129 (Reynolds).) Accordingly, a prevailing party seeking contractual attorney fees generally must apportion fees between claims supporting the recovery of attorney fees and those that do not. (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal. App. 4th 1582, 1603- 1604 (Amtower).) 8 But a litigant’s “joinder of causes of action should not dilute its right to attorney’s fees. Attorney’s fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed. All expenses incurred with respect to [issues common to all causes of action] qualify for award.” (Reynolds, supra, 25 crystalkeller@example.com. 129-130.) “Where fees are authorized for some causes of action in a complaint but not for others, allocation is a matter within the trial court's discretion.” (Amtower, supra, 158 Cal.App.4th at p. 1604; Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal. App. 4th 525, 555.) As the trial court observed, “[i]n challenges to the reasonableness of the number of hours billed, ‘it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence.’” (Premier Medical Management Systems, Inc. v. Caifornia Ins. Guarantee Assn. (2008) 163 Cal. App. 4th 550, 564 (Premier).) The Hafens challenge the number of hours the trial court awarded in every category it identified, and we examine each of these challenges in turn. B. Procedural Issues The Hafens challenge the hours the trial court grouped together as “procedural issues,” including mediation, status conferences, and telephone conferences with the client and opposing counsel. The court concluded it would “allow all time and fees requested by Mr. Picozzi, . . . since these things pertain to the entire case, and allocation is absolutely impossible.” The Hafens argue the court abused its discretion because “the billing statements for these procedural matters do not specify which issues were addressed at any of these proceedings.” Picozzi, however, pared inapplicable time 9 from his billing for each category and attested the remainder related to the Moshenko agreement or common issues. For example, he did not seek fees for 4.8 hours he spent in mediation and preparation for the mediation on the prescriptive easement claim, nor 1.2 hours researching issues related to the Meacher agreement, nor 2.1 hours related to a real estate agent’s alleged written disclosure of the Meacher agreement. He also explained Nielsen was a busy attorney herself and that most of the time he spent on the phone with her over the five years of litigation was devoted not to discussing particular legal issues, but rather to scheduling meetings, site visits, conferences, depositions, court dates, and other issues common to the entire case. Picozzi explained the same was true in his telephone conferences with opposing counsel. Picozzi nevertheless was able to specify that approximately five of the nearly 20 hours he spent on the phone with counsel and client did not pertain to scheduling or issues otherwise common to the Moshenko agreement, and therefore he did not seek fees for them. We observe that 15 billable hours on the telephone over five years of litigation does not seem incredible or inherently improbable. “The testimony of a single witness, even if that witness is a party to the case, may constitute substantial evidence,” and “a trial court’s credibility findings cannot be reversed on appeal unless that testimony is incredible on its face or inherently improbable.” (Consolidated Irrigation Dist. v. City of Selma (2012) 204 Cal. App. 4th 187, 201 (Consolidated); see, e.g., Diamond Woodworks, Inc. v. Argonaut Ins. Co. (2003) 109 Cal. App. 4th 1020, 1045 [where jury credited attorney’s testimony he apportioned fees and all were reasonable and necessary, “we do not reassess such matters”]; overruled on another ground in Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal. 4th 1159, 1182-1183.) Here, Picozzi’s declaration, billing statements, and explanation that he 10 pared some procedural fees and the rest were incurred on common issues all support the trial court’s award. In particular, the Hafens’ appellate challenge to the mediation fees illustrates the soundness of the trial court’s ruling. The Hafens complain that even after striking out numerous hours related to the mediation, Picozzi still billed 10.2 hours for mediation-related time though “the entire mediation took only eight hours” and Picozzi did not explicitly segregate time spent in the mediation on the Moshenko agreement or common issues. But the Hafens ignore the requisite preparation and travel time for mediation and, as they acknowledged below, “[t]ime relating to mediation is spent in settling the case, not litigating specific issues.” (Italics added.) The Hafens sought on this ground to deny Nielsen any fees for mediation, but the trial court reasonably could conclude the mediation — like the telephone calls and status conferences — was a procedural event that necessarily arose in litigating the claims the Hafens chose to assert, and therefore these procedural matters were common to all the claims. Put another way, Picozzi would have had to prepare for, travel to, and attend mediation even if the Hafens had only asserted a claim based on the fee-bearing Moshenko agreement, and therefore the scheduling and calls necessary to arrange these and other proceedings was common to all the claims. The trial court also reasonably could conclude it was purely speculative the mediation would have taken substantially less time had it only involved the Moshenko agreement. The gravamen of the Hafens’ suit was to preserve their unobstructed hilltop views, an objective common to all their claims, and the trial court therefore reasonably could conclude Nielsen was entitled to fees for time spent attempting to meet that objective in mediation. We discern no abuse of discretion. 11 C. TRO and Preliminary Injunction Efforts The Hafens contend the trial court erred in awarding Nielsen fees for 46.7 hours of her attorney’s time preparing for and defending against their efforts to obtain a temporary restraining order and preliminary injunction. The trial court inferred that because “this TRO was sought at the outset of the litigation, Plaintiffs would have used the existence of both agreements to show the existence of an easement. This is something which does not appear easy to allocate.” To the contrary, according to the Hafens, “the TRO and Preliminary Injunction motion dealt exclusively with the Meacher Agreement as it involved the exchange aspects of that agreement and Plaintiff’s right to use the property subject to the Meacher Agreement and only the Meacher Agreement.” They insist “it would have been a simple matter for Nielsen to attach a copy of the Hafens’ motion for TRO/Preliminary Injunction to support her claim the motion was based on ‘issues exclusive to either the fee allowing agreement or issues common to both agreements’ and that her attorney [properly] expended a whopping 46.7 hours defending those ‘intertwined’ claims . . . .” To illuminate and correct this asserted error, the Hafens request on appeal that we take judicial notice of their TRO and preliminary injunction motion, which they omitted in the record on appeal because they did not provide it to the trial court as a basis to reject Nielsen’s fee request. We decline the request for judicial notice because it would be inappropriate to receive new evidence on appeal to consider reversing the trial court based on evidence the Hafens omitted. Moreover, as noted, Picozzi’s declaration and billing statements averring the manner in which he spent his time constituted substantial evidence supporting the trial court’s award because it was for the trial court to evaluate his credibility. (Consolidated, supra, 204 Cal.App.4th at p. 201.) Because an 12 appellate court does not reweigh evidence in reviewing an attorney fee award (Weber v. Langholz (1995) 39 Cal. App. 4th 1578, 1587), we cannot say the trial court abused its discretion in awarding fees for the TRO and injunction motion based on Picozzi’s declaration. At oral argument on appeal, the Hafens insisted their TRO and injunction request was aimed predominantly at preserving the garden wall described in the Meacher agreement, and therefore did not implicate the Moshenko agreement, and the trial court should not have awarded fees. But they acknowledge in their opening brief that the TRO and injunction motion “involved the exchange aspects” of the Meacher agreement, which in turn was premised on keeping intact the Moshenko agreement’s view and land exchange provisions. The trial court therefore reasonably could infer the purpose of the garden wall was to safeguard these same view and land exchange interests. Thus, the strong demarcation the Hafens now draw between the Meacher agreement and the Moshenko agreement is not as impervious as they insist. Both agreements pertained primarily to the view easements created on the two parcels, and the Hafens themselves argued throughout the litigation that a prospective buyer considering the property would not be surprised at the existence of a view easement. In particular, they insisted circumstantial evidence common to both agreements put Nielsen on “inquiry notice” concerning a view easement. Under the Hafens’ theory of the case, a duty to inquire about a view easement arose in part from the proximity and layout of the parcels, the setting so suggestive of views as a priority, clues like the garden wall from which one might infer the mutual importance accorded the view, and the Hafens’ assertedly prescriptive activities to maintain their view. 13 While this manner of viewing the evidence did not persuade the court at trial that Nielsen actually received notice of either view agreement, the court in awarding fees reasonably could conclude Picozzi had to prepare to meet these arguments and that he reasonably did so from the outset of the case in opposing the TRO and preliminary injunction. In other words, the circumstantial evidence supporting the existence of a view easement, whether embodied in the Moshenko agreement or the Meacher agreement, was intertwined and common to both agreements. And the legal theory for enforcing both agreements — as an equitable servitude based on notice inherent in the property circumstances — was the same. The Hafens also expressly alleged the Moshenko agreement as an alternative basis for their complaint. Given these circumstances, the trial court reasonably could infer on the record before it that the Moshenko agreement was implicated in their TRO and injunction request to maintain the status quo on the property. The trial court therefore reasonably could conclude “[t]his is something which does not appear easy to allocate” in awarding fees. In any event, as noted, the trial court’s credibility determination on the parties’ competing declarations concerning the basis of the TRO and injunction motion suffices by itself to support the court’s fee award. D. Deposition Hours and Picozzi’s Credibility Generally The Hafens argue that because the trial court labeled as a mere “guess” Picozzi’s estimate he spent 70 percent of his 58 hours in deposition time on the Moshenko agreement or overlapping issues, the court should have denied these attorney fees altogether instead of awarding Nielsen nearly half — 25 hours. More generally, the Hafens argue the trial court should have taken a stricter view of Picozzi’s claims because it had not presided over the trial and because, for example, once Picozzi provided his 14 billing statements, he revised his initial fee request downwards, suggesting he was not credible in previously declaring his fee request reflected his best estimate of his allocation of time. These matters, however, were entirely within the trial court’s purview to decide. The Hafens point out the trial court is not bound to accept an attorney’s itemization of time spent in a billing affidavit (Hadley v. Krepel (1985) 167 Cal. App. 3d 677, 682), and that the court may “exercise its discretion in assigning a reasonable percentage to the entries, or simply cast them aside” (Bell v. Vista Unified School Dist. (2000) 82 Cal. App. 4th 672, 689). But these very quotations confirm the trial court’s discretion to weigh the evidence before it, including an attorney’s declarations and billing statements. These credibility determinations are for the trial court to decide and furnish no grounds for reversal. (Consolidated, supra, 204 Cal.App.4th at p. 201.) III DISPOSITION The trial court’s fee order is affirmed. Respondent is entitled to her costs on appeal. ARONSON, J. WE CONCUR: RYLAARSDAM, ACTING P. J. IKOLA, J. 15

Citation Nr: 0502617 Decision Date: 02/03/05 Archive Date: 02/15/05 DOCKET NO. 97-30 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. N. Bland, Associate Counsel INTRODUCTION The veteran served on active duty from June 1959 to May 1963. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied service connection for an acquired psychiatric disorder and hypertension. The veteran appeared and gave testimony before a decision review officer at the RO in July 2000. Due to a mechanical defect, only an incomplete transcript of the hearing is available. That transcript is associated with the claims file, and, the hearing officer who conducted the hearing has certified that it is correct. This appeal was remanded by the Board in June 2001 for additional development. The veteran appeared and gave testimony before the undersigned Veterans Law Judge at a central office hearing in December 2004. A transcript of that hearing is of record. By virtue of this decision, the issue of entitlement to service connection for hypertension is denied. The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The veteran does not have current hypertension. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active service, nor may hypertension be presumed to have been incurred in service. 38 U.S.C.A. §§ 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initial Matters: Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), and Pub. L. No. 108-183, §§ 701(a),(b); 117 Stat. 2651 (Dec. 16, 2003) (codified at 38 U.S.C.A. §§ 5102, 5103(b) (West 2004)), redefined VA's duty to assist a veteran in the development of a claim. The VCAA requires VA to notify claimants of the evidence needed to substantiate their claims, of what evidence they are responsible for obtaining, and of what evidence VA will undertake to obtain. 38 U.S.C.A. § 5103(a); See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a letter dated in November 2003, the RO notified the veteran of the evidence needed to substantiate his claim and offered to assist him in obtaining any relevant evidence. The letter gave notice of what evidence the veteran needed to submit and what the VA would try to obtain. The United States Court of Appeals for Veterans Claims' (Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. The notice in this case was provided after the initial decision. However, the Pelegrini remedy for delayed notice was a remand for the RO to provide the necessary notice. This remedy was essentially provided by the RO when it ultimately provided the required notice. The Pelegrini Court expressed the view that a VCAA notice letter consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must also inform the claimant tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. In the letter and SSOC, the RO informed the veteran of the evidence he needed to submit. The RO specifically requested that the veteran provide it with enough information about records to support his claim so that it could request them from the person or agency who has them. It appears that only limited service personnel records have been obtained. However, the National Personnel Records Center (NPRC) has reported that after an extensive and thorough search of the records among their holdings, they were unable to locate the personnel file requested. On the basis of the request presented to them, NPRC concluded that the records either do not exist, that they do not have them, or that further efforts to locate them at NPRC would be futile. VA has obtained all known treatment records. Although the veteran claims to have outstanding records from Drs. Crutchclaw and Castillo, several attempts to locate them , and obtain the veteran's records have been unsuccessful. There are no other identified outstanding records that could be relevant to the veteran's appeal for service connection. The veteran was afforded VA examinations in February 2004, February 2002, December 1998, May 1998, and May 1997. The Board finds that the veteran has been provided with the required notice and that all indicated development has been completed. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist him in the development of the claim. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227 (2000). Pertinent Criteria Service connection will be granted if the evidence establishes that a disability was incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Notwithstanding the lack of a diagnosis in service, service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); see also Cosman v. Principi, 3 Vet App. 503, 505 (1992). Direct service connection requires medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). Hypertension that manifests to a compensable degree within one year of service discharge will be presumed to have been incurred in service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), it was observed that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis For purposes of VA compensation, VA has defined hypertension as diastolic blood pressure predominantly 90 mm. or more, and isolated systolic hypertension systolic blood pressure as systolic pressure predominantly 160 mm. or more and diastolic blood pressure less than 90 mm. 38 C.F.R. § 4.104, Note 1, following Diagnostic Code 7101 (2004). The Court has held that in order for hypertension to be shown as a current disability, it must be present to the minimum compensable degree under the rating schedule. Cox v. Brown, 5 Vet. App. 95, 99 (1993); Rabidueau v. Derwinski, 2 Vet. App. 141, 143 (1992). A March 1959 report of medical history for the Naval Academy indicates that the veteran had a blood pressure reading of 126/82 sitting, 124/80 recumbent, and 132/84 standing. However, it was determined that the veteran was not qualified for appointment to the U.S. Naval Academy due to his dental defects and diseases. In his June 1959 enlistment examination, the veteran denied ever having high or low blood pressure. His blood pressure was reported as 142/64 sitting and 126/70. The veteran was qualified for enlistment. In July 1959, the veteran had another examination for entry into the Naval Preparatory School. He denied having high or low blood pressure. His blood pressure was reported as 176/88 sitting, 136/80 and 140/86. It was noted under the section for summary of defects and diagnoses that the veteran had persistent high blood pressure. It was determined that the veteran was not qualified for entrance to the Naval Preparatory School due to his blood pressure. In August 1959, the veteran's blood pressure was monitored for a period of 5 days. Systolic readings ranged from 120 to 186, and diastolic readings ranged from 78 to 98. In October 1959, the veteran had blood pressure readings of 150/90 and 160/100. A Naval doctor opined that the veteran's blood pressure was probably labile in nature with the veteran reacting to the compression of the blood pressure cuff, though the degree of elevation at which his blood pressure had read would be disqualifying for the Naval Academy. The veteran's May 1963 separation examination indicates that his sitting blood pressure was 110/68. Post-service medical records show no hypertension. In September 1991, the veteran underwent a cardiac examination by A. A. Mayer, M.D. The electrocardiograph (ECG) showed a normal sinus rhythm. His blood pressure was not reported. The veteran was afforded a VA cardiac examination in May 1998. The examiner performed a chest X-ray, ECG, thallium stress test, and treadmill stress test. Considering the evidence of the ECG and stress test, the examiner concluded that there was no current evidence for hypertensive heart disease, though there was good probability of coronary artery disease. The examiner diagnosed a history of labile hypertension, but no current evidence of hypertension or hypertensive heart disease, and arteriosclerotic heart disease. The veteran was again afforded a VA cardiac examination in February 2004. The examiner concluded that the veteran did not have chronic hypertension, nor was disabling hypertension manifested between 1963 and 1964. The examiner commented that although the veteran had an episode of elevated blood pressure in October 1959, shortly after entering service, subsequent blood pressures were all normal, and there was no evidence of chronic hypertension after discharge from the service. In the absence of a diagnosis of a current condition, service connection is not warranted. Degmetich v. Brown, 104 F.23d 1328 (1997). In this case the veteran has had no reported elevated blood pressure readings since service, and hypertension has not been currently diagnosed. In the absence of a showing of current disability, the Board must conclude that hypertension was not incurred in or aggravated by service. As the preponderance of the evidence is against the claim for service connection for hypertension, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER Service connection for hypertension is denied. REMAND In June 2004, a statement was submitted by J. A. M., a psychiatric nurse who knew the veteran off and on as a friend over the past 45 years. She recalled that the veteran was already somewhat egocentric and displayed occasional odd thought patterns and erratic behaviors while he was in high school. She stated that it was now obvious to her that the veteran was beginning to demonstrate early bipolar symptoms in high school, especially some hypomanic episodes. Based on the age that bipolar disorder usually becomes apparent in males, she also stated that she was sure that the post- service behavior that she witnessed in the veteran in 1971 was already present in 1961, which was while the veteran was in service. It is her opinion that while the Navy is not responsible for the veteran's bipolar disorder, it was exacerbated while he was in service. The opinion of J. A. M. had not been submitted at the time of the veteran's February 2004 VA psychiatric examination. Because the VA examiner did not have the opportunity to review this opinion in February 2004, the Board finds that new medical opinion is needed. 38 U.S.C.A. § 5103A(d). Accordingly, this case is REMANDED for the following action: 1. The veteran's claims folder should be referred to the examiner who conducted the February 2004 examination. The examiner should acknowledge review of the claims folder in an addendum to the February 2004 examination report. The examiner should give an opinion as to whether the June 2004 opinion of J. A. M. alters any findings or opinions reported on the February 2004 examination. In providing this opinion, the examiner is asked to address whether the veteran has a psychiatric disorder, to include the bipolar disorder, that existed prior to his period of active duty service from June 1959 to May 1963. If so, the examiner is asked to address whether there was any increase in severity during service and; if so, whether such was beyond the natural progression of the disease. If the examiner who conducted the February 2004 examination is unavailable, another qualified medical professional may furnish the necessary review and opinion. 2. The AMC or RO should then readjudicate the claim, and if it remains denied, issue a supplemental statement of the case. If otherwise in order, the claims folder should then be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

Digitally signed by Reporter of Decisions Reason: I attest to the Illinois Official Reports accuracy and integrity of this document Supreme Court Date: 2018.02.09 15:14:44 -06'00' Aspen American Insurance Co. v. Interstate Warehousing, Inc., 2017 IL 121281 Caption in Supreme ASPEN AMERICAN INSURANCE COMPANY, Appellee, v. Court: INTERSTATE WAREHOUSING, INC., Appellant. Docket No. 121281 Filed September 21, 2017 Decision Under Appeal from the Appellate Court for the First District; heard in that Review court on appeal from the Circuit Court of Cook County, the Hon. John P. Callahan, Jr., Judge, presiding. Judgment Appellate court judgment reversed. Circuit court judgment reversed. Cause remanded with directions. Counsel on Kimberly A. Jansen, of Hinshaw & Culbertson LLP, of Chicago, for Appeal appellant. Timothy S. McGovern and Daniel G. Wills, of Swanson, Martin & Bell, LLP, of Chicago, for appellee. Craig H. Zimmerman and Michael W. Weaver, of McDermott Will & Emery LLP, Michele Odorizzi, Richard F. Bulger, and Gary A. Isaac, of Mayer Brown LLP, and Tobin J. Taylor, of Heyl, Royster, Voelker & Allen, P.C., all of Chicago, for amici curiae Certainteed Corporation et al. Leslie J. Rosen, of Illinois Trial Lawyers Association, of Chicago, and Jeffrey White, of American Association for Justice, of Washington, D.C., amicus curiae. Justices JUSTICE BURKE delivered the judgment of the court, with opinion. Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Garman, and Theis concurred in the judgment and opinion. OPINION ¶1 The plaintiff, Aspen American Insurance Company, filed a complaint in the circuit court of Cook County in which it alleged that the roof of a Michigan warehouse owned by the defendant, Interstate Warehousing, Inc., had collapsed, causing the destruction of goods owned by plaintiff’s insured, Eastern Fish Company. Defendant, an Indiana corporation, moved to dismiss the complaint for lack of personal jurisdiction pursuant to Daimler AG v. Bauman, 571 U.S. ___, 134 S. Ct. 746 (2014). The circuit court denied the motion, and a divided appellate court affirmed. 2016 IL App (1st) 151876. For the reasons that follow, we reverse the judgments of the lower courts. ¶2 Background ¶3 Plaintiff’s complaint alleges the following. Eastern Fish Company (Eastern) is a New Jersey-based corporation that sources and imports fish products. In 2013, Eastern contracted with defendant to store some of its fish products in a refrigerated warehouse near Grand Rapids, Michigan. On March 8, 2014, part of the warehouse’s roof collapsed, causing ruptured gas lines and an ammonia leak. The leak contaminated the fish products that were stored in the warehouse, rendering them unfit for human consumption. Plaintiff, which insures Eastern, paid Eastern’s claim for the loss and, in exchange, received subrogation rights. ¶4 On July 14, 2014, plaintiff filed this subrogation action against defendant in the circuit court of Cook County. Plaintiff’s complaint sets forth various causes of action, including breach of contract and negligence, and asserts that defendant is responsible for the loss of Eastern’s fish products. The complaint also alleges that defendant “maintain[s] a facility in or near Chicago.” ¶5 Attached to plaintiff’s complaint are several documents: a series of letters between defendant and Eastern’s attorneys in which the roof collapse is discussed, a copy of the warehousing contract between defendant and Eastern, and a printout of the masthead from defendant’s website. The letterhead of defendant’s correspondence and the warehousing contract both state that defendant’s corporate office is located in Fort Wayne, Indiana. In addition, the letterhead, contract, and website masthead all contain a list of eight warehouses operated by defendant throughout the country. These include the Michigan warehouse that is at issue in this case; a warehouse in Joliet, Illinois; two warehouses in Indiana; and other warehouses in Colorado, Ohio, Tennessee, and Virginia. -2- ¶6 Defendant filed a motion to quash service and dismiss plaintiff’s complaint for lack of personal jurisdiction pursuant to section 2-301 of the Code of Civil Procedure (735 ILCS 5/2-301 (West 2012)). In the motion, defendant did not dispute that it was doing business in Illinois through the warehouse located in Joliet. However, defendant asserted that this was insufficient to subject it to general personal jurisdiction in Illinois. Rather, according to defendant, under the United States Supreme Court’s decision in Daimler AG v. Bauman, 571 U.S. ___, 134 S. Ct. 746 (2014), plaintiff was required to show that defendant is domiciled or “at home” in Illinois in order to establish jurisdiction. Defendant maintained that plaintiff had not met this standard. ¶7 Attached to defendant’s motion to dismiss were an affidavit from Jeff Hastings, defendant’s chief financial officer, and Ryan Shaffer, the general manager of the Joliet warehouse. In his affidavit, Hastings states that defendant is an Indiana corporation with its principal place of business in Fort Wayne, Indiana. Hastings further states that defendant is “a 75% member of” Interstate Warehousing of Illinois, LLC, a limited liability company organized under Indiana law, which also maintains its principal place of business in Fort Wayne, Indiana. According to Hastings’s affidavit, Interstate Warehousing of Illinois “operates” the Joliet warehouse, while Ryan Shaffer, an employee of defendant, is the general manager. In his affidavit, Ryan Shaffer confirms that he is the general manager of the Joliet warehouse, is responsible for its day-to-day operations, and is employed by defendant. ¶8 Plaintiff filed a response to defendant’s motion to dismiss in which it argued that, because defendant was doing business in Illinois through the Joliet warehouse, it was subject to general personal jurisdiction in this state. According to plaintiff, defendant could, therefore, be sued on causes of action unrelated to its activities in Illinois. Included with plaintiff’s response was a printout of a “corporation file detail report” from the Illinois Secretary of State’s website. The report indicates that defendant is an Indiana corporation that has been registered to do business in Illinois since 1988. Plaintiff submitted no further filings in the circuit court and made no discovery requests.1 ¶9 Following a hearing at which no testimony was taken, the circuit court denied defendant’s motion to dismiss. The appellate court affirmed. 2016 IL App (1st) 151876. The appellate court concluded that plaintiff had made a prima facie showing of general personal jurisdiction and that defendant had failed to overcome this showing with contrary evidence. Justice Lampkin dissented, finding that, in light of Daimler, plaintiff had failed to make a prima facie showing of jurisdiction. Id. ¶¶ 64-72 (Lampkin, J., dissenting). ¶ 10 We allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Mar. 5, 2016). In addition, we allowed the Illinois Trial Lawyers Association and the American Association for Justice to file a joint amicus curiae brief in support of plaintiff, and we allowed Certainteed Corporation, Honeywell International, Inc., and Union Carbide Corporation to file a joint amicus curiae brief in support of defendant. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). 1 Under Illinois Supreme Court Rule 201(l) (eff. July 1, 2014), the parties have the right to discovery on the issue of personal jurisdiction. Jurisdictional discovery is warranted only when it is shown that the requested discovery is “relevant to the subject matter” (Ill. S. Ct. R. 201(b)(1) (eff. July 1, 2014)) of personal jurisdiction. -3- ¶ 11 Analysis ¶ 12 The plaintiff has the burden of establishing a prima facie basis to exercise personal jurisdiction over a nonresident defendant. Russell v. SNFA, 2013 IL 113909, ¶ 28 (citing Wiggen v. Wiggen, 2011 IL App (2d) 100982, ¶ 20). Where, as here, the circuit court has determined that the plaintiff has met its burden based solely on documentary evidence, our review is de novo. Id. On review, any conflicts in the pleadings and supporting affidavits will be resolved in the plaintiff’s favor, but uncontradicted evidence offered by the defendant may defeat jurisdiction. Id. ¶ 13 In Illinois, the exercise of personal jurisdiction over nonresident defendants is authorized under the “long-arm” statute found in section 2-209 of the Code of Civil Procedure (735 ILCS 5/2-209 (West 2012)). Plaintiff contends that subsection (c) of the statute supports a finding of jurisdiction here. That provision states that a court may exercise jurisdiction on any “basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States.” 735 ILCS 5/2-209(c) (West 2012). Thus, to determine whether jurisdiction is appropriate under subsection (c), we must consider the constitutional limits placed on a state’s authority to exercise jurisdiction over a nonresident defendant. Because defendant in this case does not argue that the Illinois Constitution imposes any greater restraints on the exercise of jurisdiction than the federal constitution, we consider only federal constitutional principles. Russell, 2013 IL 113909, ¶ 33. ¶ 14 The United States Supreme Court has held that the federal due process clause permits a state court to exercise personal jurisdiction over a nonresident defendant only when the defendant has “certain minimum contacts with [the state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). Two types of personal jurisdiction are subject to the due process analysis: specific and general. Specific jurisdiction is case-specific. That is, specific jurisdiction exists when the plaintiff’s cause of action arises out of or relates to the defendant’s contacts with the forum state. Russell, 2013 IL 113909, ¶ 40 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)). In contrast, general jurisdiction is all-purpose. Where general jurisdiction exists, the plaintiff may pursue a claim against the defendant even if the conduct of the defendant that is being challenged occurred entirely outside the forum state. Id. ¶ 36 (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011)). In this case, plaintiff does not complain of any conduct committed by defendant in Illinois. Thus, only general jurisdiction is at issue here. ¶ 15 Plaintiff maintains that, “consistent with U.S. Supreme Court decisions” interpreting the federal due process clause, a state may exercise general jurisdiction over a defendant “where the defendant has continuous and systematic general business contacts with the forum state.” Therefore, according to plaintiff, to establish a prima facie case of general jurisdiction under subsection (c) of the long-arm statute, a plaintiff need only “show a defendant’s continuous and substantial business activity in Illinois.” Plaintiff emphasizes that, in this case, defendant’s “Illinois contacts are not tenuous or random, but have been continuous and systematic for over twenty-five years.” For this reason, plaintiff asserts that defendant may be subjected to general personal jurisdiction in this state. We disagree. -4- ¶ 16 In Daimler AG v. Bauman, 571 U.S. ___, 134 S. Ct. 746 (2014), the United States Supreme Court held that the due process analysis for general personal jurisdiction does not rest simply on “whether a foreign corporation’s in-forum contacts can be said to be in some sense ‘continuous and systematic.’ ” Id. at ___, 134 S. Ct. at 761 (quoting Goodyear, 564 U.S. at 919). Such a standard, the Court explained, is “unacceptably grasping.” Id. at ___, 134 S. Ct. at 760. Instead, the Court held that, under the federal due process clause, “ ‘[a] court may assert general jurisdiction over [a] foreign *** corporation[ ] to hear any and all claims against [it] when [its] affiliations with the State are so “continuous and systematic” as to render [it] essentially at home in the forum State.’ ” (Emphasis added.) Id. at ___, 134 S. Ct. at 754 (quoting Goodyear, 564 U.S. at 919); see also, e.g., BNSF Ry. Co. v. Tyrrell, 581 U.S. ___, ___, 137 S. Ct. 1549, 1558 (2017); Brown v. Lockheed Martin Corp., 814 F.3d 619, 626-27 (2d Cir. 2016); Kipp v. Ski Enterprise Corp. of Wisconsin, Inc., 783 F.3d 695, 698 (7th Cir. 2015) (Daimler “raised the bar” for general jurisdiction); Sonera Holding B.V. v. Çukurova Holding A.Ş., 750 F.3d 221, 226 (2d Cir. 2014) (Daimler makes “clear that even a company’s ‘engage[ment] in a substantial, continuous, and systematic course of business’ is alone insufficient to render it at home in a forum” (quoting Daimler, 571 U.S. at ___, 134 S. Ct. at 761)); State ex rel. Norfolk Southern Ry. Co. v. Dolan, 512 S.W.3d 41, 51 n.6 (Mo. 2017) (noting Daimler’s “rejection of doing business as a basis for jurisdiction”); Barrett v. Union Pacific R.R. Co., 390 P.3d 1031, 1040 (Or. 2017) (same); ClearOne, Inc. v. Revolabs, Inc., 2016 UT 16, ¶ 42, 369 P.3d 1269 (same). ¶ 17 The Supreme Court went on to explain in Daimler that the “paradigm” forums in which a corporate defendant is “essentially at home” are the corporation’s place of incorporation and its principal place of business. Daimler, 571 U.S. at ___, 134 S. Ct. at 760. The Court further noted that, in an “exceptional case,” a corporate defendant’s activities in a forum outside its place of incorporation or principal place of business “may be so substantial and of such a nature as to render the corporation at home in that State.” Id. at ___ n.19, 134 S. Ct. at 761 n.19. To illustrate what it meant by an “exceptional case,” the Supreme Court pointed to Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 (1952). Daimler, 571 U.S. at ___ n.19, 134 S. Ct. at 761 n. 19. In that case, the defendant corporation was forced to relocate temporarily from the Philippines to Ohio because of World War II. Perkins, 342 U.S. at 447-48. Ohio was thus “the center of the corporation’s wartime activities” and, effectively, a “ ‘surrogate for the place of incorporation or head office.’ ” Daimler, 571 U.S. at ___ n.8, 134 S. Ct. at 756 n.8 (quoting Arthur T. von Mehren & Donald T. Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1144 (1966)). As such, the defendant corporation was subject to general jurisdiction in that state. Perkins, 342 U.S. at 448. ¶ 18 Accordingly, in this case, to comport with the federal due process standards laid out in Daimler and, in doing so, comply with subsection (c) of the long-arm statute, plaintiff must make a prima facie showing that defendant is essentially at home in Illinois. This means that plaintiff must show that defendant is incorporated or has its principal place of business in Illinois or that defendant’s contacts with Illinois are so substantial as to render this an exceptional case. Plaintiff has failed to make this showing. ¶ 19 Plaintiff does not dispute that defendant is incorporated in Indiana and Hastings’s uncontradicted affidavit establishes that defendant’s principal place of business is in Indiana. Further, plaintiff’s complaint does not allege, and there is nothing in the record to suggest, that this is an exceptional case on the order of Perkins. To be sure, plaintiff has established that -5- defendant does business in Illinois through the warehouse in Joliet. But this fact falls far short of showing that Illinois is a surrogate home for defendant. Indeed, if the operation of the warehouse was sufficient, in itself, to establish general jurisdiction, then defendant would also be at home in all the other states where its warehouses are located. The Supreme Court has expressly rejected this reasoning. Daimler, 571 U.S. at ___ n.20, 134 S. Ct. at 762 n.20 (“[a] corporation that operates in many places can scarcely be deemed at home in all of them”); see also, e.g., Brown, 814 F.3d at 629 (the plaintiff failed to establish an exceptional case under Daimler where the defendant’s contacts in the forum state did not establish a “ ‘surrogate principal place of business’ ”); Kipp, 783 F.3d at 698 (noting Daimler’s “stringent criteria” for establishing general jurisdiction); Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 (9th Cir. 2014) (“Daimler makes clear the demanding nature of the standard for general personal jurisdiction over a corporation”); Monkton Insurance Services, Ltd. v. Ritter, 768 F.3d 429, 432 (5th Cir. 2014) (under Daimler, it is “incredibly difficult to establish general jurisdiction in a forum other than the place of incorporation or principal place of business”). ¶ 20 Plaintiff has failed to show that defendant’s contacts with Illinois render it at home in this state. To subject defendant to general personal jurisdiction would therefore deny it due process of law. Accordingly, jurisdiction is not authorized under subsection (c) of the long-arm statute. ¶ 21 Plaintiff also notes, however, that subsection (b)(4) of the long-arm statute authorizes a court to exercise jurisdiction in any action arising within or without Illinois against any defendant “doing business within this State.” 735 ILCS 5/2-209(b)(4) (West 2012). Plaintiff asserts that jurisdiction in this case is authorized under this provision. We reject this contention. In light of Daimler, subsection (b)(4) cannot constitutionally be applied to establish general jurisdiction where, as here, there is no evidence that defendant’s contacts with Illinois have rendered it “essentially at home” in this state. ¶ 22 Finally, plaintiff argues that, because defendant has registered to do business in Illinois under the Business Corporation Act of 1983 (Act) (805 ILCS 5/1.01 et seq. (West 2012)), and because defendant has a registered agent in Illinois for service of process, it has “subjected itself to the jurisdiction and laws of Illinois.” That is, plaintiff maintains that, by registering to do business in Illinois, defendant has effectively consented to the exercise of general jurisdiction in this state and thereby obviated any due process concerns. Again, we disagree. ¶ 23 Section 13.05 of the Act states that “a foreign corporation organized for profit, before it transacts business in this State, shall procure authority so to do from the Secretary of State.” 805 ILCS 5/13.05 (West 2012). Section 13.15 of the Act (805 ILCS 5/13.15 (West 2012)) lists the requirements that must be met and information that must be provided before authorization is approved. The Act also requires, under section 5.05 (805 ILCS 5/5.05 (West 2012)), that each foreign (and domestic) corporation having authority to transact business in Illinois maintain a registered office and registered agent in this state. In addition, section 5.25 of the Act (805 ILCS 5/5.25 (West 2012)) states that a foreign corporation having authority to transact business in Illinois may be served with process either upon the registered agent appointed by the corporation or upon the Secretary of State. ¶ 24 None of the foregoing provisions require foreign corporations to consent to general jurisdiction as a condition of doing business in Illinois, nor do they indicate that, by registering in Illinois or appointing a registered agent, a corporation waives any due process limitations on this state’s exercise of general jurisdiction. Indeed, the Act makes no mention of personal -6- christinacarlson@example.org. Accord Surita v. AM General LLC, No. 15 C 7164, 2015 WL 12826471, at *3 (N.D. Ill. 2015) (the Act “does not contain a provision with jurisdictional consent language” (emphasis in original)). ¶ 25 Further, section 5.25(a) of the Act states that service on the registered agent of a foreign corporation is for that process, notice or demand that is “required or permitted by law.” 805 ILCS 5/5.25(a) (West 2012). This phrase indicates “some limitation in accordance with law.” Brown, 814 christinacarlson@example.org. There is no basis for excluding constitutional due process limitations from an inquiry into what is “permitted by law.” Id. at 636-37. ¶ 26 Plaintiff points to section 13.10 of the Act (805 ILCS 5/13.10 (West 2016)). This provision states that a foreign corporation “shall be subject to the same duties, restrictions, penalties, and liabilities now or hereafter imposed upon a domestic corporation of like character.” Id. Plaintiff suggests that this provision supports a finding of jurisdiction. However, as defendant observes, a duty is a “legal obligation that is owed or due to another.” Black’s Law Dictionary 615 (10th ed. 2014). Personal jurisdiction is not a duty but, instead, “refers to the court’s power ‘ “to bring a person into its adjudicative process.” ’ ” People v. Castleberry, 2015 IL 116916, ¶ 12 (quoting Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 334 (2002), quoting Black’s Law Dictionary 870 (8th ed. 2004)). Thus, the fact that a foreign corporation registered to do business in Illinois is subject to the same duties as a domestic one in no way suggests that the foreign corporation has consented to general jurisdiction. ¶ 27 Under the Act, a foreign corporation must register with the Secretary of State and appoint an agent to accept service of process in order to conduct business in Illinois. We hold, however, that in the absence of any language to the contrary, the fact that a foreign corporation has registered to do business under the Act does not mean that the corporation has thereby consented to general jurisdiction over all causes of action, including those that are completely unrelated to the corporation’s activities in Illinois. Notably, other courts have reached similar conclusions. See, e.g., Perez v. Air & Liquid Systems Corp., No. 3:16-CV-00842-NJR-DGW, 2016 WL 7049153, at *6-9 (S.D. Ill. 2016) (interpreting the Act); Brown 814 F.3d at 641 (interpreting Connecticut law); Genuine Parts Co. v. Cepec, 137 A.3d 123 (Del. 2016) (Delaware law). ¶ 28 Conclusion ¶ 29 For the foregoing reasons, the judgments of the appellate and circuit courts are reversed. The cause is remanded to the circuit court to enter judgment dismissing plaintiff’s complaint. ¶ 30 Appellate court judgment reversed. ¶ 31 Circuit court judgment reversed. ¶ 32 Cause remanded with directions. -7-

The Equitable Loan Security Company recovered a judgment against the defendant, Town of Edwardsville, a municipal corporation, in the county court of Cleburne county, on the 18th day of October, 1900, in the sum of eight hundred, three and 43/100 dollars. On the 1st day of April, 1902, an execution was issued, on the judgment, and was, on the 31st day of July, 1902, levied on a. stock of spirituous and malt liquors, as the property of the Town of Edwardsville. On August 1st, 1902, the defendant filed a motion to vacate the levy made under the execution, upon the ground that the property levied on was property used by the defendant in its corporate capacity for municipal *Page 184 purposes, in that said property was used in the conduct of a dispensary under an art of the legislature, approved February 18th". 1899). The act referred to is entitled, "An Act to authorize municipal and other subdivisions of the State to buy and sell spirituous, vinous or malt liquors, and to further regulate or prohibit the sale of such liquors," and is found in the general acts of the legislature, session 1898-99, at page 108. It is alleged in the motion that the dispensary was conducted and carried on at a profit for the purpose of raising revenue, and the revenue arising" from it was used exclusively for municipal purposes, and that the revenue so derived was necessary to pay the ordinary municipal expenses of the defendant. The plaintiff moved to strike the motion to vacate the levy and also demurred to it, the motion and demurrer were overruled, and the court rendered judgment in favor of the defendant, vacating the levy. The question now presented for our determination is whether a stock of spirituous, vinous and malt liquors, owned and used by a municipality as stock in trade in conducting and carrying on a dispensary, is property used for municipal purposes in such sense, as will, under § 2040 of the Code of 1896, exempt it from levy and sale under execution issued on a judgment obtained against the municipality. "Municipal corporations are created for public, governmental and political purposes and it is a corollary of this proposition, that all property, of whatever nature, held by them in trust for carrying out such purposes, should be exempt from seizure and sale under execution." Tiedman on Municipal Corporations, § 375, p. 765. The doctrine as laid down by Mr. Dillon has been approved by this Court, in the case of Mayor and Aldermen of Birmingham v.[ILLEGIBLE TEXT] Co., 03 Ala. 352. Judge Stone, in the case cited, uses this language, "We do not hesitate to declare, that city property, owned or used by the corporation for public purposes, such as public buildings, public markets, hospitals, cemeteries, enginehouses, fire engines and their apparatus, and other property, real or persona.], of kindred utility, cannot be taken in execution for debts of the city. But, if the city owns *Page 185 private property, not useful or used for corporate purposes, such property may be seized and sold under final process, precisely as similar property of individuals is seized and sold." In the second edition of the Am. Eng. Eney. Law, on page 1190, the law is thus stated: "So the property of a municipal corporation which is essentially public in its nature and is held in trust for the public by the corporation, and is necessary for the exercise of its proper municipal functions, cannot be sold to satisfy the debts of the corporation. But the private property of a municipality, held for purposes of income or sale, unconnected with any governmental use or function, may be levied on and sold to satisfy a judgment rendered against the municipal corporation." The act of the legislature above referred to, and under which the dispensary was established and conducted by the defendant in this case, has undergone judicial construction by this Court, and was upheld. — Sheppard v. Doucling, 127 Ala. 52. In the case cited above, the Court held that, "A power conferred upon a corporation by an independent and original act, such as the power to buy and sell liquor conferred by this act, is a power conferred by its charter." The dispensary act, referred to above and under which the defendant was operating the dispensary, provides, "That each incorporated town or city, in which the sale of liquor is not prohibited by law, shall have authority to conduct and carry on its corporate name, in its corporate capacity, and through its legislative body, the business of buying and selling spirituous, vinous and malt liquors, subject to the restrictions hereinafter mentioned." The act further provides that the municipality shall invest in said business a sum of money not less than three hundred nor more than twenty-five hundred dollars, for each dispensary it may carry on. This Court held in the Sheppard Dowling case, supra, that it was entirely competent: for the General Assembly to authorize towns and counties to carry on the liquor traffic as an incident to the regulation of that traffic provided by this act. Under the provisions of the act, the *Page 186 defendant was not compelled or required to establish dispensary, but was given authority to do so. When, in compliance with the provisions of the act, it did establish a dispensary, it did so in its corporate name, in its corporate capacity, and through its legislative body, and in that name, that capacity and through that body only, could the dispensary he legitimately conducted. We have seen that, when the municipality established a dispensary, it had the power, and it was made its duty, by the law under which the dispensary was established, to provide the dispensary with a stock of liquors. A dispensary could not, he conducted and carried on without the liquors, and when the liquors were purchased they could not have been held by the municipality for any other legitimate purpose than for the carrying on of a dispensary. That the regulation of the sale of intoxicating liquors is within the police power of the State cannot be doubted, for it is established, if not literally by all the cases where the subject has been considered, certainly by an overwhelming array of authority, and the question has been put at rest by this Court. Further, "It belongs to the legislative department in the exercise of the police powers of the State, to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety, subject to the power of the courts to adjudge whether any particular law is an invasion of rights secured by the Constitution." We think it is well settled that the legislature in dealing with the sale of intoxicating liquors is fulfilling a public duty; that it is striving to promote the health, safety and morals of the community; that, in the establishment of the dispensary, it constitutes a public object, use, or purpose, in the promotion of which public money may be lawfully invested and expended. When the legislature determined that the traffic should be regulated by the establishment of dispensaries, and conferred on municipalities the charter power to carry on dispensaries for the sale of intoxicating liquors, and the dispensary was established by the town, *Page 187 we think the town in carrying on the dispensary would be in the exercise of a governmental function, the primary purpose of which should be, and would be, to so regulate the sale and use of ardent spirits in the community as to promote the health, safety, and morals of its people. And certainly the public would be interested in an instrumentality that in its operation would tend to the accomplishment of such an object. — Mitchell v. Slate,134 Ala., on page 408. We have seen that the liquors supplied by the town to the dispensary were necessary for the carrying on of the dispensary, and that the dispensary was a public or municipal concern, a governmental function; it would seem to follow therefore, that the stock of liquors would be held in trust by the municipality for use in which the public is concerned, its welfare promoted and the functions of government discharged. It seems to us, that, the power having been legitimately conferred upon the municipality to carry on the dispensary, and that it is an instrumentality in the operation of which the public is interested, to allow the property necessary in carrying on the dispensary to be subjected to levy and sale, might in many instances [ILLEGIBLE TEXT] the purpose of the legislature in conferring the power on municipalities to establish and carry on dispensaries, and would deprive the public of the beneficent results which were contemplated would flow from the operation of dispensaries. It is strenuously insisted in this case, by appellant, that the dispensary was run for profit and a source of revenue to the town, and that therefore it is not exempt from levy and sale, and that the motion avers that the dispensary was run at a profit and that it was put in the treasury and constituted a part of the municipal revenues. We must not. forget the purpose for which the dispensary was established. The operation of a dispensary may result in profit or loss according as it is discreetly or unwisely managed. It seems that the legislature contemplated that there might be profits, or losses, as the dispenser is required by the art to make reports to the legislative body of all profits and losses. *Page 188 If in carrying on the dispensary there arose profits from the sale of the liquors, this would be a mere incident of the business engaged in, or a natural result from good business management. But it cannot be said to follow, that profits would withdraw from the property its true character and convert if into property held for purposes of income or sale disconnected from any corporate use or function. Our conclusion is that the property levied on was used for municipal purposes, within the meaning of § 2040 of the Code, and that there is no error in the ruling of the court below prejudicial to the plaintiff. The county court properly granted the motion to vacate the levy. The judgment of the county court is affirmed. Affirmed. McCLELLAN, C. J., [ILLEGIBLE TEXT] and DOWDELL, J.J., concurring. *Page 4

AO 245B (Rev. 05/15/2018) Judgment in a Criminal Petty Case (Modified) Page 1 of 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA United States of America JUDGMENT IN A CRIMINAL CASE v. (For Offenses Committed On or After November 1, 1987) MIGUEL ANGEL LOPEZ-MUNIZ Case Number: 19CR3116-KSC FEDERAL DEFENDERS Defendant’s Attorney REGISTRATION NO. 75983298 THE DEFENDANT: ☒ pleaded guilty to count(s) 1 of the Superseding Information ☐ was found guilty to count(s) after a plea of not guilty. Accordingly, the defendant is adjudged guilty of such count(s), which involve the following offense(s): Title & Section Nature of Offense Count Number(s) 8:1325 IMPROPER ENTRY BY AN ALIEN (Misdemeanor) 1 ☐ The defendant has been found not guilty on count(s) ☒ Count(s) UNDERLYING dismissed on the motion of the United States. IMPRISONMENT The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of: 92 DAYS ☒ Assessment: $10 WAIVED ☒ Fine: WAIVED ☒ Court recommends USMS, ICE or DHS or other arresting agency return all property and all documents in the defendant’s possession at the time of arrest upon their deportation or removal. IT IS ORDERED that the defendant shall notify the United States Attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant shall notify the court and United States Attorney of any material change in the defendant's economic circumstances. October 17, 2019 Date of Imposition of Sentence HONORABLE KAREN S. CRAWFORD UNITED STATES MAGISTRATE JUDGE 

The appellant was convicted of aggravated assault and his punishment assessed at thirty days' confinement in the county jail. This case was tried on June 21, 1920; motion for new trial was overruled on June 29, and sixty days from the adjournment given in which to file statement of facts and bills of exceptions. Court adjourned July 10, 1920. On September 8th appellant requested and was granted an extension of fifteen days time in which to file his statement of facts and bills of exception, which would have carried it to September 23, 1920. No bills of exception or statement of facts appear in the record even up to this time. The transcript was certified to by the clerk on February 4, 1921 and filed in this court on February 5, 1921; only lacking five days of being seven months from the adjournment of the trial court to the filing of the record in this court. The delay in filing appeal records in this court is unpardonable, and such delay ought not to occur. The complaint, information and judgment in the case appearing to be regular, and there being nothing subject to review by this court in the absence of a statement of facts or bills of exception, the judgment of the trial court is affirmed. Affirmed.

The opinion of the court of appeals as a predicate for the admissibility of the testimony going to show what subsequently occurred between the defendant and Mrs. Outlaw, states: "The prosecutrix testified that the defendant approached her on the streets of Birmingham and invited her to go with him for an automobile ride. She reluctantly accepted, but did get in his car. Finally the appellant stopped the car on a by-road several miles out. There the defendant told her that he had previously lost a bracelet. After some casual search for the article which he claimed he lost, the accused began to make improper advances to her, accompanied with threats to do her bodily harm unless she acceded to his demands to have sexual intercourse. After much dissuasion on her part, the defendant abandoned his asserted aim and carried her back to the city. * * *" This predicate is sufficient to justify a review of the ruling of the court of appeals which holds that the testimony is competent evidence. Birmingham Southern. Ry. Co. v. Goodwyn,202 Ala. 599, *Page 181 81 So. 339; Reichert Milling Co. v. George, 230 Ala. 3,162 So. 393. There is nothing in the circumstances stated tending to show that the defendant entertained the intent to ravish the prosecutrix. She was within his power and his "aim", whatever it may have been, was not frustrated or interrupted by any outside event or occurrence, nor did she escape from him. She was peacefully returned to the city unharmed. In the absence of tendencies in the evidence arising out of the defendant's acts and dealings with the prosecutrix going to show that he attempted to accomplish penetration accompanied by the intent to do so by force without her consent, the subsequent occurrence between Mrs. Outlaw and defendant sheds no light on the conduct of defendant towards Miss Eddins. Defendant did not attempt to have sexual intercourse without her consent. On the contrary, he voluntarily "abandoned his asserted aim" and returned prosecutrix to the City of Birmingham without having sexual intercourse with her. In Dudley v. State, 121 Ala. 4(7), 25 So. 742, 743, it was observed: "In Jones' Case, [Jones v. State, 90 Ala. 628,8 So. 383, 24 Am. St. Rep. 850], the criminal purpose of the defendant was disclosed by him, but he used no violence on the prosecutrix. * * * 'If the evidence raises a mere suspicion, or, admitting all it tends to prove, defendant's guilt is left in uncertainty, or dependent upon conjecture or probabilities, the court should instruct the jury to acquit. The evidence should be of such character as to overcome, prima facie, the presumption of innocence. * * *.' * * *." When these facts are viewed in the light of the presumption of innocence which attended defendant as a matter of evidence throughout his trial, the evidence in this case is not sufficient to authorize the court to submit to the jury the question of the intent to rape. Toulet v. State, 100 Ala. 72,14 So. 403; Doss v. State, 220 Ala. 30, 123 So. 231, 68 A.L.R. 712. The evidence going to show defendant's relation with Mrs. Outlaw does not tend to show an intent to ravish. He did not ravish Mrs. Outlaw, did not attempt to force penetration without her consent, but likewise "abandoned his aim" and returned her to the city without any sort of abuse. This evidence, instead of showing or tending to show an intent to ravish, as the majority opinion assumes, shows just the contrary, — that defendant's "aim" was to procure sexual relations by consent. There was no question of identity of defendant. This was admitted. The testimony in respect to defendant's dealings with Mrs. Outlaw was erroneously admitted, was highly prejudicial and the verdict of conviction for the felony charged in the indictment should not be allowed to stand. People v. Stewart, 85 Cal. 174,24 P. 722; McAllister v. State, 112 Wis. 496, 88 N.W. 212. By allowing the state to offer proof of the occurrence between the defendant and Mrs. Outlaw is to infringe the constitutional right of the defendant to demand the nature and cause of the accusation against him. State v. Jensen, 70 Or. 156, 140 P. 740. See also State v. Walters, 45 Iowa 389; State v. Greco, 7 Boyce (30 Del.) 140, 104 A. 637; Brockman v. State,60 Okl. Cr. 75, 61 P.2d 273. To justify the admission of the evidence showing the transaction between defendant and Mrs. Outlaw the majority assume that he made an attempt to ravish her accompanied by the intent to do so and they assume to convict him of that offence with which he is not charged in the indictment. "Conviction upon a charge not made would be a sheer denial of due process." Thornhill v. Alabama, 310 U.S. 88, 96,60 S. Ct. 736, 84 L. Ed. 1093; De Jonge v. Oregon, 299 U.S. 353,57 S. Ct. 255, 81 L. Ed. 278; Stromberg v. California,283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117, 73 A.L.R. 1484. I therefore respectfully dissent.

Citation Nr: 1021329 Decision Date: 06/09/10 Archive Date: 06/21/10 DOCKET NO. 08-33 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disorder (GERD). 2. Entitlement to service connection for sciatic nerve disorder. 3. Entitlement to service connection for arthritis of the fingers. 4. Entitlement to service connection for post-coronary artery bypass graft. 5. Entitlement to service connection for headaches. 6. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 7. Entitlement to an initial rating in excess of 10 percent for degenerative changes of the bilateral knees. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from September 2004 to November 2005 and from March 2006 to August 2007 with additional service in the Reserves. He is the recipient of the Combat Action Badge. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated in November 2007 and January 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Veteran provided testimony at a hearing before the undersigned in April 2010. A transcript of this hearing has been associated with the Veteran's VA claims folder. The issue of entitlement to service connection for an undiagnosed illness has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). In this regard, the Board notes that the evidence of record, to include the Veteran's statements made at his April 2010 Board hearing, reflects complaints of headaches, joint pain, neuropsychological symptoms, sleep disturbances, gastrointestinal symptoms, and cardiovascular symptoms. Additionally, he has documented service in Southwest Asia during the Persian Gulf War. Taken together, these raise an issue of entitlement to service connection for an undiagnosed illness. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Board observes that, after the issuance of the October 2008 statement of the case, additional evidence consisting of service treatment records was received in July 2009. No supplemental statement of the case was issued. However, the Board finds that such is not necessary as the service treatment records, as relevant to the claims decided herein, are duplicative of those already contained in the claims file and thus not pertinent to the instant claims. See 38 C.F.R. § 19.31. For the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is required with respect to the Veteran's PTSD and bilateral knee disability claims. Accordingly, these claims are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The competent evidence of record does not reflect the Veteran has GERD, a sciatic nerve disorder, and/or arthritis of the fingers on objective examination. 2. The Veteran's coronary artery bypass graft occurred in June 1996 and not during a period of active service. 3. The Veteran's pre-existing coronary artery bypass graft residuals were not aggravated as a result of his military service. 4. Chronic headaches are etiologically related to an in- service head injury. CONCLUSIONS OF LAW 1. Service connection is not warranted for GERD. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009). 2. Service connection is not warranted for a sciatic nerve disorder. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009). 3. Service connection is not warranted for arthritis of the fingers. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009). 4. Service connection is not warranted for residuals of post-coronary artery bypass graft. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.306 (2009). 5. Service connection is warranted for headaches. 38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veterans Claims (Court) has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the Veteran was sent pre-adjudication notice via a letter dated in September 2007, which is clearly prior to the November 2007 rating decision that is the subject of this appeal. In pertinent part, this letter informed the Veteran of what was necessary to substantiate a service connection claim, what information and evidence he must submit, what information and evidence will be obtained by VA, and the need for the Veteran to advise VA of or to submit any evidence in his possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio, supra. Moreover, the September 2007 letter included information regarding disability rating(s) and effective date(s) as mandated by the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the April 2010 Board hearing. Nothing indicates the Veteran has identified the existence of any relevant evidence that has not been obtained or requested. Moreover, he was accorded VA medical examinations regarding this case in October 2007. The Board observes that the findings of these examinations are consistent with the other competent medical evidence of record. In pertinent, neither these examinations nor the other medical evidence found any evidence of GERD, sciatic nerve disorder, and/or arthritis of the fingers. The October 2007 VA general medical examination also contains an unrefuted opinion that pre-existing coronary artery bypass graft was not aggravated by military service. As this opinion was based upon both an examination of the Veteran and an accurate understanding of his medical history based on review of the VA claims folder, the Board finds that it is supported by an adequate foundation. No inaccuracies or prejudice has been demonstrated with respect to the VA examinations in this case. Accordingly, the Board finds that these examinations are adequate for resolution of this case. Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Active service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the Veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C.A. § 101(23)(A). Reserves includes the National Guard. 38 U.S.C.A. § 101(26), (27). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West , 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, the Board acknowledges that the Veteran has reported symptomatology of his purported GERD, sciatic nerve disorder, and/or arthritis of the fingers to include at the April 2010 Board hearing. However, as detailed below, the competent medical evidence does not reflect the Veteran has any of these disabilities on objective examination. Initially, the Board notes that none of these claimed disabilities appear to have been diagnosed in the Veteran's service treatment records. Barium swallow and diagnostic colonoscopy conducted in August 2007 were both normal. Although he reported a history of heartburn on the October 2007 VA general medical examination, he had no history of regurgitation, hematemesis, melena, or esophageal dilation. Evaluation of the abdomen revealed no impairment, and GERD was not diagnosed on this examination. In addition, a December 2007 statement from a military clinician noted that the Veteran had had symptoms of gastroesophageal reflux although no objective evidence was noted on barium swallow and no pathologic changes were noted on EGD studies. He did continue to complain of symptoms consistent with reflux, despite the lack of objective findings, and was treated for such symptoms. The October 2007 VA general medical examination reflects that neurologic evaluation showed no loss of sensation, numbness, tingling, tremors, paralysis, fainting, blackouts, or seizures. A separate VA neurological examination reflects there was no acute focal neurological deficit; gait and stance normal; sensation was intact throughout light touch; motor strength and muscle tone were normal; there was no atrophy; vibratory and position sense, as well as reflexes, were all normal. The VA joints examination also found, in pertinent part, that there was no positive neurological findings to include sensory and/or motor. There is no indication of any impairment of the Veteran's fingers on the October 2007 VA examinations. Neither arthritis nor any other chronic disability of the fingers was diagnosed on the VA examinations or the other competent medical evidence of record. Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131; and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.A § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, in the absence of proof of present disability there can be no valid claim. The Board is cognizant that in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of a current disability is satisfied when the claimant had a disability at the time a claim for VA disability compensation was filed, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. However, in this case the Veteran has never been diagnosed with the claimed disabilities at any time during the pendency of this case, and was specifically evaluated for the complaints he maintains are indicative of such. As such, the holding of McClain is not applicable to the instant case. Therefore, as the competent evidence of record does not reflect the Veteran has GERD, a sciatic nerve disorder, and/or arthritis of the fingers on objective examination, such claims are denied. Regarding the coronary artery bypass graft, the record reflects that this procedure occurred in June 1996 and not during active service to include any periods of ACDUTRA. In short, this disability pre-existed the Veteran's military service. A preexisting injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Temporary flare-ups will not be considered to be an increase in severity. Hunt v. Derwinski, 1 Vet. App. 292, 295 (1991). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during active service. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 C.F.R. § 3.306(b). The determination whether a preexisting disability was aggravated by service is a question of fact. Doran v. Brown, 6 Vet. App. 283, 286 (1994). In this case, a thorough review of the Veteran's service treatment records contain no entries which indicate that the pre-existing coronary artery graft bypass residuals were aggravated as a result of military service. Moreover, the October 2007 VA general medical examination found that the Veteran was post coronary artery bypass graft, without evidence of worsening of condition during a period of active military service, having occurred during a period outside of active military service. As noted above, the Board has already found that this opinion is supported by an adequate foundation. Although the examiner did not provide a detailed rationale in support of this opinion, the Board reiterates that this opinion stands unrefuted by competent medical evidence, and no inaccuracies or prejudice has been demonstrated therein. Simply put, there is competent medical evidence against a finding of aggravation, and nothing in the record which supports such a finding. Therefore, this claim must be denied. For the reasons stated above, the Board finds that the preponderance of the evidence is against the Veteran's claims of service connection for GERD, sciatic nerve disorder, arthritis of the fingers, and coronary artery bypass graft residuals. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefits sought on appeal with respect to these claims must be denied. Pertinent to the Veteran's claim of entitlement to service connection for headaches, the Board notes that he reported, at his Board hearing and during treatment, that, while serving in Iraq in 2004, his team was bombed and, when the blast occurred, his head hit the ground. The Veteran indicated that, since such time, he has experienced headaches and complained of headaches on his December 2005 Post Deployment Questionnaire. The Veteran also reported recurrent headaches at the October 2007 VA general medical examination, indicating that he awoke with a headache every morning. While the October 2007 VA examiner concluded that there was no evidence of chronic headaches or migraine headaches having occurred during a period of active military service, he did not provide a rationale nor account for the Veteran's continuous complaints of headaches since his 2004 head injury. In contrast, the Board finds that the Veteran is competent to testify to factual matters of which he has first-hand knowledge. Specifically, he is competent to report his in- service injury to his head and the continuity of his headache symptomatology since that time. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Moreover, as the Veteran served in combat, as indicated by the award of a Combat Action Badge, his account of his head injury during combat is sufficient to determine that such, in fact, happened. 38 U.S.C.A. § 1154(b). Additionally, the Court has stated that lay evidence may establish the presence of a condition during service, post- service continuity of symptomatology, and evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307-09 (2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (lay testimony could, in certain circumstances, constitute competent nexus evidence). Based on the Veteran's competent and credible report that he injured his head during an explosion while serving on active duty in Iraq, as well as his continuity of headache symptomatology since his military service, the Board resolves all reasonable doubt in his favor and finds that headaches began during his active duty military service. Therefore, service connection for such disability is warranted. 38 U.S.C.A. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303. ORDER Service connection for GERD is denied. Service connection for sciatic nerve disorder is denied. Service connection for arthritis of the fingers is denied. Service connection for post-coronary artery bypass graft is denied. Service connection for headaches is granted. REMAND The Board acknowledges that the Veteran's service-connected bilateral knee disorder was evaluated by the October 2007 VA examinations, and his PTSD was evaluated by a November 2007 VA examination. However, the Veteran's testimony at his April 2010 hearing intimates that these disabilities may have increased in severity since these examinations. For example, at this hearing, he indicated that he had experienced episodes of impaired impulse control (such as unprovoked irritability with periods of violence) and suicidal thoughts. Such symptomatology is associated with the criteria for rating(s) in excess of 30 percent for PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411. Regarding the right knee, his October 2007 VA joints examination noted, in part, that there was no evidence of functional limitations on standing or walking with a normal gait. Nevertheless, he indicated at the April 2010 hearing that he could not perform squats due to his service-connected knees, or prolonged standing. In view of the foregoing, the Board finds that the record reflects the Veteran's service-connected PTSD and bilateral knee disorders may have increased in severity since the most recent VA examinations of these disabilities in 2007. Therefore, a remand is necessary in order to schedule the Veteran for appropriate VA examinations in order to assess the current nature and severity of these service-connected disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Board notes that the regulations provide that in exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In this case, the Veteran's April 2010 hearing testimony suggests that he may be experiencing marked interference with employment due to his service-connected PTSD and knees. However, the record does not reflect that the RO has ever adjudicated the issue of whether extraschedular ratings are warranted. Therefore, the Board finds that the RO must address this issue in the first instance below. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain the names and addresses of all medical care providers who have treated the Veteran for his PTSD and knees since September 2008. After securing any necessary releases, the AMC/RO should obtain any records identified by the Veteran as well as those from the Leavenworth VA Medical Center dated from September 2008 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining any additional records to the extent possible, the Veteran should be afforded a new VA examination to evaluate the current nature and severity of his service- connected PTSD. The claims folder should be made available to the examiner for review before the examinations. The nature and severity of all manifestations of the Veteran's PTSD should be documented. 3. After obtaining any additional records to the extent possible, the Veteran should be afforded a new VA examination to evaluate the current nature and severity of his service- connected bilateral knee disorder. The claims folder should be made available to the examiner for review before the examinations. The nature and severity of all manifestations of the Veteran's bilateral knee disorder should be documented. 4. Thereafter, the AMC/RO should review the claims folder to ensure that the foregoing requested development has been completed. In particular, the AMC/RO should review the examination reports to ensure that they are responsive to and in compliance with the directives of this remand and if not, the AMC/RO should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing any additional development deemed necessary, the AMC/RO should readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. The AMC/RO's adjudication of this case should reflect consideration of whether extraschedular ratings are warranted pursuant to 38 C.F.R. § 3.321(b)(1). If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the October 2008 statement of the case, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ A. JAEGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

Exhibit 10.1 SETTLEMENT AGREEMENT AND MUTUAL RELEASES I. PARTIES This Settlement Agreement (this “Agreement”), dated as of the Effective Date (as defined below), is entered into by and among the United States of America, acting through the United States Department of Justice, on behalf of the Office of Inspector General (“OIG-HHS”) of the Department of Health and Human Services (“HHS”); the Office of Personnel Management (“OPM”); and the Department of Defense TRICARE Management Activity (“TMA”) (collectively the “United States”); defendant Medco Health Solutions, Inc. (“Medco”); defendant Diane M. Collins (“Collins”); and relators George Bradford Hunt, Walter William Gauger and Joseph Piacentile (collectively the “Relators”) through their authorized representatives. (OIG-HHS, OPM, TMA, Medco, Collins and the Relators are each referred to herein as a “Party” and are collectively referred to as the “Parties.”) II. PREAMBLE As a preamble to this Agreement, the Parties recite the following: A. Medco is a pharmaceutical services company that administers pharmacy benefit management (“PBM”) services for health plans and employers, including governmental employers. Medco operates mail order pharmacies and call centers licensed by states and other political subdivisions, and employs pharmacists subject to state licensing requirements. Medco provides mail order prescriptions and related benefit services for federal employees and retirees and their dependents and other federal beneficiaries, pursuant to contracts with federal health programs, including the Federal Employees Health Benefits Program, a federally-funded health care program providing health insurance to federal employees, retirees and their families (“FEHBP”), TRICARE (formerly CHAMPUS), and Medicare + Choice Plans. Medco is a Delaware Limited Liability Corporation with its principal executive offices located at 100 Parsons Pond Drive, Franklin Lakes, New Jersey 07417. Medco is the corporate successor of Merck-Medco Managed Care, L.L.C., and operates or has operated prescription drug mail order pharmacies under the names of wholly-owned subsidiaries including Merck-Medco Managed Care of California, Inc., Merck-Medco Rx Services of Florida No. 2, L.L.C., Merck-Medco Rx Services of Florida, L.L.C., Merck-Medco Rx Services of Massachusetts, L.L.C., Merck-Medco Rx Services of Nevada, Inc., Merck-Medco Rx Services of New Jersey, L.L.C., Merck-Medco Rx Services of New York, L.L.C.,   Case No. 99-CV-2332       -------------------------------------------------------------------------------- Merck-Medco Rx Service of Ohio, Ltd., Merck-Medco Rx Services of Ohio No. 2, Ltd., Merck-Medco Rx Services of Oklahoma, L.L.C., Merck-Medco Rx Services of Pennsylvania, L.L.C., Merck-Medco Rx Services of Texas, L.L.C., Merck-Medco Rx Services of Virginia , L.L.C., and Merck-Medco Rx Services of Washington, Inc. For purposes of this Agreement, unless the context clearly requires otherwise, the term “Medco” shall be deemed to include Medco Health Solutions, Inc., and its past and present parents, subsidiaries, predecessors and successors and each of the assigns of any of the foregoing. B. Collins was the Vice President, General Manager of Merck-Medco Rx Services of Florida No. 2, L.L.C. from January 1999 through January 2001. C. Relator George Bradford Hunt (“Hunt”) and Relator Walter W. Gauger (“Gauger”) are pharmacists who were employed by defendant Medco prior to 1999 at its Las Vegas, Nevada pharmacy facility. On May 6, 1999, Relators Hunt and Gauger filed a qui tam action in the United States District Court for the Eastern District of Pennsylvania captioned United States ex rel. George Bradford Hunt and Walter W. Gauger, Relators, and the States of Florida, California, Illinois, Tennessee, Texas, Michigan, Louisiana, Nevada, Massachusetts, Virginia, and the District of Columbia v. Merck & Co., Inc. Merck-Medco Managed Care, L.L.C., and Medco Health Solutions. Inc., Case No. 99-CV-2332. Relators Hunt and Gauger thereafter filed an Amended Complaint on February 16, 2000, a Second Amended Complaint on March 18, 2003, and a Third Amended Complaint on October 3, 2003. On February 10, 2000, Relator Joseph Piacentile (“Piacentile”), never employed by Medco, filed a qui tam action in the United States District Court for the Eastern District of Pennsylvania captioned United States of America ex rel. Joseph Piacentile v. Merck & Co. Inc. and Merck-Medco Managed Care, L.L.C., Case No. 00-CV-737. The Hunt and Gauger qui tam Complaint and the Piacentile qui tam Complaint were consolidated by Court order into one amanda77@example.net. 00-CV-737 (hereinafter “the Civil Action”). The United States intervened in the consolidated action on June 20, 2003, and filed its Complaint in intervention on September 29, 2003, and an Amended Complaint (“Amended Complaint”) on December 9, 2003. The United States served notice on all counsel of an intent to file, but did not file, a Second Amended Complaint on August 13, 2004 (the “Second Amended Complaint”). The Civil Action (including all Complaints filed by Hunt, Gauger, and Piacentile prior to consolidation), the Amended Complaint, and allegations of the Second Amended Complaint are referred to herein collectively as the “Consolidated Action.”   Case No. 99-CV-2332    2    -------------------------------------------------------------------------------- D. On or about April 26, 2004, Medco and the United States of America, acting through the United States Department of Justice, consented to the entry of a Consent Order of Court for Permanent Injunction, entered by the Clerk of Court on May 20, 2004 (the “2004 Consent Order”), resolving certain civil claims for injunctive relief pursuant to 18 U.S.C. § 1345 by the United States of America in Count VI of the Amended Complaint. The 2004 Consent Order expressly did not resolve any claim, right or cause of action for monetary damages, restitution or penalties sought in Count I (False Claims Act, 31 U.S.C. § 3729 et seq.), Count II (Anti-Kickback Act, 41 U.S.C. §§ 51, et seq.), or Counts III, IV and V (principles of common law and equity) of the Amended Complaint. E. The United States contends that Medco and Defendant Collins submitted or caused to be submitted claims for payment, pursuant to the Federal Employees Health Benefits Program, 5 U.S.C. §§ 8901-8914, and the TRICARE Program (formerly known as CHAMPUS), 10 U.S.C. §§ 1071-1110, to the following government-funded health care programs or plans: the Blue Cross Blue Shield Association (“BCBSA”) under Contract No. CS 1039 (often referred to as the Federal Employees Program (“FEP”) or the Service Benefit Plan (“SBP”)), the Government Employees Hospital Association, Inc. (“GEHA”), the National Association of Letter Carriers (“NALC”), the American Postal Workers Union (“APWU”), the Special Agents Mutual Benefit Association (“SAMBA”), the Department of Defense’s National Mail-Order Pharmacy (“NMOP”), the American Foreign Service (“AFS”), the National Alliance of Postal Federal Employees (“NAPFE”), and the Tennessee Valley Authority. The foregoing shall be collectively referred to in this Agreement as the “Federal Plans.” Medco’s prime contracts and subcontracts with the Federal Plans are hereinafter referred to, singly and collectively, unless otherwise noted, as the “Federal Plan Contracts.” F. The United States contends that it has certain civil claims against Collins, as specified in subparagraphs F.1 (to the extent Collins is named in the Consolidated Action) and F.2 below, and against Medco, as specified in subparagraphs F.1-F.4 below, for engaging in the following conduct during the period from January 1, 1995, through December 31, 2004 (hereinafter referred to as the “Covered Conduct”): 1. All allegations contained in the Consolidated Action.   Case No. 99-CV-2332    3    -------------------------------------------------------------------------------- 2. Under the Federal Plan Contracts, Medco agreed to certain performance guarantees and was obligated to perform professional pharmacy services in accordance with these contracts, state pharmacy laws and regulations, and applicable codes of ethics. The United States alleges that Medco failed to satisfy its contractual performance guarantees, accurately report its performance under the Federal Plan Contracts, or meet its pharmacy practice obligations, and in so doing submitted false claims for payment, made or used false documents in support of false claims, and made or used false documents to reduce a liability due the United States, in the following manner: a. The United States alleges that Medco falsely reported turnaround performance under Federal Plan Contracts, including under the FEP contract from 1996 through 2003 on its daily waterfall reports, monthly invoice packages reporting turnaround and associated contract penalties, and Annual Statements as a result of the following alleged practices or occurrences: (i) Canceling, destroying or re-entering prescriptions into its prescription database system to report a later and inaccurate prescription “receive date” (date prescription was first received by Medco) for the purpose of showing Medco had met contractual turnaround performance standards or for avoiding contractual penalties; (ii) Excluding prescriptions received toward the end of each month from the monthly turnaround reports and contract penalty calculations (ie., the “end of month” problem); (iii) Reporting prescriptions canceled after the two-day or five-day turnaround standard as though they had been canceled on or before the turnaround deadline, thereby inappropriately reducing the denominator of the turnaround calculation (i.e., failing to “freeze” turnaround results); (iv) For managed care switches, reporting turnaround performance using the receive date of the authorization to change the prescription, rather than the receive date of the original prescription; (v) For unfilled prescriptions delivered from one Medco facility to another for processing, falsely recording or reporting the date of transfer or some other date as the date of receipt, rather than the actual date the prescription was first received by Medco; (vi) Reporting falsely that prescriptions manifested on Saturday or Sunday had been manifested on the preceding business day;   Case No. 99-CV-2332    4    -------------------------------------------------------------------------------- (vii) Canceling prescriptions without a valid reason using a stop cancel code “STCXL” in combination with reason code “CX999”; (viii) Canceling prescriptions for which no record exists in Medco’s Protocol Management Database (PMD); (ix) Canceling prescriptions as “out of stock” using the OOSTK reason or resolution code, when the drug called for by the prescription was not out of stock; and (x) Canceling prescriptions in doctor call, drug utilization review (“DUR”) and other areas in the pharmacy without making an attempt to clarify the prescription with the physician or patient. b. The United States alleges that Medco dispensed prescriptions without properly performing DUR, without screening, and without appropriately contacting prescribers after screening; c. The United States alleges that Medco failed to interpret or evaluate prescriptions and resolve any errors or ambiguities in accordance with state laws, regulations and standards of practice; d. The United States alleges that Medco falsified paper or electronic pharmacy records related to the dispensing process, which is defined as the time from which Medco receives the written prescription through the time at which Medco places the prescription medication in the mail; e. The United States alleges that Medco improperly used pharmacy technicians and other non-pharmacist personnel to perform functions which must by law be performed by pharmacists, or under a pharmacist’s direct supervision, including adjudicating and dispensing or canceling patient prescriptions without review or supervision by a licensed pharmacists, engaging in direct discussions with prescribers regarding dispensing and prescribing issues, counseling patients, and performing DUR activities; f. The United States alleges that Medco exceeded the state-established ratios of ancillary personnel or technicians to pharmacists and failed to adequately supervise and monitor ancillary pharmacy personnel or technicians; g. The United States alleges that Medco established managerial structures and practices which had the foreseeable effect of causing inadequate supervision of pharmacy personnel and interfering with professional pharmacists’ ability to exercise independent professional judgment;   Case No. 99-CV-2332    5    -------------------------------------------------------------------------------- h. The United States alleges that Medco imposed production quotas on professional and support personnel within mail order pharmacies, which had the foreseeable effect of interfering with the professional obligation of pharmacists to adequately ensure clarification of prescription drug orders with prescribers prior to dispensing; i. The United States alleges that Medco authorized non-pharmacist managerial personnel to use professional pharmacist credentials and access codes, thereby enabling non-pharmacists to alter prescription drug records and access patient pharmacy records; j. The United States alleges that there existed a discrepancy between the number of prescriptions Medco billed for and claimed to have dispensed on its Annual Statements from 1997 to 2002, and the lower number of prescriptions accounted for on its turnaround reports during the same period; k. The United States alleges that Medco failed to certify its year 2000 Annual Statement to FEP; l. The United States alleges that Medco submitted claims for prescriptions where Medco dispensed less than (i.e., “shorted”) the quantity prescribed by the physician and billed by Medco to the Federal Plans; m. The United States alleges that Medco switched or changed patients’ prescriptions to different or more expensive or less effective drugs by providing false, misleading, or incomplete information or without the knowledge or consent of the patient or physician or without approval of the relevant Federal Plan; n. The United States alleges that Medco shipped and billed the government for drugs the patient never ordered; o. The United States alleges that Medco shipped and billed the government for drugs without ensuring the correct number, strength, dosage, and type of drugs were dispensed;   Case No. 99-CV-2332    6    -------------------------------------------------------------------------------- p. The United States alleges that Medco failed to provide accurate, complete, timely and reliable information to patients and physicians concerning: (i) the reasons for, costs relating to, and effect of the drug switches, in order to induce them to approve the switch, or withdraw their objection to the switch; (ii) whether and when prescriptions had been received where the prescription had been improperly cancelled; and (iii) pharmacists’ views concerning whether generic drugs sold by Medco were always “just as good as” brand name drugs; q. The United States alleges that Medco restocked and reused returned medication; r. The United States alleges that Medco failed to monitor clinical outcomes for drug switches for its patients; s. The United States alleges that Medco fabricated records of calls to physicians in connection with doctor call, DUR, managed care, and other required physician contacts, and otherwise created false records of contact with physicians; t. The United States alleges that Medco failed to provide required customer service and counseling; u. The United States alleges that Medco falsified reports of Class A error rates to improve recorded performance; v. The United States alleges that Medco failed to pursue cost reduction opportunities with certain manufacturers, in return for payment of inducements by their competitor manufacturers, including Merck & Co., Inc. (“Merck”), to Medco; w. The United States alleges that Medco promoted drugs then likely to remain on patent for long periods of time, and switched patients from drugs which would be subject to generic competition and cost reductions in the near future; x. The United States alleges that Medco switched patients from drugs with a generic equivalent to drugs without a generic equivalent; y. The United States alleges that Medco promoted a formulary that favored expensive drugs; z. The United States alleges that Medco induced FEP to execute or renew contracts based on the false statements regarding Medco’s performance; and   Case No. 99-CV-2332    7    -------------------------------------------------------------------------------- aa. the United States alleges that Medco charged excessive prices for amanda77@example.net. 3. The United States alleges that Medco offered or made improper payments, as specifically set forth below in subparagraphs (a) through (e), in the form of implementation allowances, contract allowances, data fees, credits, up-front payments, cash, and services to certain health plans to induce the plans to select Medco as a pharmacy benefit management subcontractor, or to retain Medco as a pharmacy benefit management subcontractor. a. Medco made payments to Oxford Health Plans pursuant to an Alliance Agreement dated September 7, 2001, and a Prescription Drug Administrative Service Agreement dated September 7, 2001; b. Medco made payments pursuant to a Data License Agreement dated November 11,1998, a Pharmacy Benefit Management Agreement dated November 11, 1998, a Cooperation Agreement dated November 11, 1998, and a Pharmacy Benefit Management Agreement, dated January 1, 2004; c. Medco offered to make payments to Great West Life Annuity & Insurance Co. in connection with Requests for Proposals issued in June 2001 and January 2004; d. Medco offered or made payments to a health plan (i) pursuant to (A) a Prescription Drug Program Agreement dated January 1, 1995; (B) a Prescription Program Agreement dated January 1, 2001; and (C) an Integrated Prescription Drug Program Master Agreement dated October 1, 2002; and (ii) pursuant to any and all amendments to the agreements identified in subclause (i) as in effect prior to January 1, 2005; and e. Medco offered or made payments to a health plan (i) pursuant to (A) a Pharmacy Benefit Services Agreement dated August 18, 1999; (B) a renewal letter dated October 1, 2002; and (C) a preliminary agreement dated December 17, 2004, and (ii) pursuant to any and all amendments to the agreements identified in subclause (i) as in effect prior to January 1, 2005. 4. The United States alleges that Medco solicited and received improper payments (or, as to Merck, imputed payments) from pharmaceutical manufacturers to induce or reward Medco for improperly providing favorable consideration to each such pharmaceutical manufacturer’s products; to induce Medco to promote the sale of such manufacturers’ products; to favor such manufacturers’ products over different   Case No. 99-CV-2332    8    -------------------------------------------------------------------------------- chemical compounds in the treatment of certain diseases; to favor and advocate such manufacturers’ products in formulary placement; and to advocate switches to those favored products by physicians. These payments (or, as to Merck, imputed payments) were allegedly made in the form of rebates, regardless of how characterized, discounts, patient conversion payments, market share movement payments, market share incentives, data fees, commissions, mail service purchase discounts, administrative or management fees, educational grants, outcomes research studies, RationalMed, clinical consulting services, nominally-priced products, disease management program payments, and strategic alliances. The United States alleges that the payments set forth in this Paragraph 4 and in Paragraph 3 above constitute improper kickbacks, and that, based on such payments, Medco knowingly caused false claims to be made to the United States. The United States further alleges that to the extent the above-described payments in Paragraphs 3 and 4 were not passed through, shared with or disclosed, Medco caused false claims to be made to the United States. G. This Agreement is made in compromise of disputed claims. It is neither an admission of liability by either Medco or Collins nor a concession by the United States that its claims are not well founded. Medco and Collins each expressly denies the allegations of the United States and the Relators as set forth herein and in the Consolidated Action and each such Party denies that it has engaged in any wrongful conduct relating to the Covered Conduct. Neither this Agreement, its execution, or the performance of any obligations under it, including any payments, nor the fact of the settlement, is intended to be, or shall be understood as, an admission of liability or wrongdoing, or other expression reflecting upon the merits of the dispute by Medco or by Collins. Further, nothing contained in this Agreement shall be interpreted or construed as an agreement or acknowledgment by Medco or by Collins as to whether any pharmaceutical manufacturer, customer, or other entity which has, or previously has had, a contract with Medco has at any time engaged in any of the conduct alleged as wrongful in this Agreement or in the Consolidated Action. To avoid the delay, uncertainty, inconvenience, and expense of litigation of the above claims, the Parties reach a full and final settlement of all claims pursuant to the Terms and Conditions below.   Case No. 99-CV-2332    9    -------------------------------------------------------------------------------- III. TERMS AND CONDITIONS 1. In consideration for the promises and agreements of the Parties as set forth herein, Medco agrees to pay to the United States $137,500,000.00 (the “Settlement Amount”), plus interest as described in the letter from Medco to the United States of October 3, 2006 (the “Interest Letter”). The Settlement Amount shall constitute a debt immediately due and owing on the Effective Date (as defined in Paragraph 32 below) of this Agreement. Medco agrees to pay the full Settlement Amount to the United States by electronic funds transfer pursuant to written instructions to be provided by the United States Attorney’s Office for the Eastern District of Pennsylvania. Medco agrees to make this electronic funds transfer within fourteen (14) calendar days of the Effective Date of this Agreement. 2. Subject to the exceptions set forth in Paragraph 7 below, and in consideration of the obligations of Medco set forth in this Agreement, conditioned upon Medco’s full and timely payment of the Settlement Amount, the United States (on behalf of itself, its officers, agents, agencies, and departments), releases Medco and each of its past and present officers, directors, employees (including Collins), attorneys, insurers, and assigns of any of the foregoing (each a “Medco Released Party” and, collectively, the “Medco Released Parties”) from any civil or administrative monetary claim that the United States has or may have for the Covered Conduct under the False Claims Act, 31 U.S.C. §§ 3729-3733; the Civil Monetary Penalties Law, 42 U.S.C. § 1320a-7a; the Program Fraud Civil Remedies Act, 31 U.S.C. §§ 3801-3812; the Public Contract Anti-Kickback Act, 41 U.S.C. § 51, et seq.; any and all common law causes of action for fraud, unjust enrichment, payment by mistake, or breach of contract; and any civil monetary claim arising under the aforementioned statutes and common law theories based on a violation of the Federal health care program anti-kickback statute, 42 U.S.C. § 1320a-7b(b). 3. Subject to the exceptions set forth in Paragraph 7 below, in consideration of the obligations of Medco set forth in this Agreement, conditioned upon Medco’s full and timely payment of the Settlement Amount, each Relator, for himself and for his respective heirs, successors, attorneys, agents, representatives, and assignees (collectively, the “Relator Releasors”), releases and forever discharges Medco and each other Medco Released Party from any claim the Relators ever had, has or may have relating to the Covered Conduct, including any civil monetary claim based on or under the False Claims Act, 31 U.S.C. §§ 3729- 3733, and all state analogues thereto. Each Relator for himself and for his respective heirs, successors,   Case No. 99-CV-2332    10    -------------------------------------------------------------------------------- attorneys, agents, representatives and assignees releases and forever discharges all other Relators and their respective heirs, successors, attorneys, agents, representatives and assignees from any claim that he ever had, has, or may have, arising out of or in connection with the Covered Conduct and the United States’ and Relators’ investigation and prosecution thereof. 4. In consideration of the obligations of Medco set forth in this Agreement and the Corporate Integrity Agreement entered into by and between Medco, the Office of Inspector General of OPM (“OIG-OPM”) and OIG-HHS (the “CIA”), conditioned upon Medco’s full and timely payment of the Settlement Amount, OIG-HHS agrees to release and refrain from instituting, directing or maintaining any administrative action seeking exclusion from the Medicare, Medicaid, and any other Federal health care programs (as defined in 42 U.S.C. § 1320a-7b(f)) under 42 U.S.C. § 1320a-7a (Civil Monetary Penalties Law), or 42 U.S.C. § 1320a-7(b)(7) (permissive exclusion for fraud, kickbacks, and other prohibited activities), for the Covered Conduct against Medco, except as expressly reserved in Paragraph 7 below, and as reserved in this Paragraph. The OIG-HHS expressly reserves all rights to comply with any statutory obligations to exclude any Medco Released Party from Medicare, Medicaid, and other Federal health care programs under 42 U.S.C. § 1320a-7(a) (mandatory exclusion) relating to the Covered Conduct. Nothing in this Paragraph precludes the OIG-HHS from taking action against entities or persons, or for conduct and practices, for which claims have been reserved in Paragraph 7 below. 5. In consideration of the obligations of Medco set forth in this Agreement, conditioned upon Medco’s full and timely payment of the Settlement Amount, TMA agrees to release and refrain from instituting, directing or maintaining any administrative action seeking exclusion from the TRICARE Program for the Covered Conduct against Medco under 32 C.F.R. § 199.9, except as reserved in Paragraph 7 below and as reserved in this Paragraph. TMA expressly reserves authority to exclude any Medco Released Party from the TRICARE Program under 32 C.F.R. §§ 199.9(f)(1)(i)(A), (f)(1)(i)(B), and (f)(1)(iii) relating to the Covered Conduct. Nothing in this Paragraph precludes TMA or the TRICARE Program from taking action against entities or persons, or for conduct and practices, for which claims have been reserved in Paragraph 7 below. 6. In consideration of the obligations of Medco set forth in this Agreement, conditioned upon Medco’s full and timely payment of the Settlement Amount, OPM agrees to release and refrain from instituting, directing or maintaining any administrative action seeking exclusion from the FEHBP against Medco or any other   Case No. 99-CV-2332    11    -------------------------------------------------------------------------------- Medco Released Party under 5 U.S.C. § 8902a or 5 C.F.R. Part 970, relating to the Covered Conduct, except as reserved in Paragraph 7 below, and as reserved in this Paragraph. OPM expressly reserves all rights to comply with any statutory obligations to debar any Medco Released Party from the FEHBP under 5 U.S.C. § 8902a(b) (mandatory debarment) relating to the Covered Conduct. Nothing in this Paragraph precludes OPM from taking action against entities or persons, or for conduct and practices, for which claims have been reserved in Paragraph 7 below. 7. Notwithstanding any term of this Agreement, specifically reserved and excluded from the scope and terms of this Agreement as to any entity or person (including Medco, Collins and Relators) are the following claims of the United States: a. Any civil, criminal, or administrative liability arising under Title 26, U.S. Code (Internal Revenue Code); b. Any criminal liability; c. Except as explicitly stated in this Agreement, any administrative liability, including mandatory exclusion from Federal health care programs; d. Any liability to the United States (or its agencies) for any conduct other than the Covered Conduct; e. Any liability of any individuals or entities not specifically and expressly released by this Agreement, including drug manufacturers and clients and customers of Medco; f. Any liability based upon such obligations as are created by this Agreement; g. Any liability based upon obligations created by the 2004 Consent Order; h. Any liability for personal injury or property damage or for other consequential damages arising therefrom; i. Any administrative liability against individuals, including current and former directors, officers, and employees of Medco and other Medco corporate entities. 8. Relators and the United States have entered into separate and contemporaneous agreements (the “Relator Share Agreements”) setting forth the Relators’ respective shares under 31 U.S.C. §3730(d). Each Relator, for himself and his heirs, successors, representatives, attorneys, agents, and assignees, agrees not to object to this Agreement or to the allocation of proceeds to his claims as set forth   Case No. 99-CV-2332    12    -------------------------------------------------------------------------------- in the Relator Share Agreements dated October 23, 2006, and agrees and confirms that both this Agreement and the Relator Share Agreements are “fair, adequate, and reasonable under all the circumstances,” pursuant to 31 U.S.C. § 3730(c)(2)(B). In addition, each Relator, for himself and his heirs, successors, representatives, attorneys, agents, and assignees, agrees not to object to the separately executed settlement agreement dated October 23, 2006, relating to the United States ex rel. Schumann v. Medco, and agrees and confirms that both said agreement and the allocations of proceeds thereunder are “fair, adequate, and reasonable under all the circumstances,” pursuant to 31 U.S.C. § 3730(c)(2)(B). Conditioned upon full and prompt receipt of Relators’ respective shares as set forth in those Relator Share Agreements, each Relator, for himself and for his respective heirs, successors, representatives, attorneys, agents, and assignees, in full settlement of any claims such Relator may have under this Agreement, releases and forever discharges the United States, its officers, agents, and employees, from any claims arising from or relating to 31 U.S.C. § 3730, from any claims arising from the filing of the Civil Action, and from any other claims for a share of the Settlement Amount, that such Relator ever had, has or may have. This Agreement does not resolve or in any manner affect any claims the United States has or may have against any of the Relators arising under Title 26, U.S. Code (Internal Revenue Code), or any claims arising under this Agreement. 9. Relators and Medco have entered into separate agreements (“Relator-Medco Agreements”) setting forth amounts to be paid to Relators for expenses, attorneys fees and costs pursuant to 31 U.S.C. § 3730(d) and to Relators Hunt and Gauger for expenses, attorneys fees and costs pursuant to the Massachusetts False Claims Law and the Nevada False Claims Act. Conditioned upon full and timely receipt of the payment described in the Relator-Medco Agreements, without in any way limiting the terms of Paragraph 3 above, each Relator, for himself and for his respective heirs, successors, attorneys, agents, representatives, and assignees releases and forever discharges the Medco Released Parties (including Collins) from any and all claims that such Releasor ever had, has or may have pursuant to 31 U.S.C. § 3730(d) in connection with the Consolidated Action and for expenses or attorneys fees and costs pursuant to the Massachusetts False Claims Law and the Nevada False Claims Act.   Case No. 99-CV-2332    13    -------------------------------------------------------------------------------- 10. Medco and Collins each waives and will not assert any defenses such Party may have to any criminal prosecution or administrative action relating to the Covered Conduct not otherwise released pursuant to the terms hereof that may be based in whole or in part on a contention that, under the Double Jeopardy Clause in the Fifth Amendment of the Constitution, or under the Excessive Fines Clause in the Eighth Amendment of the Constitution, this Agreement bars a remedy sought in such criminal prosecution or administrative action. Nothing in this Paragraph or any other provision of this Agreement constitutes an agreement by the United States concerning the characterization of the Settlement Amount for purposes of the Internal Revenue laws, Title 26 of the United States Code. 11. Medco and Collins (collectively, the “Medco Releasors”) each release and forever discharge the United States, its agencies, employees, servants and agents, as well as each of the Relators and their respective attorneys, heirs, successors, agents, representatives and assignees (collectively, the “Relator Releasees”) from any and all claims that any Medco Releasor ever had, has or may have relating to the Covered Conduct and the United States’ and the Relators’ investigation and prosecution thereof and Relators Hunt’s and Gaugers employment with Medco. 12. The Settlement Amount shall not be decreased as a result of the denial of claims for payment now being withheld from payment by any Medicare carrier or intermediary, TRICARE carrier or payer, FEHBP carrier or payer, or any state payer, related to the Covered Conduct; and Medco shall not resubmit to any Medicare carrier or intermediary, TRICARE carrier or payer, FEHBP carrier or payer, or any state payer any previously denied claims related to the Covered Conduct, and shall not appeal any such denials of claims.   Case No. 99-CV-2332    14    -------------------------------------------------------------------------------- 13. Medco agrees to the following: a. Unallowable Costs Defined: All costs (as defined in the Federal Acquisition Regulation, 48 C.F.R. § 31.205-47; and in Titles XVIII and XIX of the Social Security Act, 42 U.S.C. §§ 1395-1395hhh and 1396-1396y; and the regulations and official program directives promulgated thereunder) incurred by or on behalf of Medco, its present or former officers, directors, employees, shareholders, and agents in connection with the following shall be “unallowable costs” on government contracts and under the Medicare Program, Medicaid Program, TRICARE Program, and Federal Employees Health Benefits Program (FEHBP): i. the matters covered by this Agreement; ii. the United States’ audit(s) and civil investigation(s) of the matters covered by this Agreement; iii. Medco’s investigation, defense, and corrective actions undertaken in response to the United States’ audit(s) and civil investigation(s) in connection with the matters covered by this Agreement (including attorney’s fees paid on behalf of Medco, Collins, and others related to this action), and implementation of the 2004 Consent Order; iv. the negotiation and performance of this Agreement; v. the payment Medco makes to the United States pursuant to this Agreement and any payments that Medco may make to Relators, including costs and attorneys fees; and vi. the negotiation of, and obligations undertaken pursuant to the CIA to: (a) retain an independent review organization to perform annual reviews as described in Section III of the CIA; and (b) prepare and submit reports to the OIG-HHS. However, nothing in this Paragraph13.a.(vi) that may apply to the obligations undertaken pursuant to the CIA affects the status of costs that are not allowable based on any other authority applicable to Medco. (All costs described or set forth in this Paragraph13.a. are hereafter “unallowable costs.”) b. Future Treatment of Unallowable Costs: These unallowable costs shall be separately determined and accounted for by Medco, and Medco shall not charge such unallowable costs directly or indirectly to any contracts with the United States or any State Medicaid program, or seek   Case No. 99-CV-2332    15    -------------------------------------------------------------------------------- payment for such unallowable costs through any cost report, cost statement, information statement, or payment request submitted by Medco or any of its subsidiaries or affiliates to the Medicare, Medicaid, TRICARE, or FEHBP Programs. c. Treatment of Unallowable Costs Previously Submitted for Payment: Medco further agrees that within 90 days of the Effective Date of this Agreement it will identify to applicable Medicare and TRICARE fiscal intermediaries, carriers, or contractors, and Medicaid and FEHBP fiscal agents, any unallowable costs (as defined in this Paragraph) included in payments previously sought from the United States, or any State Medicaid program, including payments sought in any cost reports, cost statements, information reports, or payment requests already submitted by Medco or any of its subsidiaries or affiliates, and shall request, and agree, that such cost reports, cost statements, information reports, or payment requests, even if already settled, be adjusted to account for the effect of the inclusion of the unallowable costs. Medco agrees that the United States, at a minimum, shall be entitled to recoup from Medco any overpayment plus applicable interest and penalties as a result of the inclusion of such unallowable costs on previously-submitted cost reports, information reports, cost statements, or requests for payment. Any payments due after the adjustments have been made shall be paid to the United States pursuant to the direction of the Department of Justice or the affected agencies. The United States reserves its rights to disagree with any calculations submitted by Medco or any of its subsidiaries or affiliates on the effect of inclusion of unallowable costs (as defined in this Paragraph) on Medco’s or any of its subsidiaries’ or affiliates’ cost reports, cost statements, or information reports. d. Nothing in this Agreement shall constitute a waiver of the rights of the United States to audit, examine, or re-examine Medco’s books and records to determine that no unallowable costs have been claimed in accordance with the provisions of this Paragraph. 14. Medco agrees to cooperate fully and truthfully with the United States’ investigation, if any, of individuals and entities not released in this Agreement. Upon reasonable notice, Medco shall (a) make reasonable efforts to facilitate access to, and encourage the cooperation of its directors, officers, and employees for interviews and testimony, consistent with the rights and privileges of such individuals, (b) furnish to the United States, upon reasonable request, any non-privileged documents in its possession, custody or control; and (c) make commercially reasonable efforts to cause any attorneys, auditors,   Case No. 99-CV-2332    16    -------------------------------------------------------------------------------- investment bankers, or consultants engaged by Medco to furnish to the United States, upon reasonable request, any non-privileged documents in the possession, custody or control of any such third party. Medco and the United States will cooperate in good faith to avoid duplicate production of documents. 15. Medco agrees that it shall not seek payment for any of the monies owed under this Agreement from any health care beneficiaries or their parents, sponsors, legally responsible individuals, or third-party payers. Medco waives any causes of action against these beneficiaries or their parents, sponsors, legally responsible individuals, or third party payers based upon the claims for payment covered by this Agreement. Medco waives and shall not seek payment for any of the health care billings covered by this Agreement from any health care beneficiaries or their parents, sponsors, legally responsible individuals, or third party payers based upon the claims defined as Covered Conduct. 16. Each Party agrees to the following: a. Each Relator hereby covenants and agrees in respect of himself and all other Relator Releasors on whose behalf he acts hereby that (i) no such Relator Releasor will initiate or participate in bringing or pursuing any class action against any of such Relator Releasor’s respective Relator Releasees in respect of any such released claim in connection with the Covered Conduct (each a “Class Action”); and (ii) if involuntarily included in any such Class Action as a putative class member will opt out upon Medco’s written request from any such Class Action. b. Each Relator further hereby covenants and agrees in respect of himself and all other Relator Releasors on whose behalf he acts hereby that no such Relator Releasor will assist any third party in initiating or pursuing any Class Action except where otherwise required by law. 17. Except as expressly set forth in Paragraphs 2, 3, 4, 5, 6, 8, 9 and 11 above, this Agreement is intended to be for the benefit of the Parties only, and no Party releases, waives or otherwise discharges, and each Party expressly reserves, any claims such Party may have against any other person or entity. 18. Nothing in this Agreement shall constitute a waiver of the rights of the United States set forth in the 2004 Consent Order, nor shall this Agreement in any way relieve Medco of any of its obligations as set forth in the 2004 Consent Order. No waiver by any Party hereto of any one or more breaches or defaults by the other Party in the performance of any of the provisions of this Agreement shall operate or be construed as a waiver of any future breaches or defaults, whether of a like or different nature. No failure or   Case No. 99-CV-2332    17    -------------------------------------------------------------------------------- delay on the part of any Party in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. No Party shall be required to give notice to enforce strict adherence to all terms of this Agreement. 19. Medco warrants that it has reviewed its respective financial situations and that it currently is solvent within the meaning of 11 U.S.C. §§ 547(b)(3) and 548(a)(1)(B)(ii)(l), and will remain solvent following payment to the United States of the Settlement Amount. Further, the Parties warrant that, in evaluating whether to execute this Agreement, they (a) have intended that the mutual promises, covenants, and obligations set forth constitute a contemporaneous exchange for new value given to Medco, within the meaning of 11 U.S.C. § 547(c)(1); and (b) conclude that these mutual promises, covenants, and obligations do, in fact, constitute such a contemporaneous exchange. Further, the Parties warrant that the mutual promises, covenants, and obligations set forth herein are intended to and do, in fact, represent a reasonably equivalent exchange of value that is not intended to hinder, delay, or defraud any entity that Medco was or became indebted to on or after the date of this transfer, within the meaning of 11 U.S.C. § 548(a)(1). 20. Except as expressly provided to the contrary in this Agreement and allowed by law, each Party shall bear its own legal and other costs incurred in connection with this matter, including the preparation and performance of this Agreement. 21. Medco represents that this Agreement is freely and voluntarily entered into without any degree of duress or compulsion whatsoever. 22. Collins represents that this Agreement is freely and voluntarily entered into without any degree of duress or compulsion whatsoever. 23. Relators Hunt, Gauger and Piacentile represent that this Agreement is freely and voluntarily entered into without any degree of duress or compulsion whatsoever. 24. This Agreement is governed by the laws of the United States. The Parties agree that the exclusive jurisdiction and venue for any dispute arising between and among the Parties under this Agreement is the United States District Court for the Eastern District of Pennsylvania, except that disputes arising under the CIA shall be resolved exclusively under the dispute resolution provisions in the CIA.   Case No. 99-CV-2332    18    -------------------------------------------------------------------------------- 25. This Agreement, together with the Interest Letter, the CIA, the 2004 Consent Order, the Relator Share Agreements and the Relator-Medco Agreements, constitutes the complete agreement between the Parties with respect to the subject matter hereof and thereof and supersedes all prior oral or written communications between or among the Parties or any of their affiliates regarding the subject matter hereof and thereof. This Agreement may not be amended except by written consent of the Parties, provided, however, that (a) only Medco, OIG-OPM and OIG-HHS must agree in writing to any modification of the CIA; (b) only the Relators and the United States must agree in writing to any modification of the Relator Share Agreements; and (c) only the Relators and Medco must agree in writing to any modification of the Relator-Medco Agreements. 26. Promptly following the execution of this Agreement the United States will sign and file stipulations of dismissal with prejudice of the Consolidated Action and any and all allegations pertaining to the Covered Conduct (the “Stipulations of Dismissal”). 27. The individuals signing this Agreement on behalf of Medco represent and warrant that they are authorized by Medco to execute this Agreement. Each individual signing this Agreement on behalf of Collins represents and warrants that such individual is authorized by Collins to execute this Agreement. Each individual signing this Agreement on behalf of a Relator represents and warrants that they are authorized by the applicable Relator to execute this Agreement. The United States signatories represent that they are signing this Agreement in their official capacities and that they are authorized to execute this Agreement. Each Party further warrants and represents that such Party has not assigned or transferred, or purported to assign or transfer, to any person or entity, any claims that such Party has or may have that are subject to this Agreement. 28. This Agreement may be executed in counterparts, each of which constitutes an original and all of which constitute one and the same Agreement. Facsimiles of signatures shall constitute acceptable, binding signatures for purposes of this Agreement. 29. This Agreement is binding on Collins’ and Medco’s successors, transferees, heirs, and assigns. 30. This Agreement is binding on the Relators’ respective successors, transferees, heirs, and assigns.   Case No. 99-CV-2332    19    -------------------------------------------------------------------------------- 31. All Parties consent to the disclosure of this Agreement, and information about this Agreement, to the public. 32. The term “Effective Date” as used herein shall refer to the latest of the following dates: (a) the date that the last signatory to the Agreement has executed the Agreement; and (b) the date that the Court enters the Stipulations of Dismissal. In the event that this Agreement does not become effective, this Agreement shall be treated as materials received pursuant to Fed. R. Evid. 408. 33. All recitals are incorporated herein as material provisions of this Agreement. The captions and headings of the Sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (a) references to the plural include the singular, the singular the plural, and the part the whole, (b) references to one gender include all genders, (c) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (d) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” (e) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole, and (f) the terms “dollars” and “$” refer to United States dollars. Section and subsection references are to this Agreement as originally executed unless otherwise specified. Any reference herein to any person shall be deemed to include the heirs, personal representatives, successors and permitted assigns of such person. Any reference herein to a corporate entity shall be deemed to include the entity’s past and present parents, subsidiaries, affiliates, predecessors, and successors and each of the assigns of any of the foregoing. 34. In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect. 35. Each Party agrees that the United States District Court for the Eastern District of Pennsylvania shall retain jurisdiction to enforce the Agreement. [SIGNATURES APPEAR ON FOLLOWING PAGES]   Case No. 99-CV-2332    20    -------------------------------------------------------------------------------- IN WITNESS WHEREOF, the Parties have executed this Agreement as of the 23rd day of October, 2006.       THE UNITED STATES OF AMERICA DATED: 10/23/06   BY:   /s/ JAMES G. SHEEHAN     PATRICK L. MEEHAN     United States Attorney     JAMES G. SHEEHAN     Associate United States Attorney   Case No. 99-CV-2332    21    -------------------------------------------------------------------------------- DATED: 10-23-06   BY:   /s/ JOYCE R. BRANDA     JOYCE R. BRANDA     Deputy Director     MICHAL L. TINGLE     DAVID T. SHAPIRO     Trial Attorneys     Commercial Litigation Branch     Civil Division     United States Department of Justice   Case No. 99-CV-2332    22    -------------------------------------------------------------------------------- DATED: 10/23/06   BY:   /s/ GREGORY E. DEMSKE     GREGORY E. DEMSKE     Assistant Inspector General for Legal Affairs     Office of Counsel to the Inspector General     Office of Inspector General     United States Department of Health and Human Services   Case No. 99-CV-2332    23    -------------------------------------------------------------------------------- DATED: 20 Oct 2006   BY:   /s/ LAUREL C. GILLESPIE     LAUREL C. GILLESPIE     Deputy General Counsel     TRICARE Management Activity     United States Department of Defense   Case No. 99-CV-2332    24    -------------------------------------------------------------------------------- DATED: 10/20/06   BY:   /s/ KATHLEEN McGETTIGAN     KATHLEEN McGETTIGAN     Deputy Associate Director     Center for Retirement & Insurance Services     United States Office of Personnel Management   Case No. 99-CV-2332    25    -------------------------------------------------------------------------------- DATED. 10/20/2006   BY:   /s/ J. DAVID COPE     J. DAVID COPE     Assistant Inspector General for Legal Affairs     United States Office of Personnel Management   Case No. 99-CV-2332    26    --------------------------------------------------------------------------------   MEDCO HEALTH SOLUTIONS, INC. DATED: 23 Oct 2006   BY:   /s/ Elizabeth S. Ferguson     Elizabeth S. Ferguson     Vice President, Litigation and Government Programs DATED: 23 Oct 2006   BY:   /s/ William McDaniels     William McDaniels     Counsel for Medoo Health Solutions, Inc.   Case No. 99-CV-2332    27    --------------------------------------------------------------------------------   DIANE M. COLLINS DATED: 10/20/06   BY:   /s/ Diane M. Collins     Diane M. Collins DATED: 10/23/06   BY:   /s/ Jack Fernandez     Jack Fernandez     Counsel for Diane M. Collins   Case No. 99-CV-2332    28    --------------------------------------------------------------------------------   GEORGE BRADFORD HUNT- RELATOR DATED: 10-20-06   BY:   /s/ George Bradlord Hunt     George Bradlord Hunt DATED: 10.23.06   BY:   /s/ Marc S. Raspanti     Marc S. Raspanti     Alison Duncan     Counsel for George Bradford Hunt   Case No. 99-CV-2332    29    --------------------------------------------------------------------------------   WALTER WILLIAM GAUGER - RELATOR DATED: Oct. 20, 2006   BY:   /s/ Walter William Gauger     Walter William Gauger DATED: 10.23.06   BY:   /s/ Marc S. Raspanti     Marc S. Raspanti     Alison Duncan     Counsel for Walter William Gauger   Case No. 99-CV-2332    30    --------------------------------------------------------------------------------   JOSEPH PIACENTILE - RELATOR DATED: Oct 19, 2006   BY:   /s/ Joseph Piacentile     Joseph Piacentile DATED: Oct 19, 2006   BY:   /s/ David Stone     David Stone     Counsel for Joseph Piacentile   Case No. 99-CV-2332    31   

776 A.2d 1054 (2001) In re CHRISTOPHER S. No. 2000-212-A. Supreme Court of Rhode Island. May 15, 2001. Aaron Weisman, Assistant Attorney General, Gina K. Lopes, Special Assistant Attorney General, for Plaintiff. Paula Rosin, Assistant Public Defender, for Defendant. Present WILLIAMS, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ. OPINION LEDERBERG, Justice. Three questions of law have been certified to this Court, pursuant to G.L. 1956 § 8-10-43 and G.L. 1956 § 9-24-27 and Rule 72 of the Family Court Rules of *1055 Procedure for Domestic Relations. The questions seek our advice on the constitutionality of the "Sexual Offender Registration and Community Notification Act," G.L. 1956 chapter 37.1 of title 11 (the act) as applied to juvenile sexual offenders and on the necessity of providing a trial by jury to juveniles charged with a sexual offense, given that the registration period may continue beyond the age of majority. Facts and Procedural History In February 2000, Christopher S. (respondent) was arraigned on two counts of first-degree sexual assault, one count of second-degree sexual assault, and one count of domestic assault, based on petitions filed after an interview with complainant at the Rhode Island Child Advocacy Center in Providence, Rhode Island. At the time of the alleged assaults, respondent was between the ages of fifteen and sixteen, and complainant was between fourteen and fifteen years old. After a Family Court justice made a finding of probable cause on February 25, 2000, respondent was placed on home confinement and released to his mother's custody.[1] In the course of the delinquency proceedings, onApril 21, 2000, respondent requested that the Family Court grant him a trial by jury because he would be required to register as a sexual offender for life[2] if he were found delinquent on the count of the first-degree sexual assault and, if found delinquent on the count of second-degree sexual assault, he would be required to register for a period of ten years. The state objected to respondent's motion, contending that juveniles were not entitled to a trial by jury and that registration was not punitive. On May 15, 2000, a Family Court justice certified and submitted to this Court the following three questions, together with an agreed statement of facts: "1. Is the Rhode Island Registration and Community Notification Act, Chapter 37.1 of R.I.G.L. as applied to juveniles constitutional? "2. If it is constitutional, in light of the fact that the Act removes the confidentiality that has thus far been an essential part of the juvenile system, are juveniles accused of sexual offenses entitled to a trial by jury? "3. Does a juvenile have the right to a jury trial, if he/she is subjected to registration as a sex offender past his/her twenty-first birthday?" The state argued that the broad question of whether the registration act is unconstitutional as applied to juveniles was not appropriately certified to this Court, given that it was not raised by respondent in Family Court. The respondent had initially requested a trial by jury, based on the assertion that confidentiality was lost through the process of registration. He contended that the registration rendered the adjudication of juvenile delinquency equal to an adult criminal conviction, thereby entitling him to increased procedural due process protection, including a trial by jury. Both parties agreed to a probable cause hearing, the Family Court replaced the home confinement with a 7 p.m. to 7 a.m. curfew.statement of facts and to the wording of the questions that the Family Court justice certified and submitted to this Court. *1056 Certification of Questions to this Court Section 9-24-27 provides in pertinent part: "Whenever in any proceedings *** in the superior court or in any district court, any question of law shall arise or the constitutionality of an act of the general assembly shall be brought in question upon the record which, in the opinion of the court, or in the opinion of the attorney general if the state is a party to the proceeding *** is of such doubt and importance and so affects the merits of the controversy that it ought to be determined by the supreme court before further proceedings, the court in which the cause is pending shall certify the question or motion to the supreme court for that purpose and stay all further proceedings until the question is heard and determined ***."[3] In recent years, we have expressed our "alarm at the use of certified questions as a means of short-circuiting the proper procedure for resolving matters in controversy," Employers Mutual Casualty Co. v. Martin, 671 A.2d 798, 802 (R.I. 1996). But "[d]espite our frequent disapproval of certified questions improperly presented to us, we continue to be confronted with such questions." State v. Carcieri, 730 A.2d 11, 14 (R.I. 1999). We have consistently declined to consider an improperly certified question, unless there are critical, substantial reasons to do so. See, e.g., State v. Jenison, 122 R.I. 142, 146, 405 A.2d 3, 5 (1979) (holding that when the defendants' constitutional challenges potentially invalidated numerous possibly faulty indictments, certification before trial was appropriate to avoid wasting valuable judicial time). This Court has repeatedly and emphatically mandated that "under § 9-24-27 questions should not be certified 'without careful consideration being given as to whetherthey were really as perplexing as they might at first seem.'" Martin, 671 A.2d at 802 (quoting Richardson v. Bevilacqua, 115 R.I. 49, 52, 340 A.2d 118, 120 (1975)). See also Bayview Towing, Inc. v. Stevenson, 676 A.2d 325, 329 (R.I. 1996) (holding that "certification required more than just simply being a question on which a justice was unwilling at the time to make an immediate ruling"). "'[C]areful consideration is a precondition to certification under the statute, but, even then, a trial justice should not certify unless, after first having had the benefit of adequate research by counsel and informed arguments, he [or she] continues to entertain such doubts concerning the question that he [or she] feels unable to resolve it unsatisfactorily.'" Martin, 671 alex37@example.com. Trial justices confronted with difficult cases should proceed with the presumption that questions need to be answered first at trial, not by certification to this Court. "By making a ruling or decision, after the benefit of counsels' research and argument and then certifying a question to this Court, the trial justice *** creates a thorough record, as well as provides this Court with the benefit of his or her reasoning and rationale in making our decision." Pierce v. Pierce, No. 2000-81-A., slip op. at 5 (R.I., filed May 11, 2001). Apart from transcripts of pretrial hearings and the parties' memoranda supporting or opposing respondent's motion for a trial by jury, there exists no record in this case that aids our review. We have cautioned in the past that "[i]n the absence of a transcript or other adequate record of the hearing below *** we are unable to *1057 conduct a meaningful review of the trial justice's decision or to pass upon the issue raised by the defendant." Harrold v. Kaufman, 430 A.2d 423, 424 (R.I. 1981). See also White v. LeClerc, 422 A.2d 1256, 1257 (R.I. 1980); Citizens for Preservation of Waterman Lake v. Davis, 119 R.I. 684, 685, 381 A.2d 1365, 1366 (1978). When, as here, we received questions to considerwithout the benefit of the trial justice's front-row view of the case and an analysis provided to us in his decision, we are deprived of the trial justice's efforts to resolve the issues. Presumption of Constitutionality In dealing with constitutional issues, "[b]ecause of the broad plenary power of the General Assembly, this [C]ourt's evaluation of legislative enactments has been extremely deferential; moreover, we have interfered with such enactments only when the legislation at issue palpably and unmistakably could be characterized as an excess of legislative power." City of Pawtucket v. Sundlun, 662 A.2d 40, 44-45 (R.I. 1995). Consequently, legislative enactments by the General Assembly are presumed "to be valid and constitutional," State v. One 1990 Chevrolet Corvette, 695 A.2d 502, 505 (R.I. 1997), and the challenging party is required to bear "the burden of persuading the court that the act violates an identifiable aspect of the Rhode Island or the United States Constitution." In Re Advisory Opinion to the Governor, 659 A.2d 95, 100 (R.I. 1995). In the instant case, the constitutionality of the registration act was not raised in the Family Court, and the failure to bring this issue before that court for judicial determination is fatal to the first certified question. Our position here is not a new one. Ninety years ago, we advised that "[t]he certification should be made only after the question has been formally raised on the record and in some appropriate proceeding it is presented to the trial court." Fletcher v. Board of Aldermen of Newport, 33 R.I. 388, 390, 81 A. 193, 193 (1911). See also Tillinghast v. Johnson, 34 R.I. 136, 139, 82 A. 788, 790 (1912) (holding that a certified question must be "one actually presented to [the trial] justice"). We are of the opinion that the certification of the broad question of constitutionality of the registration act as applied to juveniles was premature and is more appropriately addressed in a case in which the requirement of registration already had been imposed on a juvenile. As we have repeatedly stated, "when the partiesbypass the appropriate proceedings in the [trial] [c]ourt in order to precipitate the holding of this Court, we are deprived of the considerable benefit of a more complete record and of the trial justice's decision and its rationale prior to review by this Court." Martin, 671 alex37@example.com. With respect to the second and third certified questions, it is our opinion that those questions were "not so obscure or enigmatic as to preclude [their] successful resolution by the trial justice." Id. "Megan's Law"[4] and its implications for juvenile sexual offenders have not yet been fully addressed by this Court, and no doubt they will be the subject of review in future cases after adjudication at trial, at which time we expect to have the benefit of a more thoroughly developed record. *1058 Conclusion In summary, in light of the context of the case, it is our opinion that it was the obligation of the trial justice to deal with the issues presented in the certified questions in order for this Court to review a complete record, including the trial justice's decision. We must, therefore, decline to respond to the certified questions, and consequently we remand the case to the Family Court for further proceedings. NOTES [1] The respondent was also ordered to refrain from contact with complainant and to receive home tutoring, if he were then enrolled in school. On May 30, 2000, approximately three months after the [2] Subsequently, the registration period for juvenile sexual offenders identified as "sexually violent predators," "recidivists," or "aggravated crime offenders" was reduced from life to fifteen years. General Laws 1956 § 11-37.1-4(j), as amended by P.L. 2000, ch. 358, § 1, on July 20, 2000. [3] Although this section includes no reference to the Family Court, G.L. 1956 § 8-10-43 applies this section to the Family Court, "at least when exercising juvenile court jurisdiction." In re Correia, 104 R.I. 251, 254 n.2, 243 A.2d 759, 760 n.2 (1968). [4] General Laws 1956 chapter 37.1 of title 11 is modeled after New Jersey's comprehensive sexual offender registration and community notification statute, named after seven-year-old Megan Kanka, who was abducted, raped, and murdered by a neighbor who, unknown to her community in New Jersey, had been twice convicted of sex offenses involving young girls. In re Matthew A., 743 A.2d 553, 554 (R.I. 2000) (per curiam).

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2353 DR. BRAD R. JOHNSON; ELCI WIJAYANINGSIH, Plaintiffs - Appellants, v. WINFORD BARR; ABBY POPE; ELIZABETH BILETH; UNITED STATES OF AMERICA, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (7:11-cv-00104-BO) Submitted: March 7, 2013 Decided: March 18, 2013 Before MOTZ, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Brad R. Johnson, Elci Wijayaningsih, Appellants Pro Se. Robert Joel Branman, I, Teresa E. McLaughlin, Tax Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Brad R. Johnson and Elci Wijayaningsih appeal the district court’s order granting the Government’s motion to be substituted as a proper party and dismissing their complaint filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The Appellants brought suit against three employees of the Internal Revenue Service in their individual capacities after they were audited. This court reviews de novo a district court’s grant of a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). Columbia Gas Transmission Corp. v. Drain, 237 F.3d 366, 369 (4th Cir. 2001). We may affirm on alternate grounds if it is apparent from the record that the Appellants are not entitled to relief. Ellis v. Louisiana-Pacific Corp., 699 F.3d 778, 786 (4th Cir. 2012). In Judicial Watch, Inc. v. Rossotti, 317 F.3d 401, 409 (4th Cir. 2003), this court noted that courts have consistently found that taxpayers could not claim damages under Bivens against individual IRS agents. See Adams v. Johnson, 355 F.3d 1179, 1184-85 (9th Cir. 2004); Shreiber v. Mastrogiovanni, 214 F.3d 148, 152-53 (3d Cir. 2000); Dahn v. United States, 127 F.3d 1249, 1254 (10th Cir. 1997) (stating that “in light of the comprehensive administrative scheme created by Congress to resolve tax-related disputes, individual agents of the IRS are 2 also not subject to Bivens actions”); Fishburn v. Brown, 125 F.3d 979, 982–83 (6th Cir. 1997) (no Bivens action against IRS agents for alleged due process violations during property seizure); Vennes v. An Unknown Number of Unidentified Agents of the United States, 26 F.3d 1448, 1454 (8th Cir. 1994) (declining to create Bivens action against IRS agents for alleged due process violations). There is no reason to stray from that rule and on that basis we affirm the district court’s dismissal of the Appellants’ Bivens claim. For the reasons stated by the district court, the Appellants were not eligible for injunctive relief or relief under the Declaratory Judgment Act. See 26 U.S.C. § 7421(a) (2006); 28 U.S.C. § 2201(a) (2006). Accordingly, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DENISE MASON, individually and on behalf of other similarly situated individuals, 18 ev 10826 (JGK) Plaintiffs, ORDER - against - REED’s INC., Defendant. JOHN G. KOELTL, District Judge: The parties should advise the Court by July 9, 2021 as to the status of the case. SO ORDERED. a {3 Dated: New York, New York mS i) / Ke (2 June 24, 2021 j Lo? ot i. ae John G. Koeltl United States District Judge USDS SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _ DATE FILED: 6/24 /202|_ 

Citation Nr: 1616021 Decision Date: 04/20/16 Archive Date: 04/26/16 DOCKET NO. 05-32 637A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a permanent and total disability rating for pension purposes for the period from August 11, 2004, to July 19, 2005. 2. Entitlement to an initial schedular rating in excess of 30 percent for a depressive disorder associated with osteochondrosis of the thoracolumbar spine. 3. Entitlement to an increased rating on an extraschedular basis for a depressive disorder associated with osteochondrosis of the thoracolumbar spine. 4. Entitlement to an increased rating on an extraschedular basis for osteochondrosis of the thoracolumbar spine. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from August 1969 to June 1971. This matter comes before the Board of Veteran' Appeals (Board) on appeal from a rating decisions entered by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. These issues have been remanded by the Board in April 2009 and December 2013 actions. They are now back before the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA (VVA) electronic claims processing systems. Any future consideration of this claim should take into consideration the existence of the electronic record. FINDINGS OF FACT 1. The Veteran's countable income for the period pertinent to his claim exceeds the maximum annual pension rates and his disabilities did not render him totally disabled. 2. The Veteran's depressive disorder is manifested primarily by symptoms demonstrating occupational and social impairment, with no more than occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks. 3. The symptoms of the Veteran's depressive disorder are contemplated by the schedular rating criteria. 4. The symptoms of the Veteran's thoracolumbar spine disability are contemplated by the schedular rating criteria. CONCLUSIONS OF LAW 1. The criteria for entitlement to non-service connected (NSC) pension benefits have not been met. 38 U.S.C.A. §§ 1521, 1522 (West 2014); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273 (2015). 2. The criteria for an initial disability rating for depressive disorder greater than 30 percent are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9434 (2015). 3. The criteria for an increased rating on an extraschedular basis for depression have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 3.321, 4.130 Diagnostic Code 9434 (2015). 4. The criteria for an increased rating on an extraschedular rating for a thoracolumbar spine disorder have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 3.321, 4.71a Diagnostic Code 5237 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2015). For the issues decided herein, VA provided adequate notices in letters sent to the Veteran in September 2005, February 2006, and April 2010. Next, VA has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service and VA treatment records, as well as Social Security Administration records. Also, VA afforded the Veteran relevant examinations and opinions in November 2004, January 2005, July 2005, December 2005, March 2006, July 2009, May 2010, and December 2010. The examination reports described the Veteran's disabilities, addressed the relevant history, and provided findings in accordance with the rating criteria. Therefore, the Board finds the examinations to be adequate. Additionally, the Board has complied with the December 2013 remand directives. The relevant records were obtained, a VA examination was afforded to the Veteran, and the claims were referred to the Director of Compensation Services for extraschedular consideration. In summary, the duties imposed by the VCAA have been considered and satisfied. Nonservice-connected pension For the period from August 11, 2004, the date the Veteran filed his claim for benefits, to July 19, 2005, the date he was awarded TDIU benefits, the question is whether he was entitled to NSC pension benefits. Pursuant to 38 U.S.C.A. § 1521(a), improved nonservice-connected (NSC) pension is a benefit payable by VA to a veteran of a period of war who is permanently and totally disabled from NSC disability not the result of his willful misconduct. Basic entitlement to improved pension exists if, among other things, a veteran's income is not in excess of the applicable maximum allowable pension rate specified in 38 C.F.R. § 3.23, as changed periodically and reported in the Federal Register. See 38 U.S.C.A. § 1521 (West 2014); 38 C.F.R. § 3.3(a)(3). The maximum annual pension rate is periodically increased from year to year. 38 C.F.R. § 3.23(a). The maximum annual pension rate is published in Appendix B of VA Manual M21-1 and is to be given the same force and effect as if published in VA regulations. 38 C.F.R. §§ 3.21, 3.23. In this regard, the Board initially finds that the Veteran meets the active service requirement as he served for over 90 days during the Vietnam War. For the period from August 2004 to July 2005, the Veteran was awarded VA compensation benefits for his low back, tinnitus, and depression, with a combined rating of 50 percent disabling. He was deemed not service-connected for a right shoulder disability evaluated at 10 percent disabling, and a cervical spine disability that was deemed noncompensable. Thus, based on the evidence he was not permanently and totally disabled by nonservice-connected conditions for this period. Moreover, that notwithstanding, the Board finds that he has not met the net worth requirement as his countable income from VA compensation benefits for this period exceeds the maximum income for eligibility for NSC pension and exceeds the amount of pension benefits payable for this time period. 38 U.S.C. § 1521 (2004). In 2004, NSC pension benefits payable for a married Veteran with one child was $5,251. The Veteran was awarded compensation for this time period of $755 a month for September, October and November 2004, and $775 a month for the period from December 2004 through July 2005. This amount equals $8,585. Accordingly, the benefits payable for his service connected disabilities exceeded the available income from NSC pension for this period. See generally 38 U.S.C. § 5304. Therefore, he does not meet the basic income eligibility requirement to establish entitlement to payment of NSC pension from August 11, 2004, to July 19, 2005, and does not meet the requirement of being totally disabled due to nonservice-connected disabilities for his period. Increased rating for depression Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2015). The veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1 (2015); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary in order to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41 (2015). The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the General Rating Formula for Mental Disorders, a 30 percent rating is warranted for occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9434. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. Global Assessment of Functioning (GAF) scale scores are based on a scale indicating the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Carpenter v. Brown, 8 Vet. App. 240 (1995); Richard v. Brown, 9 Vet. App. 266 (1996); American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, 4th Ed. (1994) (DSM-IV). The GAF score is based on all of the veteran's psychiatric impairments. A GAF score of 51 to 60 represents moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with coworkers). A GAF score of 61 to 70 represents mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. A GAF score of 71 to 80 reflects that, if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). While particular GAF scores are not contained in the VA schedule of ratings for mental disorders, they are a useful tool in assessing a veteran's disability and assigning ratings. 38 C.F.R. § 4.130 (2015). However, they are just one of many factors considered when determining a rating. The specified factors for each rating for mental disorders are examples, rather than requirements, for that particular rating. The Board will not limit its analysis solely to whether a veteran exhibited the symptoms listed in the rating criteria. The Board will instead focus on the level of occupation and social impairment caused by the symptoms. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Treatment records from September 2004 through December 2004 showed the Veteran had chronic depression since 2003, possibly related to the increased pain of his back disorder and loss of career. He endorsed symptoms of low energy, low motivation, some feelings of hopelessness and helplessness, dysphoria, some anhedonia, and loss of libido. He was fully oriented with good eye contact and normal speech. His affect was constricted and his mood was depressed. There were no delusions, hallucinations, flashbacks, or obsessions. He repeatedly denied suicidal or homicidal ideations, sleep impairment, panic attacks, and episodes of violence. The Veteran underwent a VA mental disorders examination in November 2004. He reported symptoms of depressed mood, decreased interest and motivation, fatigue, and feelings of worthlessness and hopelessness. He reported the onset of depression around 2003 when work became difficult for him due to increased back pain. The Veteran stated that he was currently unemployed due to his chronic pain, not necessarily due to depression. The Veteran reported a strong and positive relationship with his wife. He described himself as always having been a loner but did not believe he was additionally isolated due to his depression. A mental status examination showed no impairment in thought process or communication and no delusions or hallucinations. The Veteran exhibited appropriate behavior and denied suicidal or homicidal ideations. He was fully oriented and able to maintain persona hygiene. The Veteran showed no memory loss, obsessive or ritualistic behaviors, panic attacks, impaired impulse control, or sleep impairment. The examiner diagnosed major depressive disorder, single episode of mild severity and assigned a current and one-year previous GAF score of 68. The examiner noted that the Veteran did not believe he was isolating himself socially and was able to interact with others and engage in social activities. The Veteran was also capable of activities of daily living, although he reported some decrease in activities due to chronic pain. In a January 2005 VA examination report, the Veteran reported panic, fear, and depression over not being able to work and support himself due to his back pain. A mental status examination showed he was fully oriented but the examiner found "indications of cognitive impairment or of a thought disorder." He further noted that the Veteran's memory was intact and that his symptoms were mild to moderate in severity. The examiner diagnosed depressive disorder and assigned a GAF score of 58. He opined that his physical difficulties apparently prevent the Veteran from working. In an April 2005 therapy session, the Veteran reported a generally stable mood and having success averting depressive symptoms. A mental status examination showed normal appearance, behavior, speech, affect, euthymic mood, normal thought process and content, no delusions or hallucinations, no suicidal or homicidal ideations, and no cognitive impairment. His problem was noted to be a depressed mood, but his mood appeared to be stabilized. A June 2005 record showed increased depression. In a July 2005 VA general medical examination report, the examiner noted that the Veteran was "unemployable, partly because of the back pain, which is fairly severely limiting to [the Veteran], but also very importantly because of his depression." In October 2005, the Veteran was seen in the mental health clinic for a therapy session. He reported no change in his depression since stopping herbal supplements, but has had some mental confusion and insomnia he thinks are related to his medication. His mood was "okay" but he was less tolerant of external stimuli and reacted to it with sadness. He cares for his parents while his wife is away. He spends time studying futures markets and has been a trader on and off, and is trying to write a computer program that will do the trading. His affect was constricted, his speech fluent, spontaneous with organized content. His judgment was intact. There was no thought disorder. In a November 2005 treatment note, the Veteran stated that he had stopped taking his psychiatric medications because he did not like the side effects. He denied suicidal or homicidal ideations, had some hopelessness about life in general. His affect was constricted, he was alert, orientated, informative, and cooperative. His judgment was intact and he had no thought disorder. His speech was spontaneous, fluent and the content was organized. He was started on Wellbutrin and scheduled to return in approximately 3 months. A VA mental disorders examination was conducted in December 2005. The examiner opined that although the Veteran was diagnosed with depressive disorder, he found that the Veteran met the diagnostic criteria for generalized anxiety disorder, due to symptoms of restlessness, elevated respiratory rate, low energy, fatigue, low concentration, depression, and irritability. The Veteran reported that his social life has diminished over the prior few years and he has only one or two friends with whom he socializes. The examiner noted the Veteran to be pleasant with neat and tidy appearance, normal speech and behavior, full orientation, good memory, broad affect, anxious mood, and without cognitive impairment. He diagnosed generalized anxiety disorder with some elements of depression and assigned a GAF score of 50, with serious symptoms and serious impairment in social and occupational functioning. In a May 2007 psychiatric evaluation, the Veteran reported depression due to his back disorder. A mental status examination showed the Veteran was mildly, but not significantly, depressed. He maintained eye contact and had normal speech. There was no suicidal or homicidal ideation or cognitive impairment. The examiner assessed a mood disorder with major depressive features, mild to moderate. The Veteran was assigned a GAF score of 51-60, which is indicative of moderate difficulty in social, occupational, or school functioning. The examiner opined that the Veteran had no limitations in his ability to understand, remember, and carry out instructions, interact appropriately with supervision, coworkers and the public, and respond appropriately to change in routine work setting, but that Veteran had limited desire for socialization and generalized anhedonia. The Veteran underwent a VA mental disorders examination in December 2010. He reported a depressed mood that was of variable duration and mild to moderate severity, irritability, low energy, and low stress tolerance. The Veteran denied a history of suicidal or homicidal ideation, plan, or intent. A mental status examination showed the Veteran was clean and casually dressed with unremarkable psychomotor activity. His speech was spontaneous, clear, and coherent, attitude was friendly and cooperative, with a full affect. His mood was noted to be slightly dysphoric. He was fully oriented with attention intact, normal thought process and content, judgment, average intelligence, and good insight. The Veteran denied delusions, hallucinations, inappropriate behavior, obsessive or ritualistic behavior, panic attacks, and episodes of violence. Regarding social functioning, the Veteran reported that he lives with his wife and children and mother-in-law. He stated he had a good relationship with his family and had close friends. Regarding occupational function, the Veteran reported that he had been retired due to medical problems since May 2003. He was receiving Social Security disability income for his back and depression. The examiner opined that the Veteran's depression causes occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks but with generally satisfactory functioning. Specifically, the examiner noted that the Veteran's depression is recurrent without full interepisode remission and his depressive symptoms are mild and characterized by irritability, low stress tolerance, and depressed mood. The examiner further opined that "the depression interferes mildly with his social activities even when the symptoms become more pronounced as they have reportedly become recently. The Veteran denied any social withdrawal; he does benefit from attending AA meetings regularly and seeing his few friends. Occupationally, the Veteran stated he was retired and he regrets not being able to provide as well as he used to for his family. The depressive symptoms are for the most part well-managed with the medication and not severe enough to interfere significantly with his occupational functioning. According to the medical record the Veteran is capable of pro bono work; specifically, organizing a research project at the University and traveling to China." VA treatment records from January 2011 through June 2011 showed the Veteran had chronic, stable depression. In January 2011, he stated that his mood had been down since his recent trip to China. Mental status examination showed a euthymic mood, with a normal presentation and no cognitive impairments. A GAF score of 70 was assigned. The Veteran continued to be treated for depression in 2012 and 2013. GAF scores ranged from 70 to 71. In November 2013, he scored a 29 on the Beck Depression Inventory, indicative of a severely depressed mood. His severe symptom was pessimism and his moderate symptoms included sadness, past failure, loss of pleasure, self-dislike, self-criticalness, loss of interest, loss of energy, concentration difficult, tiredness or fatigue, loss of interest in sex. The Veteran's mild symptoms included guilty feelings, punishment feelings, indecisiveness, worthlessness, changes in sleeping pattern, and irritability. The Veteran endorsed feelings of an overwhelming sense of doom, decreased sexual drive, decreased interest in activities, and "wishing he were dead." A mental status examination was normal, with a dysphoric mood and no cognitive impairment. The Veteran reported having three close friends and a supportive "to an extent" wife. Although the Veteran was unemployed, he did volunteer work by providing financial advisement to an organization. A February 2014 treatment record showed the Veteran still experienced depression but was better able to be engaged in his life. A mental status examination showed a dysphoric mood but otherwise normal with no evidence of cognitive impairment. A depression inventory score was 27, indicating moderate depression. In August 2014, the Veteran reported feeling stable but with some residual symptoms of depression, including low energy, hopelessness, and feeling "in a fog." He denied suicidal or homicidal ideations. Upon review of the record, the Board finds that the preponderance of the evidence indicates that the symptoms of the Veteran's depressive disorder most closely approximated the criteria for a 30 percent disability rating for the entirety of the appeal period. The Veteran's depressive disorder is characterized by occasional decrease in work efficiency, with intermittent periods of inability to perform occupational tasks due to such symptoms as depressed mood and anxiety. The record does not indicate that the Veteran manifested or endorsed symptoms of memory loss, chronic sleep impairment, panic attacks, impaired judgment, or impaired speech. The Board notes that although the Veteran was not working during the period on appeal, the record indicates that he stopped working due to his physical symptoms, specifically the pain from his back disorder, and his depression has been attributed, in part, to his inability to work, rather than his inability to work being attributed to his depression. The Board finds that the evidence also shows that the Veteran generally functioned satisfactorily, with routine behavior, self-care and normal conversation. No cognitive impairments were noted in the records. VA medical records demonstrate that the Veteran was able to manage his finances, the activities of daily life, regularly presented as well-groomed, and maintained a positive relationship with his wife, children, and a few friends. The Board acknowledges that the record indicates that the Veteran experienced periods of increased depressive symptoms; however, his mental status examinations were consistently normal, he maintained a good relationship with his family, and there is no evidence of cognitive impairment. While the Board does not doubt the competency or credibility of the Veteran's reports or the November 2013 record showing severe depression, they do not represent the Veteran's overall disability picture. In particular, the Board notes that the Veteran was typically assigned GAF scores of 60 or higher, indicative of mild symptoms and in February 2014, the Veteran's depression inventory score was 27, indicative of moderate symptoms. Although there has been some fluctuation in symptoms, the Board finds that the Veteran's overall disability picture has been consistently moderate, showing occupational and social impairment with occasional decrease in work efficiency and intermittens periods of inability to perform occupational tasks, consistent with a 30 percent rating. Further, the Veteran's speech was generally described as normal; he displayed no memory impairment; he was typically found to have linear, goal oriented thinking; and he generally had good judgment and insight. Although the November 2013 treatment record showed the Veteran did not wish to live, he has consistently denied suicidal ideations. The overall disability picture does not present symptomatology of such frequency, severity and duration to meet or equate to occupational and social impairment with reduced reliability and productivity. As noted, consideration has also been given to assigning staged ratings for the Veteran's depressive disorder. However, while there have been brief periods of increased symptomatology, these periods were not indicative of an overall increase in the severity of the Veteran's condition, but rather represented situational elevations of symptomatology that were transient. The evidence shows that the overall level of disability has been consistent. Accordingly, the Board finds that at no time during the period in question has the Veteran's depressive disorder warranted higher schedular ratings. See Fenderson, supra. For these reasons, the Board concludes that, based on the preponderance of the evidence, the Veteran's depressive disorder overall has more closely approximated a 30 percent disability rating, but no higher, for the period on appeal. As the evidence preponderates against the claim, the benefit-of-the-doubt rule is not applicable. 38 U.S.C.A. § 5107(b) (West 2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular ratings According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b) ] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet.App. 484 (2016). Accordingly, referral for consideration of 38 C.F.R. § 3.321(b)(1) on a collective basis is not warranted in this case. The threshold factor for extraschedular consideration on an individual basis is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The issue of consideration of an extraschedular rating first arose in the April 2009 Board decision, where the Board remanded the claims for referral to the Director of Compensation and Pension Service in accordance with 38 C.F.R. § 3.321(b)(1). As a basis for this remand directive, the Board noted that the evidence of record shows that the Veteran has not been employed since 2003. A July 2005 VA examiner opined that his unemployment was partly due to back pain, which was fairly severely limiting to him, and also due to his depression. In addition, a private functional capacity evaluation performed in January 2003 and a private medical disability assessment performed in November 2005 stated that the Veteran was not able to tolerate sitting or standing for extended periods. The January 2003 report specifically stated that the limitations due to his back condition interfered with his ability to work. The Board further found that the evidence showed that the Veteran's depression and back disability interfered with his employment, as they limit him from standing or sitting for prolonged periods and these symptoms are not contemplated by the rating criteria. Contrary to the Board's statement in the 2009 remand, to the extent that the Veteran argues that his back disorder and depression interfere with his employability and activities of daily life, such interference is contemplated by the schedular rating criteria. 38 C.F.R. § 4.1; VAOPGCPREC 6-96; see also Bagwell v. Brown, 9 Vet. App. 337, 338 (1996) (Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.) With regard to the low back and depression, as of July 19, 2005, any interference with employment has been compensated through his schedular rating and the award of a TDIU. For the period prior to July 19, 2005, with regard to his back, any limitation of motion and functional limitation due to pain (to include on prolonged standing and siting) are contemplated in his schedular evaluation pursuant to the rating criteria and the criteria in 38 C.F.R. §§ 4.40, 4.45, 4.59, which are all considerations in the assignment of a rating under the schedule and not under section 3.321(b)(1). The Veteran has not alleged, and the record does not show, symptoms other than pain, limitation of motion and function due to his back disorder. Similarly, the schedular criteria for the Veteran's depressive disorder include consideration of occupational impairment, thus, any interference with employment is contemplated by the schedular criteria for evaluating psychiatric disabilities. The Veteran has not asserted additional symptoms that are not contemplated by the Schedule. Accordingly, entitlement to an extraschedular rating pursuant to 38 C.F.R. 3.321(b)(1) is not warranted for either the Veteran's low back or psychiatric condition. ORDER Entitlement to a permanent and total disability rating for pension purposes for the period from August 11, 2004, to July 19, 2005 is denied. An initial schedular rating in excess of 30 percent for a depressive disorder associated with osteochondrosis of the thoracolumbar spine is denied. An increased rating on an extraschedular basis for a depressive disorder associated with osteochondrosis of the thoracolumbar spine is denied. An increased rating on an extraschedular basis for osteochondrosis of the thoracolumbar spine is denied. ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

Margaret E. Smith, hereinafter called petitioner, filed complaint with the State Bar of Arizona against James Forest, a member of the bar, hereinafter called respondent, charging him with unprofessional conduct. Briefly summarized, the alleged misconduct was this: Respondent had acted as attorney for petitioner in a divorce proceeding in the superior court of Yuma county. Judgment went against her, and she was desirous of taking an appeal to this court. Respondent informed her that, in his opinion, the appeal would be successful, and that the costs would amount to $175. She had some other litigation pending also which he was handling. In the fall of 1933, she remitted to him $235 in cash, $175 for the *Page 293 costs of the appeal, and the other $60 for the costs of the other litigation. She wrote to respondent from time to time, and was informed that the appeal was progressing nicely, and that he was taking proper charge thereof. Some eighteen months later, not having heard as to the result of the appeal, she began an investigation and found that no appeal had ever been taken. Respondent then asserted that the money she had sent him had mostly been used in paying for a reporter's transcript; but again upon investigation it appeared that no transcript had ever been ordered nor paid for, and that the time for appeal having passed, she was unable to proceed with it. Respondent then stated that he would refund the money, and after much urging and solicitation, did return $60 in cash, and an order on a third person which was eventually productive of another $50, but no more was ever received by her. A hearing was had in December, 1935, by the local administrative committee of the State Bar in Yuma, who investigated the charges, at which the petitioner testified substantiating her charges, respondent being also present. A further hearing was held on February 1, 1936, and depositions were submitted, and respondent testified fully in his own behalf. The local committee then reported to the Board of Governors of the State Bar, finding, in substance, that the charges were true, and recommending that respondent should be disciplined therefor. The Board of Governors, at its meeting in April, 1936, ordered the record transmitted to this court. An order to show cause was directed to respondent and served on him by registered mail, in the State of California, in May, 1936; but respondent has wholly failed and neglected to make any response to such order. This might be taken as a confession of the charges against him, without the *Page 294 necessity of examining the record further; but notwithstanding this, we have carefully examined and considered the evidence found in the record, and are satisfied the charges were fully sustained thereby. That the conduct above referred to constitutes professional misconduct in the highest degree is obvious. Not only did respondent obtain money from petitioner for professional services which he never rendered, but he represented to her for some time thereafter that the services had been performed, so that when she finally discovered the true situation it was too late for her to perfect her appeal, and although he eventually admitted these facts and offered to return the money so retained, he only did so partially, and has offered no defense for his conduct to this court. Under the circumstances, we are of the opinion there is but one thing which should be done. It is ordered that respondent be, and he is, permanently disbarred from the practice of his profession in the State of Arizona. McALISTER, C.J., and ROSS, J., concur. *Page 295

989 P.2d 429 (1999) 128 N.M. 54 1999-NMSC-034 Fremont F. ELLIS, Plaintiff-Appellant, v. CIGNA PROPERTY & CASUALTY COMPANIES, Defendant-Appellee. No. 24801. Supreme Court of New Mexico. September 1, 1999. Roth, VanAmberg, Rogers, Ortiz & Fairbanks, LLP, Ronald J. VanAmberg, Santa Fe, for Appellant. Law Offices of Jay R. Hone, K. Stephen Royce, Albuquerque, for Appellee. OPINION FRANCHINI, Justice. {1} In this case, certified to us by the Court of Appeals, we affirm the district court's determination that the applicable statute of limitations for a cause of action under an uninsured motorist policy is six years on a written contract. See NMSA 1978, § 37-1-3(A) (1975). However, we disagree with the district court that the limitation period necessarily began to run from the date of the auto incident sued upon by Plaintiff (Ellis). Rather, as Ellis argues, his cause of action against Defendant (Cigna) may have accrued at a later date under the terms of his uninsured motorist policy (the UM Policy). Because neither party entered the UM Policy into the record before the district court dismissed this action, we are unable to decide this issue at this time. However, since it is possible that the later date is the correct one, we reverse the district court's dismissal of Ellis's complaint for failure to bring suit within the six-year limitation period. We remand for further proceedings consistent with this opinion. FACTS AND PROCEDURAL POSTURE {2} The facts relevant to this appeal are extensive but straightforward. On April 12, 1987, Ellis was a passenger in a Hyundai that was owned by one third party and driven by another. The Hyundai was fired upon without warning by the occupants of a pickup truck. Ellis exited his vehicle to get the license plate of the pickup and was shot in the leg while returning to the Hyundai. {3} Subsequently, Ellis sued the pickup driver and passenger. Apparently, judgment was obtained against them sometime in July of 1988, but it seems that neither defendant carried automobile or other insurance. Nor was the pickup truck an insured vehicle. *430 {4} Ellis then made demand against the insurance company providing the uninsured motorist coverage for the Hyundai. When his demand was denied, Ellis filed suit seeking to compel arbitration or, in the alternative, a declaration that his claim was compensable under the Hyundai's policy. The district court granted summary judgment to Ellis on September 3, 1991. However, on August 24, 1992, this Court reversed and entered judgment for the insurer in an unpublished decision, holding that Ellis did not "occupy" the vehicle for purposes of coverage. {5} On April 11, 1994, Ellis filed the instant suit against his own insurance company, Cigna. Ellis's complaint states that "Plaintiff has pursued his uninsured and underinsured coverage on his policies with Cigna, but believes, based upon information and belief, that there is additional uninsured/underinsured coverage." Cigna filed a motion to dismiss for failure to state a claim upon which relief could be granted, on the grounds that the limitation period in the applicable statute of limitations had expired. Following submission of briefs by the parties and a hearing, the district court granted Cigna's motion. Ellis appealed, and we now affirm in part, reverse in part, and remand. DISCUSSION {6} We affirm the district court's judgment that the limitation period for contract actions applies to this case. In Sandoval v. Valdez, 91 N.M. 705, 708, 580 P.2d 131, 134 (Ct.App.1978), the court did not reach the issue of whether the period for contract actions or the shorter tort limitation period applied in New Mexico for actions on an uninsured motorist policy, since the plaintiff had met both. However, Judge Sutin's special concurrence noted that the longer period was favored by a majority of the jurisdictions that had considered the issue. See id. at 711, 580 kmoore@example.org. In the years since Sandoval, an overwhelming number of courts have joined the majority position. See A.S. Klein, Annotation, Automobile Insurance: Time Limitations as to Claims Based on Uninsured Motorist Clause, 28 A.L.R. 3d 580, at § 3 (1969 & Supp.1999); see also 1 Alan I. Widiss, Uninsured and Underinsured Motorist Insurance § 7.12, at 292 (2d ed.1990) (noting "the almost uniform view among the applicable judicial precedents that uninsured motorist insurance claims are subject to the contract statute of limitations"). We now expressly join the majority position, being persuaded that since the insurance contract is a necessary predicate "on which the liability of the insurer depends, ... the contract limitation period therefore controls." Klein, supra, at 585. {7} The more difficult question is when the limitation period begins to run. While the date is specified in the uninsured motorist statute in some states, see id. at § 4, in New Mexico it is not. See NMSA 1978, § 66-5-301 (1983). In such circumstances, the matter must be decided by the courts, and there appear to be at least four possibilities. First, a few courts have held that the date of the accident with an allegedly uninsured motorist commences the limitation period. See State Farm Mut. Auto. Ins. Co. v. Kilbreath, 419 So. 2d 632, 633 (Fla. 982); see also Green v. Selective Ins. Co., 144 N.J. 344, 676 A.2d 1074, 1078-80 (1996) (disagreeing with the reasoning in Kilbreath, but reaching same result). Second, other courts hold that the tortfeasor must be adjudged uninsured or underinsured before the period begins to run on the plaintiff's claim against his or her own insurance company for coverage. See, e.g., Vaughn v. State Farm Mut. Auto. Ins. Co., 445 So. 2d 224, 226 (Miss. 1984). Third, some courts have addressed situations where specific contractual terms in the insurance policy determine when the plaintiff may bring suit for uninsured motorist coverage. See Butler v. Hartford Accident & Indem. Co., 54 Misc. 2d 808, 283 N.Y.S.2d 466 (Sup.Ct.1967) (staying plaintiff's claim against excess carrier until plaintiff met policy requirement to first arbitrate claim against primary carrier); see also Westchester Fire Ins. Co. v. Imperiale, 157 Misc. 2d 721, 598 N.Y.S.2d 685, 686-87 (Sup. Ct.1993) (holding exhaustion of liability to be a contractual condition precedent to plaintiff's claim for underinsured motorist coverage against his own carrier, such that cause of action did not accrue until date of settlement with tortfeasor). Fourth and finally, a *431 growing number of courts, perhaps a majority, hold that the limitation period does not begin to run until the insurer refuses to arbitrate the plaintiff's claim, denies the claim outright, or otherwise "violates" the insurance contract. See, e.g., Berkshire Mut. Ins. Co. v. Burbank, 422 Mass. 659, 664 N.E.2d 1188, 1191 n. 5 (1996) (collecting cases). Since neither Ellis nor Cigna assert that the second or fourth possibilities are applicable here, we do not consider those issues. {8} Cigna argues that the statute of limitations began to run when Ellis was shot in the leg while he was returning to the Hyundai. Ellis argues that under his UM Policy with Cigna, as a passenger in the Hyundai he was only secondarily insured by Cigna, and therefore he could not sue Cigna until he had first sought uninsured motorist coverage from the company insuring the Hyundai. We are persuaded that Ellis's argument is sufficient to withstand Cigna's motion to dismiss. See Cypress Gardens, Ltd. v. Platt, 1998-NMCA-007, ¶ 6, 124 N.M. 472, 952 P.2d 467 ("A motion to dismiss ... is properly granted only when it appears that the plaintiff cannot recover or be entitled to relief under any state of facts provable under the claim."). {9} In Butler, the policy issued therein stated that "the coverage to the claimant `while occupying an automobile not owned by the named insured ... shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance.'" 283 N.Y.S.2d at 467 (emphasis added). If, as Ellis has alleged, a similar provision exists in the UM Policy here, then Ellis's claim against Cigna would not have arisen until Ellis's claim against the Hyundai's insurer was finally adjudicated. See 2 Eugene R. Anderson et al., Insurance Coverage Litigation § 13.4, at 106 (1997) ("Excess coverage attaches only after the primary coverage has been paid out or exhausted."). To hold otherwise would be to say that the statute of limitations on Ellis's claim against Cigna as his excess insurer began to run before Ellis had an excess insurance claim against Cigna. See Saiz v. Belen Sch. Dist., 113 N.M. 387, 401 n. 12, 827 P.2d 102, 116 n. 12 (1992) (noting that "a statute of limitations begins to run when a plaintiff's cause of action accrues or is discovered"); see also Aetna Life & Cas. Co. v. Nelson, 67 N.Y.2d 169, 501 N.Y.S.2d 313, 492 N.E.2d 386, 389 (1986) (articulating the general rule that a cause of action arises, and the statute of limitations begins to run, "when all of the facts necessary to the cause of action have occurred so that a party would be entitled to obtain relief in court"). CONCLUSION {10} For the foregoing reasons, we affirm the district court's determination that the limitation period of six years for contract actions applies in this case. Since the UM Policy may show that Ellis's claim against Cigna arose within the six-year limitation period, we reverse the judgment of the district court holding that the statute of limitations began to run from the date Ellis was shot. Therefore, we also reverse the district court's dismissal of Ellis's suit for failure to state a claim upon which relief can be granted. This action is remanded to the district court for further proceedings consistent with this opinion, including consideration of the actual UM Policy issued by Cigna to Ellis. {11} IT IS SO ORDERED. MINZNER, C.J., BACA and SERNA, JJ., concur.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] ORDER RE: DIVISION OF ASSETS CT Page 11055 A decree of dissolution was entered by this court on March 29, 2000. The plaintiff was awarded a lump sum property settlement in the amount of $3,460,000, less a credit of $229,900 (two hundred twenty-nine thousand, nine hundred dollars), leaving a lump sum property settlement due the plaintiff in the amount of $3,230,100 (three million, two hundred thirty thousand, one hundred dollars) The parties were given 30 days to agree on how and from which accounts the assets were to be transferred. The parties were unable to agree and returned to court at which time each party presented a proposal and thereafter written proposals were filed with the court by the parties. At best as it can, the court has valued the assets of the parties as of the date of the dissolution referring to the parties' financial affidavits and. the written claims for relief which were filed at the time of the dissolution. In connection with any transfer of assets, any increases in value which occurred after the date of dissolution shall inure to the benefit of the plaintiff. Any decrease in value shall be to the detriment of the plaintiff. The plaintiff shall be entitled to any stock splits and any dividends reinvestments. The defendant shall be responsible for any margin accounts and any interest payments. The plaintiff is awarded the following assets using the values counsel gave the court at the time of the dissolution: Asset/Accounts Valued as of Date of Dissolution 1. The entire Prime Charter $2,271,842.00 Account 2. The entire Schneider $ 220,061.00 Securities Account 3. The entire Internet Fund $ 104,728.00 4. The entire Fleet Money $ 10,370.00 Market Account CT Page 11056 5. The entire Hambrecht and $ 93,000.00 Quist Account Total: $2,705,001.00 The balance due the plaintiff, $3,230,100, less the above $2,705,601 is $524,399. The plaintiff shall receive this balance of $524,399 in shares of Intel Corporate stock, using the stock value as of the date of dissolution. In other words, the plaintiff shall receive $524,399 worth of Intel shares of stock, using the price per share as of the close of business on March 29, 2000. The plaintiff shall receive cash in lieu of any fractional share of stock. Counsel for the defendant indicates that the various quarterly statements from the brokerage accounts are dated March 31, 2000. If it is more convement and would facilitate the transfer, the date of March 31 could be used instead of March 29, 2000. The court has rethought the aware of 10% interest as the court indicated it would do so at the time of the hearing on the issue of the asset division. This court is unaware of whether the assets have increased or decreased in value and/or whether there have been stock splits or reinvested dividends which would have inured to the benefit of the plaintiff had she had her assets four and one-half months ago (April 29 — 30 days after March 29) If, on the overall picture, the assets awarded to the plaintiff have increased in value, then she has suffered no loss. On the other hand, if during the four and one-half months when the plaintiff did not have the use and control of her property settlement, and her portfolio substantially decreased in value, then there might be some merit to the plaintiff's claim for interest. It would appear that the parties were negotiating the asset division at least through June 2000. The parties appeared in court on July 24, 2000 and again on August 7, 2000. Both parties filed their claims for relief on August 28, 2000. Perhaps the court was naive in giving the parties only 30 days to work out a transfer of such a substantial asset. In hindsight, perhaps 90 days would have been more appropriate. The court vacates its order of August 7, 2000 relating to the award of interest, without prejudice. If, after the assets have been transferred, the plaintiff can show a CT Page 11057 substantial loss, then she can request a further hearing with respect to the award of interest. No attorneys fees are awarded to either party. Asset division shall be done within 14 days of date. The Court Coppeto, J.

Title: Landlocked property (Ontario Canada). Owner wants to stop of from using the driveway (used for decades), or sell us the parcel for abhorrent price. Question:The property is landlocked from building a highways decades ago. Neighbour owns 300 acres across the street but has 5 acres between us and the road, which a driveway runs through (the driveway has also existed for a long time). Owners have mentioned they want us to stop using the road and are offering to sell us the property... but for way over the price of land in the area and we cant afford it. Any options? Answer #1: Get in touch with the Law Society of Upper Canada and get an attorney. Easement issues and rights of way are a complex subject, and having an expert represent you will likely save you a substantial amount of money and heartache. There's a good chance that you can argue that the existing right of way should be preserved, and the threat of forcing an easement (which could seriously affect the value of the parcel in question) might be enough to get the owner to negotiate more reasonably.

The chief question on this appeal relates to the power of a circuit court sitting in equity to grant a motion to amend nunc pro tunc a former decree signed by the judge and entered by substituting another in its place materially different, after the expiration of thirty days from its rendition. The order granting the motion and thus amending the decree is not here under direct review as for any error, except such as may render it void on collateral attack. A short recital of the status of the record is necessary to an understanding clearly of the question. On May 27, 1939, a decree of the Circuit Court of Jefferson County, Alabama, granted a divorce to appellant from James Dwight Leonard, who is not involved directly in the instant controversy. That decree awarded the custody of their child to this appellee, who is the father of the respondent in the divorce suit, and grandfather of the child. Appellant became a resident of Georgia, and pursuant to the terms of the divorce decree, appellee did on July 15, 1941, permit the child to visit his mother, appellant, in Georgia, but she refused to return him to appellee, for reasons detailed in her pleading here under consideration; but those reasons are not a part of the subject matter of this appeal. Appellee sued out habeas corpus in Georgia on the basis of the faith and credit of the decree in Alabama, awarding him custody of the child, and secured his custody by a judgment in that state and returned to Alabama with the child. Appellant has removed to Alabama, and has remarried as has also the father of her child. The instant proceeding grew out of an ancillary petition by appellee to the Circuit Court of Jefferson County which granted the divorce and awarded the custody of the child to appellee, whereby he sought to have appellant adjudged to be in contempt of that court. In answer to the rule nisi, appellant set out her reasons for not returning the child, and incorporated in it a petition to that court to make substantial *Page 549 changes in the former decree which had awarded his custody to appellee. Demurrer to this petition was sustained with leave to amend. An amendment was immediately filed. A motion to strike and objection to filing it were not acted on. In that status it was heard. Evidence was taken orally before the court which is set out in this record. At the conclusion of the evidence, the court made announcement of his decision on the issues. This is also set out in the record. And on the same day on which the trial was had, which was November 28, 1941, a decree was signed by the judge and entered. It recited: "It is therefore ordered, adjudged and decreed that complainant (meaning this appellant) be and she is hereby denied relief prayed for in her petition for custody of the minor child of the parties." It had other formal parts. No reference was made in the decree to the contempt charge, nor is there shown to have been another decree in that connection, although the court announced that appellant would not be held in contempt. On January 21, 1942, a motion was presented to the same judge by appellant seeking an amendment nunc pro tunc of the decree of November 28, 1941, by substituting a new one, which was in substance merely a denial of the petition of appellee for a decree adjudging appellant in contempt and a discharge from it, with no other feature here material, and leaving out any ruling on the petition for the custody of the child. This motion was set down for hearing. And on the hearing had on January 23, 1942, the court (same judge presiding) granted the motion and ordered the amendment, so that the decree of November 28, 1941, was adjudged to be as set out in the motion, rather than as signed on the day of the trial. There was no appeal from that decree, nor other effort to have it vacated. Thereupon on February 11, 1942, the cause came on for hearing as recited in a decree of that date before another judge of the same court, and appellee filed objection to further consideration of appellant's petition for the custody of the child on the ground, in substance, that the controversy as to the custody of the child had been disposed of by the court in its decree of November 28, 1941, supra, as originally entered, and that the order amending it made on January 23, 1942, was void. The court sustained the objection of appellee and dismissed the petition of appellant. That is the decree from which the appeal was taken and it is assigned as error. Also the original decree of November 28, 1941, is assigned as error, but no appeal was taken from it. The attack made on the decree of January 23, 1942, amending that of November 28, 1941, is but collateral, and on the ground that the court had no power thus to amend the decree by the substitution of another for it. So that we cannot consider the question of whether the evidence offered in support of the motion to amend was sufficient in fact or law. The sole and only inquiry is whether the court had the legal power at that time thus to amend the decree of November 28, 1941. This was not done within thirty days, nor was the motion to do so filed in that time. It can only be supported therefore as an amendment nunc pro tunc, kendrabates@example.net. We will consider the grounds specially assigned in the objections of appellee filed in the cause, and no others. We have stated them in substance. At common law, courts were not authorized to amend judgments after the lapse of the term at which they were rendered, except for clerical errors. Van Dyke v. State, 22 Ala. 57; Buchanon v. Thomason, 70 Ala. 401; Whorley v. Memphis C. R. Co., 72 Ala. 20,25; Robertson v. King, 120 Ala. 459, 24 So. 929; Chamblee v. Cole, 128 Ala. 649, 30 So. 630; Wynn v. McCraney, 156 Ala. 630,46 So. 854; Campbell v. Beyers, 189 Ala. 307, 66 So. 651; 34 Corpus Juris 215. Notice of the proposed amendment was not then necessary. Nabers v. Meredith, 67 Ala. 333; Ware v. Kent,123 Ala. 427, 26 So. 208, 82 Am.St. Rep. 132. In 1824 a statute was adopted and it appeared in Clay's Digest, 322, section 55; Code of 1852, section 2401; Code of 1867, section 2807; Code of 1876, section 3154, and in all subsequent codes, whereby judgments could be amended at a subsequent term for any clerical error, mistake in the calculation of interest or other mistake of the clerk (now also of the register). An Act of March 1, 1881 (page 66), provided for ten days' notice of all proceedings in courts of record to amend judgments, decrees or orders nunc pro tunc, provided it should not apply to clerical errors, nor to amendments made during the term. *Page 550 This was made section 2867, Code of 1886, and as codified it makes notice essential to a motion to amend nunc pro tunc a judgment or decree of a court of record, "if the amendment be not of mere clerical errors." And in that code there was also brought down the statute first enacted in 1824, supra, providing for the amendment of clerical errors and mistakes of the clerk, making it section 2836. Those two statutes have been brought down to date as sections 566 and 567, Title 7, Code of 1940. But without those statutes all courts of general jurisdiction have the power to correct clerical errors, after the expiration of the term, when the record affords matter upon which to base such correction. Otherwise "after its final adjournment its judgments are (were) absolute and conclusive, and the court has (had) no power over them." This seems to amend the common law so as to add the power of amendment to "other mistake[s] of the clerk" (though not merely clerical). Whorley v. Memphis C. R. R. Co., supra. For the court had the inherent power to amend after the term all clerical errors. We take it that a mistake "in the calculation of interest" as set out in the statute is also a clerical error. We now have other mistakes of the clerk, not a mere clerical error, which by statute may be corrected by a circuit court or one of like jurisdiction, section 567, supra; whereas section 566 and its predecessors apply to all courts of record. In the case of Com'rs Court of Henry County v. Holland,177 Ala. 60, 58 So. 270, 271, it was said: "In amending their judgments nunc pro tunc at a subsequent term, courts are exercising a very special and limited statutory power." This case was referring to an amendment not of a clerical sort, and not by the circuit court nor court of like jurisdiction. See, Marengo County v. Barley, 209 Ala. 663, 96 So. 753. If a judge makes a docket memorandum of his judgment, and the clerk fails during the term to extend it in form on the minutes, it is a "mistake of the clerk," which is not merely clerical but it may be corrected at a subsequent term by a judgment nunc pro tunc under section 567, Code, supra; Ex parte French, 226 Ala. 297, 147 So. 631; Ware v. Kent, 123 Ala. 427,26 So. 208, 82 Am. St. Rep. 132, as is specifically covered by section 567, Code, supra. Under chancery practice, without a statute, at the conclusion of the term, the court could do no more than correct clerical errors, the same as a court of law. 19 Amer.Jur. 288, section 419. Now covered by new Chancery Rule No. 63. Section 567, Code, supra, confers the power to amend on circuit courts or courts of like jurisdiction; and the mistake subject to amendment is that of the clerk or register. It was first made applicable by express terms to mistakes of the register when it went into the Code of 1923, section 7855. It is not our purpose here to discuss the question of whether sections 566 and 567, Code, supra, refer to different courts since their terminology is not the same. Perhaps they do not. We do not think there is any principle of law, common or statutory, or rule of practice, which authorizes a circuit judge sitting in equity, after the term of the court at which he signed and caused to be entered a decree in a cause final in its nature with no clerical error, and in which there was no mistake of the register, upon a motion nunc pro tunc, or otherwise, to enter a decree of a different nature and to a substantially different effect, although he may have pronounced it so on the trial. New Chancery Rule No. 65 is now clear to that effect, especially in the light of Rule 63. A judge sitting in equity may announce his decision and change his mind before his entry of a decree. And the fact of such previous announcement is not conclusive that he made a mistake in entering the decree. But even so it is his mistake, not that of the register and not clerical. A proceeding nunc pro tunc after the term of the court at which a decree is rendered, signed and caused to be entered is not permitted for the purpose of correcting mistakes of the trial judge in equity except those which are clerical. Rule 65, Chancery Practice. If he made a material mistake his error may be corrected either on appeal or by bill of review, or motion for a rehearing if made in due time, Rule 62, Chancery Practice, or ex mero motu in that time. The status now after the expiration of thirty days from the rendition of a decree is the same as it was formerly after the expiration of the term. Section 119, Title 13, Code of 1940; Chilton v. Gurganus, 218 Ala. 145, 117 So. 655; Gibson v. Farmers' *Page 551 Bank of Luverne, 218 Ala. 554, 119 So. 664; Ex parte Howard,225 Ala. 106, 142 So. 403. The result is that the trial court was correct in holding that the decree of January 23, 1942, attempting to amend the decree of November 28, 1941, nunc pro tunc by substituting one decree for another, was without authority of law since it was more than thirty days after the decree of November 28, 1941, and the motion thus to amend was also filed more than thirty days thereafter, and it did not seek to correct a clerical error nor any mistake of the register. We have not treated the question of ten days' notice specified in section 566, Code, supra, since it was not made a ground on which reliance was had in attacking the decree. It could have been and doubtless was waived. The result is that the question of the custody of the child on appellant's petition was finally determined on November 28, 1941, and it was not before the court thereafter, and on February 11, 1942, there was no other such petition before the court to invoke action in that connection. Therefore the decree dismissing it was itself without support, and was void and cannot be the basis for this appeal. That is the only decree from which the appeal was taken, and it is therefore necessary for us to dismiss the appeal ex mero motu. Let the appeal be dismissed for the reason assigned above, not now considering other contentions in that connection. Appeal dismissed. GARDNER, C. J., and BOULDIN and LAWSON, JJ., concur.

IMAX CORPORATION EXHIBIT 10.32   LOGO [g679676ex10_32logo.jpg] IMAX CORPORATION 2525 Speakman Drive, Sheridan Park Mississauga, Ontario, Canada L5K 1B1   To:    Robert D. Lister From:    Rich Gelfond and Brad Wechsler Date:    August 21, 2000 As we discussed a few weeks back, among our top priorities as we go through the process of evaluating potential strategic options for the Company is the retention of our key staff members. Toward this end, we are providing our most valuable employees with incentives to remain with the Company during this process and to be committed to, and focused on, advancing the business and supporting our continued operations. Thus, the Company is pleased to offer you the following package of incentive payments and benefits, on and subject to the terms and conditions set forth below. Please read these terms and feel free to call us or Mary Sullivan with any questions you may have. 2000 Bonus: We are committing that the Company’s management bonus plan will be honored this year and bonuses for the calendar year 2000 will be paid in accordance with past practice. If there is a Change of Control of the Company during 2000, we will ensure that any successor commits to honoring the management bonus plan for your calendar year 2000 bonus. Retention Bonus: You shall be eligible to receive a retention bonus of up to a total of US$215,000, based upon the following terms: (a) On July 1, 2001, you shall receive US$107,500, provided that you have not resigned from the Company or been terminated For Cause prior thereto, regardless of whether there has been a Transaction; (b) if there is a Transaction, and you are terminated Without Cause after July 1, 2001, but within two (2) years of the completion of the Transaction, you shall receive (in addition to the July 1 payment) an additional US$107,500; (c) if there is a Transaction and you are terminated Without Cause prior to July 1, 2001, you shall receive (in lieu of the July 1 payment) US$215,000. Severance: If a Transaction occurs and you are terminated Without Cause by the Company within two (2) years after the completion of the Transaction, you will be entitled to a severance benefit at least equal to six (6) months of your base salary (at the time of such termination). This benefit will be payable, at the Company’s option, in either a lump sum or by salary continuation in accordance with the Company’s normal payroll procedures. This payment shall be in addition to any bonus that may be payable to you pursuant to the preceding paragraph. In the event you are entitled to other benefits in the nature of severance, whether under contract or law, the severance benefit payable under this paragraph shall be offset by the amount of such other severance benefits. -------------------------------------------------------------------------------- The Company will require any successor to expressly assume and agree to perform the obligations under this letter agreement. Please make sure you have read the above and the attached terms and conditions and indicate your agreement with all of such terms and conditions by executing this letter agreement in the space provided below and returning it to Mary Sullivan.   Sincerely, IMAX LTD. “Bradley J. Wechsler By:   Bradley J. Wechsler Title:   Co-CEO   Agreed to and accepted, this 23rd day of August 2000: “Robert D. Lister Robert D. Lister -------------------------------------------------------------------------------- Terms and Conditions of Retention Incentive Package Definitions: For purposes of this letter agreement, a “Change of Control” of the Company will be deemed to occur if (a) (i) there is a sale of more than 50% of the assets of the Company to a third party (other than to a person or group including Brad Wechsler or Rich Gelfond); or (ii) any person or group (other than a person or group including Brad Wechsler or Rich Gelfond) acquires 50% or more of the voting power of the outstanding stock of the Company or the shareholders of the Company immediately prior to any corporate transaction cease to own at least 50% of the voting power of the outstanding stock of the surviving entity (any of the above, a “Transaction”); and (b) immediately after the Transaction is completed, Brad Wechsler and Rich Gelfond either (i) are no longer co-CEOs of the Company or (ii) do not have the power to determine your year-end bonus for calendar year 2000. For purposes of this letter agreement, termination “Without Cause” shall mean termination of your employment for any reason or no reason, including by virtue of the Company’s decision not to renew or extend your employment agreement, other than For Cause For purposes of this letter agreement, termination “For Cause” shall have the same meaning as defined in your employment agreement, and shall include as further grounds your breaching of the confidentiality provision of this letter agreement. Legal Terms and Conditions: The payments and benefits referred to herein are one-time-only payments and benefits, applicable to just one (1) Transaction and not to any subsequent such event. The terms of this letter agreement are strictly confidential. Your disclosure of these terms to any other person (aside from your immediate family, your legal, financial or other advisors or as required by law) shall subject you to the revocation of any or all of the payments and benefits provided herein, at the sole discretion of the Company. This letter agreement, together with your employment agreement, shall constitute the entire agreement between the parties hereto with respect to the subject matter of benefits in connection with a Change of Control or Transaction, and all promises, representations, understandings, arrangements and prior arrangements relating to such subject matter are merged and superseded by such agreements. Any payments made under this letter agreement shall be subject to all applicable federal, state, city or other taxes required under relevant law. This letter agreement shall be binding on and inure to the benefit of the Company and its successors and permitted assigns. This agreement shall also be binding on and inure to the benefit of you and your heirs, executors, administrators and legal representatives.

Case 4:20-cr-00027-MFU Document 1-3 Filed 11/02/20 Page 1 of 16 Pageid#: 10 Case Case1:13-cr-00435-TDS 1:13-cr-00435-TDS Document Document263 200 Filed Filed11/02/20 10/07/19 Page Page43 1 of of16 58 Case 4:20-cr-00027-MFU Document 1-3 Filed 11/02/20 Page 2 of 16 Pageid#: 11 Case Case1:13-cr-00435-TDS 1:13-cr-00435-TDS Document Document263 200 Filed Filed11/02/20 10/07/19 Page Page44 2 of of16 58 Case 4:20-cr-00027-MFU Document 1-3 Filed 11/02/20 Page 3 of 16 Pageid#: 12 Case Case1:13-cr-00435-TDS 1:13-cr-00435-TDS Document Document263 200 Filed Filed11/02/20 10/07/19 Page Page45 3 of of16 58 Case 4:20-cr-00027-MFU Document 1-3 Filed 11/02/20 Page 4 of 16 Pageid#: 13 Case Case1:13-cr-00435-TDS 1:13-cr-00435-TDS Document Document263 200 Filed Filed11/02/20 10/07/19 Page Page46 4 of of16 58 Case 4:20-cr-00027-MFU Document 1-3 Filed 11/02/20 Page 5 of 16 Pageid#: 14 Case Case1:13-cr-00435-TDS 1:13-cr-00435-TDS Document Document263 200 Filed Filed11/02/20 10/07/19 Page Page47 5 of of16 58 Case 4:20-cr-00027-MFU Document 1-3 Filed 11/02/20 Page 6 of 16 Pageid#: 15 Case Case1:13-cr-00435-TDS 1:13-cr-00435-TDS Document Document263 200 Filed Filed11/02/20 10/07/19 Page Page48 6 of of16 58 Case 4:20-cr-00027-MFU Document 1-3 Filed 11/02/20 Page 7 of 16 Pageid#: 16 Case Case1:13-cr-00435-TDS 1:13-cr-00435-TDS Document Document263 200 Filed Filed11/02/20 10/07/19 Page Page49 7 of of16 58 Case 4:20-cr-00027-MFU Document 1-3 Filed 11/02/20 Page 8 of 16 Pageid#: 17 Case Case1:13-cr-00435-TDS 1:13-cr-00435-TDS Document Document263 200 Filed Filed11/02/20 10/07/19 Page Page50 8 of of16 58 Case 4:20-cr-00027-MFU Document 1-3 Filed 11/02/20 Page 9 of 16 Pageid#: 18 Case Case1:13-cr-00435-TDS 1:13-cr-00435-TDS Document Document263 200 Filed Filed11/02/20 10/07/19 Page Page51 9 of of16 58 Case 4:20-cr-00027-MFU Document 1-3 Filed 11/02/20 Page 10 of 16 Pageid#: 19 Case 1:13-cr-00435-TDS Document 263 200 Filed 11/02/20 10/07/19 Page 52 10 of 58 16 Case 4:20-cr-00027-MFU Document 1-3 Filed 11/02/20 Page 11 of 16 Pageid#: 20 Case 1:13-cr-00435-TDS Document 263 200 Filed 11/02/20 10/07/19 Page 53 11 of 58 16 Case 4:20-cr-00027-MFU Document 1-3 Filed 11/02/20 Page 12 of 16 Pageid#: 21 Case 1:13-cr-00435-TDS Document 263 200 Filed 11/02/20 10/07/19 Page 54 12 of 58 16 Case 4:20-cr-00027-MFU Document 1-3 Filed 11/02/20 Page 13 of 16 Pageid#: 22 Case 1:13-cr-00435-TDS Document 263 200 Filed 11/02/20 10/07/19 Page 55 13 of 58 16 Case 4:20-cr-00027-MFU Document 1-3 Filed 11/02/20 Page 14 of 16 Pageid#: 23 Case 1:13-cr-00435-TDS Document 263 200 Filed 11/02/20 10/07/19 Page 56 14 of 58 16 Case 4:20-cr-00027-MFU Document 1-3 Filed 11/02/20 Page 15 of 16 Pageid#: 24 Case 1:13-cr-00435-TDS Document 263 200 Filed 11/02/20 10/07/19 Page 57 15 of 58 16 Case 4:20-cr-00027-MFU Document 1-3 Filed 11/02/20 Page 16 of 16 Pageid#: 25 Case 1:13-cr-00435-TDS Document 263 200 Filed 11/02/20 10/07/19 Page 58 16 of 58 16 

Citation Nr: 0510779 Decision Date: 04/14/05 Archive Date: 04/27/05 DOCKET NO. 05-08 411 ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in a Board of Veterans' Appeals (Board) decision which denied a higher (compensable) initial disability rating for right ear hearing loss and service connection for tinnitus. ATTORNEY FOR THE BOARD W. Sampson, Counsel FINDINGS OF FACT 1. The veteran served on active duty from August 1979 to November 1986. 2. In his February 2005 motion for revision of a prior Board decision, the claimant did not specify the date of the Board decision at issue as required under 38 C.F.R. § 1404(a) (2004). CONCLUSION OF LAW Because the requirements for a motion for revision of a decision based on clear and unmistakable error have not been met, the motion must be dismissed without prejudice to refiling. 38 C.F.R. § 20.1404(a) (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has considered the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) which eliminates the concept of a well-grounded claim, and redefines the obligations of VA with respect to the duty to assist claimants in the development of their claims. However, the Court has determined that VCAA has no applicability to this case. See Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (VCAA not applicable to CUE). In February 2005 correspondence, the claimant argued that there was CUE in a Board decision which denied service connection for tinnitus and denied an increased (compensable) rating for right ear hearing loss. A motion for revision of a decision based on clear and unmistakable error must be in writing, and must be signed by the moving party or that party's representative. The motion must include the name of the veteran; the name of the moving party if other than the veteran; the applicable Department of Veterans Affairs file number; and the date of the Board of Veterans' Appeals decision to which the motion relates. If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart. 38 C.F.R. § 20.1404(a) (2004). In his motion for revision of a prior Board decision, which was received in February 2005, the moving party did not specify the date of the Board decision at issue as required under 38 C.F.R. § 20.1404(a). Because the moving party's motion fails to comply with the requirements set forth in 38 C.F.R. § 20.1404(a), the motion is dismissed without prejudice. ORDER The motion is dismissed without prejudice to refiling. ____________________________________________ JEFF MARTIN Veterans Law Judge, Board of Veterans' Appeals Only a final decision of the Board of Veterans' Appeals may be appealed to the United States Court of Appeals for Veterans Claims. 38 U.S.C.A. § 7252 (West 2002); Wilson v. Brown, 5 Vet. App. 103, 108 (1993) ("A claimant seeking to appeal an issue to the Court must first obtain a final BVA decision on that issue.") This dismissal under 38 C.F.R. § 20.1404(a) (2004) is not a final decision of the Board. 38 C.F.R. § 20.1409(b) (2004). This dismissal removes your motion from the Board's docket, but you may refile the motion at a later date if you wish.

OPINION {¶ 1} Defendant, Daniel Kuralt, appeals from his conviction and sentence for possession of marijuana and trafficking in marijuana. {¶ 2} On March 30, 2002, Trooper Ricardo Alonso of the Ohio State Highway Patrol was on routine traffic enforcement on Interstate 70 near the Preble-Montgomery County line when he observed an eastbound truck driven by Defendant slow down as it approached. Defendant's vehicle slowed down much more than cars ordinarily do. Trooper Alonso followed Defendant's vehicle, and he subsequently determined that Defendant was speeding, driving seventy-nine miles per hour in a sixty-five zone. In addition, Trooper Alonso observed Defendant's vehicle make unsafe lane changes and follow other vehicles too closely. Trooper Alonso initiated a traffic stop by activating his cruiser's overhead lights which automatically activated a video camera that recorded the subsequent traffic stop. {¶ 3} Trooper Alonso asked for and was given Defendant's license and the vehicle's registration. Defendant had a Massachusetts driver's license. The vehicle's plates were from California, and Defendant was not the registered owner of the vehicle. Trooper Alonso questioned Defendant about whose vehicle he was driving and where Defendant was going. Trooper Alonso then returned to his cruiser to begin processing the stop. Trooper Alonso called for a drug sniffing dog to be brought to the scene. He also called Defendant's license and the vehicle's plates into dispatch and began writing the citation for speeding. {¶ 4} Before Trooper Alonso finished writing the citation, and before he had received any information back from dispatch concerning the license and registration, Trooper Barrett arrived with his drug dog and walked the dog around Defendant's truck. After the dog alerted, the troopers then searched Defendant's vehicle and found a large quantity of marijuana. {¶ 5} Defendant was indicted on one count of Possession of Marijuana, twenty-thousand or more grams, in violation of R.C. 2925.11(A), and one count of Trafficking in Marijuana, over twenty thousand grams, in violation of R.C. 2925.03(A)(2). Defendant filed a motion to suppress the evidence, challenging the validity and duration of this traffic stop, which the trial court overruled following a hearing. {¶ 6} Pursuant to motions by Defendant requesting that his expert be allowed to analyze the videotape of this traffic stop, the trial court ordered that a copy of the videotape, as well as the original, be turned over to Defendant's expert. Defendant subsequently filed a motion to dismiss based upon a claim that exculpatory evidence, the original videotape, had been destroyed by the State. Following a hearing the trial court overruled Defendant's motion to dismiss. {¶ 7} Defendant entered a no contest plea to both charges and was found guilty. The trial court sentenced Defendant to a mandatory term of eight years on each count, to be served concurrently, and fined Defendant fifteen thousand dollars on each count. {¶ 8} Defendant timely appealed to this court from his convictions and sentence. FIRST ASSIGNMENT OF ERROR {¶ 9} "APPELLANT'S DETENTION EXCEEDED THE REASONABLE AMOUNT OF TIME NECESSARY FOR A TRAFFIC STOP." {¶ 10} Defendant does not challenge the basis of the initial stop of his vehicle for a speeding violation, which was lawful. Dayton v.Erickson, 76 Ohio St. 3d 3, 1996-Ohio-431. However, the duration of a traffic stop may last no longer than is necessary to resolve the issue that led to the stop and issue a traffic citation, absent specific and articulable facts that demonstrate a reasonable suspicion of criminal activity other than the traffic violation that justifies continued detention. State v. Brown (July 30, 2004), Montgomery App. No. 20336,2004-Ohio-4058; State v. Ramos, 155 Ohio App. 3d 396, 2003-Ohio-6535;State v. Chatton (1984), 11 Ohio St. 3d 59; State v. Robinette,80 Ohio St. 3d 234, 1997-Ohio-343. When a law enforcement officer stops a vehicle for a traffic violation, the officer may detain the motorist for a period of time sufficient to issue a traffic citation and perform routine procedures such as a computer check on the motorist's driver's license, registration and vehicle plates. Ramos, supra; State v. Carlson (1995), 102 Ohio App. 3d 585, 598-599. These investigative duties must be performed diligently. Id. {¶ 11} A canine sniff by a drug detection dog of the exterior of a vehicle lawfully detained for a traffic stop does not implicate Fourth Amendment rights. Illinois v. Caballes (Jan. 24, 2005), ___ U.S. ___,125 S. Ct. 834; State v. Ramos, supra; State v. Heard (March 7, 2003), Montgomery App. No. 19323, 2003-Ohio-1047. Police are not required to have reasonable suspicion that a vehicle contains drugs prior to conducting a canine sniff of the vehicle during a traffic stop, so long as the duration of the traffic stop is not extended beyond what is reasonably necessary to resolve the issue that led to the stop and issue a traffic citation. Ramos, supra. If, however, the duration of the traffic stop is extended in order to bring a drug sniffing dog to the scene, police must have a reasonable suspicion that the vehicle contains drugs in order to justify the continued detention. Id. {¶ 12} The trial court concluded that it was not necessary to determine whether police had a reasonable, articulable suspicion of criminal activity other than the speeding violation that would justify prolonging Defendant's detention because Defendant was not in fact detained longer than was necessary to complete the traffic stop. We agree. {¶ 13} As part of his routine duties in conducting traffic stops, Trooper Alonso ran a computer check on Defendant's license, registration and plates in order to check for outstanding warrants and determine if the vehicle was stolen. Trooper Alonso was entitled to detain Defendant for a period of time reasonably necessary to perform these investigative procedures, Ramos, supra, and he testified that he would not let someone go in any traffic stop until he has the relevant information back from dispatch. Moreover, Trooper Alonso did not fail to diligently investigate these matters simply because he first asked Defendant questions relating to ownership of the vehicle and Defendant's destination. We agree with the trial court that those questions were appropriate given the circumstances; the vehicle's plates were from California, Defendant had a Massachusetts license, and he was not the registered owner of the vehicle. {¶ 14} Just fifteen minutes after the stop began, the drug dog arrived on the scene, and within a minute or two the dog alerted to Defendant's vehicle providing probable cause to search the vehicle for drugs. Statev. Johnson (Mar. 25, 2005), Montgomery App. No. 20624, 2005-Ohio-1367. At the time the drug dog alerted to Defendant's vehicle, Trooper Alonso had not yet received from dispatch the license and registration information he had requested, nor had he completed writing Defendant's citation for speeding. Thus, it is clear from this record that the canine sniff occurred well within the time reasonably required to complete this traffic stop and did not extend the duration of this traffic stop beyond the period of time necessary to complete the stop and issue the citation. Johnson, supra. Defendant's Fourth Amendment rights were not violated. {¶ 15} Defendant's first assignment of error is overruled. SECOND ASSIGNMENT OF ERROR {¶ 16} "THE APPELLANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN THE STATE LOST CRITICAL PHOTOGRAPHIC EVIDENCE, FAILED TO NOTIFY THE DEFENSE OF ITS LOSS." {¶ 17} Defendant argues that his due process rights were violated by the State's failure to preserve materially exculpatory evidence, in the form of the original videotape of Defendant's traffic stop. Specifically, Defendant claims that if the video camera in Trooper Alonso's cruiser was turned on and recording while Alonso followed Defendant down Interstate 70, it would demonstrate that Defendant did not commit any traffic violations, and thus there was no probable cause or other legal justification for this stop. {¶ 18} The facts found by the trial court relevant to this issue are as follows: {¶ 19} "Trooper Rick Alonso, of the Ohio State Patrol, testified that he made a traffic stop on the Defendant on March 30, 2002. At the time of making the traffic stop of the Defendant, the Trooper was operating a patrol car which was outfitted with video taping equipment. He testified that the video camera is automatically activated when the car's emergency lights were turned on. That in this case when he turned on his overhead bar lights to stop the Defendant, the video camera in his vehicle was automatically activated. He testified that at no time during the stop of the Defendant's vehicle, including the period of time of the search of the vehicle, was the video camera turned off. He further testified that he completely reviewed the tape which was being presented to the Court and it truly and accurately represented. {¶ 20} everything which occurred during the stop of the Defendant's vehicle." {¶ 21} The trooper further testified that the tape which was presented to the Court was a copy of the original tape which he made the next day at the patrol post, and it was kept in his possession until it was delivered to the Prosecutor's office. The original tape, which was taken out of the patrol car, was reinstalled in the video equipment in the patrol vehicle as was the patrol's standard operating procedure. The video tape that the officer made was all inclusive of the stop of the Defendant. He testified that it was not altered in any manner, and it was a true and accurate depiction of the stop and search of the Defendant's vehicle. {¶ 22} Mr. Steve Cain, a stipulated expert in forensic tape analysis, testified on behalf of the Defendant. He testified in some detail as to the steps he performed in the analysis of the tape and the equipment which he used in analyzing the tape. His testimony can be summarized as follows: (1) The tape he examined was not the original tape from the police vehicle. (2) The tape was not what he referred to as "virgin tape," meaning that the tape had been used on a prior occasion and been recorded over. (3) There appeared to be some type of problem in the beginning and at the very end of the tape, when the equipment was first activated and then when it was turned off. And, (4) there was no evidence that the tape was edited during the period of the stop of the Defendant's vehicle. {¶ 23} The Defendant testified for purposes of the motion hearing in regard to the facts of the stop and his recollection of the search of his vehicle. The crux of his testimony in regard to the traffic stop is that he was not violating any traffic laws and that there was no reason for the officer to stop him. He also testified that the handler of the dog which hit on his vehicle opened the door to his truck and took other inappropriate action with the dog leading it to making a hit on his vehicle. {¶ 24} In State v. Fuller (Apr. 26, 2002), Montgomery App. No. 18994, 2002-Ohio-2055, this court observed: {¶ 25} "The Due Process Clause of the Fourteenth Amendment to the United States Constitution protects a criminal defendant from being convicted where the state fails to preserve materially exculpatory evidence or destroys in bad faith potentially useful evidence. SeeArizona v. Youngblood (1988), 488 U.S. 51, 57, 58, 109 S. Ct. 333, 337,102 L. Ed. 2d 281; State v. Benton (2000), 136 Ohio App. 3d 801, 805,737 N.E.2d 1046; State v. Lewis (1990), 70 Ohio App. 3d 624, 633-34,591 N.E.2d 854. To be materially exculpatory, `evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.'California v. Trombetta (1984), 467 U.S. 479, 489, 104 S. Ct. 2528, 2534,81 L. Ed. 2d 413. Furthermore, in determining whether the prosecution improperly suppressed evidence favorable to an accused, such evidence shall be deemed material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome. This standard of materiality applies regardless of whether the evidence is specifically, generally or not at all requested by the defense. State v.Johnston (1988), 39 Ohio St. 3d 48, 529 N.E.2d 898, paragraph five of the syllabus." Opinion at 7. {¶ 26} Here, as in Fuller, we decline to place a burden on the State to show that the destroyed evidence was not exculpatory. That may be appropriate where the State destroys evidence after Defendant has requested that it be preserved. Columbus v. Forest (1987),36 Ohio App. 3d 269. In this case, however, the record amply demonstrates that Trooper Alonso made a copy of the videotape sometime between April 1-3, 2002, and thereafter the original tape was recycled/reused per the Ohio State Patrol's standard operating procedure before Defendant made his request for the videotape on June 25, 2002. {¶ 27} As for whether the original videotape in this case is materially exculpatory or even potentially useful, Trooper Alonso's uncontroverted testimony was that his cruiser camera did not record Defendant's traffic violations, the speeding, improper lane changes, or following too closely. That camera was activated automatically when Trooper Alonso turned on his cruiser's overhead lights to initiate this traffic stop, after he had witnessed these traffic offenses. Thus, the videotape would not demonstrate anything relevant to the prior legal justification for this stop, as no video evidence of the traffic violations exist. Therefore, such evidence was neither materially exculpatory nor even potentially useful. {¶ 28} Defendant has failed to demonstrate that the original videotape possesses an exculpatory value that was apparent before the evidence was destroyed. Trombetta, supra. Furthermore, Defendant has failed to demonstrate that the original videotape would depict anything different from the authenticated copy that was submitted, much less exculpate him for the crime for which he was charged. In any event, this record does not portray any bad faith, that is, ill will, conscious wrongdoing, dishonest purpose or intent to deceive or mislead another, on the part of Trooper Alonso in failing to preserve the original videotape. No violation of Defendant's right to due process has been demonstrated. {¶ 29} Defendant's second assignment of error is overruled. The judgment of the trial court will be affirmed. Wolff, J. And Donovan, J., concur.

Name: Commission Implementing Decision (EU) 2018/1995 of 13 December 2018 approving the plan for the eradication of African swine fever in feral pigs in certain areas of Romania (notified under document C(2018) 8448) (Text with EEA relevance.) Type: Decision_IMPL Subject Matter: Europe; means of agricultural production; natural environment; agricultural policy; agricultural activity; health Date Published: 2018-12-17 17.12.2018 EN Official Journal of the European Union L 320/38 COMMISSION IMPLEMENTING DECISION (EU) 2018/1995 of 13 December 2018 approving the plan for the eradication of African swine fever in feral pigs in certain areas of Romania (notified under document C(2018) 8448) (Only the Romanian text is authentic) (Text with EEA relevance) THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Council Directive 2002/60/EC of 27 June 2002 laying down specific provisions for the control of African swine fever and amending Directive 92/119/EEC as regards Teschen disease and African swine fever (1), and in particular the second subparagraph of Article 16(1) thereof, Whereas: (1) Directive 2002/60/EC lays down the minimum Union measures to be taken for the control of African swine fever, including those to be applied in the event of confirmation of a case of African swine fever in feral pigs. (2) In addition, Commission Implementing Decision 2014/709/EU (2) lays down animal health control measures in relation to African swine fever in the Member States or areas thereof as listed in the Annex thereto (the Member States concerned), and in all Member States as regards movements of feral pigs and information obligations. The Annex to Implementing Decision 2014/709/EU demarcates and lists certain areas of the Member States concerned, differentiated by the level of risk based on the epidemiological situation as regards that disease, including a list of high risk areas. That Annex has been amended several times to take account of changes in the epidemiological situation in the Union as regards African swine fever that needed to be reflected in that Annex. (3) In 2018 Romania notified the Commission of cases of African swine fever in feral pigs and has duly taken the disease control measures required by Directive 2002/60/EC. (4) In light of the current epidemiological situation and in accordance with Article 16 of Directive 2002/60/EC, Romania has submitted to the Commission a plan for the eradication of African swine fever (the eradication plan). (5) The Annex to Implementing Decision 2014/709/EU was amended by Commission Implementing Decision (EU) 2018/950 (3) to take account, inter alia, of the cases of African swine fever in feral pigs in Romania and Parts I and III of that Annex now includes the infected areas in Romania. (6) The eradication plan submitted by Romania has been examined by the Commission and found to comply with the requirements set out in Article 16 of Directive 2002/60/EC. They should therefore be approved accordingly. (7) The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Plants, Animals, Food and Feed, HAS ADOPTED THIS DECISION: Article 1 The plan submitted by Romania on 21 September 2018 in line with Article 16(1) of Directive 2002/60/EC, concerning the eradication of African swine fever from the feral pig population in the areas referred to in the Annex to Implementing Decision 2014/709/EU is approved. Article 2 Romania shall bring into force the laws, regulations and administrative provisions required for the implementation of the eradication plan within a period of 30 days from the date of adoption of this Decision. Article 3 This Decision is addressed to Romania. Done at Brussels, 13 December 2018. For the Commission Vytenis ANDRIUKAITIS Member of the Commission (1) OJ L 192, 20.7.2002, p. 27. (2) Commission Implementing Decision 2014/709/EU of 9 October 2014 concerning animal health control measures relating to African swine fever in certain Member States and repealing Implementing Decision 2014/178/EU (OJ L 295, 11.10.2014, p. 63). (3) Commission Implementing Decision (EU) 2018/950 of 3 July 2018 amending the Annex to Implementing Decision 2014/709/EU concerning animal health control measures relating to African swine fever in certain Member States (OJ L 167, 4.7.2018, p. 11).

Citation Nr: 1046671 Decision Date: 12/14/10 Archive Date: 12/20/10 DOCKET NO. 08-19 304 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active service from November 1968 to June 1970. This included time in Vietnam from May 1969 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Boston VARO that, in pertinent part, denied entitlement to service connection for PTSD. FINDINGS OF FACT 1. The medical evidence of record includes a principal psychiatric diagnosis of PTSD. 2. The Veteran is shown as likely as not to have PTSD due to events experienced in service. CONCLUSION OF LAW The criteria for service connection for PTSD are reasonably met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In light of the allowance of the claim, compliance with the Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5126 (West 2002 & Supp. 2010)) need not be discussed. The Board notes that there has been essential compliance with the mandates of the VCAA throughout the course of the appeal. Pertinent Legal Criteria In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be established when all the evidence of record, including that pertinent to service, demonstrates that the Veteran has a current disability that was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with the provisions of 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and his service stressor; and credible supporting evidence that the claimed in-service stressor or stressors occurred. 38 C.F.R. § 3.303(f). The United States Court of Appeals for Veterans Claims (Court) has held that for service connection to be awarded, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and any present disease or injury. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006); Disabled American Veterans v. Secretary of Veterans Affairs, 419 F. 3d 1317, 1318 (Fed. Cir. 2005); Shedden v. Principi, 381 F. 3d 1163 (Fed. Cir. 2004). If the Veteran fails to demonstrate any one element, denial of service connection will result. Factual Background and Analysis The Board notes that it has thoroughly reviewed all the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail all the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F. 3d 1378, 1380 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not essentially discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The medical evidence of record reveals a principal psychiatric diagnosis of PTSD. While more specific information concerning the stressor experiences the Veteran has reported having had in Vietnam would be desirable, the Board finds there is adequate evidence of record with which to make a decision at this time. The Veteran's personnel file shows that he served in Vietnam from May 1969 to June 1970. His principal duty assignments were as a supply man and equipment storage specialist with Company A, 426th Supply and Support Battalion, 101st Airborne Division (Air Mobile). He participated in an Unnamed Campaign and in the Tet Counteroffensive in 1969. The Veteran has referred to stressful experiences while serving in Vietnam, to include exposure to rocket and mortar attacks. The Board finds no reason to question the Veteran's credibility, particularly in view of the time frame he was in Vietnam. He has also submitted statements from family members attesting to the problems he has had with symptoms associated with PTSD such as nightmares and flashback on a continuing basis since service discharge. He has a current diagnosis of PTSD and that PTSD has been reported to be related to his experiences in Vietnam. As indicated in Suozzi v. Brown, 10 Vet. App. 307 (1997), a stressor need not be corroborated in every detail. Corroboration of a Veteran's personal participation and his stressful activity is not necessary. See Pentecost v. Derwinski, 16 Vet. App. 124 (2002). Accordingly, the Board finds that the Veteran has PTSD that is reasonably related to his experiences while serving in Vietnam in 1968 and 1969, particularly during the Tet Counteroffensive in 1969. ORDER Service connection for PTSD is granted. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

487 F.2d 640 Fed. Sec. L. Rep. P 94,143, 13 U.C.C. Rep. Serv. (West) 215 EDINA STATE BANK, Plaintiff-Appellant,v.MR. STEAK, INC., and Central Bank and Trust Company,Defendants-Appellees. No. 72-1291. United States Court of Appeals,Tenth Circuit. Argued and Submitted Sept. 20, 1972.Decided Sept. 14, 1973.As Amended on Denial of Rehearing and Rehearing En Banc Jan. 7, 1974. E. John Abdo, Minneapolis, Minn. (Benjamin E. Sweet, Denver, Colo., on the brief), for plaintiff-appellant. Sanford B. Hertz, Denver, Colo. (Robert W. Hite, Denver, Colo., on the brief), for defendants-appellees. Before PHILLIPS, SETH and HOLLOWAY, Circuit Judges. HOLLOWAY, Circuit Judge. 1 Appellant Edina State Bank (the bank) sued Mr. Steak, Inc. (Mr. Steak) as the corporate issuer of stock and its transfer agent, Central State Bank and Trust Co. (Central), for damages for refusal to register transfer of pledged shares of Mr. Steak stock which the bank attempted to sell under its rights as pledgee. Central refused to register the transfer due to advice by Mr. Steak that the shares had been purchased for investment purposes and without a view to redistribution. Mr. Steak also had instructed Central that no transfer could be made without notice to it and an opinion of counsel that the transfer would not violate the Securities Act of 1933 (the Act). No legend of any restriction on transfer appeared on the Mr. Steak certificates and the bank had been advised by Price, the pledgor, when it made the loans that there were no restrictions. 2 The bank relies on the provision of Sec. 8-204 of the Uniform Commercial Code that a restriction on transfer imposed by the issuer is ineffective unless conspicuously noted on the security, except against a person with actual knowledge of the restriction. The trial court found that the bank relied on Price's statement that there was no restriction and thereby suffered the loss. In ruling against the bank the court concluded that the Securities Act pre-empted the field and governed instead of the Code provisions; that the federal act required no legend as to the restriction; that also as between the bank and Mr. Steak as innocent parties, a duty of inquiry should be imposed on the bank because it knew of Price's recent employment by Mr. Steak; and that such inquiry to Mr. Steak was not made by the bank. The trial court denied recovery for the bank's loss. We are unable to agree. 3 First, we turn to Sec. 8-204 of the Uniform Commercial Code which we feel supports the bank's right to recover damages for its loss since Mr. Steak as issuer failed to note any restriction on the certificates and the bank had no actual knowledge of a restriction.1 4 The facts as they apply under the statute are mostly without dispute. In July, 1968, Mr. Steak issued 200 shares of its no par common stock to Price who was its employee. At that time and until April, 1969, no Mr. Steak shares had been registered with the Securities and Exchange Commission under Sec. 5 of the Act, 15 U.S.C.A. Sec. 77e. The shares involved in this suit were never registered. In July, 1969, a stock split occurred and Price was issued an additional 2400 shares. Neither certificate had any notation of any restrictive legend. Mr. Steak did not request an investment letter from Price when either certificate was issued. However, the trial court found that the stock was received by Price with knowledge it was restricted and being received for investment purposes only as an exemption stock. See 15 U.S.C.A. Sec. 77d(2). The trial court concluded that since the issuer, Mr. Steak, had made this clear to Price, it had fulfilled its obligation to Price and the public. 5 The loan transactions with the bank that followed present the aspect of this case bringing Sec. 8-204 of the Code into play. On March 5, 1969, the bank made a loan to Price of $15,000 which was secured by a pledge of Price's 2400 shares of Mr. Steak stock. The trial court's findings accepted the bank President's testimony that he inquired of Price whether there was any restriction and that Price said it was not restricted. The trial court found that the bank relied on Price's statement and referred to the bank as an innocent party, as it also described Mr. Steak. 6 In April, 1969, Price executed another note for a $6,600 loan, secured by the same stock. Again on May 5, 1969, Price obtained an additional $5,155.60 loan from the bank and it consolidated the loans and Price signed a note for $27,000, secured by the same stock. Price later defaulted in payment of the loans. 7 On about June 3, 1969, the bank, attempting to secure its position, submitted 1,000 shares to a broker for sale for its account.2 The brokerage house made two 500-share sales. The proceeds of $36,739.34 received by the bank were credited to Price's checking account, and the account was debited for $27,000 to pay the loans. Price used the balance in his restaurant business. 8 However, when the brokerage house requested registration of transfer to the purchaser, the transfer agent refused. Central said that Mr. Steak had advised it that the shares were purchased for investment and without a view to redistribution and that no transfer of the shares could be made without notice to Mr. Steak or its counsel and without an opinion of counsel that the transfer would not violate the Securities Act. Since the sale was forestalled the bank repaid the brokerage house in full and called on Price for the funds, which he could not repay. The bank then obtained a new note from Price for $37,000 to cover all the funds advanced to Price, again secured by the stock which the bank of course then knew was restricted. Sec. 8-204 of the Code provides: 9 "Unless conspicuously noted on the security, a restriction on transfer imposed by the issuer even though otherwise lawful is ineffective except against a person with actual knowledge of it." 10 The comments on this section of the Code emphasize that it imposes a strict requirement for notice on the issuer. See Official Comment 1, 7A C.R.S.1963, Sec. 155-8-204. This duty is similar to that imposed by Sec. 15 of the Uniform Stock Transfer Act.3 Since there was no legend conspicuously noting the restriction on transfer and no actual knowledge of it by the bank, we are persuaded the bank is entitled to recover under Sec. 8-204 of the Code, as the court was under the similar provision of the Uniform Stock Transfer Act in Prudential Petroleum Corp. v. Rauscher, Pierce & Co., 281 S.W.2d 457 (Tex.Civ.App.) (ref.n.r.e.). See also General Development Corp. v. Catlin, 139 So. 2d 901, 902 (Fla.App.); Haas v. Haas, 35 Del. Ch. 392, 119 A.2d 358.4 11 As noted the trial court concluded that since both the bank and Mr. Steak were innocent parties, it was proper to impose more of a duty to inquire than the bank undertook. The Court's findings point out that no inquiry was made of Mr. Steak, although the bank inquired of Price and was found to have relied on his representation that there was no restriction. Appellees also point to admissions by the bank President that he made no inquiry of the Commission or of any brokers; that he knew that the stock was privately held and had no market and was "going to go public;" and that he did not know whether the Price shares were to be included in the registration statement. They say the record establishes a lack of due diligence. However, we think the Code provision in Sec. 8-204 applies and that it clearly placed the duty on Mr. Steak as issuer to note the restriction conspiciously on the certificate, not on the bank to inquire. And the statute's protection was extended to all against an unnoted restriction except those with "actual knowledge of it." Those who are only on inquiry notice are not denied protection by the Code. 12 The trial court's view was that since the restriction had been made clear to Price, Mr. Steak had fulfilled its obligation to him and the public. We are convinced, however, that Sec. 8-204 required more-that the issuer conspicuously note the restriction on the certificate for the protection of others. The bank as pledgee was among the persons protected generally by Sec. 8-204 against a restriction not conspicuously noted on the security, except as to a person with actual knowledge. The wrongful refusal to transfer gave rise to a right to sue as for conversion by the bank as transferor. See Holly Sugar Corp. v. Wilson, 101 Colo. 511, 75 P.2d 149; Official Comment 1 to Sec. 8-204; see also Case v. Citizen's Bank of Louisiana, 100 U.S. 446, 25 L. Ed. 695; Annotation, Remedy for refusal to transfer stock, 22 A.L.R. 2d 12, 34. We conclude that under the facts as found and shown by this record, the state law in Sec. 8-204 of the Code supports the bank's right to recover against the issuer which failed to comply with the strict requirement of the statute. 13 Second, we consider the trial court's views concerning the Securities Act and arguments of Mr. Steak and Central related to them. The court concluded that the federal statute preempted the field and that to the extent there is any conflict between it and the Code, the federal Act will prevail. And the court held that Congress had not required a legend on the certificate as to restrictions on transfer so that its absence did not make the appellees liable for refusal to register the transfer. 14 The Securities Act of 1933, as amended, 15 U.S.C.A. Sec. 77a et seq., does not impose a requirement for such a legend. It is recognized by the Commission's Releases Nos. 33-5121, 17 C.F.R. Secs. 231.5121 and 33-5223, 17 C.F.R. Sec. 231.5226, that the presence or absence of an appropriate legend will be regarded as a factor in considering whether the circumstances surrounding the offering are consistent with the exemption for a non-public offering. Section 4(2) of the Act, 15 U.S.C.A. Sec. 77d(2). The use of the legend was urged in the Releases, but is not required by the statute or regulations. 15 We cannot agree that the absence of a requirement for a notation of the restriction in the federal statute overrides Sec. 8-204 under the doctrine of preemption. As further discussed below we feel that this important provision of the Code may be read in harmony with the federal statute.5 Both regulations can be enforced without impairing federal superintendence of the field and thus the state statute need not give way. Florida Avocado Growers v. Paul, 373 U.S. 132, 142, 83 S. Ct. 1210, 10 L. Ed. 2d 248; Huron Cement Co. v. Detroit, 362 U.S. 440, 446, 80 S. Ct. 813, 4 L. Ed. 2d 852. We feel the Securities Act shows no intent to prevent such significant regulation by state law. See New York Dept. of Social Services v. Dublino, 413 U.S. 405, 417, 93 S. Ct. 2507, 2515, 37 L. Ed. 2d 688 (Slip Opinion p. 8) (6/21/73). Congress itself adopted the Code provision in Sec. 8-204 for the District of Columbia some time after its enactment of the Securities Act. See D.C.Code, Secs. 28:8-101, 28:8-204 (1967 ed.), 77 Stat. 732, 735. We are satisfied the federal statute should not be held to override Sec. 8-204. 16 The appellees argue that the federal prohibitions against transfer of unregistered stock required and entitled them to refuse to register the transfer here, relying on Securities and Exchange Commission v. Guild Films Co., 279 F.2d 485 (2d Cir.), cert. denied, 364 U.S. 819, 81 S. Ct. 52, 5 L. Ed. 2d 49, and similar cases. The argument is that if the transfer had been made, appellees might well have been charged as aiders and abettors to a violation of the Securities Act themselves. Thus they say the federal statute is a valid defense against liability for damages for refusal to register the transfer of the stock involved here. 17 We find no ground for defense to the damage claim in this theory. If the sale of the pledged shares would violate the federal statute, perhaps it could be enjoined by the Commission as in SEC v. Guild Films Co., supra, but we need not reach this question. In any event we think that the prohibition of the federal statute against carrying out certain transfers does not defeat the bank's right to damages under Sec. 8-204 of the Code. We need not decide whether the bank here as a bona fide pledgee could enforce specifically the transfer of the collateral to the purchaser. We have only the question whether the bank is entitled to damages when the issuer asserts its own restriction which was not conspicuously noted on its stock certificate as a ground for refusing to register a transfer. We are persuaded that in these circumstances the bank is entitled to damages for its loss and that the recovery of them is not violative of the federal prohibition against transfer. See Prudential Petroleum Corp. v. Rauscher, Pierce & Co., 281 S.W.2d 457 (Tex.Civ.App.) (ref. n. r. e.). The possible unavailability of one remedy need not defeat the injured party's right to another. 18 Third, we consider appellees' argument that they followed the provisions of Sec. 8-401 of the Code in refusing to register transfer of the stock and are, therefore, free from liability. The theory is based on Sec. 8-401(e), providing in substance that the issuer is under a duty to register a transfer if it is in fact "rightful" or to a bona fide purchaser. Appellees say that the transfer would not have been "rightful" under the Securities Act and that the bank cannot come within the definition of Sec. 8-302 of a bona fide purchaser in view of its terms and the definition of notice in Sec. 1-201(25). 19 We need not determine whether the bank failed to come within these general provisions and definitions of the Code. The specific provisions of Sec. 8-204 are controlling in our opinion, affording protection against a restriction not conspicuously noted on a certificate except as to a person with actual knowledge of it. And, as discussed earlier, the bank qualifies for this protection under Sec. 8-204. 20 Lastly appellees say that the judgment in their favor should be affirmed for failure of the bank to mitigate damages in any event. The contention is that during a period when the value of the stock continued to decline, the bank failed to furnish an opinion of counsel concerning the validity of transfer under an exemption from registration which would have permitted the transfer and avoided the loss. 21 We feel the argument is without merit. It is based on an alternative requiring an opinion of counsel to deal with legal questions raised by Mr. Steak's assertion of the restriction on transfer not noted on its certificate. This again involves reliance by Mr. Steak as issuer on its unnoted restriction which is made ineffective as to the bank by Sec. 8-204. The bank is entitled to protection against the unnoted restriction by Sec. 8204 and this argument against recovery for the loss is untenable in view of the Code provision. 22 The appellant asks that we direct the entry of judgment for its damages. The facts necessary for a judgment appear to be covered by the stipulation and proof in the record. However, in view of its ruling on liability the trial court did not reach the damages question or consider it under the applicable state law. We feel that the trial court should determine the proper recovery. 23 Accordingly the judgment is reversed and the case is remanded for further proceedings and entry of judgment which the trial court finds to be proper. 1 No question is raised as to the applicable law and both parties cite Sec. 8-204 and other portions of the Code which has been adopted in both Colorado and Minnesota, respectively the place of incorporation and principal place of business of Mr. Steak; and the place of incorporation, principal place of business and site of the loan transactions of the bank. See 7A C.R.S.1963 Sec. 155-8-204 and 21C Minn.Stat.Ann. Sec. 336.8-204. Under the Code provisions the law of Colorado, the jurisdiction of organization of the corporation whose stock is involved, governs. U.C.C. Sec. 8-106 2 No issue has been raised as to the right of the bank to proceed as it apparently did before maturity of the $27,000 note, except the objections based on the restriction on transfer discussed in this opinion. See U.C.C. Sec. 9-207(1) and (4) as to the rights of the pledgee respecting the collateral 3 The Uniform Stock Transfer Act made unnoted restrictions invalid without the exception as to persons having actual knowledge of them 4 As commentators have noted, Article 8 of the Uniform Commercial Code reveals a clear intent on the part of the draftsmen to confer "full negotiability" upon investment securities. See, e.g., Folk, Article Eight: A Premise and Three Problems, 65 Mich.L.Rev. 1379 (1967); Israels, Investment Securities As Negotiable Paper-Article 8 of the Uniform Commercial Code, 13 Bus.Law. 676, 677-78 (1958); Stop Transfer Procedures And The Securities Act of 1933-Addendum to the Uniform Commercial Code-Article 8, 17 Rutgers L.Rev. 158 (1962); Lee, Impact of the Uniform Commercial Code on Colorado Law, 42 Den.L.J. 67, 101 (1965); Wickersham, Investment Securities under the Uniform Commercial Code, 1 B.C.Indust. and Comm.L.Rev., 37, 38; Comment, The Status of an Investment Security Holder, 33 Ford.L.Rev. 466, 467, 482 (1965). See also, Guttman, Article 8-Investment Securities, 17 Rutgers L.Rev. 158 (1962). And with respect to U.C.C. Sec. 8-104, another commentator has observed that the Code "is consistent with a general modern trend which prevents corporations from taking advantage of their own lack of authority in their dealings with parties who are outside the internal framework of the organization." Carrington, Banking, Commercial Paper and Investment Securities Under the Uniform Commercial Code, 14 Wyo.L.J. 198, 217 (1960) 5 As later discussed, since only damages for the loss to the bank are being sought, no question arises as to whether carrying out the sale of the pledged securities would violate the Securities Act

Exhibit 99.1 Contact: Curtis Garner Chief Financial Officer Otelco Inc. 515-996-4913 wallacejoseph@example.net Otelco Reports Third Quarter 2009 Results ONEONTA, Alabama (Nov. 4, 2009) – Otelco Inc. (NASDAQ: OTT; TSX: OTT.un), a wireline telecommunications services provider in Alabama, Maine, Massachusetts, Missouri, New Hampshire and West Virginia, today announced results for its third quarter ended September 30, 2009.Key quarterly highlights for Otelco include: ● Total revenues of $26.4 million. ● Operating income of $6.2 million. ● Adjusted EBITDA (as defined below) of $12.8 million. “Otelco delivered another quarterly increase in revenue and EBITDA while the economy continued to struggle,” said Mike Weaver, President and Chief Executive Officer of Otelco.“We experienced growth in our revenue of $8.2 million over the third quarter of 2008 and $0.6 million over second quarter 2009. We had our best quarterly results with Adjusted EBITDA at $12.8 million, an increase of $3.8 million and $0.4 million over the same quarter last year and the second quarter of 2009, respectively. Revenue growth and effective cost management, coupled with a focus on the integration of acquisitions, are the drivers behind the results. “Our capital expenditures for the quarter were $2.8 million, returning to our more typical level of approximately 10% of revenue after a conservative first half of 2009.After reflecting a voluntary prepayment of $5.0 million to reduce our senior debt made during third quarter, cash grew $2.9 million during the quarter. “The integration of the Country Road entities is complete with the successful billing system conversion this quarter,” Weaver concluded.“With the integration behind us, our focus will be on CLEC growth by expanding our operations in northern Maine and neighboring New England states.As evidenced by our nineteenth consecutive IDS dividend, we remain committed to returning cash to our shareholders.” Distribution to Income Deposit Security Holders Each quarter, the Board will consider the declaration of dividends during its normally scheduled meeting. For this quarter, the Board is meeting on November 12, 2009. The scheduled interest and any dividend declared will be paid on December 30, 2009 to holders of record as of the close of business on December 15, 2009. The interest payment will cover the period from September 30, 2009 through December 29, 2009.Currently, it is anticipated that the Company’s dividends in 2009 will continue to be treated as a return of capital for tax purposes. The Company has made nineteen successive quarterly distributions of dividends and interest since its IDS units were originally offered to the public in December 2004. - MORE - Otelco ReportsThird Quarter Results Page 2 Nov. 4, 2009 Third Quarter 2009 Financial Summary (Dollars in thousands, except per share amounts) Three Months Ended Sept. 30, Change Amount Percent Revenues $ $ $ % Operating income $ $ $ % Interest expense $ ) $ ) $ % Net income (loss) available to stockholders $ $ ) $ ) * Basic net income (loss) per share $ $ ) $ ) * Diluted net income (loss) per share $ $ ) $ ) * Adjusted EBITDA(a) $ $ $ % Capital expenditures $ $ $ ) )% Nine Months Ended Sept. 30, Change Amount Percent Revenues $ $ $ % Operating income $ $ $ % Interest expense $ ) $ ) $ % Net income (loss) available to stockholders $ $ ) $ ) * Basic net income (loss) per share $ $ ) $ ) * Diluted net income (loss) per share $ $ ) $ ) * Adjusted EBITDA(a) $ $ $ % Capital expenditures $ $ $ ) )% * Not a meaningful calculation Reconciliation of Adjusted EBITDA to Net Income (Loss) Three Months Ended Nine Months Ended September 30, September 30, Adjusted EBITDA Net income (loss) $ $ ) $ $ ) Add: Depreciation Interest expense – net of premium Interest expense – caplet cost Interest expense – bond premium ) Interest expense – amortize loan cost Gain/loss from investment - - ) - Income tax expense (benefit) ) ) Change in fair value of derivative ) Loan fees 19 19 57 57 Amortization - intangibles Adjusted EBITDA $ (a) Adjusted EBITDA is defined as consolidated net income (loss) plus interest expense, depreciation and amortization, income taxes and certain non-recurring fees, expenses or charges and other non-cash charges reducing consolidated net income.Adjusted EBITDA is not a measure calculated in accordance with generally acceptable accounting principles (GAAP).While providing useful information, Adjusted EBITDA should not be considered in isolation or as a substitute for consolidated statement of operations data prepared in accordance with GAAP.The Company believes Adjusted EBITDA is useful as a tool to analyze the Company on the basis of operating performance and leverage.The definition of Adjusted EBITDA corresponds to the definition of Adjusted EBITDA in the indenture governing the Company’s senior subordinated notes and its credit facility and certain of the covenants contained therein.The Company’s presentation of Adjusted EBITDA may not be comparable to similarly titled measures used by other companies. - MORE - Otelco ReportsThird Quarter Results Page 3 Nov. 4, 2009 Otelco Inc. (including Acquired Entities at date of acquisition) June 30 – Sept. 30 December 31, March 31, June 30, Sept. 30, % Change Key Operating Statistics RLEC access lines: Voice lines )% Data lines % RLEC access line equivalents (1) )% CLEC access lines: Voice lines % Data lines )% CLEC access line equivalents (1) % Otelco access line equivalents (1) % Cable television customers % Wholesale network connections - % Dial-up internet customers )% (1)We define access line equivalents as voice access lines and data access lines (including cable modems, digital subscriber lines, and dedicated data access trunks). FINANCIAL DISCUSSION FOR THIRD QUARTER 2009: All financial information includes three entities acquired from Country Road Communications LLC on and as of October 31, 2008. Revenue Total revenues grew 44.8% in the three months ended September 30, 2009 to $26.4 million from $18.2 million in the three months ended September 30, 2008. The growth in revenue was primarily associated with the acquisition and growth in CLEC sales. Local services revenue grew 85.6% in the third quarter to $12.4 million from $6.7 million in the quarter ended September 30, 2008.The acquisition provided an increase of $6.0 million for the quarter, partially offset by lower RLEC lines and the termination of a third-party billing services agreement. Network access revenue increased 27.2% in the third quarter to $8.5 million from $6.7 million in the quarter ended September 30, 2008.The acquisition provided an increase of $2.9 million for the quarter, partially offset by a decrease of $0.8 million in switched and special access.

Citation Nr: 0418208 Decision Date: 07/08/04 Archive Date: 07/21/04 DOCKET NO. 03-29 018 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUE Entitlement to service connection for a bilateral ankle disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Sonnet Bush, Associate Counsel INTRODUCTION The veteran served on active duty from September 1999 to June 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision issued by the VA RO in Detroit, Michigan. This appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the veteran and his representative if they are required to take further action. REMAND The veteran contends that he had problems with both ankles during his period of service from September 1999 to June 2001. Service medical records include an October 2000 radiology report that noted foot pain. In addition, in a December 2000 physical examination the veteran marked that he had "foot trouble," but did not elaborate on his symptoms. Also, in a January 2001 clinical record he refers to pain in his ankles. In May 2002, only 11 months after discharge, the veteran was diagnosed with bilateral ankle strain. The veteran asserts that his bilateral ankle problems were a result of his adjusted gait from the pain of his already service-connected bilateral knee disability. See 38 C.F.R. § 3.310 (2003). The current record contains insufficient medical evidence as to the nature and etiology of existing bilateral ankle disability. Specifically, the May 2002 VA examiner did not provide any opinion as to the etiology of bilateral ankle problems, to include whether such were related to service- connected knee disability. Therefore, the Board finds that a remand is necessary in order to obtain a medical opinion in this case. Accordingly, the case is REMANDED to the RO for the following: 1. The RO should request the veteran to provide identifying information and any necessary release relevant to any post- service VA or private medical treatment or evaluation for a right or left ankle disability such that the RO can obtain such information for consideration in connection with this appeal. The RO should also invite the veteran to submit a competent medical opinion as to a causal link between a right or left ankle disability and active service, or of a causal link between an ankle disability and any service-connected disability. 2. After any additional records have been associated with the claims file, the RO should schedule the veteran for a VA examination. The claims file must be provided to the examiner for review in conjunction with the examination. The VA examiner is requested to identify all existing ankle disabilities, bilaterally, and to then provide an opinion as to whether each currently diagnosed left and right ankle disability is more likely than not or less likely than not etiologically related to the veteran's period of service. The examiner is also requested to provide an opinion as to whether any currently diagnosed disability of either ankle was a) caused by service-connected knee or back disability, or, b) worsened in severity due to service-connected disabilities of the back and/or knees. The rationale for all opinions expressed should be provided. 3. The RO should review the claims file and ensure that all other notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) and its implementing regulations are fully complied with and satisfied. See also 38 C.F.R. § 3.159 (2003). 4. After completing the above actions, the RO should readjudicate the claim of entitlement to service connection for a bilateral ankle disability. If the claim remains denied the RO should issue the veteran and his representative a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the case should be returned to the Board for further appellate review, if in order. The purpose of this remand is to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of the remanded issue. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ J. M. Daley Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2003).

Reversing. In this equitable action to enjoin trespasses to realty the injured property cannot be identified by the description in the petition and the court erroneously overruled a demurrer to that pleading. The answer cured the defect in the petition by identifying the property; it also justified defendant's conduct under an alleged order of the Pike circuit court directing the establishment of a road on the premises in question; but it does not set out the nature of the former suit, the names of the parties thereto, the issues joined or the final determination thereof, and is not good in that respect. It does contain a denial of all the alleged trespasses, but such denials are coupled with and based on defendants' right to act under the order named, and this does not constitute a traverse, hence that pleading stated no defense, but the court erroneously overruled a demurrer thereto. The reply attempted to controvert the affirmative matter of the answer, but this was done conjunctively and the court properly sustained a demurrer to it, but erroneously dismissed the petition. As the defect in that pleading had been cured by the answer, the court should have required both parties to reform their pleadings. Wherefore, the judgment is reversed and cause remanded for proceedings consistent with this opinion. *Page 807

Central Produce Company, Petitioner, v. Commissioner of Internal Revenue, RespondentCentral Produce Co. v. CommissionerDocket No. 24916United States Tax Court18 T.C. 267; 1952 U.S. Tax Ct. LEXIS 195; May 13, 1952, Promulgated 1952 U.S. Tax Ct. LEXIS 195">*195 Decision will be entered for the respondent. 1. Held, petitioner was not committed prior to January 1, 1940, to a course of action which resulted in the erection by a landlord of a new warehouse to be leased to petitioner and which when occupied in February 1941 by petitioner resulted in more efficient operation of its business and in increased earnings. Petitioner has not proved a commitment qualifying ground under section 722 (b) (4) of the Internal Revenue Code.2. Petitioner in 1939, changed its method of operation as to transportation by selling its hauling trucks to another corporation and having an agreement with such corporation that it would thereafter transport petitioner's products for it. The evidence shows that this change did not result in increased earnings for petitioner but, on the contrary, decreased petitioner's earnings. Held, this change was not a qualifying operating change within the provisions of section 722 (b) (4) of the Internal Revenue Code. Eugene D. Jackson, Esq., for the petitioner.Robert M. Willan, Esq., and Joseph L. Spilman, Jr., Esq., for the respondent. Black, Judge. BLACK 18 T.C. 267">*268 The Commissioner has determined certain overassessments and deficiencies for petitioner for the calendar years 1943 and 1944, which are described in the deficiency notice as follows:You are advised that the determination of your tax liability for the taxable years ended December 31, 1943 and 1944 disclose [sic] a deficiency of $ 179.53 and an overassessment of $ 3,082.93, respectively, in income taxes and deficiencies of $ 18.63 and $ 357.01 in declared value excess-profits taxes for the respective years, while the determination of your excess profits tax liability for the years ended December 31, 1943 and 1944 discloses deficiencies of $ 10,453.16 and $ 8,315.07, respectively, * * *The deficiencies in excess profits taxes thus determined represent the portions of petitioner's liability for excess profits taxes as shown on petitioner's1952 U.S. Tax Ct. LEXIS 195">*197 excess profits tax returns for the respective years, the payments of which were deferred by petitioner under the provisions of section 710 (a) (5) of the Code. The deficiency notice also determined:After careful consideration of your applications for relief under Section 722 of the Internal Revenue Code, filed July 10, 1944 and September 9, 1947 (amended claim) for the year 1943 and July 14, 1945 for the year 1944, it has been determined that you have not established your right to the relief requested in your applications.The petitioner assigns no errors as to the determination of the deficiencies as such but does assign numerous errors designated from A to J, inclusive, as to respondent's refusal to grant relief under section 722, I. R. C. These assignments of error as we interpret them adequately raise but two issues. They are:1. Was petitioner committed prior to January 1, 1940, to an increase in the capacity of its business through the acquisition or occupancy of a new warehouse adjacent to a railroad freight siding to which it moved its fruit and produce operations in February 1941.2. Did the formation of a separate corporation which acquired title to petitioner's long-haul1952 U.S. Tax Ct. LEXIS 195">*198 trucks in 1939, and concurrently agreed to transport produce for petitioner on a contract basis, or any other base period change in its transportation methods, effect a substantial change in the character of petitioner's business or have the effect of increasing its normal level of earnings.The stipulated facts and exhibits made a part thereof are included herein by reference.18 T.C. 267">*269 FINDINGS OF FACT.The stipulated facts are so found.Petitioner, the successor to a partnership, was incorporated as the Central Produce Company under the laws of the State of Tennessee on February 15, 1935. At the time of incorporation petitioner had an authorized capital of 52 shares of preferred stock ($ 100 par value) and 30 shares of no par value common stock.Petitioner filed its Federal tax returns for the taxable years ended December 31, 1943 and 1944, with the collector of internal revenue, Nashville, Tennessee.Petitioner was organized according to the terms of its charter for the purpose of buying, selling, and dealing in the products of the farm, orchard, and garden in Tennessee or in any other state, or in buying, selling, and dealing with any other articles which were deemed necessary1952 U.S. Tax Ct. LEXIS 195">*199 for the successful operation of the business of the corporation and to do all things essential, necessary or incidental thereto.Issue 1 -- Commitment to the Rental of a New and Improved Warehouse.At the time of petitioner's incorporation its place of business was located at 530 Third Avenue, North, at the southwest corner of Third Avenue and Locust Street. Previous to its move to 530 Third Avenue, North, the predecessor partnership had been located at 600, 602, and 604 Third Avenue, North, Nashville, Tennessee.After the partnership had moved to 530 Third Avenue, North, it continued to rent on a month to month basis units formerly occupied by it, and this action was perpetuated by petitioner upon its incorporation. Both petitioner and predecessor partnership from time to time made active use of these buildings and at other times sublet these units to other parties.On several occasions during the period 1936-1939, Hoyt Strother, secretary and treasurer of petitioner, had discussed with the president and the secretary of Standard Candy Company (sometimes hereinafter referred to as Standard) the possibility of that concern's building a warehouse for the petitioner on the property1952 U.S. Tax Ct. LEXIS 195">*200 owned by Standard adjacent to the railroad at Third Avenue and Locust Street. However, these discussions did not result in a firm commitment and the petitioner obtained for its efforts the mere promise that it would receive first consideration in any decision to build on that location made by Standard. Early in 1940, petitioner again approached the secretary of Standard for the purpose of negotiating an agreement of the type previously sought. As a result of these discussions, Standard engaged the services of an engineering firm for the specific purpose 18 T.C. 267">*270 of obtaining an estimate of the cost of construction for a building of the type desired by petitioner. The estimate of cost thus obtained was for the sum of $ 21,438. Upon receipt of this estimate negotiations reached a stalemate and were subsequently broken off because Standard was unwilling to make so large an investment for the rent petitioner was willing to pay. Likewise, petitioner did not feel that it was in a position to bind itself to a lease which involved the payment of rent so high that it removed assurance of a profitable operation arising from the increased facilities.In July 1940, Hoyt Strother, in his1952 U.S. Tax Ct. LEXIS 195">*201 capacity as secretary of petitioner, was directed to again contact Standard for the same general purpose that had been the subject of prior discussions, namely, to negotiate with and enter into a rental contract with Standard for a warehouse to be erected by Standard at the previously discussed location, if such a contract beneficial to Central Produce Company could be made.As a result of these later discussions certain revisions were made in the original plans for the building and a new estimate for the cost of construction involving the aforesaid modifications was obtained on October 5, 1940, which fixed the cost of construction at approximately $ 17,500. Because of the lower cost of construction arising out of the second estimate Standard was willing to decrease its rental demands somewhat to a point where petitioner and Standard were able to reach a basis for an agreement. As a consequence of this agreement, on November 9, 1940, Standard entered into a contract with the Nicholson Construction Company to erect a warehouse for the use of the petitioner. A permit to demolish the old buildings was issued on November 11, 1940. Standard and petitioner entered into a lease contract1952 U.S. Tax Ct. LEXIS 195">*202 for the use of the new building which was to be constructed on November 16, 1940. The new building was completed on February 15, 1941, and petitioner moved into it shortly after it was completed.Petitioner was not committed prior to January 1, 1940, to an increase in capacity of its business through the acquisition or occupancy of the new warehouse building which it contracted to lease in November of 1940.Issue 2 -- Change in Method of Transportation.As far back as 1935, petitioner was employing both truck and rail facilities to move its produce to market. Because of the employment of these two separate and distinct methods of transportation and because the experience of the officers of petitioner had been limited almost entirely to trucking operations, in the Fall of 1936 or the Spring of 1937, the petitioner employed a so called perishable man. Previously this man had been employed for a period of 11 years by a railroad as a perishable agent whose principal duty was the inspection 18 T.C. 267">*271 of railroad shipments for the purpose of discovering possible breakage or damage suffered by the produce in transit. Petitioner utilized his services to buy and receive carload lots1952 U.S. Tax Ct. LEXIS 195">*203 and to take care of freight and freight rates in general.At the annual stockholders' meeting of petitioner held July 4, 1939, it was reported that the petitioner had lost money during the preceding year and this loss was attributed to leakage arising from the manner in which the business was being operated. It was agreed that at least a portion of this leakage arose from the fact that petitioner was using its own trucks to haul produce. Therefore, a policy was adopted to seek other mediums of transportation and to eliminate long hauls of produce by the company itself.To implement this policy decision petitioner entered into a sales contract with Central Transportation Company whereby petitioner sold to Central Transportation its long-haul trucks and there was embodied in the contract the additional proviso that Central Transportation agreed to haul all wares of the petitioner from such points as desired. Moreover, it was expressly stated in the contract that petitioner was entering into such an agreement because the cost of self-transportation of produce had resulted in a loss to the company, and that, therefore, the policy had been adopted to discontinue all company transportation1952 U.S. Tax Ct. LEXIS 195">*204 of produce and in the future to employ rail or contract trucking for the transportation of its produce. This contract was signed September 16, 1939.On July 4, 1940, petitioner again held its annual stockholders' meeting and at this meeting the attention of the stockholders was directed to the fact that under the petitioner's present contract for hauling with Central Transportation Company the cost of transporting commodities to Nashville from elsewhere was excessive and to some extent responsible for the lack of profits shown by the company. It was suggested as an alternative that petitioner should lease the vehicles of Central Transportation Company and operate them, absorbing the entire cost of operations with the exception of repair and maintenance which would be provided by the Central Transportation Company. This plan was adopted and petitioner was authorized to enter into such an agreement with Central Transportation Company. Likewise, petitioner adopted as a matter of policy the more regular use in the future of railway facilities and other trucking concerns when advantageous.After 1940, petitioner greatly increased its use of railway facilities in its business thereby1952 U.S. Tax Ct. LEXIS 195">*205 resulting in increased earnings. The operations under the contract which petitioner signed with Central Transportation Company on September 16, 1939, to which reference has been made above did not increase petitioner's earnings but, on the contrary, had the opposite result. The contract proved unprofitable to both 18 T.C. 267">*272 parties to the contract. It was not such a change in the operation of petitioner's business as entitled it to relief under the provisions of section 722 of the Code.Petitioner's sales and net taxable income (loss) per returns as adjusted were as follows:Net taxable incomeYearSalesas adjusted1936$ 749,887.25$ 4,943.64 1937949,437.023,032.29 19381,050,326.42(1,437.253.3221,103,111.733,166.82 Petitioner's average base period net income for the years here in question calculated in accordance with section 713 (e) (1) of the Internal Revenue Code is $ 3,000.25.OPINION.Petitioner's assignments of error do not identify very clearly what statutory grounds it relies upon for relief under section 722 of the Code. However, we have set out in our preliminary statement the two issues we deemed to have been raised by the petition1952 U.S. Tax Ct. LEXIS 195">*206 in its assignments of error as grounds for relief under section 722. Evidently petitioner is relying upon grounds which it alleges fall within the provisions of section 722 (b) (4) of the Internal Revenue Code. 11952 U.S. Tax Ct. LEXIS 195">*207 18 T.C. 267">*273 Issue 1 -- Commitment to the Rental of a New and Improved Warehouse.The evidence shows that in 1940, Standard Candy Company which had been petitioner's landlord of certain property for several years erected a new and much more commodious warehouse for petitioner than it had been using in prior years. The testimony also establishes that this new warehouse which was situated on the railroad tracks added very substantially to the efficiency of petitioner's operations and increased its earnings. Petitioner contends that Standard was committed to the erection of this warehouse prior to January 1, 1940, and that petitioner was committed prior to that date to rent it from Standard. If the facts substantiated this contention, then petitioner might well have ground for relief under section 722 (b) (4), I. R. C., the commitment provisions of section 722 (b) (4) assuming, of course, that other requirements of the statute are met. The proof, however, does not sustain petitioner as to this alleged commitment prior to January 1, 1940. H. L. Ray, secretary of Standard testified at the hearing as a witness for the petitioner. During the course of his testimony the following question1952 U.S. Tax Ct. LEXIS 195">*208 and answer occur:By Mr. Jackson: [Attorney for petitioner]Q. Mr. Ray, see if I am right. Did you say that several years before this building was built that the Standard Candy Company had agreed to build a building when they wanted it? Is that what you said?A. No, we had not agreed to build any building. We had talked with Mr. Strother, or he with us several years about building a building, but we never did get together on it until the beginning of 1940.Other testimony in the record is to the same effect. The upshot of this testimony is that petitioner and Standard had discussed the building of this warehouse for petitioner prior to January 1, 1940, but no agreement or definite commitment had been reached. It was in 1940 that the parties reached a definite agreement as to the erection of this warehouse for lease to petitioner. After the agreement was reached in 1940, Standard went ahead and erected the building and the lease of the building to petitioner was signed November 16, 1940. Petitioner began to occupy the building on or about February 15, 1941. Under these facts and circumstances, we hold that petitioner has not proved a commitment within the meaning of the language1952 U.S. Tax Ct. LEXIS 195">*209 used in section 722 (b) (4) wherein it says:* * * Any change in the capacity for production or operation of the business consummated during any taxable year ending after December 31, 1939, as a result of a course of action to which the taxpayer was committed prior to January 1, 1940, * * * shall be deemed to be a change on December 31, 1939, in the character of the business, * * *It follows that petitioner is not entitled to any relief upon this ground.18 T.C. 267">*274 Issue 2 -- Change in Method of Transportation.The facts show that during the base period years prior to 1939 petitioner had used its own trucks to haul produce from places where it had been purchased. In 1939, a policy was adopted by the directors of petitioner to seek other mediums of transportation and to eliminate long hauls of produce by petitioner's own trucks. To implement this change in policy, petitioner entered into a sales contract with Central Transportation Company whereby petitioner sold to Central Transportation Company its long-haul trucks and there was embodied in the contract the proviso that Central Transportation Company agreed to haul all wares of petitioner from such points as desired. This1952 U.S. Tax Ct. LEXIS 195">*210 contract was signed September 16, 1939.The change did not result in increased earnings for petitioner as it had expected but, on the contrary, had the reverse effect and in the following year another change was made which is described in our Findings of Fact. Apparently this second change in methods of transportation which took place in 1940 did result in increased earnings to petitioner but it took place in 1940 and is, therefore, not a ground for relief under section 722 (b) (4), no commitment to this course of action having been shown prior to January 1, 1940. In view of the fact that the facts show that the change in methods of transportation which the petitioner made in 1939 did not result in increased earnings but, on the contrary, resulted in a lower level of earnings, it would not be a qualifying factor for relief under section 722 (b) (4). The Bureau of Internal Revenue Bulletin contains the following discussion of the requirements for recognizing a change in character of business due to a change in operation or management so as to qualify a taxpayer for relief under section 722 (b) (4):(1) A CHANGE IN THE OPERATION OR MANAGEMENT OF THE BUSINESSTo be entitled to relief1952 U.S. Tax Ct. LEXIS 195">*211 because of a change in the operation or management of the business, a taxpayer must demonstrate that the change is substantial as measured by two basic tests: (i) The nature of the operations must be essentially different after the change from the nature of the operations prior to the change; and(ii) There must be a higher level of earnings which is directly attributable to the change.See, Bulletin on Section 722, page 48. Even if we assume that the change in transportation methods which petitioner put into effect in 1939 qualifies as a change under (i) above, it clearly does not qualify under (ii) above.We hold that under the facts and circumstances which attended and followed petitioner's change in transportation operations in 1939, such change does not qualify petitioner for relief under section 18 T.C. 267">*275 722 (b) (4). Petitioner has failed to establish that it is entitled to any relief under section 722 of the Internal Revenue Code with respect to the years 1943 and 1944.Reviewed by the Special Division.Decision will be entered for the respondent. Footnotes1. SEC. 722. GENERAL RELIEF -- CONSTRUCTIVE AVERAGE BASE PERIOD NET INCOME.* * * *(b) Taxpayers Using Average Earnings Method. -- The tax computed under this subchapter (without the benefit of this section) shall be considered to be excessive and discriminatory in the case of a taxpayer entitled to use the excess profits credit based on income pursuant to section 713, if its average base period net income is an inadequate standard of normal earnings because -- * * * *(4) the taxpayer, either during or immediately prior to the base period, commenced business or changed the character of the business and the average base period net income does not reflect the normal operation for the entire base period of the business. If the business of the taxpayer did not reach, by the end of the base period, the earning level which it would have reached if the taxpayer had commenced business or made the change in the character of the business two years before it did so, it shall be deemed to have commenced the business or made the change at such earlier time. For the purpose of this subparagraph, the term "change in the character of the business" includes a change in the operation or management of the business, a difference in the products or services furnished, a difference in the capacity for production or operation, a difference in the ratio of nonborrowed capital to total capital, and the acquisition before January 1, 1940, of all or part of the assets of a competitor with the result that the competition of such competitor was eliminated or diminished. Any change in the capacity for production or operation of the business consummated during any taxable year ending after December 31, 1939, as a result of a course of action to which the taxpayer was committed prior to January 1, 1940, or any acquisition before May 31, 1941, from a competitor engaged in the dissemination of information through the public press, of substantially all the assets of such competitor employed in such business with the result that competition between the taxpayer and the competitor existing before January 1, 1940, was eliminated, shall be deemed to be a change on December 31, 1939, in the character of the business, or↩

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 03-7741 SIDNEY FIELDS, Petitioner - Appellant, versus GARY D. MAYNARD, Director, South Carolina Department of Corrections; CHARLES CONDON, Respondents - Appellees. Appeal from the United States District Court for the District of South Carolina, at Charleston. Terry L. Wooten, District Judge. (CA-03-172-2-26) Submitted: January 29, 2004 Decided: February 9, 2004 Before WILKINSON, MICHAEL, and KING, Circuit Judges. Dismissed by unpublished per curiam opinion. Sidney Fields, Appellant Pro Se. Donald John Zelenka, Chief Deputy Attorney General, William Edgar Salter, III, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Sidney Fields, a state prisoner, seeks to appeal the district court’s order adopting the magistrate judge’s recommendation and denying relief on his petition filed under 28 U.S.C. § 2254 (2000). An appeal may not be taken from the final order in a habeas corpus proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue for claims addressed by a district court absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322 U.S. 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed the record and conclude that Fields has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED - 2 -

1 F.3d 1244 NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Howard C. MEDLEY, Sr., Petitioner/Appellant,v.UNITED STATES of America, Respondent/Appellee. No. 92-2833. United States Court of Appeals, Seventh Circuit. Argued July 8, 1993.Decided Aug. 2, 1993. Before CUDAHY and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge. ORDER 1 A jury convicted Howard Medley of accepting a $25,000 check from a contractor with the intent to be influenced in his duties as a board member of the Chicago Transit Authority, in violation of 18 U.S.C. Sec. 666. Medley appealed his conviction to this court, and we affirmed. United States v. Medley, 913 F.2d 1248 (7th Cir.1990). He then filed a petition to vacate his sentence, 28 U.S.C. Sec. 2255, claiming that his trial counsel was ineffective and that the Supreme Court's recent decision in McCormick v. United States, 111 S. Ct. 1807 (1991), requires the court to overturn his conviction. We affirm. 2 At the threshold we must decide if this case is moot. Both parties argued that this case was not moot, therefore the issue need not detain us long. "[A] criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction." Sibron v. New York, 392 U.S. 40, 57 (1968); Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968); but see Lane v. Williams, 455 U.S. 624, 632 (1982) (no collateral legal consequence arose because "employment prospects, or the sentence imposed in a future criminal proceeding, could be affected"); Wickstrom v. Schardt, 798 F.2d 268, 270 (7th Cir.1986) (per curiam) (effect of conviction on reputation is not a collateral legal consequence); cf. Maleng v. Cook, 490 U.S. 488, 492 (1988) (per curiam) (petitioner is no longer "in custody" as required by the habeas statute just because there is a possibility of a future sentence being enhanced by a prior conviction, the sentence of which has been fully served). In D.S.A. v. Circuit Court Branch 1, this court noted "that a criminal record that might affect a later sentence is a sufficient collateral consequence to save an appeal from mootness." 942 F.2d 1143, 1149 (7th Cir.1991) (citing Evitts v. Lucey, 469 U.S. 387, 391 n. 4 (1985)). D.S.A. requires that we find that this case is not moot. 3 Medley has raised on appeal the same two issues that he raised before Judge Kocoras: 1) That his trial counsel made such poor decisions that his performance violated Medley's constitutional right to effective assistance of counsel, and 2) that in light of McCormick v. United States, 111 S. Ct. 1807 (1991), this court should overrule his conviction. We have reviewed the district court's thorough opinion, which addressed these claims thoroughly and accurately. We AFFIRM for the reasons set forth in that opinion, which is attached. ATTACHMENT 4 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION 5 UNITED STATES OF AMERICA, Petitioner, 6 v 7 HOWARD C. MEDLEY, SR., Respondent. 8 Nos. 88 CR 297-3, 92 C 1062. MEMORANDUM OPINION CHARLES P. KOCORAS, District Judge: 9 This matter is before the Court on defendant's habeas petition to vacate a sentence pursuant to 28 U.S.C. Sec. 2255. For the reasons set forth below, we deny the petition. BACKGROUND A. Procedural History 10 Howard Medley ("Medley"), petitioner, along with eight other defendants were first indicted in April 1988. The indictment arose out of the Chicago Transit Authority's ("CTA") relationship with Metropolitan Petroleum Company (Metropolitan), a privately owned motor fuel supplier. Medley was a CTA board member. Also indicted were Metropolitan and Brian Flisk ("Flisk"), an officer of Metropolitan. 11 Medley was indicted for perjury and accepting a thing of value with the intent to be influenced or rewarded in violation of 18 U.S.C. Sec. 666.1 Medley's initial trial lasted eleven days, and after three days of deliberation, the jury was deadlocked, and a mistrial was declared. 12 Subsequently, a superseding indictment was returned, again charging Medley with violating section 666. At Medley's second trial, Flisk testified as a government witness. In between Medley's first and second trial, Flisk pleaded guilty to a number of related charges. Medley's second trial lasted six days. Medley neither testified, nor presented any meaningful evidence on his behalf. Medley was represented by different counsel at his second trial. After its deliberations, the jury concluded that Medley was guilty of accepting and agreeing to accept $25,000 from Flisk with the intent to be influenced and rewarded in his duties as a CTA board member. Accordingly, Medley was sentenced to thirty months in jail and fined $10,000. 13 Although Medley raised three issues on appeal,2 the Seventh Circuit affirmed his conviction. Medley was paroled on December 5, 1990. He is presently living in Chicago and is under the supervision of the United States Probation Service. Medley's sentence expires on September 20, 1992. B. Factual Background3 14 In October, 1986, Flisk ran Metropolitan. At that time, the company entered into two, two-year contracts with the CTA to be its exclusive supplier of diesel fuel. These contracts were valued at $38 million and were Metropolitan's most important contracts. Flisk obtained the fuel contracts by representing that the CTA would receive substantial discounts if it paid its bills within specified time periods. Flisk also agreed to meet the CTA's Minority Business Enterprise requirement by specifying Casey Fuels as a minority-run subcontractor that would deliver part of Metropolitan's fuel to the CTA. 15 Contrary to Flisk's belief, the CTA paid its bills promptly. As a result, Metropolitan began losing money at a "devastating" rate. To combat these losses, Flisk began sending the CTA late or fraudulently inflated invoices. The CTA's Internal Audit division became suspicious and began investigating Metropolitan in late November and early December of 1986. Flisk learned of this investigation in January, 1987 and feared that Metropolitan would go out of business if the CTA cancelled its contracts.4 16 At or around this time, in late January or early February, Medley, while acting as a CTA board member, learned from his longtime lawyer friend, Robert Sperling, that he and other individuals who owned a large commercial warehouse were desperately looking for a buyer and that a substantial commission would be paid to anyone who could find such a party. 17 While Medley was keeping an eye out for such a buyer, Flisk turned to Medley for assistance in connection with the CTA's investigation of Metropolitan. Howard Weitzman ("Weitzman"), Flisk's personal friend and Metropolitan business partner, arranged a meeting in Medley's CTA office. Later, Medley, Flisk, and Weitzman had a second meeting which ended up at Medley's apartment. At the apartment meeting, Flisk and Medley discussed CTA matters, Metropolitan's fuel contract, and Medley's needed assistance with Metropolitan's "problem." According to Flisk's testimony, Medley also suggested that Flisk purchase Sperling's warehouse. Flisk learned that Medley stood to gain a $300,000 commission if he located a buyer for the building. According to Flisk, he was willing to pay this commission because Medley was "helping" him with the CTA investigation. Indeed, at trial, Flisk referred to the warehouse commission as the "quid pro quo" for Medley's help. 18 After the apartment meeting, Medley called Sperling and informed him that he knew of an individual interested in the warehouse. Upon Medley's recommendation, Flisk and Weitzman examined the property, and negotiations with Sperling and his partners for the sale or lease of the warehouse began soon thereafter. 19 While negotiations continued, on February 20, 1987, the CTA's Audit division disseminated the results of its investigation of Metropolitan to CTA board members. The report criticized Metropolitan's tardy billings and questioned the validity of Casey Fuels as a legitimate minority enterprise. 20 Subsequently, at a public board meeting on March 4, 1987, board member John Hoellen cited the Audit report as support to terminate Metropolitan's contract. In response, Medley spoke out about a conversation he said he had had about the report with the CTA's purchasing agent, Ed Tobin. Tobin, however, denied that he had spoken to Medley about the report. These conversations ceased when potential litigation with Metropolitan was mentioned. The investigation was then referred to the CTA Purchases and Sales Committee for a report back to the board. 21 Natalia Delgado ("Delgado") chaired the CTA's Purchases and Sales Committee. During a ten minute intermission between open and closed board meetings on March 4, 1987, Medley approached Delgado. Medley informed Delgado that Casey Fuels was actually getting ready to deliver fuel and that unknown persons were "out to get Metropolitan because they didn't like minority subcontracts." 22 Two days later, Medley called the CTA affirmative action staff head Larry Murphy ("Murphy") into his office. When Murphy arrived, Flisk and Clarence Casey, owner of Casey Fuels, were present. Medley told Murphy to prepare a report proving that Casey Fuels was in fact participating in the Metropolitan contract. When Murphy replied that he had no information to substantiate such a claim, Medley directed Casey and Flisk to provide the necessary information. 23 Immediately after speaking with Murphy, Medley called CTA senior staffer and purchasing agent Tobin into his office. When he arrived, Medley, Flisk, Casey, and Murphy were all present. Medley informed Tobin that he was looking into the minority subcontractor and invoicing allegations in the Audit report. Tobin warned Medley not to discuss the matter in front of the subjects of the investigation because of the possibility of future litigation. Tobin was so disturbed by Medley's conduct that he immediately went to the CTA staff chairman and wrote a memo detailing what had occurred in Medley's office. 24 A week later, Medley, again in the presence of Flisk and Casey, gave Murphy a stack of papers from Flisk and told Murphy to "go back and take care of the minority." A week later Medley called Murphy into his office regarding Murphy's report. Murphy informed Medley that the papers were irrelevant, and therefore no report was written. Medley responded, "O.K. That's all." Medley never informed the CTA board that Metropolitan and Casey's evidence on the minority issue was meritless. 25 On March 17, 1987, Internal Audit issued a second critical report of Metropolitan. This report expressed concern over the quality of diesel fuel tested from Metropolitan's trucks. On March 19, 1987, CTA employees were told to visually examine Metropolitan's fuel for particles and water. On that day, Byron Harvey took a fuel sample from a Metropolitan delivery truck. After examining the sample, Harvey brought it to his supervisor, Terry Short. Short agreed with Harvey that the sample looked too light and cloudy and therefore should be rejected. By the time these individuals returned to the Metropolitan fuel truck, however, Flisk had arrived. Additionally, within minutes of Flisk's arrival, Medley was on the scene. Flisk admitted to calling Medley to assist him at the garage. Additionally, both Harvey and Short testified that they had never seen Medley at the garage either before or since that time. 26 While at the garage, Medley initially spoke to Flisk. He then approached supervisor Short who informed Medley that the fuel sample was taken from Metropolitan's truck. Medley informed Short that the fuel looked acceptable to him. Consequently, Short accepted the delivery. 27 On the same day, Medley also called Delgado at her law firm. Medley told her that Casey Fuels was delivering the fuel and that fuel samples were erroneously being taken from underground tanks, not delivery trucks. Delgado testified that the call was unusual because Medley had never, except one time before, called her at her firm to discuss substantive board matters. During this conversation, Medley also arranged a personal meeting with Delgado for the next day to discuss the Metropolitan issue. Delgado, however, canceled this meeting because of an emergency legal matter at her office. Immediately after hanging up with Delgado, Medley called Sperling. Phone records for the remainder of the day showed numerous calls between Medley and Flisk, Medley and Sperling, Flisk and Sperling, and Medley and John Wilson, Medley's accountant who later accepted a $25,000 check from Flisk delivered to him by Weitzman for Medley. 28 Five days later, on March 24, Medley called Delgado at her office again. This was the day before a scheduled CTA Purchases and Sales Committee meeting. Medley again told Delgado that Casey Fuels was in fact delivering fuel under the contract. Delgado testified that Medley further informed her that he had gone to examine water seepage at the CTA's underground fuel tanks and that the Metropolitan fuel quality samples were inaccurate because they were being taken from water soaked fuel tanks, not Metropolitan fuel trucks. Medley also told her that people were "out to get Metropolitan Petroleum." Medley did not tell Delgado that he had gone to the garage the previous week at Flisk's behest, that the sample at the garage was taken from a Metropolitan truck, or that there was no water over the fuel tanks at that time. 29 The next day, March 25, 1987, the Purchases and Sales Committee met to discuss whether to recommend the termination of Metropolitan's contract. Delgado reported what Medley had told her about Casey Fuels delivering the fuel and offered Medley's explanation for the questionable fuel quality samples. Based on this and other information, the committee recommended against termination. 30 Around this time, late March, 1987, Medley had a conversation with Sperling's partner, Michael Zavis. Zavis told Medley that the real estate partnership could not afford to pay Medley any commission on the warehouse deal but that Zavis would negotiate with the buyers, Flisk and Weitzman, to pay it. Zavis informed Medley that he would get one-half of the commission and that Zavis and Sperling would receive one-quarter each. Soon thereafter, Zavis had a meeting with Flisk during which Flisk agreed to pay a $300,000 commission. 31 In late March, the deal was ready to be consummated. Sperling, however, called Medley and informed him that only licensed real estate brokers could receive a real estate commission. Because Medley was not a licensed broker, Sperling suggested that Medley either: (1) designate a real estate broker to accept his share as a favor; (2) designate a charity to be paid his share; or (3) request that his share be paid as a political contribution. Medley replied that he wanted to consider the matter. A short time before March 31, 1987, Medley called Zavis and told him that John Wilson ("Wilson") was to receive Medley's commission of $150,000. Zavis called Wilson, learned that he was a licensed real estate broker, and provided his name to Flisk's attorney so that the commission check could be made out correctly. 32 Around this time, Medley met with Wilson regarding the commission. Wilson was Medley's accountant. Medley told Wilson that he had earned a fee in a real estate transaction but that the parties involved "were balking about it" because they wanted a licensed real estate broker "to accept the money." Medley then told Wilson that he wanted Wilson to accept the money for him. With Medley present, Wilson called his attorney regarding Medley's suggestion. Wilson's attorney advised them that Wilson could not share a commission with a nonlicensed broker. The lawyer, however, said that he would get back to them about the possibility of sharing the money if it were characterized as a finders fee. The lawyer never got back to Wilson, and Wilson and Medley had no further conversations regarding the legality of sharing the commission. 33 While the real estate deal was drawing closer to completion, the CTA's board held a closed meeting on April 1, 1987 to discuss the allegations surrounding Metropolitan. Delgado reported that her committee had recommended against termination based on the same information that Medley had provided her. Medley also spoke at this meeting in support of Metropolitan. In so doing, however, Medley made a number of misrepresentations. Medley lied that he had gone out to the CTA garage and found a foot of standing water around the underground fuel tanks. He also lied when he stated that the fuel samples came from the underground tanks, not Metropolitan's delivery trucks. Moreover, at no time during this meeting did Medley inform the board about his conduct on behalf of Flisk, Weitzman, or Casey or the real estate transaction. At the end of the meeting, the board voted against terminating Metropolitan's contracts.5 34 On April 10, 1987, Medley met with Sperling. At this time, Medley agreed that Wilson should take six monthly installments of $25,000 for the real estate deal. Subsequently, shortly before April 14, Medley told Wilson that a man named Weitzman would be bringing over a $25,000 check for Medley. After Wilson received the check on April 14, Medley instructed Wilson to keep $2,500 for himself and send him the remaining $22,500. 35 In early July, 1987, the CTA terminated Metropolitan's contract for fraud. In April 1988, Medley was required to file an economic interest statement with Cook County for 1987 listing "any kind of payment from anyone having a contract or doing business with the CTA." Medley did not list the $22,500 payment from Flisk. Medley, however, did list a $22,500 "finders fee" on his income tax return filed at about the same time with the Internal Revenue Service, but the source of the fee was not shown. Subsequent events led to Medley's indictment and ultimate conviction. 36 Medley has now filed this petition to vacate his sentence pursuant to 28 U.S.C. Sec. 2255. Medley's bases for this petition is two fold. Medley's first argument is that he was a victim of ineffective assistance of counsel. In support of this claim, Medley highlights a myriad of purported errors. Secondly, Medley argues that the recent Supreme Court decision of McCormick v. United States, 111 S. Ct. 1807 (1991), requires vacating his sentence. We address these arguments below. DISCUSSION A. Ineffective Assistance of Counsel 37 Medley's initial argument in support of vacating his sentence is that he was deprived of his constitutional right to effective assistance of counsel at his second trial. Medley makes numerous arguments in support of this claim. We address each argument below. However, because we find these positions meritless, we deny Medley's ineffective assistance argument. 38 The Sixth Amendment guarantees that criminal defendants will receive effective assistance of counsel. This constitutional right, however, in no way ensures defendants with the best possible defense. Strickland v. Washington, 466 U.S. 668, 697 (1984) (acknowledging that the "object of an ineffectiveness claim is not to grade counsel's performance"). Rather, the underlying goal is to ensure that a defendant receives a fundamentally fair trial. Id. at 686 & 696. A fair trial is "one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding." Id. at 684. As the Supreme Court has recognized, the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. 39 It is in light of this underlying rationale that we must analyze any claim of ineffective assistance of counsel. As such, the defendant has a heavy burden in demonstrating ineffectiveness. United States v. Balzano, 916 F.2d 1273, 1292 (7th Cir.1990) (acknowledging that defendant "must climb" a "high mountain" to succeed on ineffectiveness claim); United States v. Moya-Gomez, 860 F.2d 706, 763 (7th Cir.1988) (acknowledging that the "defendant bears a heavy burden"), cert. denied, 492 U.S. 908 (1989). Specifically, the defendant must show that his counsel's performance was deficient and that this deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. Prejudice exists if there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.6 Id. at 694. 40 It is unnecessary to examine the first prong of the ineffective assistance test, the reasonableness of counsel's performance, if counsel's conduct caused the defendant no meaningful prejudice. Id. at 697 (acknowledging that a court "need not determine whether counsel's performance was deficient ... [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often" be the case). With these principles in mind we will address each of Medley's arguments in support of his claim of ineffectiveness. 41 Medley's first argument is that the "government significantly changed its theory of the case between the first and second trials" and that his trial counsel failed to appreciate this change in strategy. Specifically, Medley maintains that the government's focus at the first trial was on "bribery" while at the second trial "the government abandoned the bribery claim and characterized Medley's conduct as 'influence peddling.' " Medley insists that this misapprehension and fixation on bribery constituted ineffective assistance of counsel. 42 Even if there were a meaningful distinction between bribery and section 666, Medley has failed to present any particularized example prejudice. Initially, we note that we are not convinced that for purposes of Medley's trial there is a meaningful distinction between bribery and section 666. Medley contends that section 666 requires a showing of a quid pro quo, whereas bribery does not. However, this distinction is incorrect. See 18 U.S.C.A. Sec. 201(b)(2) (public official takes a bribe when he "corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally ... in return for, [inter alia ], being influenced in the performance of any official act") (emphasis added); Federal Criminal Jury Instructions of the Seventh Circuit, Vol. III, at 20 (West 1986) (rendering it an unlawful act of bribery for public official to "receive anything of value for his official services from any source other than" the United States government) (emphasis added); see also Illinois Pattern Jury Instructions, 21.11 (West 2d 1981). Additionally, the Seventh Circuit agreed with our earlier conclusion that "bribery" is merely a " 'shorthand' explanation of the [section 666] charge." Medley, 913 miguel49@example.net. Thus, we see no valid distinction between the two statutory offenses for purposes of Medley's trial. However, even if Medley's distinction were valid, he has failed to articulate any particular act that his trial counsel would have done differently had he "properly" understood the nature of the charged crime.7 Accordingly, Medley has failed to demonstrate any prejudice. Therefore, this argument fails to support Medley's claim of ineffectiveness. 43 Medley's second argument is that his trial counsels' failure to object to the government's jury instruction regarding the section 666 offense constituted ineffective assistance of counsel. Specifically, Medley contends that the instruction failed to inform the jury that a section 666 violation only arises if the thing of value was accepted with a "corrupt" intent. Medley maintains that had the jury been informed as to the statute's mental state requirement, it would have found Medley innocent. 44 Medley previously raised this issue on appeal, and the Seventh Circuit rejected it. The court held that the absence of the language "corruptly" from the jury instruction did not have "a probable impact on the jury's finding of guilt" and did not amount to "a miscarriage of justice." Id. at 1260. In so holding, the court reasoned that "[n]o normal reasonable jury could have misunderstood what the indictment charge was about and what was required to find the defendant guilty." Id. at 1261. The court further reasoned that Medley's receipt of money was "either a real estate fee or it was corruption" and that the "instruction given, even without using the word 'corruptly,' would not permit a finding of guilt on some gratuity or real estate fee analysis." Id. We agree with the Seventh Circuit's reasoning. Therefore, it necessarily follows that Medley incurred no meaningful prejudice as a result of counsels' failure to object to the government's jury instruction within the meaning of the Sixth Amendment. Accordingly, Medley's jury instruction argument in support of his ineffectiveness claim must also fail. 45 We reject Medley's argument that his trial counsel committed ineffective assistance of counsel because their errors caused the Seventh Circuit to review the jury instruction issue under a stricter plain error standard. The Seventh Circuit did, in fact, apply a stricter standard of review because of counsel's failure to object to the government's jury instruction and their submission of jury instructions without the "corruptly" language. Id. at 1260. Medley insists that had his counsel properly objected to the government's proffer, the Seventh Circuit would have used a less strict standard of review and ultimately would have found in favor of Medley on this issue. 46 Medley's argument must fail for two reasons. Initially, we note that Medley's position is rife with speculation. It assumes that the government would have objected to the "corruptly" language. This is questionable. Indeed, the Seventh Circuit, on appeal, recognized that the government in fact "argued the case as if 'corruptly' was the standard." Id. at 1260. Moreover, even if the government did object, Medley's position further assumes that we would have rejected Medley's objection. We will not engage in such speculation. Secondly, and more important, is that Medley's argument misses the point. The critical question is whether counsel's errors caused meaningful prejudice with respect to the jury's verdict. The Seventh Circuit and this Court have already concluded that the instruction in question caused no such prejudice. Medley's argument, therefore, is misplaced and rejected. 47 Medley's third argument in support of his petition is that his trial counsel made "[s]erious errors ... with respect to at least ten witnesses who testified at Medley's second trial." Specifically, Medley argues that his counsel "did not ask questions which were asked at [his first trial] and which when asked resulted in answers favorable" to him. 48 Before addressing those specific points that Medley makes in support of this argument, we make some preliminary observations. Initially, we note that Medley's counsel at the second trial was not obligated to try Medley's case in the same fashion as counsel did for his first trial. See Strickland, 466 U.S. at 689 (acknowledging that there are "countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way"). Indeed, to do so would have been problematic since Medley's first trial resulted in a hung jury, not acquittal, and that was in the absence of Flisk's important testimony for the government. In light of this caveat, we will address the particular lines of testimony that Medley contends deprived him of a fair trial whose result is unreliable. 49 Medley's initial argument is that numerous individuals could have testified that Medley's "interaction with Board Members regarding Metropolitan Petroleum was not unusual" and indeed "did not go beyond the point of asking questions, raising issues, and advocating a position." In support of these contentions, Medley states that Mr. Paalswell, CTA's executive director, and Mr. Hillman would have testified that Medley never approached them about Metropolitan. With respect to Delgado, Medley asserts that she could have testified that he "did not go beyond offering her information." As to Murphy, Medley argues that he could have testified that Medley "did not push the issue [the minority status of Casey Fuels] after Murphy stated that he didn't think Metropolitan's data was sufficient." Finally, Medley maintains that Short would have testified that Short accepted the disputed fuel delivery after Medley reminded him of the latest memo covering standard testing procedures requiring lab testing. 50 We reject these contentions because the failure to elicit this testimony did not in any meaningful way prejudice Medley. With respect to Paaswell and Hillman, we note that evidence of Medley's inaction has little, if any, probative value. Medley's failure to solicit all board members on Metropolitan's behalf in no way mitigates those questionable actions that he did take. Moreover, Medley badly mischaracterizes the nature of his conduct with Delgado. Medley did more than "offer her information." Indeed, he engaged in a preconceived plan of deception and solicitation. Medley never informed her as to his vested interest in Metropolitan's negotiations for the commercial warehouse. He never informed her that Metropolitan had no credible evidence of Casey Fuels' minority status. He also lied when he stated that Metropolitan's fuel samples were erroneously being taken from underground fuel tanks that were submerged under a foot of water. Nor did Medley tell Delgado that he had gone to a CTA garage at Flisk's behest, that the sample at the garage was taken from the Metropolitan truck, or that there was no water over the fuel tanks at that time. Additionally, the fact that Medley did not push Murphy regarding the Casey Fuels issue, again evidence of Medley's inaction, would have had little if any influence on the jury. Furthermore, as to Short's acceptance of the fuel delivery, Medley has failed to submit the alleged memo. However, even if it did in fact exist, evidence of Medley's other actions on behalf of Metropolitan were more than sufficient for a reasonable jury to convict him. Therefore, because Medley has failed to make the requisite showing of prejudice with respect to this testimony, we reject his reliance on it. 51 Medley's second contention is that his counsel erred by not eliciting testimony that demonstrated the legitimacy of the real estate transaction. This was not error because the government conceded this fact at Medley's second trial. Therefore, no meaningful prejudice arose. 52 Medley's third contention turns on testimony regarding Medley's acceptance of his "fee." Medley insists that: (1) the idea of the real estate commission was not his; (2) Medley was not involved in the decision to pay him a fee; (3) Medley "was reluctant to accept a fee and rejected the notion on several occasions"; (4) Medley believed the fee came from Sperling and Zavis not Flisk; and (5) Sperling, Zavis, and Wilson thought the fee was legitimate. 53 Medley's first and second points, that Sperling would have testified that it was his "original idea" to pay a fee to Medley and that "Medley had no part in the negotiations nor in the decision to include him in the fee payment," would not have changed the jury's decision. Medley ignores the important testimony that he knew, because of his prior discussion with Sperling, that a substantial commission could be made, and he knew this fact when he suggested the deal to Flisk. Thus, there was no constitutional error in failing to elicit this testimony. 54 Medley also argues that he was reluctant to accept any fee and turned it down numerous times. Medley does not suggest who would have testified to this fact. Moreover, Medley himself chose not to testify. Furthermore, the fact of the matter is that Medley did accept the fee, and the evidence established that he was keenly interested in obtaining it. Medley actively defended Metropolitan in addition to having numerous communications with Sperling and Zavis regarding the state of negotiations. Moreover, Medley also rejected three alternatives which Sperling suggested for Medley's disposition of the money. Indeed, Medley rejected these alternatives in the face of Wilson's attorney's equivocal statement as to the legality of such an enterprise. Therefore, it is doubtful that the jury would have deemed Medley's suggested testimony as credible or persuasive. 55 Medley also contends that his trial counsel should have elicited testimony regarding Medley's belief that the fee came from Zavis and Sperling, not Metropolitan. Initially, we note that there was testimony to the contrary. Additionally, in order to elicit such testimony, Medley would have had to take the stand. As discussed below, there were substantial risks in this, and it was proper to recommend against doing so. 56 Moreover, the fact that "neither Zavis nor Sperling, both attorneys, saw anything improper about Medley receiving a fee" for his help is irrelevant. Furthermore, these individuals were unaware of Medley's efforts on behalf of Metropolitan. This is equally true of Wilson. Therefore, trial counsels' failure to elicit this testimony from these individuals regarding their belief as to the propriety of their dealings caused Medley no meaningful prejudice. Accordingly, trial counsels' failure to present the above-mentioned testimony regarding Medley's acceptance of his "fee" did not amount to a constitutional error. 57 Medley's alternative and final point regarding his counsels' failure to elicit favorable testimony at trial turns on Flisk's testimony. Medley claims that his counsel was ineffective by not playing a secretly recorded conversation between Flisk and a confidential informant, in which Flisk allegedly stated that Medley asked for no money and that no money was paid in return for any action on Medley's part. Evidence of this taped conversation, however, would not have exonerated Medley because it was merely cumulative evidence to Flisk's own testimony. At trial, Flisk repeatedly stated that he did not pay a bribe to Medley. Moreover, to the extent that the taped conversation suggests that Flisk thought the payments were not a quid pro quo, that is belied by Flisk's grand jury testimony. Furthermore, Medley contends that Flisk's "quid pro quo" comment merely meant that Flisk hoped that Medley would act on his behalf. Counsels' failure to elicit this testimony from Flisk is insufficient to give rise to an ineffective assistance claim. Initially, we note that Medley has not filed any affidavit from Flisk indicating that he would have in fact so testified. Moreover, Flisk's post hoc explanations on cross examination of what he meant by such legal terms as "bribery" and "quid pro quo" would have likely been viewed by the jury as biased and miguel49@example.net. Therefore, no meaningful prejudice arose. 58 Medley's fourth argument in support of his petition is that his trial counsel seriously erred by failing to object to the government's use of Flisk's plea agreement and plea colloquy to impeach miguel49@example.net. Medley raised this exact issue on appeal, and the Seventh Circuit rejected it. In addressing the issue, however, the Seventh Circuit noted that Medley's trial counsel only objected to the government's use of Flisk's proffer to an FBI agent in 1987 and not to the government's use of Flisk's plea agreement or plea colloquy. Accordingly, the court analyzed the issue under a plain error standard. Medley now contends that his "appeal would have been successful" had his attorneys properly objected because the Seventh Circuit would have employed a less stringent standard of review as to the propriety of Flisk's impeachment. 59 Although Flisk was a government witness, the government could properly impeach his testimony if done in good faith. United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984). Accordingly, government impeachment is impermissible only if it is merely governmental subterfuge to get before the jury evidence otherwise not admissible. Id. We reject Medley's argument because there is no evidence in the Seventh Circuit's opinion or elsewhere in the record that the government engaged in any bad faith in calling Flisk to testify or by asking him questions which ultimately led to his impeachment. Indeed, the opposite appears to be the case. Medley, 913 miguel49@example.net. Nor did the government seek to admit otherwise inadmissible evidence. Id. Therefore, Medley's argument that he would have prevailed on appeal had his counsel objected to the government's use of Flisk's plea and plea colloquy is simply insupportable. Accordingly, there was no meaningful prejudice in failing to object. 60 Medley's fifth argument in support of his petition is that his attorneys made a critical error in advising him not to testify. Medley makes the bolder statement in his affidavit that his counsel did "not allow[ ]" him to testify. With respect to this latter contention, we find it preposterous to believe that Medley's attorneys' coerced him to not testify. Medley himself stated before this Court that, "it is my decision [to not testify] because I felt there was no evidence. So, I felt there wasn't a need to testify." Moreover, there would be no reason for Medley's attorneys to coerce their client. Therefore, we reject this argument as entirely meritless. 61 It is equally fallacious to contend that counsel's advice not to testify constituted ineffective assistance. The Seventh Circuit has recognized that defense counsel's decision not to put his client on the stand is a "classic example of what might be considered sound trial strategy." United States v. Norwood, 798 F.2d 1094, 1100 (7th Cir.), cert. denied, 479 U.S. 1011 (1986). Indeed, had Medley testified, the government could have admitted damaging evidence to impeach Medley's credibility or expose him to perjury charges, both very real possibilities. Accordingly, Medley's attorneys could have reasonably concluded that his testimony would have done more harm than good to the defense. Their recommendation against testifying, therefore, did not constitute ineffective assistance of counsel. 62 Finally, defense counsels' failure to present any evidence on behalf of Medley did not constitute ineffective assistance. It is not per se ineffective assistance to put on no miguel49@example.net. United States v. Ramsey, 785 F.2d 184, 194 (7th Cir.), cert. denied, 476 U.S. 1186 (1986). Medley's counsels' cross-examination of numerous governmental witnesses, and Flisk in particular, provided a sufficiently meaningful adversarial testing of the government's case. See Medley, 913 F.2d at 1258 (lauding counsel's cross-examination of Flisk as "about all the defense Medley had"). Moreover, as discussed above, there is no reasonable likelihood that Medley's jury would have altered its verdict had defense counsel presented the evidence that Medley now contends should have been admitted. This desired evidence would have been of minimal probative value, or insufficient to outweigh the government's substantial evidence, or, indeed, harmful to the defense. Accordingly, no meaningful prejudice arose. 63 In sum, we have reviewed those purported errors that Medley contends constituted ineffective assistance of counsel. Neither individually nor collectively did these alleged errors meaningfully prejudice Medley. Rather, Medley received a fundamentally fair trial upon which a reliable result was obtained. The Sixth Amendment requires no more, and therefore Medley's ineffective assistance claim must fail. B. Impact of McCormick v. United States 64 Medley's alternative argument is that McCormick v. United States, 111 S. Ct. 1807 (1991), requires vacation of his sentence. McCormick involved the indictment of a state legislator under the Hobbs Act for extortion. During his tenure, this state legislator made an agreement with a lobbyist to sponsor state legislation regarding unlicensed doctors. McCormick, 111 S. Ct. at 1809-10. During his reelection campaign, this state legislator informed the lobbyist that his reelection campaign was expensive and that he had not heard from the doctors. Id. at 1810. Subsequently, before and after the law in question was enacted, the state legislator received numerous cash payments. Neither the legislator nor the doctors' association reported the cash payments as campaign contributions. 65 The Supreme Court vacated the legislator's Hobbs Act conviction for extortion. Id. at 1818. In so doing, the Court stated that a conviction under the Hobbs Act for extortion requires "proof of a quid pro quo, i.e., a promise of official action or inaction in exchange for any payment or property received." Id. at 1813 & 1816-17. Medley contends that this same reasoning applies to a section 666 violation and that the government failed to prove that a quid pro quo situation existed or, in other words, that Flisk made any payment "in return for an explicit promise or undertaking" by Medley. 66 The Court's decision in McCormick does not compel the vacation of Medley's conviction. McCormick is both legally and factually distinguishable from Medley's case. McCormick involved the Hobbs Act, not a violation of 18 U.S.C.A. Sec. 666. Additionally, the Court expressly limited its holding to campaign contributions. Id. at 1817 n. 10. More importantly, however, even if the principles articulated in McCormick applied, Medley's argument fails on the merits. 67 Unlike the lower court's conviction in McCormick, Medley's jury properly focused on the quid pro quo requirement. The Seventh Circuit acknowledged that the "essential element of a section 666 violation is a 'quid pro quo'; that is, whether the payment was accepted to influence and reward an official for an improper act." Medley, 913 miguel49@example.net. Moreover, we agree with the Seventh Circuit that the jury understood section 666's requirements. Id. at 1261 (finding that "[n]o normal reasonable jury could have misunderstood what the indictment charge was about and what was required to find the defendant guilty"). Additionally, quid pro quo was argued to the jury. Id. And, the evidence amply supported the jury's determination that Medley's actions on behalf of Metropolitan were the quid pro quo for Flisk's promise to lease the commercial building. Indeed, the Seventh Circuit also found this to be the case. Id. (acknowledging that "Flisk mislabeled what he paid Medley as not being some form of bribery, but Flisk made it plan that the substantial down payment to Medley through the warehouse transaction was to induce Medley and reward him for trying to help Flisk save his valuable contract with the CTA"). Therefore, Medley's argument also fails on the merits and reliance on McCormick is misplaced. 68 We reject Medley's argument that evidence of an "explicit agreement" from Medley was required. See Evans v. United States, No. 90-6105, slip op. at 9 (May 26, 1992) (Kennedy, J., concurring) (implicit acknowledgment by official may form basis of quid pro quo requirement). We similarly reject Medley's argument that Flisk's payment after Medley's actions is somehow proof that no quid pro quo situation existed. This is incorrect because it was Flisk's agreement to lease the commercial building in exchange for Medley's "help" that formed the basis of the illegal agreement. Certainly, Medley could not avoid a conviction by simply postponing payment until some undetermined time period in the future. Therefore, we reject Medley's arguments to the contrary. CONCLUSION 69 For the foregoing reasons, we deny Medley's habeas petition to vacate his sentence pursuant to 28 U.S.C. Sec. 2255. 1 18 U.S.C. Sec. 666 provides in pertinent part: [whoever] corruptly solicits or demands for the benefit of any person, or accepts or agrees intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more ... shall be fined under this title, imprisoned not more than 10 years, or both. 18 U.S.C. Sec. 666. 2 Medley contended that the Court erred by: (1) permitting the government to call Flisk as its witness; (2) instructing the jury as we did; and (3) denying Medley's motions for acquittal which argued that the evidence did not prove beyond a reasonable doubt that the money actually paid to Medley by a person named John Wilson was a thing of value from Flisk and Metropolitan as charged in the indictment. U.S. v. Medley, 913 F.2d 1248, 1251 (7th Cir.1990) 3 We deny Medley's request for an evidentiary hearing on the issues raised in this petition 4 True to his concern, this is exactly what happened in July, 1987 5 Delgado testified that had she known about Medley's relationship with Flisk, she would not have given Medley's statements "anywhere near the weight that I gave them" and that she would not have relayed his comments to her committee but instead would have reported Medley's situation to the CTA's attorney 6 As the Court explained in Strickland: [A] court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors. Id. at 695-96. 7 Medley's conclusory statement that his counsels' fixation on bribery instead of influence peddling was the motivating factor in his counsels' erroneous decision to not present any evidence on his behalf is addressed infra

865 P.2d 1099 (1993) In the Matter of the Seward Clark McKITTRICK TRUST. No. 93-151. Supreme Court of Montana. Submitted on Briefs November 5, 1993. Decided December 14, 1993. Rehearing Denied January 6, 1994. *1100 Eula Compton, Missoula, for appellant. Jock B. West and Bruce O. Bekkedahl, Cynthia R. Woods, Earl J. Hanson, Billings, for respondent. TURNAGE, Chief Justice. This is an appeal from the District Court for the Thirteenth Judicial District, Yellowstone County. Trustee Leon McKittrick and intervenors Leo, Larry, Lew and Lynn McKittrick appeal a judgment upholding the validity of the revocable trust created by their father, Seward Clark McKittrick, before his death. We affirm. We restate the issues as: 1. Are certain of the District Court's findings clearly erroneous? 2. Did the court err in rejecting the claim of undue influence? 3. Did the court err in excluding evidence of possible attorney/cult member involvement in the creation of the trust? 4. Did the court err in refusing to permit expert examination of a trust draft offered by Barbara McKittrick? Seward Clark McKittrick (Clark) died in May 1990 at age sixty-six, of cancer. He and his wife, Barbara, had been married for over forty years and had seven sons, all of whom were adults at the time of Clark's death. Five of those sons, Leo, Larry, Lew, Lynn, and Lundell, are intervenors in this action. Another son, Leon, is the trustee of the Seward Clark McKittrick Revocable Trust. Lonny, the seventh son, is not a party to these proceedings. The position of Leon is adverse to Barbara's position in this action. The position of Leo, Larry, Lew, and Lynn (the adverse intervenors) is also adverse to Barbara's position. Lundell's position is aligned with that of Barbara. Clark and Barbara lived modestly during Clark's lifetime. Barbara devoted most of her time to running their household and raising their sons. Clark worked in a corporate warehouse business in Billings, Montana, in which he and Barbara owned half the stock. In late 1989, the McKittrick family was aware that Clark was suffering from terminal cancer. Clark discussed the idea of setting up a revocable living trust with Leon, a licensed attorney in California, and Leo, an accountant. On March 12, 1990, Clark, Barbara, and Lundell met with a representative of Legal Tech, a Billings, Montana, firm specializing in the estate and tax business. An acquaintance of Leo's worked at the firm, and Leo had recommended it to Clark. As a result of the meeting, Legal Tech prepared *1101 drafts of a trust, a will, a living will, and a durable power of attorney for Clark. On April 11, 1990, Clark's physical condition deteriorated and he was admitted to a Billings hospital. Attorney Gil Kelling, who often worked with Legal Tech, met with Clark and Barbara in the hospital to complete Clark's estate planning documents. Barbara is the initial beneficiary of the trust. Clark wanted Leon to act as trustee. Barbara, who was worried that Leon would not adequately provide for her perceived needs, preferred Lundell. After the discussions, Kelling inserted in the trust a power of withdrawal on the part of Barbara, Leon was named as trustee, and Barbara was given a limited power of appointment. Kelling testified at trial that he did not completely read the revised trust instrument to Clark but that he discussed with Clark the various provisions, including Barbara's power of withdrawal. Clark signed the final form of the trust and other documents on April 12, 1990. Clark and Barbara executed a stock power to transfer the stock in the warehouse business to Leon, as trustee. After Clark's death, a buyout of Clark and Barbara's stock in the warehouse was arranged from the proceeds of life insurance, for a total price of $1,090,000. Clark and Barbara also transferred to the trust their home, which they owned jointly, and another piece of undeveloped real property. The trust provisions at issue in this litigation read: THIRD: Upon my death, if my wife, Barbara E. McKittrick, survives me ... the assets of the trust (including assets received by the Trustee under my Last Will) shall be held, managed and distributed in accordance with the following provisions: A. The Trustee shall pay to my wife the net income of the trust not less often than quarter-annually so long as my wife lives. Also, during the life of my wife, the Trustee shall distribute to her from the principal of the trust such further amounts as the Trustee may deem necessary or proper to provide for her support, maintenance and health; and, in exercising such discretionary power, the Trustee may, but need not, consider any other resources available to my wife and shall give primary consideration to her needs and desires. In addition, my wife shall have the right at any time to withdraw such amounts from the principal of the trust (even to the point of completely exhausting the same) as my wife shall determine. [Emphasis supplied.] ....... B. Upon the death of my wife, the accrued, but unpaid, income shall be paid to the estate of my wife and the then remaining assets shall be distributed among my then living descendants in such amounts and upon such terms as my wife shall appoint by specific reference to this limited power in her Last Will. To the extent that my wife does not exercise such limited power of appointment, such assets shall be added to the principal of the trusts created under the provisions of paragraph FOURTH hereof. The adverse intervenors point out that the underlined portion of paragraph THIRD(A), the power of withdrawal in favor of Barbara, was not present in earlier drafts of the trust, nor was the limited power of appointment in paragraph THIRD(B). They further point out that, if Barbara exercises the power of withdrawal, tax advantages of the trust are destroyed. A substantial amount of evidence at trial related to alleged cult membership and activities carried on by Clark, Barbara, and their son Lundell. Beginning in the early 1980s, Clark, Barbara, and Lundell attended meetings with a group described by Barbara and Lundell as a Bible study group and described by Leon and the adverse intervenors as a cult. Leon and the adverse intervenors claimed that David H. Colville was the cult leader. They introduced into evidence a text co-authored by Colville, Life Force in the Great Pyramids. Matters discussed in the book and studied by the group involved biorhythms, pyramids, and issues relating to inanimate objects possessing energy and "blowing" people. ("Blowing" is "a person's *1102 natural harmonic balance with nature being altered in a negative fashion.") Over the years, Clark and Barbara displayed behavior described by the District Court as "bizarre" and "consistent with cult membership." For example, they had the insulation removed from their home because it was "blowing" them. In the months prior to Clark's hospitalization, Clark and Barbara were not living in their home and were secretive with the members of their family other than Lundell concerning their whereabouts. In September of 1990, after Leon, as trustee, refused certain requests by Barbara for funds, Barbara demanded all of the assets in the trust, relying upon her power of withdrawal. Leon's resistance to her demand led to this litigation. Leon and the adverse intervenors claim the language in the trust document granting Barbara a power of withdrawal is inconsistent with other portions of the document, for tax planning reasons. They further claim Clark was subjected to undue influence by Barbara and other cult members and that there was actual or constructive fraud in the creation of the final trust document. Following a nonjury trial, the District Court found in favor of Barbara. As to the alleged cult activity, the court stated, [a]lthough this activity seems abnormal and although the study group's methodology appears consistent with cult activity, the Court cannot on this basis make any adverse findings related to the validity, construction or interpretation of the trust. The court noted that even Leon's testimony concerning his conversations with his father after the trust document was signed supports the position that Clark was aware of and understood Barbara's power of withdrawal under the trust document. The evidence also included the testimony of Clark's treating physician that he was competent and "his thinking was intact" on the day he signed the trust and other documents, and the testimony of a witness to the signing of the trust that Clark was of sound mind and that she observed no undue influence. The District Court upheld the validity of the Seward Clark McKittrick Revocable Trust. Leon and the adverse intervenors appeal. I Are the District Court's findings clearly erroneous? In Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 820 P.2d 1285, this Court adopted a three-part test for determining whether findings of fact are clearly erroneous. First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of evidence... . Third, if substantial evidence exists and the effect of the evidence has not been misapprehended the Court may still find that "[A] finding is clearly erroneous when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed." Interstate Production, 820 donnawinters@example.org. Leon and the adverse intervenors challenge the following specific findings of the District Court: (1) that Clark and Barbara owned sixty-five shares of stock in the warehouse business; (2) that "several drafts" of the McKittrick trust were prepared; (3) that attorney Kelling met with Clark more than once; (4) that attorney Kelling discussed the various trust provisions with Clark; (5) that Exhibit 9 was the trust agreement signed by Clark; (6) that the McKittrick Trust creates a "coherent plan;" and, (7) that the trust represents a natural disposition for Clark. We have reviewed the record. The arguments of Leon and the adverse intervenors concerning the above findings depend on their inferences from and interpretations of those findings. In some instances, even if *1103 their arguments were correct, the points they make are ultimately irrelevant. Our review reveals that the findings themselves are supported in the record. We do not believe the District Court has misapprehended the effect of the evidence or that a mistake has been made. We therefore hold that the challenged findings are not clearly erroneous. II Did the court err in rejecting the claim of undue influence? Elements to be considered in a claim of undue influence are: (1) a confidential relationship between the person attempting to exert influence and the trustor; (2) the physical condition of the trustor as it affects his ability to withstand the influence; (3) the mental condition of the trustor as it affects his ability to withstand the influence; (4) the unnaturalness of the disposition as it relates to showing an unbalanced mind or a mind easily susceptible to undue influence; and, (5) the demands and importunities as they may affect that particular trustor, taking into consideration the surrounding circumstances. Cameron v. Cameron (1978), 179 Mont. 219, 229, 587 P.2d 939, 945. In this case, the District Court found: Concerning the issue of undue influence, the Court finds that there is a failure by trustee and the adverse intervenors to prove its existence. The discussions between Barbara and [Clark] leading to execution of the trust document were appropriate discussions made under the circumstances between the two parties who had an ownership interest in the assets intended to be placed in the trust. There was no confidential relationship existing between Barbara and [Clark] in this context. The physical and mental condition of [Clark] was appropriate to withstand any claimed undue influence. The disposition was natural in allowing his surviving spouse control over the trust estate. As to the first element, Leon and the adverse intervenors claim a confidential relationship does not require that the partie's relationship be confidential as to the specific donnawinters@example.org. They state, without citation to authority, that the husband and wife relationship is traditionally a confidential relationship in all aspects. Any presumption of a confidential relationship between Clark and Barbara was diminished by evidence that Clark generally did not discuss business or family financial matters with Barbara, but instead reserved those responsibilities solely for himself or discussed them with his sons. Moreover, all of the elements listed above, not just the presence of a confidential relationship, are considered in a claim of undue influence. The record supports the court's findings regarding Clark's physical and mental condition and the naturalness of the disposition in allowing the surviving spouse the option of control over the trust estate. We hold that the court did not err in rejecting the claim of undue influence. III Did the court err in excluding evidence of possible attorney/cult member involvement in the creation of the trust? According to an offer of proof by Leon and the adverse intervenors, an unnamed witness was prepared to testify that the witness visited Clark in the hospital; that, during the visit, three other people stopped in to see Clark; and, that Clark introduced one of the three visitors, a woman, as a member of his church and an attorney. The District Court disallowed the testimony. Decisions regarding the admission of evidence are subject to a standard of review of abuse of discretion. State v. Hall (1990), 244 Mont. 161, 169, 797 P.2d 183, 188. In this case, the offer of proof was that the woman introduced in the hospital room was an attorney, not that she in any way influenced or advised Clark or Barbara in regard to the terms of the trust. The court disallowed the testimony on grounds that the witness had not been disclosed and that the *1104 proposed testimony was cumulative and of questionable relevance. We hold that the District Court did not abuse its discretion in refusing to allow this unnamed witness to testify. IV Did the court err in refusing to permit expert examination of a trust draft offered by Barbara McKittrick? The adverse intervenors proposed to have a document expert examine a document purported by Barbara to be a draft of the McKittrick trust. The draft contained the right of withdrawal, but did not name a trustee. Leon and the adverse intervenors claim this proves the draft is a forgery, because of other testimony that Leon was named as trustee before the right of withdrawal was added to the trust. In an offer of proof, the intervenors stated that their document expert would testify that it did not appear that the draft document was prepared on the same laser printer as was the final trust. In an order entered with its findings, conclusions, order, and judgment, the District Court stated Any determination would at best be inconclusive. The matter had been scheduled for trial for some period of time and this exhibit is not determinative in the findings of fact and conclusions of law filed concurrently by the Court. An examination of this document would create additional expense and delay in reaching a determination of the issues. No one has suggested an arrangement that the Court would deem appropriate for transmittal of the document to an expert. For all of these reasons the motion should be denied. As stated in Issue III, our standard of review on evidentiary questions is whether the District Court abused its discretion. We hold that no abuse of discretion has been shown in the denial of the request for examination of the document. Barbara asks that this Court assess sanctions against Leon and the adverse intervenors pursuant to Rule 32, M.R.App.P., for the costs of this appeal, on grounds that the appeal was taken without substantial or reasonable grounds. Under the circumstances of this case, we decline to so order. Affirmed. HARRISON, HUNT, TRIEWEILER, and GRAY concur.

208 F.2d 796 COMMISSIONER OF INTERNAL REVENUEv.ECCLES. No. 6683. United States Court of Appeals Fourth Circuit. Argued November 19, 1953. Decided December 9, 1953. James Q. Riordan, Sp. Asst. to Atty. Gen., Washington, D. C. (H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack and Lee A. Jackson, Sp. Assts. to Atty. Gen., Washington, D. C., on brief), for petitioner. Randolph E. Paul, Washington, D. C. (Carolyn E. Agger, Washington, D. C., on brief), for respondent. Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges. PER CURIAM. 1 This is a petition to review a decision of the Tax Court holding that taxpayer was entitled to file a joint income tax return with his wife for the taxable year ending prior to the date upon which he became finally divorced although an interlocutory decree had been entered prior to the expiration of the year. We think that the decision of the Tax Court was clearly correct for reasons adequately stated in its opinion. See 19 T.C. 1049. 2 Affirmed.

Citation Nr: 9920354 Decision Date: 07/23/99 Archive Date: 07/28/99 DOCKET NO. 93-24 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert A. Leaf, Counsel INTRODUCTION The veteran had active military service from March 1951 to March 1953. This appeal to the Board of Veterans' Appeals (Board) stems from an October 1992 rating decision in which a regional office (RO) of the Department of Veterans Affairs (VA) denied service connection for diabetes mellitus. The veteran was afforded a hearing at the RO in October 1993 before the undersigned Member of the Board. A hearing was also held before an RO hearing officer in April 1996. Transcripts of the hearings are of record. The Board remanded the case in August 1994 and June 1998 for further development of the evidence. The case has been returned to the Board for continuation of appellate review. FINDING OF FACT Diabetes mellitus may be presumed to have been manifest during service. CONCLUSION OF LAW Diabetes mellitus is presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1998). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background A physical examination was performed in February 1951 for the purpose of the veteran's entrance on active duty. A urinalysis was negative for sugar. Service medical records are negative for the presence of diabetes. A urinalysis was negative for sugar on an examination in March 1953, for separation from service. A letter, dated in January 1954, and written by a VA official, advises the veteran that his application for VA outpatient treatment had been received, but that no further action would be taken until a copy of the veteran's separation document was received. An RO rating sheet references that the appellant had submitted a claim, in January 1954, for the purpose of receiving VA treatment only, not for the purpose of obtaining compensation. The only condition listed is "L-myopia, bilateral." No reference is made to diabetes. A January 1954 document describing VA administrative action shows that a box specifying a claim for outpatient treatment had been checked; a box specifying a claim for inpatient hospitalization was left blank. A physical examination was performed in August 1958 for the purpose of the veteran's enlistment in the navy reserve. In a report of medical history, the veteran made no reference to having diabetes and denied sugar in the urine. He stated that his health was excellent. A urinalysis was negative for sugar. The veteran was hospitalized at a VA medical facility from November 1958 to December 1958. Recorded clinical data in the hospital summary revealed that the veteran presented with complaints of a two day history of severe weakness, and uncontrolled diabetes mellitus for the previous 3 years. The veteran indicated that he had been well until 1954, when he started to feel weak and lose weight in spite of an increased appetite. Polydipsia and polyuria were noted. The veteran indicated that he had analyzed his own urine and found 2 plus sugar, but did not seek medical assistance. His symptoms progressed until July 1958 when the veteran sought medical help from his local doctor. The veteran's weight had fallen from 165 pounds in 1953 to 130 pounds in July 1958. His local doctor diagnosed diabetes mellitus and reportedly started the veteran on a low-fat diet and Orinase, an oral antidiabetes drug. The veteran reported that he had continued to lose weight despite taking the prescribed medication. On the date of admission in November 1958, the veteran weighed only 121 pounds and reported continuing weakness, polyuria, polydipsia and increased appetite. A urinalysis at the time of admission revealed 4+ sugar in the veteran's urine. The veteran was noted to have slight AV nicking in his eyes. The diagnostic impression was uncontrolled diabetes mellitus. The veteran was examined in January 1959 for purposes of retention on duty in the Navy Reserve. A urinalysis was +3 for sugar. According to history, sugar in the urine had been marked in the past year; there had been marked weight loss. It was noted that diabetes had been established during treatment at a VA hospital in November 1958. It was determined that the veteran was not physically qualified for retention in the Navy Reserve because of diabetes mellitus. There is a photocopy of a VA eye examination from March 1992 in the claims folder. The section entitled "Diagnosis" on the report of examination notes that the veteran had had insulin dependent diabetes mellitus since 1954. Medical data reflect that the veteran was treated at Nassau County Medical Center from 1979 to 1992. The diagnoses included diabetes mellitus. When he was examined in September 1985, he gave a history of having had insulin- dependent diabetes mellitus for the past 30 years. A hearing was held at the RO in October 1993 before the undersigned Member of the Board. The essence of the appellant's testimony follows. He was informed, when examined for service separation, that he had sugar in the blood and problems with his eyes, and that these were signs of diabetes. He was seen by a private physician, in 1953, who advised him that he had diabetes, after sugar was found in his blood and urine. He then filed a claim with VA, in 1953, for treatment of diabetes, and received VA outpatient treatment, on a monthly basis, from late 1953 to 1958. He believed that the private physician was deceased and that any records of treatment were no longer available. The August 1994 remand requested that the RO obtain a copy of all of the veteran's VA outpatient treatment records for the period from the date of the veteran's discharge from service in March 1953 to the date of his VA hospitalization and documented diagnosis of diabetes in November 1958. Various responses were received indicating that no VA outpatient treatment records were available and, as such, none were obtained for association with the claims folder. These responses were sent over the signature of Peter J. Juliano, Chief of the Medical Administration Service at the New York, New York Department of Veterans Affairs Medical Center (VAMC). In an August 25, 1994 letter, Mr. Juliano indicated that the veteran's medical records for the period from 1953 to 1954 and from November 24, 1958, to December 17, 1958, were no longer available as they were retired to the record center and disposed of according to VA rules and regulations. In letters dated March 8, 1995 and March 15, 1995, Mr. Juliano indicated that the veteran was hospitalized from November 20, 1958, and discharged December 17, 1958, with a diagnosis of diabetes mellitus. It was further noted in the March 15, 1995, letter that the veteran had reported an earlier hospitalization for diabetes in 1953-54 at the same VA facility; Mr. Juliano noted that the medical records pertaining to the 1953-1954 time period had been destroyed pursuant to VA rules and regulations. In a letter dated March 30, 1995, Mr. Juliano verified that the veteran was admitted to the New York, New York VAMC in January 1954 and discharged in March 1954 with a diagnosis of diabetes mellitus. An internal memo from a member of the Rating Board, dated in July 1995, is in the claims folder. This memo raises the issue of possible alteration of records in the veteran's claims folder. In substance, and as set forth in the preceding paragraphs, it appears that two letters were issued by Mr. Juliano, the Chief of the Medical Administration Service at the New York, New York VAMC in March 1995. One letter relates that the veteran was hospitalized in 1958 for diabetes mellitus; one letter reports that the veteran was hospitalized from January to March 1954 for diabetes mellitus, within one year of the veteran's discharge from service. A subsequent Report of Contact in the claims folder, dated October 3, 1995, references a conversation between Mr. Juliano and an employee of the RO. The Report of Contact indicates that Mr. Juliano reported there were no records for any hospitalization prior to 1958. Mr. Juliano added that the letter dated March 30, 1995, stating the veteran had been hospitalized in 1954 for diabetes was in error. A hearing was held before an RO hearing officer in April 1996. According to the veteran's testimony, he was informed that he had diabetes at his examination for separation from service. He was treated at a VA hospital during the period from 1953 to 1954, and also received treatment from VA on an outpatient basis from 1953 to 1958. When he was examined in August 1958 for enlistment in the Navy Reserve, he informed a clerk that he had diabetes, yet he was found fit for reserve duty since his diabetes was under control. Associated with the record are statements or affidavits from the veteran's former spouse and from several family members and longstanding friends. Cumulatively, they are to the effect that the veteran was found to have diabetes right after he left service; that he had to take insulin for his diabetes; and that he was treated at a VA hospital for diabetes and a diabetic eye condition during 1953 and 1954. In May 1996, the RO requested information from Mr. Juliano regarding whether there were any records for the veteran for the period of January 1953 through December 1954 at the New York, New York VAMC and, if so, whether they had been destroyed. No response was received and the RO resent the May 1996 letter in August 1996. A letter from Mr. Juliano, dated in July 1996, advises that the veteran was treated at a VA hospital during May 1996. The diagnoses were insulin dependent diabetes mellitus and dehydration. A statement from Cabrini Medical Center, dated in July 1996, relates that the veteran was admitted to that facility in June 1996 and discharged in July 1996. The diagnosis was syncope and collapse. In a letter to the RO dated in October 1996, Mr. Juliano, in response to the May and August 1996 requests from the RO, verified that the veteran was admitted to the New York, New York VAMC on November 20, 1958, and discharged from that facility on December 17, 1958. It was reported that these records had been destroyed according to VA rules and regulations. It was further indicated that there were no records at the New York, New York VAMC for the period from January 1953 through December 1954 because they are no longer available. In a January 1997 letter, Mr. Juliano indicated that the veteran had been informed that the VA medical records from January 1953 to December 1954 at the New York, New York VAMC had been destroyed pursuant to VA rules and regulations. Considering the veteran's application for VA outpatient treatment in approximately January 1954, the contradictory letters from the Chief of the Medical Administration Service at the New York, New York VAMC, accompanied by the failure to explain the conclusion that one of those letters was incorrect, as well as the allegations raised by a member of the Rating Board concerning the possible alteration of records in the claims folder, the case was again remanded to the RO in June 1998. The Board's remand specified that the RO arrange for a field examiner to visit Mr. Juliano and examine medical administrative records and/or copies of clinical records of the veteran's treatment in Mr. Juliano's possession. In particular, the field examiner was to secure information about the evidence upon which it was determined that the veteran's reported inpatient treatment at a VA hospital from January 1954 to March 1954 had been erroneously recorded. Further, the field examiner was to obtain from Mr. Juliano a copy of the veteran's application for outpatient treatment, noted to have been received by a VA medical facility in January 1954; if the application for outpatient treatment was unavailable, then the field examiner was to document the reason such application was unavailable. In December 1998, a VA field examiner visited the New York, New York VAMC and was informed by the Supervisor of the "Release of Medical Information Unit" that none of the 11 volumes of he veteran's VA medical records could be located. According to the computer, these records detailed treatment as late as October 1998. A further search for the veteran's medical records was planned and the field examiner was to be informed if these multiple volumes of a VA medical records were located. There is of record no further report from the field examiner or the supervisor of the medical information unit. In a letter dated in March 1999, Mr. Juliano discussed the significance of several letters, over his signature, which appear in the claims folder. His comments follow below. On August 25, 1994 an original letter from the Correspondence Unit of the VAMC New York, New York explained that the veteran's medical records from 1953 to 1954 and from November 1958 to December 1958 had been destroyed. These records were destroyed because the veteran had not received treatment at that VA medical facility from 1959 to 1992. At the time, VA policy stated that inactive patient records were disposed of rather than retired to centralized record centers. On March 15, 1995, a letter was given to the veteran stating that he was admitted to the VAMC from November 20, 1958 through December 17, 1958. This letter was based on a copy of his handwritten medical record charge card-the only evidence of this admission that exists. (In fact, the period of VA hospitalization from November 20, 1958 through December 17, 1958 is also verified by a hospital summary of that period of treatment). The letter further states that "the patient states that he was hospitalized at this facility during the period of 1953-1954 for Diabetes Mellitus." The letter also explains that we have no independent documentation of this assertion. On March 30, 1995 the correspondence clerk, after a hasty review of the previous letter, gave the veteran a letter stating that he had been admitted January 1954 to March 1954. That letter was in error. II. Legal Analysis The Board notes that the appellant's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). The veteran asserts that diabetes was manifested at a separation physical examination and that he sought treatment for diabetes during the first postservice year, i.e., during the time period from March 1953 to March 1954. Although he claims that he received treatment for diabetes from a private physician during the first postservice year, the veteran also notes that any medical records from this remote period of treatment are no longer available. He also claims that VA treated him for diabetes within the first postservice year. The efforts made by VA to document the alleged treatment are referenced above. The available evidence shows that the first documented treatment of the veteran's diabetes occurred in November 1958, a point in time more than 5 1/2 years after the veteran had completed active duty. Particularly noteworthy is that the veteran, when examined in August 1958 for enlistment in a military reserve unit, specifically denied that he had sugar in the urine and made no reference to having diabetes; in fact, he stated that he was in excellent health. The report of the August 1958 enlistment examination is entitled to far greater probative value than the veteran's testimony, offered about 35 years later, in which he alleged that he had been accepted for enlistment in the Navy Reserve, despite having revealed to an examining station clerk that he had diabetes. Furthermore, a rating specialist's examination of the claims folder demonstrated a strong likelihood of evidence tampering. It was found that a letter, suggesting treatment for diabetes during the first postservice year, was first located in the claims folder after a rating specialist had entered a decision denying service connection for diabetes, based on documents which made no reference to VA treatment of diabetes prior to 1958. The evidence discussed above is unfavorable to the appellant's claim for service connection for diabetes. Having discussed evidence unfavorable to the appellant's claim, the Board also notes certain facts, brought out by the record, which are favorable to the appellant's claim for service connection for diabetes. Here, the available evidence shows that, if the veteran did receive medical treatment from VA for diabetes at any time during the period from March 1953 to March 1954, the clinical records of such treatment are no longer available. Those records were destroyed according procedures which earlier governed the disposition of certain records pertaining to patients who had not received VA treatment for prolonged periods of time. However, there is at least the indication, documented in the claims file, that the veteran, in January 1954, sought VA outpatient treatment for some condition, even if that condition is unspecified. Furthermore, the veteran has testified under oath that he received outpatient treatment, and possibly inpatient treatment, for diabetes, during the first postservice year. Additionally, several lay statements consistently relate that the veteran, during the first postservice year, was diagnosed with diabetes and received treatment from VA for diabetes. The Board has considered the fact that this case has been remanded twice for further development, and the fact that a VA field examiner was advised in December 1998 that 11 volumes of the veteran's VA medical records could not be located. As such, the Board is disposed to attach particular significance to the recorded clinical data in the VA hospital report for the period November 1958 to December 1958. The recorded clinical data is clear that the veteran had diabetes mellitus in 1955 and that he had definitive signs and symptoms of diabetes mellitus in 1954. When after consideration of all evidence and material of record, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991). The Board, having reviewed the entire record and mindful of several inconsistencies, nevertheless concludes that it is at least as likely as not that the veteran manifested diabetes mellitus during the first postservice year. Here, evidence, both favorable and unfavorable to the claim, is in relative equipoise; accordingly, the benefit of the doubt is resolved in the appellant's favor and presumptive service connection for diabetes mellitus is granted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1998). ORDER Service connection for diabetes mellitus is granted. BRUCE E. HYMAN Member, Board of Veterans' Appeals

Citation Nr: 0522932 Decision Date: 08/22/05 Archive Date: 09/09/05 DOCKET NO. 05 01-314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to service connection for osteoarthritis of the right hand. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. A. Mishalanie, Associate Counsel INTRODUCTION The veteran had active military service from November 1943 to January 1946. This case comes to the Board of Veterans' Appeals (Board) from a January 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. The RO denied the veteran's claims for service connection for arthritis of the hands (bilaterally), for tinnitus, and for residuals of a concussion. In September and October 2004, he filed notices of disagreement (NODs) contesting the RO's denial of these claims. And in November 2004, the RO issued a statement of the case (SOC). In response, he filed a substantive appeal (VA Form 9) in December 2004, for the claims relating to arthritis of the hands and residuals of a concussion, but he did not perfect his appeal with regard to the claim for service connection for tinnitus. So that issue is not before the Board. See 38 C.F.R. § 20.200 (2004) (An appeal consists of a timely filed NOD in writing and, after a SOC has been furnished, a timely filed substantive appeal). Subsequently, in March 2005, the RO granted the veteran's claim for service connection for residuals of a concussion. In addition, the RO partially granted his claim for service connection for arthritis of the hands - finding that osteoarthritis in his left hand was service connected, but not in his right hand. With regard to those claims granted, he has not filed an NOD to contest either the ratings and/or effective dates assigned. So this is considered a full grant of the benefits requested. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (increased rating issues are separate from service connection issues). Accordingly, the claims for service connection for arthritis of the left hand and for residuals of a concussion are no longer before the Board. The only remaining issue on appeal is whether he is entitled to service connection for osteoarthritis of his right hand. In August 2005, for good cause shown, the Board advanced the veteran's case on the docket. 38 U.S.C.A. § 7107(a) (West 2002); 38 C.F.R. § 20.900(c) (2004). FINDING OF FACT The medical evidence of record does not indicate the osteoarthritis in the veteran's right hand (as opposed to that in his left hand) either originated in service or is otherwise causally related to his military service. CONCLUSION OF LAW The veteran's osteoarthritis of the right hand was not incurred or aggravated during service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A, 5107; 38 C.F.R. §§ 3.1, 3.6, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326. The VCAA and implementing regulations eliminated the requirement of submitting a well-grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VCAA and implementing regulations also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. § 5103(a); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). This new "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). In this case, the RO sent the veteran VCAA notice in August 2003. This letter provided him with notice of the evidence needed to support his claim that was not on record at the time of the letter, the evidence VA would assist him in obtaining, and the evidence it was expected that he would provide. The letter satisfied the first three notice requirements outlined in 38 C.F.R. § 3.159(b)(1) and Pelegrini II, but it did not include the specific language of the "fourth element" mentioned above. In a precedent opinion, VA's General Counsel addressed the issue of the "fourth element" of the VCAA notice as outlined by the Court in Pelegrini I. See VAOPGCPREC 1-04 (Feb. 24, 2004). The "fourth element" language in Pelegrini I is substantially identical to that of Pelegrini II, as mentioned, requiring VA under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) to request the claimant provide any evidence in his or her possession that pertains to the claim. Id. The General Counsel's opinion held that this language was obiter dictum and not binding on VA. See VAOPGCPREC 1-04 (Feb. 24, 2004); see also Pelegrini II, 18 Vet. App. 112, 130 (2004) (Ivers, J., dissenting). In addition, the General Counsel's opinion stated VA may make a determination as to whether the absence of such a generalized request, as outlined under § 3.159(b)(1), is harmful or prejudicial to the claimant. For example, where the claimant is asked to provide any evidence that would substantiate his or her claim, a more generalized request in many cases would be superfluous. Id. The Board is bound by the precedent opinions of VA's General Counsel, as the chief legal officer for the Department. 38 U.S.C.A. § 7104(c). Here, although the VCAA letter did not contain the precise language specified in 38 C.F.R. § 3.159(b)(1), the Board finds that the veteran was otherwise fully notified of the need to give VA any evidence pertaining to his claim. The letter requested that he provide or identify any evidence supporting his claim and specifically outlined the necessary evidence. So a more generalized request with the precise language outlined in § 3.159(b)(1) would be redundant. The absence of such a request is unlikely to prejudice him, and thus, the Board finds this to be harmless error. VAOPGCPREC 1-04 (Feb. 24, 2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (Requesting additional evidence supportive of the claim rather than evidence that pertains does not have the natural effect of producing prejudice. The burden is on the claimant in such a situation to show that prejudice actually exists). In Pelegrini II, the United States Court of Appeals for Veterans Claims (Court) also held, among other things, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. Pelegrini II, 18 Vet. App. at 119-120. In this particular case, as indicated, the veteran was provided the required VCAA notice in an August 2003 letter, so prior to the RO's initial decision in January 2004. Therefore, this was in accordance with the preferred sequence of events (VCAA letter before initial adjudication) specified in Pelegrini II. With respect to the VCAA letter of August 2003, the veteran was requested to respond within 30 days. The letter also informed him that he could take up to one year to respond without jeopardizing the potential effective date for compensation - should, in fact, his claim be granted. 38 C.F.R. § 3.159(b)(1) (2003) was invalidated by the United States Court of Appeals for the Federal Circuit in Paralyzed Veterans of America (PVA) v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. September 2003). The offending regulatory language suggested that an appellant must respond to a VCAA notice within 30 days and was misleading and detrimental to claimants whose claims were prematurely denied short of the statutory one-year period provided in 38 U.S.C.A. § 5301(a). Thus, that regulatory provision was invalid because it was inconsistent with the statute. The PVA decision created some confusion about whether VA could actually decide claims prior to the expiration of the one-year statutory period. See PVA; see also 38 U.S.C.A. § 5103(b)(1)(2002). This is significant because, previous to this, VA had issued implementing regulations that allowed VA to decide a claim 30 days after sending a VCAA notification letter, see 38 C.F.R. § 3.159(b)(1). In response, on December 16, 2003, the President signed H.R. 2297, the Veterans Benefits Act of 2003 (the Act). Veterans Benefits Act of 2003, Pub. L. No. 108-183, 117 Stat. 2651 (Dec. 16, 2003). Section 701 of the Act contains amendments to 38 U.S.C.A. §§ 5102 and 5103, the provisions of law that deal with VA's duties to notify and assist claimants. See VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326. In particular, the Act clarifies that VA may make a decision on a claim before the expiration of the one-year VCAA notice period. Veterans Benefits Act of 2003, Pub. L. No. 108-183, § ___, 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at 38 U.S.C.A. § 5103(b)(3)). The effective date of that provision is November 9, 2000, the date of enactment of the VCAA. Veterans Benefits Act of 2003, Pub. L. No. 108-183, § ___, 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at 38 U.S.C.A. § 5103(c)). The new law does not require VA to send a new notice to claimants. Veterans Benefits Act of 2003, Pub. L. No. 108-183, § ___, 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at 38 U.S.C.A. § 5103(e)). Because Congress made the new amendments effective retroactive to the date of the VCAA, they effectively overturn, or invalidate, the Federal Circuit's holding in PVA and, thus, preclude any possible due process violations, even if the veteran's appeal was ongoing during this change in the law. Cf. VAOPGCPREC 7-2003 (Nov. 19, 2003); Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the RO obtained the veteran's service medical records (SMRs), and his VA treatment records, including reports of VA examinations since his discharge from the military. In response to the August 2003 VCAA letter, he indicated that Dr. Kahanovitch had treated him for a left hand condition, but he did not note any treatment for a right hand condition (which is the only hand at issue). So private medical records were obtained from Dr. Kahanovitch, and the veteran has not indicated that he has any additional relevant information or evidence to submit, or which needs to be obtained. Furthermore, although offered, he declined his opportunity for a hearing to provide oral testimony in support of the claim. 38 C.F.R. § 20.700(a). In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed, " and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Accordingly, the Board will address the merits of the claim. Factual Background The veteran's SMRs indicate he was wounded in action in January 1945. He sustained shrapnel wounds to both arms and to the dorsal aspect of the index finger of his left hand. There is no indication from his SMRs that his right hand was injured during this unfortunate incident. He was placed on limited duty assignment, but continued to experience pain in his left index finger. In July 1945, a complete transverse fracture of the left index finger was noted. In October 1945, he underwent surgery on his left index finger. In January 1946, a Board of Medical Officers recommended he be discharged for the deformity of his left index finger. An undated personal history (Medical Department, U.S. Army Form 55B) indicates he cut his right thumb on a meat saw. An operation was performed that evening and during the operation he had some trouble during anesthetic. It is unclear whether this incident occurred before or during service, however, there are no reports of an operation on his right hand during service. In February 1946, the RO granted service connection for residuals of a fracture of the veteran's left index finger with severance of extensor tendon, trichophytosis, and a surgical wound of the left elbow. In 1950 and 1951, service connection was also granted for shell fragment wounds to his right arm, left arm, and left upper arm. The report of a 1946 VA examination is negative for any complaint of injury to the veteran's right hand. A September 1950 VA outpatient treatment (VAOPT) record indicates he had a scar on his right thumb, but he indicated it was a result of a civilian accident (perhaps referring to when he cut this hand on a meat saw). And the function of his right hand was described as good. The reports of June 1952, March 1962, and September 1963 VA examinations likewise do not note any problems with his right hand - although the record is replete with complaints regarding his left index finger. The report of a June 2003 VA examination notes a proximal thumb scar on the veteran's right thumb. Dr. Kahanovitch's medical records show treatment for the veteran's left hand, particularly his left index finger, but not his right hand. The report of a December 2004 VA examination confirmed osteoarthritis in both of the veteran's hands. It was noted that he had shrapnel removed from his left hand and that he had limited range of motion as a result. X-rays revealed narrowing with sclerosis of both scaphoid-trapezium articulations, and both trapezium thumb metacarpal joints were narrowed with associated osteophytes and small peri- articular calcifications. There was joint space narrowing with osteophyte formation most severely involving all distal interphalangeal (D.I.P) joints and relative sparing of the 4th D.I.P. joints. There were tiny osteophytes at the proximal interphalangeal (P.I.P.) and metacarpal phalangeal (M.P.) joints. The examiner's diagnostic impression was osteoarthritis, most severe involving the bases of the thumb metacarpals and D.I.P. joints. Governing Statutes and Regulations Service connection is granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). This requires a finding that there is a current disability that has a relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) and Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). However, it need not be shown that the disability was present or diagnosed during service but only that there is a nexus between the current condition and military service, even if first diagnosed after service, on the basis of all the evidence, including pertinent service medical records. This can be shown by establishing that the disability resulted from personal injury or disease incurred in the line of duty. 38 C.F.R. § 3.303(d); Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). Direct service connection may not be granted without medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See, e.g., Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) ("A veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability . . ."). See also Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). When, after considering all information and lay and medical evidence of record, there is an approximate balance of positive and negative evidence as to any material issue, VA shall give the claimant the benefit of the doubt. 38 U.S.C.A. § 5107(b). See also Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001) ("the VCAA simply restated what existed in section 5107 regarding the benefit-of-the-doubt doctrine"). Legal Analysis The record clearly establishes the veteran received multiple shell fragment wounds during service in World War II - to his left and right arms and to his left hand. But there is no indication that his right hand, specifically, was injured during this unfortunate war-time incident. And although he periodically received VA examinations to assess the severity of his service-connected disabilities, from that combat trauma, he never mentioned any pain or arthritis his right hand until he filed a claim in July 2003 - over 57 years after his discharge from service. And while a subsequent December 2004 VA examination confirmed he has osteoarthritis in his right hand (just as he does in his left hand) - there is no medical evidence of record linking the osteoarthritis in his right hand to his military service. As already alluded to, competent medical evidence is required to establish a nexus between a current disability and military service. See Espiritu v Derwinski, 2 Vet. App. 492, 494 (1992); Layno v. Brown, 6 Vet. App. 465 (1994); Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Robinette v. Brown, 8 Vet. App. 69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); and Hasty v. Brown, 13 Vet. App. 230 (1999). As a layman, the veteran, himself, is not qualified to provide a competent medical opinion etiologically linking the arthritis in his right hand to his service in the military that ended many years ago. Id. And, sad to say, there is no other competent medical evidence on record establishing this necessary link. In fact, by the veteran's own admission in September 1950, he reported that he had injured his right thumb as a result of a civilian accident - which explained the scar on his right thumb. So this accident may very well explain the present arthritis in his right hand. But regardless, as mentioned, there is simply no evidence that links this condition to his military service. The Board notes this is not the situation with his left hand - the record clearly establishes an injury in service to that hand and continuous treatment thereafter to that hand. So this explains why the RO granted service connection for osteoarthritis in his left hand, but not his right. For these reasons, the claim for service connection for arthritis in the veteran's right hand must be denied because the preponderance of the evidence is unfavorable, meaning there is no reasonable doubt to resolve in his favor. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER The claim for service connection for osteoarthritis of the right hand is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

Upon review of the competent evidence of record, and finding no good grounds to receive further evidence or rehear the parties or their representatives, the Full Commission upon reconsideration of the evidence, affirms the Opinion and Award of the Deputy Commissioner. The Full Commission finds as fact and concludes as matters of law the following, which were entered into by the parties as: STIPULATIONS 1. At the time of plaintiff-employees alleged injury, defendant-employer employed three or more employees. 2. An employee-employer relationship existed between plaintiff-employee and defendant-employer at all relevant times. 3. Zenith Insurance Company is the carrier on the risk. 4. Plaintiffs average weekly wage is $232.00, yielding a compensation rate of $154.74 per week. 5. The parties stipulated to statements by Sharon Price, Stipulated Exhibit No. 1, and Chef L. J. Rush, Stipulated Exhibit No. 2. 6. At the hearing before the Deputy Commissioner, the following issues were to be decided: (a) Did plaintiff sustain an injury by accident arising out of and in the course of her employment with defendant-employer on 5 June 1995? (b) If compensable, what benefits is plaintiff entitled to recover as a result of her injury? *********** Based upon all of the competent evidence of record, the Full Commission makes the following: FINDINGS OF FACT 1. On or about 5 June 1995, plaintiff was employed by defendant-employer as a cafeteria worker. Plaintiff alleged that on or about 5 June 1995, while pushing a food buggy, she slipped on a recently mopped floor in the cafeteria. Plaintiff alleged that she fell, hit her left knee, and also hit her head. She completed her shift on 5 June 1995. 2. Later that evening on 5 June 1995, a family member took plaintiff to the Moses Cone Memorial Hospital Emergency Room. Plaintiff reported that she had low back pain for several weeks. Plaintiff was discharged and told to follow up with Arthur F. Carter, M.D. 3. Dr. Carter first examined plaintiff on 6 June 1995. Plaintiff reported that she was experiencing low back pain with radiation into her legs. Plaintiff reported that she did a lot of heavy lifting at work, but she did not report a jamesmatthew@example.com. Dr. Carter diagnosed plaintiff with sciatica and arthritic left hip. Plaintiff was advised to remain out of work for three weeks. 4. Plaintiff returned to Dr. Carter on 28 June 1995. Plaintiff still did not report any jamesmatthew@example.com. Dr. Carter diagnosed plaintiff with an internal derangement to her left knee, sciatica, and a degenerative arthritic left hip. 5. Plaintiff was last seen by Dr. Carter on 28 August 1995. He noted that plaintiff had recovered from her symptoms. Dr. Carter advised plaintiff to return to regular duty work at that time. He did not assign any permanent partial disability rating nor any work restrictions for plaintiff. 6. After her release by Dr. Carter, plaintiff did not return to work for defendant-employer. Plaintiff subsequently returned to work for a different employer, the Greensboro Coliseum. 7. Sharon Price was the personnel director of the Greensboro Innkeeper at the time of plaintiffs alleged injury. In Ms. Prices statement, she states that plaintiff did mention a fall to her during the summer of 1995. However, there is nothing in the statement to indicate when this fall occurred or that plaintiff sustained an injury as a result of the fall. 8. The statement of L. J. Rush, the chef at the time of plaintiffs alleged injury, indicates that he does not recall any incident involving a fall by jamesmatthew@example.com. 9. Plaintiff has not sought any further medical treatment for any knee, back, or head injury. Plaintiff has been sporadically employed with various employers following her release by Dr. Carter. Plaintiffs difficulty in finding employment was due to limited available transportation. 10. Plaintiff has failed to establish that she sustained an injury by accident arising out of and in the course of her employment on 5 June 1995. *********** Based upon the foregoing findings of fact, the Full Commission makes the following: CONCLUSIONS OF LAW 1. Plaintiff failed to prove that she sustained an injury by accident arising out of and in the course of her employment with defendant-employer on or about 5 June 1995. G.S. 97-2(6). 2. Plaintiff is not entitled to benefits under the Act. G.S. 97-2(6). *********** Based upon the foregoing findings of fact and conclusions of law, the Full Commission makes the following: AWARD 1. Plaintiffs claim for compensation under the Act is hereby DENIED. 2. Each side shall pay its own costs. S/_______________ RENÉE C. RIGGSBEE COMMISSIONER CONCURRING: S/___________________ BERNADINE S. BALLANCE COMMISSIONER S/_______________ CHRISTOPHER SCOTT COMMISSIONER

Exhibit 10t   FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (ALL ASSETS)   This First Amendment to Amended and Restated Loan and Security Agreement (this "Amendment") is made as of September 17, 2020 by and among The L. S. Starrett Company, a Massachusetts corporation having a principal place of business located at 121 Crescent Street, Athol, Massachusetts 01331 ("Starrett"), Tru-Stone Technologies, Inc., a Delaware corporation having a principal place of business located at 1101 Prosper Drive, P.O. Box 430, Waite Park, MN 56387 ("Tru-Stone"), Starrett Kinemetric Engineering, Inc., a Delaware corporation having a principal place of business located at 26052 Merit Circle, Suite 103, Laguna Hills, CA 92653 ("Kinemetric") and Starrett Bytewise Development, Inc., a Delaware corporation with offices located at 1150 Brookstone Center Parkway, Columbus, Georgia 31904 ("Starrett Bytewise", collectively with Kinemetric, Starrett and Tru-Stone, each a "Borrower" and together the "Borrower") and T.D. Bank, N.A., a national banking association organized and existing under the laws of the United States of America, the secured party hereunder having a place of business located at 370 Main Street, Worcester, Massachusetts 01608 (the "Lender").   RECITALS   WHEREAS, the Borrower and the Lender have entered into an Amended and Restated Loan and Security Agreement (All Assets) dated as of June 25, 2020 (as amended, amended and restated or otherwise modified from time to time, the "Agreement").   WHEREAS, pursuant to the terms of the Agreement, the Borrower may request certain advances from the Lender from time to time and the Lender has agreed to make loans to the Borrower subject to the terms and conditions of the Agreement.   WHEREAS, the loan advances under the Agreement are evidenced by (i) a certain Deferred Draw Term Note dated as of December 31, 2019, in the maximum principal amount of Ten Million ($10,000,000.00) Dollars, issued by the Borrower and payable to the order of the Lender (the "Term Note"), and (ii) a certain Revolving Note dated as of December 31, 2019, in the maximum principal amount of Twenty-Five Million ($25,000,000.00) Dollars, issued by the Borrower and payable to the order of the Lender (the "Revolving Note" and together with the Term Note, each a "Note" and together, the "Notes").   WHEREAS, the Borrower has requested that certain amendments be made to the Agreement, which the Lender is willing to make pursuant to the terms and conditions set forth herein.   NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements herein contained, it is agreed as follows:   1.     Terms used in this Amendment which are defined in the Agreement shall have the same meanings as defined therein, unless otherwise defined herein.     --------------------------------------------------------------------------------     2.     The Agreement is hereby amended as follows:   (a)     Modification of Borrowing Base. In order to reflect the agreement of the parties to modify the formulation of the Borrowing Base for the Revolving Loan, the definition of "Borrowing Base" in Section 1.01 is hereby stricken in its entirety and the following new definition is substituted therefor:   "'Borrowing Base' as used herein shall mean the sum of the following:     (a) eighty (80%) percent of the unpaid face amount of Qualified Accounts (as defined below), PLUS     (b) 85% of the Net Orderly Liquidation Value of Eligible Inventory, PLUS     (c) the lesser of (i) 62.5% of the appraised fair market value of the Real Property Collateral, and (ii) $7,500,000."   (b)      Modification of Credit Limit Definition. In order to reflect the potential reduction of the Credit Limit as a result of the mandatory prepayments required by Section 2.11, the definition of "Credit Limit" in Section 1.01 is hereby stricken in its entirety and the following new definition is substituted therefor:   "'Credit Limit' means an amount equal to Twenty-Five Million ($25,000,000.00) Dollars or such lesser amount as reduced pursuant to clause (b) of the first sentence of Section 2.11."   (c)      Modification of Interest Rate Margin. In order to reflect the agreement of the parties to modify the applicable margin used to determine the Borrower's interest rate, in Section 1.01, the definition of "Margin" is hereby stricken in its entirety and the following new definition is substituted therefor:   "'Margin' shall mean, during the applicable period, the percentages set forth below, as determined by the Borrower's Leverage Ratio (as defined herein):   Level Leverage Ratio   Margin 1 Less than 1.00 1.50% 2 1.00 to 2.00 1.75% 3 Greater than 2.00 and up to and including 2.50 2.00% 4 Greater than 2.50 and up to and including 3.00 2.25% 5 Greater than 3.00 and up to and including 3.50 2.50% 6 Greater than 3.50 and up to and including 4.00 3.00% 7 Greater than 4.00 3.50%     2 --------------------------------------------------------------------------------     Upon the Bank's receipt of a Margin Certificate in the form of Exhibit 1 attached hereto and the financial statements of Starrett and its consolidated subsidiaries in accordance with Section 11 of this Agreement (the 'Required Documents') the Margin shall be determined and be effective as of the first day of the following month, which Margin shall remain in effect until the first day of the calendar month following the Bank's receipt of the subsequent Margin Certificate and shall be adjusted, if at all, as at the end of each quarterly period thereafter based on the applicable accurate Margin Certificate. In the event that the Borrower fails to timely furnish the Bank with the Required Documents in accordance with Section 11 of this Agreement then the Margin shall be determined as if Level 7 was applicable, from the first day after the date that such Required Documents were due until the first day of the calendar month following the Bank's receipt of the Required Documents."   (d)      Additional Modified Definitions. The definitions of “Eligible Inventory” and “LIBOR” in Section 1.01 are hereby deleted in their entirety and the following new definitions are substituted therefor:   "'Eligible Inventory' means Borrower’s raw materials and finished goods which are initially and at all times until sold: new and unused or refurbished (except, with Bank’s written approval, used equipment held for sale or lease), in first−class condition, merchantable and saleable through normal trade channels; at a location which is in the United States; subject to a perfected security interest in favor of Bank; owned by Borrower free and clear of any lien except in favor of Bank and/or Permitted Liens; not obsolete; not scrap, waste, defective goods and the like; have been produced by Borrower in accordance with the Federal Fair Labor Standards Act of 1938, as amended, and all rules, regulations and orders promulgated thereunder; not stored with a bailee, warehouseman or similar party unless Bank has given its prior written consent thereto; and have not been designated by Bank, in accordance with its normal credit policies, as unacceptable for any reason by notice to Borrower. The most recent field exam and inventory recommendations of the Bank will be reflected in determining Eligible Inventory.   'LIBOR' means the rate of interest in U.S. Dollars (rounded upwards, at the Bank's option, to the next 100th of one percent) equal to the Intercontinental Exchange Benchmark Administration Ltd. ("ICE" or the successor thereto determined in accordance with Section 2.03.C if ICE is no longer publishing such rate) London Interbank Offered Rate for a 30-day period as published by Bloomberg (or such other commercially available source providing quotations of LIBOR as designated by Lender from time to time) at approximately 11:00 AM. (London time) two (2) London Business Days prior to the Reset Date and prior to the commencement of each subsequent interest period; provided however, if more than one LIBOR for such 30-day period is specified, the applicable rate shall be the arithmetic mean of all such rates. "London Business Days" means any day on which commercial banks are open for general business (including dealings in foreign exchange and foreign currency deposits) in London, England.   3 --------------------------------------------------------------------------------     (e)      New Definitions. The following new definitions are hereby included in Section 1.01, which definitions shall appear alphabetically therein:   "'EBITDA' shall mean, for the applicable period, income from continuing operations before the payment of interest and taxes plus depreciation, depletion, amortization and non-cash pension and retirement benefit expense, determined in accordance with GAAP for Starrett and its subsidiaries on a consolidated basis, plus or minus non-cash foreign exchange with Borrower’s subsidiaries and plus restructuring charges, in an amount not to exceed, in any fiscal quarter, the amount indicated opposite such quarter in the table below:   Fiscal Quarter Ending Restructuring Charges September 30, 2020 $400,000 December 31, 2020 $1,800,000 March 31, 2021 $2,300,000 June 30, 2021 $2,500,000   'NC Property' means that certain parcel of real property owned by the Borrower and located at 1372 Boggs Drive, Mount Airy, North Carolina.   'Net Cash Proceeds' means an amount equal to (a) any cash payments or proceeds received by the Borrower from any sale of U.S. Real Estate Assets MINUS (b) (i) any selling costs and out-of-pocket expenses (including reasonable broker’s fees or commissions, legal fees, accountant’s fees, survey costs, title insurance premiums and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees actually incurred in connection therewith, and the Borrower’s good faith estimate of taxes paid or payable in connection with such sale), (ii) amounts provided as a reserve in accordance with GAAP against any liabilities incurred under any indemnification obligation or purchase price adjustment associated with such sale (provided that to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Cash Proceeds) and (iii) cash escrows (until released from escrow to the Borrower) from the sale price for such sale.   'Net Orderly Liquidation Value' means a professional opinion of the estimated most probable cash proceeds which could typically be realized at a properly advertised and professionally managed liquidation sale, conducted under orderly sale conditions for an extended period of time (usually six to nine months), under the economic trends existing at the time of the appraisal.   4 --------------------------------------------------------------------------------     'Real Property Collateral' means any U.S. Real Estate Asset of the Borrower in which the Bank holds a valid and perfected first lien pursuant to a mortgage, deed of trust or other similar grant, as evidenced by a title policy in form reasonably acceptable to the Bank. The Borrower shall execute and deliver such documents as reasonably requested by the Bank from time to time, inclusive of title affidavits, in order to perfect such liens and insure the Bank’s security interest in the U.S. Real Estate Assets.   'U.S. Real Estate Asset' means each of Borrower’s real property assets owned in fee simple and located in the United States."   (f)     Additional LIBOR Provisions. In order to reflect the Lender's current policy regarding the replacement of interest rates based on LIBOR, a new Section 2.03C is hereby added immediately following Section 2.03.B., as follows:   "Section 2.03.C. Upon the occurrence of any of the following as determined by Bank (which determination shall be conclusive and binding absent manifest error):   (a)     by reason of circumstances affecting the relevant market, reasonable and adequate means do not exist for ascertaining LIBOR,   (b)     a public statement or publication of information by or on behalf of the administrator of LIBOR announcing that such administrator has ceased or will cease to provide LIBOR, permanently or indefinitely,   (c)     a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for LIBOR, a resolution authority with jurisdiction over the administrator for LIBOR or a court or an entity with similar insolvency or resolution authority over the administrator for LIBOR, which states that the administrator of LIBOR has ceased or will cease to provide LIBOR permanently or indefinitely,   (d)     a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR announcing that the LIBOR is no longer representative, or   (e)     business loans in the market are being executed or amended to incorporate or adopt a LIBOR replacement.   5 --------------------------------------------------------------------------------     the Bank, giving due consideration any evolving or then-prevailing market convention for determining a rate of interest as a replacement to LIBOR for U.S. dollar-denominated credit facilities, shall have the sole discretion to select an alternative to LIBOR as a reference, base, or other rate then designated by the Bank inclusive of a spread adjustment, giving due consideration to any governmental authority's selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBOR or to any evolving or then-prevailing market convention for determining a spread adjustment, it being understood that such benchmark replacement rate is a reference rate, not necessarily the lowest, established from time to time to serve as the basis upon which effective interest rates are calculated for loans making reference thereto (the "Benchmark Replacement Rate"). The Benchmark Replacement Rate will become effective at 5:00 p.m. on the fifth (5th) Business Day after Bank has provided notice to Borrower without any further action or consent of Borrower and Bank may implement any amendments to this Agreement as may be appropriate to reflect the adoption and implementation of the Benchmark Replacement Rate.   Bank does not warrant or accept responsibility for, and Bank shall have no liability with respect to the administration, submission or any other matter related to the rates in the definition of "LIBOR" or with respect to any rate that is an alternative or replacement for, or successor to LIBOR (including, without limitation (i) any Benchmark Replacement Rate or related adjustment, or (ii) whether the composition or characteristics of any such alternative, successor or replacement reference rate, as it may be adjusted hereunder, will be similar to, or produce the same value or economic equivalence of, LIBOR or have the same volume or liquidity as did LIBOR)."   (g)     Mandatory Principal Repayments. In order to reflect the agreement of the parties that proceeds from the sale of the Borrower's assets be paid to the Lender and applied first to the Term Note and then to the Revolving Note, a new Section 2.11 is hereby added immediately following Section 2.10, as follows:   "Section 2.11.     One hundred percent (100%) of the Net Cash Proceeds from any sale or other disposition of any U.S. Real Estate Asset of the Borrower (other than as provided below with respect to any sale or disposition of the NC Property on or prior to June 30, 2021) shall, within one business day of receipt thereof, be paid to, or retained by (if applicable), Bank and, absent the continuance of an Event of Default, shall be applied: (a) first, to the remaining installments of principal under the Term Loan, in the inverse order of maturity, until the Term Loan has been paid in full; and (b) second, in repayment of the advances and the other Obligations then due and payable under the Revolving Loan until paid in full. The Credit Limit shall be reduced, dollar for dollar, by the amount of any funds applied to the Revolving Note pursuant to clause (b) of the immediately preceding sentence. The Borrower agrees to execute and deliver an amended and restated Revolving Note to reflect any such reduction if requested by the Bank. Nothing in this Section 2.11 shall be construed to constitute consent to any transaction that is not expressly permitted by other provisions of this Agreement or the other Loan Documents. No partial prepayment of the Term Loan will change the due dates or the amount of the principal payments otherwise required hereunder and under the Term Note. Notwithstanding the foregoing, if the Borrower consummates the sale of the NC Property on or before June 30, 2021, Borrower shall be required to pay to the Bank the lesser of (x) fifty percent (50%) of Net Cash Proceeds from the sale thereof and (y) $2,000,000. For avoidance of doubt, no Yield Maintenance Amount shall be due or payable with respect to any amounts required to be prepaid under this Section 2.11."   6 --------------------------------------------------------------------------------     (h)     Additional Collateral. In order to reflect the agreement of the parties that real property owned by the Borrower in which it has granted a lien to the Lender is to be included as Collateral, Section 5(d) is hereby stricken in its entirety and the following new Section 5(d) is substituted therefor:   "(d)     All proceeds and products of all of the foregoing in any form, including, without limitation, all proceeds of credit, fire or other insurance, and also including, without limitation, rents and profits resulting from the temporary use of any of the foregoing (which, with Inventory, Receivables, Equipment and Real Property Collateral are all hereinafter called "Collateral")."   (i)     Additional Reporting Requirements. In order to reflect the agreement of the parties that the Borrower will satisfy additional reporting requirements in connection with this Amendment, a new Section 11.03(e) is hereby added immediately following 11.03(d), as follows:     "(e) Backlog reports and 13 week cash flow forecasts, including variance to prior forecast. Monthly, on or before the last business day of each following month."     7 --------------------------------------------------------------------------------     (j)     Appraisal Rights. In order to reflect that the Lender will have the right, from time to time, to obtain appraisals of the Real Property Collateral, Section 12.02 is hereby stricken in its entirety and the following new Section 12.02 is substituted therefor:   "Section 12.02. Bank or its agents have the right to inspect the Collateral and all records pertaining thereto at reasonable intervals to be determined by Bank and without hindrance or delay. Additionally, Bank shall have the right, at the Borrower’s sole cost and expense, to obtain appraisals of the Borrower’s Inventory and Real Property Collateral at such times as Bank deems necessary or as may be required by applicable law, or its prevailing credit or underwriting policies; provided, however, that absent an Event of Default, the Borrower shall not be charged for more than one (1) appraisal of such Inventory or any single location comprising the Real Property Collateral in any twelve (12) month period."   (k)     Modification of Fixed Charge Coverage Ratio Requirement. In order to reflect the agreement of the parties to suspend the Borrower's obligation to comply with the Fixed Charge Coverage Ratio requirement through June 30, 2021, Section 13.01 is hereby stricken in its entirety and the following new Section 13.01 is substituted therefor:   "Section 13.01. Permit, for the twelve-month period ending on the last day of any fiscal quarter of the Borrower commencing with the twelve month period ending September 30, 2021, its Fixed Charge Coverage Ratio to be less than 1.15 to 1, such covenant to be measured on a consolidated basis and tested as of each March 31st, June 30th, September 30th and December 31st thereafter that this Agreement is in effect;"   (l)     Decrease of Permitted Capital Expenditures. In order to reflect the agreement of the parties to decrease the Borrower's permitted Capital Expenditures during its 2021 fiscal year, Section 13.02 is hereby stricken in its entirety and the following new Section 13.02 is substituted therefor:   "Section 13.02. Permit, for the twelve-month period ending on the last day of any fiscal quarter of Starrett commencing with the twelve month period ending September 30, 2020, the aggregate amount of funded and unfunded Capital Expenditures for Starrett and its consolidated subsidiaries to exceed $8,000,000;"   (m)     Addition of Minimum Cumulative EBITDA Covenant. In order to reflect the agreement of the parties to establish a new minimum cumulative EBITDA covenant effective as of the Borrower's fiscal quarter ending September 30, 2020, Section 13.03 is hereby stricken in its entirety and the following new Section 13.03 is substituted therefor:   "Section 13.03. achieve, during each period described below, EBITDA of less than the amount set forth below for each such period:   Period Minimum Cumulative EBITDA Trailing 3 months ending September 30, 2020 $500,000 Trailing 6 months ending December 31, 2020 $2,200,000 Trailing 9 months ending March 31, 2021 $5,000,000 Trailing 12 months ending June 30, 2021 $7,900,000 " 8 --------------------------------------------------------------------------------     (n)     Modification of Restriction on Dispositions. In order to reflect the agreement of the parties that the Borrower is permitted to sell up to $100,000 of Collateral (excluding Real Property Collateral) each fiscal year, Section 13.07 is hereby stricken in its entirety and the following new Section 13.07 is substituted therefor:   "Section 13.07. Sell, assign, exchange or otherwise dispose of any of the Collateral, other than Inventory consisting of (a) scrap, waste, defective goods and the like; (b) obsolete goods; (c) finished goods sold in the ordinary course of business or any interest therein to any individual, partnership, trust or other corporation; and (d) Equipment which is no longer required or deemed necessary for the conduct of Borrower's business, so long as Borrower receives therefor a sum substantially equal to such Equipment's fair value. Notwithstanding the foregoing, the Borrower may sell or otherwise dispose of Collateral (other than Real Property Collateral) with an aggregate value of no more than $100,000 for the twelve month period ending at the end of each fiscal quarter."   (o)     Additional Restriction Against Distributions. In order to reflect the agreement of the parties that the Borrower is prohibited from making distributions if it has not achieved a Fixed Charge Coverage Ratio of 1.15 to 1 for at least two (2) consecutive fiscal quarters, Section 13.09 is hereby stricken in its entirety and the following new Section 13.09 is substituted therefor:   "Section 13.09. Pay or make any distributions on account of any class of ownership interest in Borrower in cash or in property (other than additional ownership interests) (i) if at the time of any proposed distribution there exists an Event of Default under Borrower's Fixed Charge Coverage Ratio (as defined and calculated in accordance with Section 13.01 hereof) or if the making of such distribution would cause an Event of Default under the Borrower's Fixed Charge Coverage Ratio, or (ii) unless at the time of any proposed distribution, the Borrower's Fixed Charge Coverage Ratio has not been less than 1.15 to 1 for at least the two (2) most recent consecutive fiscal quarters of the Borrower, as evidenced by the timely filing by Borrower of applicable compliance certificates, or redeem, purchase or otherwise acquire, directly or indirectly, any of the ownership interests in Borrower;"   9 --------------------------------------------------------------------------------     (p)     Additional Restriction on Loans by Borrower. In order to reflect the agreement of the parties that the Borrower is prohibited from making loans to any Person in excess of $5,000 without the prior written consent of the Bank, Section 13.10 is hereby stricken in its entirety and the following new Section 13.10 is substituted therefor:   "Section 13.10. Make any loans or advances to any Person, including, without limitation, Borrower's directors, officers and employees, in an individual amount exceeding $5,000 or an aggregate amount exceeding $500,000.00 at any time, except advances to officers or employees with respect to expenses incurred by them in the ordinary course of their duties which are properly reimbursable by Borrower and intercompany loans between each of the entities constituting the Borrower;"   (q)     Restriction on Acquisitions by Borrower. In order to reflect the agreement of the parties that the Borrower is prohibited from acquiring the assets of any Person without the prior written consent of the Bank, Section 13.15 is hereby stricken in its entirety and the following new Section 13.15 is substituted therefor:   "Section 13.15. (a) Merge or consolidate with or into any Person, or acquire all or substantially all of the capital stock or property of another Person; (b) enter into any joint venture or partnership with any Person; (c) convey, lease or sell all or any material portion of its property or assets or business to any other Person, except for the sale of Inventory in the ordinary course of its business; or (d) convey, lease or sell any of its assets to any Person for less than the fair market value thereof."   (r)      Updated Compliance Certificate. Exhibit 3 of the Agreement is hereby deleted in its entirety, and the following new Exhibit 3 attached hereto is inserted in lieu thereof in order to include in the Compliance Certificate language providing that the Borrower has complied with the minimum cumulative EBITDA covenant.   3.     Except as explicitly amended by this Amendment, all of the terms and conditions of the Agreement shall remain in full force and effect and shall apply to any advance thereunder.   4.     The Borrower agrees to pay the Lender as of the date hereof a fully earned, non-refundable amendment fee in the amount of $45,000.00 in consideration of (i) the execution by the Lender of this Amendment and (ii) the full release by the Lender of any claim arising from undercharged, under-billed or underpaid interest on the Revolving Loan and/or the Term Loan arising on or before the First Amendment Effective Date.   5.     This Amendment shall be effective upon (i) receipt by the Lender of an executed original hereof, (ii) payment of the amendment fee provided for in Section 4, and (iii) the execution and delivery by the Borrower and such other parties of customary secretaries certificates, including authorizing resolutions with respect to this Amendment (the date on which such conditions are met, the “First Amendment Effective Date”.   10 --------------------------------------------------------------------------------     6.     The Borrower hereby represents and warrants to the Lender as follows:     (a) Each Borrower has all requisite power and authority to execute this Amendment and to perform all of its obligations hereunder, and this Amendment has been duly executed and delivered by such Borrower and constitutes the legal, valid and binding obligation of such Borrower, enforceable in accordance with its terms.     (b) The execution, delivery and performance by each Borrower of this Amendment has been duly authorized by all necessary corporate action and does not (i) require any authorization, consent or approval by any governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (ii) violate any provision of any law, rule or regulation or of any order, writ, injunction or decree presently in effect, having applicability to such Borrower, or the Articles of Organization or By-Laws of such Borrower, or (iii) result in a material breach of or constitute a material default under any indenture or loan or Agreement or any other agreement, lease or instrument to which such Borrower is a party or by which it or its properties may be bound or affected.     (c) All of the representations and warranties contained in Sections 7 and 8 of the Agreement are correct and complete on and as of the date hereof as though made on and as of such date, except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties were correct and complete as of such earlier date.   7.     Within sixty (60) days after the First Amendment Effective Date, the Bank shall have received a valid and perfected first lien pursuant to a mortgage, deed of trust or other similar grant with respect to each U.S. Real Estate Asset, and shall deliver such other customary documents in connection with the same, including, without limitation, surveys, reports and insurance certificates, reasonably requested by the Lender. For the avoidance of doubt, the Borrower’s failure to comply with this Section 7 shall constitute an immediate Event of Default.   8.     All references in the Agreement to "this Agreement" shall be deemed to refer to the Agreement as amended hereby.   9.     The execution of this Amendment and acceptance of any documents related hereto shall not be deemed to be a waiver of any Event of Default under the Agreement or breach, default or event of default under any other document held by the Lender, whether or not known to the Lender and whether or not existing on the date of this Amendment.   10.     Excepting only the contractual obligations to be performed by the Lender for the Borrower as expressly stated in the Agreement, each Borrower hereby absolutely and unconditionally releases and forever discharges the Lender, and any and all participants, parent corporations, subsidiary corporations, affiliated corporations, insurers, indemnitors, successors and assigns thereof, together with all of the present and former directors, officers, agents and employees of any of the foregoing, from any and all claims, demands or causes of action of any kind, nature or description, whether arising in law or equity or upon contract or tort or under any state or federal law or otherwise, which such Borrower has had, now has or has made claim to have against any such person for or by reason of any act, omission, matter, cause or thing whatsoever arising from the beginning of time to and including the date of this Amendment, whether such claims, demands and causes of action are matured or unmatured or known or unknown.   11 --------------------------------------------------------------------------------     11.     The Borrower hereby reaffirms its agreement under the Agreement to pay or reimburse the Lender on demand for all costs and expenses incurred by the Lender in connection with the Agreement and all other documents contemplated thereby, including without limitation all reasonable fees and disbursements of legal counsel. Without limiting the generality of the foregoing, the Borrower specifically agrees to pay all fees and disbursements of counsel to the Lender for the services performed by such counsel in connection with the preparation of this Amendment and the documents and instruments incidental hereto. The Borrower hereby agrees that the Lender may, at any time or from time to time in its sole discretion and without further authorization by the Borrower, make a loan to the Borrower under the Agreement, or apply the proceeds of any loan, for the purpose of paying any such fees, disbursements, costs and expenses.   12.     This Amendment may be executed in multiple counterparts, each of which shall be effective upon delivery and, thereafter, shall be deemed to be an original, and all of which shall be taken as one and the same instrument with the same effect as if each party hereto had signed on the same signature page. Any signature page of this Amendment may be detached from any counterpart of this Amendment without impairing the legal effect of any signature thereto and may be attached to another part of this Amendment identical in form hereto and having attached to it one or more additional signature pages. This Amendment may be transmitted by facsimile machine or by electronic mail in portable document format ("pdf") and signatures appearing on faxed instruments and/or electronic mail instruments shall be treated as original signatures. Any party delivering an executed counterpart of this Amendment by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Amendment, but the failure to deliver an original executed counterpart shall not affect the validity, enforceability or binding effect hereof.     [Remainder of Page Left Intentionally Blank   12 --------------------------------------------------------------------------------     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the day and year first above written.   Witnessed by:  BANK:   TD BANK, N.A.                       By:   Print Name:      Dana P. Wedge, Senior Vice President         WITNESS   BORROWER:   THE L. S. STARRETT COMPANY                     By:   Print Name:     Douglas A. Starrett, President and CEO                     TRU-STONE TECHNOLOGIES, INC.                     By:   Print Name:     Douglas A. Starrett, President and CEO                     STARRETT KINEMETRIC ENGINEERING, INC.                     By:   Print Name:     Douglas A. Starrett, President and CEO                     STARRETT BYTEWISE DEVELOPMENT, INC.                     By:   Print Name:     Douglas A. Starrett, President and CEO          [Signature Page to First Amendment of Amended and Restated Loan and Security Agreement (All Assets)]   13 --------------------------------------------------------------------------------       EXHIBIT 3   COMPLIANCE CERTIFICATE   The L. S. Starrett Company, a Massachusetts corporation, Tru-Stone Technologies, Inc., a Delaware corporation, Starrett Kinemetric Engineering, Inc., a Delaware corporation, and Starrett Bytewise Development, Inc., a Delaware corporation ("Borrower"), hereby certifies to TD Bank, N.A. ("Bank") pursuant to the Amended and Restated Loan and Security Agreement (All Assets) between Borrower and Bank dated June 25, 2020, as may be amended from time to time ("Loan Agreement"), that:   A.     General   1.     Capitalized terms not defined herein shall have the meanings set forth in the Loan Agreement.   2.     The Borrower has complied with all the terms, covenants and conditions to be performed or observed by the Borrower contained in the Loan Agreement and other documents required to be executed by the Borrower in connection with the Loan Agreement.   3.     Neither on the date hereof nor, if applicable, after giving effect to the loan made on the date hereof, does there exist an Event of Default or an event which would with notice or the lapse of time, or both, constitute an Event of Default.   4.     The representations and warranties contained in the Loan Agreement and in any certificate, document or financial or other statement furnished at any time thereunder are true, correct and complete in all material respects with the same effect as though such representations and warranties had been made on the date hereof, except to the extent that any such representation and warranty relates solely to an earlier date (in which case such representation and warranty shall be true, correct and complete on and as of such earlier date).   B.     Asset Divestitures. For the 12 month period ending [insert applicable fiscal quarter end], the Borrower has sold, assigned, exchanged or otherwise disposed of assets (other than Real Property Collateral) with an aggregate value of $_________.   C.     Financial Covenants   As of the date hereof or, for such period as may be designated below, the computations, ratios and calculations as set forth below in accordance with Section 13 of the Loan Agreement are true and correct:   1.     Fixed Charge Coverage Ratio - Section 13.01   The cash flow of Starrett and its consolidated subsidiaries for the preceding twelve-month period was equal to ______ times the amount of Fixed Charges for such period, computed as follows:   A.     Net Income   $___________     --------------------------------------------------------------------------------     B.     Income Tax Expense   C.     Interest Expense    D.     Depreciation Expense       E.     Amortization Expense        F.     Non-Cash Pension/Post-Retirement Benefit Expense        G.     Non-Cash Stock Compensation Expense        H.     Gains/Losses from the Sale of Assets        I.     Bank Approved One-Time Restructuring Expenses        J.     Dividends/Distributions        K.     Unfunded Capital Expenditures        L.     Required Cash Pension Payments        M.     Cash Taxes        N.     Non-Cash Foreign Exchange       O.     Restructuring Charges       P.     Cash Flow (A+B+C+D+E+F+G+or-H+I-J-K-L-M±N+O)   Q.     Required Principal Payments on all Term Debt, excluding Short-Term Loans from the Brazilian Banks to Finance Export Accounts Receivable from Borrower's Brazilian Subsidiary        R.     Interest Expense        S.     Fixed Charges (Q+R)         T.     Fixed Charge Coverage Ratio (P divided by S)=   $___________       $___________     $___________     $___________     $___________     $___________     $___________     $___________     $___________     $___________     $___________     $___________     $___________     $___________     $___________           $___________     $___________     $___________   ___: 1.0       2. Minimum Cumulative EBITDA – Section 13.03   The EBITDA of Starrett and its consolidated subsidiaries for the trailing __ month period ending ________, 202__ was equal to $ ______.   2 --------------------------------------------------------------------------------       3. Minimum Liquidity – Section 13.16   The Liquid Assets of Starrett and its consolidated subsidiaries as at ___________, 20__ was ___________, computed as follows:   A.      Cash  $___________     B.      Liquid Investments  $___________     C.      Availability under the Borrowing Base  ____________     D.      Liquid Assets (A + B + C)  $___________   IN WITNESS WHEREOF, the undersigned, a duly authorized officer of Borrower, has executed and delivered this Certificate in the name and on behalf of the Borrower on ___________, 20__.     THE L. S. STARRETT COMPANY, as Agent                     By:       Name: Title:     3

87 Ga. App. 122 (1952) 73 S.E.2d 260 MAYOR AND ALDERMEN OF SAVANNAH v. HARVEY, by next friend. 34190. Court of Appeals of Georgia. Decided September 26, 1952. Rehearing Denied October 24, 1952. *123 Edward M. Hester, Aaron Kravitch, for plaintiff in error. Lewis, Wylly & Javetz, contra. FELTON, J. The defendant contends that no cause of action is stated as against it because by an act of 1895 the General Assembly vested exclusive power and jurisdiction over trees within the City of Savannah in the Park and Tree Commission, an independent agency. The contention is without merit. In construing an act (Ga. L. 1895, p. 292) similar to the one we are concerned with here, the court in Mayor of Savannah v. Grayson, 104 Ga. 105, 112 (2) (30 S.E. 693) said: "The act of 1895, creating the board of fire commissioners of Savannah, among other things provides as follows: The members of this board shall be appointed by the mayor of the city, and confirmed by the mayor and aldermen in council assembled. These commissioners have exclusive supervision of and control over the fire department of the city. The mayor has authority to call special meetings of the board. It is required to make to *124 him a daily report, upon forms by him prescribed, showing the condition of the fire department, etc. It is also the duty of the board to present to the mayor annually an estimate of the needs of the fire department for the next ensuing year. The mayor has the right to make such recommendations to the board as he may deem proper, and he and any committee of the council designated by him are entitled at all times to inspect the records, proceedings, books and papers of the board; and the mayor and aldermen may, from time to time, confer upon the board any powers, or impose upon it any duties, not inconsistent with this act. Acts of 1895, p. 292. The foregoing recital is sufficient, we think, to demonstrate without further comment that the fire commissioners of Savannah are unquestionably municipal officers of that city." The act under consideration here (Ga. L. 1895, p. 306) is a sister act to that mentioned above and, as amended by Ga. L. 1896, p. 243, and Ga. L. 1911, p. 1531, provides: that the appointment to the Park and Tree Commission be by the mayor and confirmed by the city council assembled; that the commission or any member thereof may be removed from office by the mayor and aldermen in council assembled for malfeasance in office, or for incompetency or neglect in the discharge of the office, or for inability to discharge the duties of the office, or for conviction for the commission of a felony or a crime involving moral turpitude; that the rules and regulations made by the commission as regards its duties must be approved by the mayor and council; and that expenditures for the function of the commission be made by the council. The act also provides that the commission shall submit for approval by the council certain alterations and improvements, an annual estimate of the money needed to operate on, and an annual report. It also provides for recommendations by the mayor, his attendance at board meetings, and for inspections by the mayor and council. The act, as amended, does not make the Park and Tree Commission a separate corporate entity. It does not vest in them the power to sue and be sued, the power to contract, the power to raise money and other powers that usually accompany an independent legal entity. The powers granted to the City of Savannah by the General Assembly regarding its sidewalks, streets, parks, etc., were not taken from *125 it and vested in the commission by this act as amended. The amended act merely creates an administrative agency through which the municipality may carry out these functions. The membership of the commission, most of its activities, and its financial resources are all controlled and regulated by the mayor and council. The commission is powerless to act independently of the mayor and council. For an excellent discussion of this question see McQuillian on Municipal Corporations, § 53.71, Vol. 18, p. 331, and citations thereunder. Here, as in the Grayson case, the act, as amended, plainly shows that the commissioners of parks and trees are agents of the City of Savannah. See Mahon v. Mayor &c. of City of New York, 31 N.Y.S. 676 (1). There is no other way for a municipality to operate than through its officers and agents, and it makes no difference whether such agents are persons, boards or commissions, etc. See Miller Grocery Co. v. City of Des Moines, 195 Iowa 1310 (192 N.W. 306). Since the act of 1895 as amended does not specifically exempt the city from the duty to keep its streets and sidewalks reasonably safe, it will not be construed to do so by implication, since the rule of construction in such cases requires a construction in favor of the constitutionality of the act. If the act so exempted the city, it would contravene the Constitution. Code, §§ 2-401 and 2-402. In Harvey v. Mayor & Aldermen of Savannah, 59 Ga. App. 12 (199 S.E. 653), cited by the plaintiff in error, the court held that the sidewalk on which the injuries occurred was a part of a public park and that thus the maintenance thereof was a governmental function, a function for which a municipality is not liable in any instance. That question is not raised by the pleadings here. However, even if a tree actually grew in a park so as to render its maintenance a governmental function, if some of its limbs overhung a sidewalk not part of a park so that the sidewalk was not in "a reasonably safe condition, so that persons can pass along them in the ordinary methods of travel with reasonable safety," a municipality would be liable for any injuries caused by such unsafe condition if other requirements of notice and negligence obtain. City of Silvertown v. Harcourt, 51 Ga. App. 160(1) (179 S.E. 772); City of Barnesville v. Sappington, 58 Ga. App. 27, 28 (197 S.E. 342), and cit.; *126 City of Rome v. Hanson, 58 Ga. App. 617 (199 S.E. 329); Harris v. City of Rome, 59 Ga. App. 279, 281 (200 S.E. 337). The petition otherwise stated a good cause of action as against a general demurrer. Hammock v. City Council of Augusta, 83 Ga. App. 217 (63 S. E. 2d, 290). The exceptions to the overruling of the special demurrers, not being argued or expressly insisted upon, will be treated as being abandoned. The court did not err in overruling the demurrers. Judgment affirmed. Sutton, C. J., and Worrill, J., concur.

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN DEREK M. WILLIAMS, Plaintiff, v. OPINION and ORDER DR. SCHMIDT, DR. BREEN, 14-cv-487-jdp TODD HAMILTON, and DR. OLBINSKI, Defendants. Plaintiff Derek Williams alleges that defendants Steven Schmidt, Martha Breen, and Katie Olbinski, psychologists at Green Bay Correctional Institution, acted with deliberate indifference to Williams’s mental health needs by refusing to assign him to a male psychologist and persisting with treatment that they knew was ineffective. Trial is scheduled for August 26, 2019. Before the court are the parties’ motions in limine. Williams filed two motions. First, he seeks to exclude evidence of his criminal history and prison disciplinary history as irrelevant to the issues remaining in this case and unduly prejudicial. Dkt. 121. Second, he seeks to exclude references to the claims that were dismissed from this case at earlier stages. Dkt. 122. Williams’s arguments are persuasive, and defendants do not oppose the motions, so I will grant both motions. Williams also filed an objection to defendants’ identification of Dr. Anna Salter as an expert witness. Dkt. 130. Salter is a consulting psychologist who interviewed Williams in November and December 2012. Williams argues that defendants failed to disclose Salter as an expert and failed to timely provide an expert report. But defendants disclosed Salter in their expert disclosures on April 3, 2017. Dkt. 70. Defendants’ disclosures state that Salter will testify about her April 30, 2013 report, that the report is contained in Williams’s psychological services file, and that the report was submitted in support of defendants’ motion for summary judgment. Id. at 4–5. I conclude that defendants’ disclosure is adequate. Williams has had access to Salter’s report for more than two years and since before defendants’ deadlines for expert disclosures. Williams has not shown that he was prejudiced by defendants’ failure to send another copy of Salter’s report with their expert disclosures. Defendants filed an omnibus motion in limine, seeking to exclude evidence and argument regarding (1) Williams’s mental health care claims against Todd Hamilton; (2) Williams’s mental health care claims against defendant Steven Schmidt dating post-June 2012; and (3) all Williams’s conditions of confinement claims. Dkt. 114. Defendants argue that the only question remaining for trial is whether defendants Schmidt, Breen, and Olbinski were deliberately indifferent to Williams’s mental health care needs between August 2009 and June 5, 2012. Williams opposes the motion, arguing that that he should not be restricted from introducing evidence about his mental health treatment before or after 2009 that is relevant to his claims. I will grant defendants’ motion in part and deny it in part. Williams may introduce evidence regarding his mental health and the treatment he has received while incarcerated, including evidence of treatment outside the relevant time period. I agree with Williams that such evidence provides relevant background information about his mental health needs and context for his claims. For example, Williams’s treatment by, and relationship with, a Department of Corrections psychologist in 2003 is highly relevant to his claims in this case. But I will preclude Williams from introducing evidence or argument suggesting that he was subjected to unconstitutional conditions of confinement in observation or that he has received 2 inadequate mental health treatment since June 2012. Because Williams has no remaining claims against Hamilton, I will dismiss Hamilton as a defendant. ORDER IT IS ORDERED that: 1. Plaintiff Derek Williams’s motions in limine, Dkt. 121 and Dkt. 122, are GRANTED. 2. Defendants’ motion in limine, Dkt. 114, is GRANTED IN PART and DENIED IN PART, as set forth above. 3. Plaintiff’s objection to Dr. Anna Salter’s expert testimony, Dkt. 130, is OVERRULED. 4. Todd Hamilton is DISMISSED as a defendant from this case. Entered August 5, 2019. BY THE COURT: /s/ ________________________________________ JAMES D. PETERSON District Judge 3 

ESTATE OF MELINDA M. GARY, DECEASED, SUZAN YOUNG, PERSONAL REPRESENTATIVE, Petitioner v COMMISSIONER OF INTERNAL REVENUE, RespondentEstate of Gary v. CommissionerDocket No. 7078-89United States Tax CourtT.C. Memo 1991-38; 1991 Tax Ct. Memo LEXIS 57; 61 T.C.M. 1762; T.C.M. (RIA) 91038; January 31, 1991, Filed 1991 Tax Ct. Memo LEXIS 57">*57 Decision will be entered under Rule 155. Allan B. Solomon, for the petitioner. James P. Dawson, for the respondent. COHEN, Judge. COHENMEMORANDUM OPINION Respondent determined a deficiency of $ 3,821 in decedent's Federal income tax for 1985. The sole issue for decision is whether a payment of $ 13,088 pursuant to a judgment of dissolution of decedent's marriage is includable in decedent's taxable income for 1985. Unless otherwise indicated, all section references are to the Internal Revenue Code as amended and in effect for the year in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure. The parties submitted this case for decision without trial under Rule 122. All of the facts have been stipulated. The stipulated facts are incorporated as our findings by this reference. BackgroundThe petition in this case was filed by Melinda M. Gary (decedent). Decedent resided in Jupiter, Florida, at the time the petition was filed. Decedent died on March 28, 1990, and Suzan Young was appointed as the personal representative of decedent's estate. Decedent's marriage to T. Jack Gary III (the husband), was found to be irretrievably1991 Tax Ct. Memo LEXIS 57">*58 broken on June 9, 1982, by the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida (the trial court). On that date, the trial court entered a "Final Judgment of Dissolution of Marriage and Custody" and concluded that decedent was entitled "to permanent periodic alimony and lump sum alimony, * * * and a division of the marital domicile." On July 7, 1982, the trial court entered an order amending the judgment. The provisions of the judgment, as amended (the judgment), with respect to the lump-sum alimony payments are as follows: E. ALIMONYLump Sum - The husband shall pay to the wife as lump sum alimony the sum of money over a period of ten years and six months not to exceed $ 150,000.00 from the husband's gross bonus received from his employer, * * * said payments not to be less than $ 15,000.00 per year, payable as follows: January 31, 1983 and 1984 - 25% January 31, 1985 and 1986 - 20% January 31, 1987 and 1988 - 15% January 31, 1989 and 1990 - 10% January 31, 1991 and 1992 and 1993 - 10% These lump sum payments of alimony are computed so that by January 31, 1993, the wife will have received a total sum of $ 150,000.001991 Tax Ct. Memo LEXIS 57">*59 as lump sum alimony; provided, however, that in no event shall the $ 150,000.00 be paid in less than ten (10) years, not less than $ 1,000.00 being paid on January 31, 1993. In the event the husband changes employers or is otherwise employed, his obligation under this provision will continue to be a minimum of $ 15,000.00 per year due on January 31st of each year (except that the last $ 1,000.00 payment shall be made on January 31, 1993) until paid in full the total sum of $ 150,000.00, on or before January 31, 1993. This obligation shall be terminated upon the death of the husband prior to the payment of the full $ 150,000.00. The trial court also ordered the husband to pay decedent (1) monthly "permanent periodic alimony" payments, until the death or remarriage of decedent, and (2) monthly "rehabilitative alimony" payments through December 1983. Decedent and the husband each appealed the judgment to the Fourth District Court of Appeal of Florida (the appellate court). Decedent submitted that, with respect to the lump-sum alimony payment, the issue to be decided by the appellate court was whether the trial court "abuse[d] its discretion in awarding Lump Sum1991 Tax Ct. Memo LEXIS 57">*60 Alimony tied to Bonus only and on a decreasing scale over ten years;" the husband proposed that the issue to be decided by the appellate court was whether "the trial court award[ed] the [decedent] an excessive amount of Lump Sum Alimony." During the time that the judgment was on appeal, neither party posted bond or filed a Motion to Stay Pending Review. In an opinion filed December 28, 1983, the appellate court held that "the award of lump sum alimony should not be restricted to the husband's bonus." Gary v. Gary, 442 So. 2d 1107">442 So. 2d 1107, 442 So. 2d 1107">1108 (Fla. Dist. Ct. App. 1983). Accordingly, the appellate court modified the judgment of the trial court with respect to lump-sum alimony, as follows: The award of lump sum alimony shall be paid at the rate of $ 15,000.00 per year until fully paid; it shall not be restricted to the husband's annual bonus and it shall not terminate sooner in the event of the husband's death. [442 So. 2d 1107">442 So. xvillanueva@example.org.]The husband made lump-sum alimony payments to decedent in the amounts of $ 18,388, $ 15,000, and $ 13,088, on January 31, 1983, 1984, and 1985, respectively. The husband deducted the $ 13,088 as alimony paid1991 Tax Ct. Memo LEXIS 57">*61 on his 1985 Federal income tax return; decedent did not include this amount as income on her 1985 Federal income tax return. DiscussionPetitioner bears the burden of proof. Rule 142(a). Section 71(a) provides that payments of alimony are includable in the recipient's income. Section 71 was amended by the Deficit Reduction Act of 1984, Pub. L. 98-369, 98 Stat. 494, and was further amended by the Tax Reform Act of 1986, Pub. L. 99-514, 100 Stat. 2085. The 1984 amendments generally apply to divorce or separation instruments executed after December 31, 1984 (Deficit Reduction Act of 1984, Pub. L. 98-369, sec. 422(e)(1), 98 Stat. 494, 798); similarly, the 1986 amendments generally apply to instruments executed after December 31, 1986, Tax Reform Act of 1986, Pub. L. 99-514, sec. 1843(c)(2)(A), 100 Stat. 2085, 2854). Because the judgment in this case was entered by the trial court and amended by the appellate court prior to the effective dates of those acts, neither the 1984 amendments nor the 1986 amendments apply in this case. As applicable to the year in issue, section 71(a)(1) provided: (a) General Rule. -- (1) Decree of divorce or separate maintenance. -- If a 1991 Tax Ct. Memo LEXIS 57">*62 wife is divorced * * * under a decree of divorce or of separate maintenance, the wife's gross income includes periodic payments (whether or not made at regular intervals) received after such decree in discharge of * * * a legal obligation which * * * is imposed on or incurred by the husband under the decree or under a written instrument incident to such divorce or separation.Under section 71(c)(1), "installment payments discharging a part of an obligation the principal sum of which is * * * specified in the decree * * * shall not be treated as periodic payments." Section 71(c)(2), however, excepted from the provisions of section 71(c)(1) certain payments. Specifically, section 71(c)(2) provided: (2) Where period for payment is more than 10 years. -- If, by the terms of the decree * * * the principal sum referred to in paragraph (1) is to be paid or may be paid over a period ending more than 10 years from the date of such decree * * * then (notwithstanding paragraph (1)) the installment payments shall be treated as periodic payments for purposes of subsection (a), but (in the case of any one taxable year of the wife) only to the extent of 10 percent of the principal1991 Tax Ct. Memo LEXIS 57">*63 sum. For purposes of the preceding sentence, the part of any principal sum which is allocable to a period after the taxable year of the wife in which it is received shall be treated as an installment payment for the taxable year in which it is received.The relevant statutory requirement that must be satisfied in order to come within the exception under section 71(c)(2) is that "the installment payments must or may be payable 'over a period ending more than 10 years from the date of [the] decree, instrument, or agreement.'" Emphasis in original; Prince v. Commissioner, 66 T.C. 1058">66 T.C. 1058, 66 T.C. 1058">1063 (1976). The issue for decision in this case is whether the $ 13,088 payment to decedent in 1985 is a periodic payment described in section 71(c)(2) and, therefore, includable in decedent's gross income under section 71(a)(1). The determinative factor is whether the 10-year period of section 71(c)(2) is measured from the date of the trial court's judgment in 1982 or from the date of the appellate court's opinion in 1983. Petitioner's position, as set forth in its brief, is that: The [appellate court] determined the rights of the parties with respect to 1991 Tax Ct. Memo LEXIS 57">*64 the payment of lump-sum alimony under Florida law, and further held that such payments were to be paid in less than ten years. Accordingly, under Code Section 71, such installments are not deductible by the payor spouse, nor includable in income by the recipient spouse.The appellate court did not, however, hold that "such payments were to be paid in less than ten years." It, in effect, affirmed the schedule of payments ordered by the trial court while modifying the amount of those payments. Petitioner argues that the trial court's judgment "was not determinative of the rights of the parties with respect to alimony until after the [appellate court] had considered and ruled on the order" and that the "modification" by the appellate court was merely a "correction" of the trial court's determination. Accordingly, petitioner asserts that, because no additional facts or circumstances were considered by the appellate court and because neither party appealed the decision of the appellate court, the appellate court's decision "was the final determination of the rights of the parties with respect to lump sum alimony." Respondent contends that the lump-sum alimony payments1991 Tax Ct. Memo LEXIS 57">*65 arose out of the trial court's judgment and that, once that judgment was entered, the obligation to pay was "fixed and final" regardless of the process of appeal. Accordingly, respondent asserts that the trial court's judgment awarding decedent lump-sum alimony is the source of the alimony payments, regardless of any modification of that award by the appellate court. To ascertain whether the payment is within section 71(c)(2), we must determine the source of the obligation of the husband to make the payments. See Prince v. Commissioner, 66 T.C. 1058">66 T.C. 1058, 66 T.C. 1058">1063 (1976). That is, we must ascertain whether the husband's obligation to make the installment payments was effective as of the date of the trial court's judgment or was effective as of the date of the decision of the appellate court that modified the trial court's judgment. This determination is controlled by applicable State law. See Wright v. Commissioner, 62 T.C. 377">62 T.C. 377, 62 T.C. 377">393 (1974), affd. 543 F.2d 593">543 F.2d 593 (7th Cir. 1976). In a dissolution of marriage action, the trial court is vested with broad discretion to achieve equity when dividing property between the parties and when1991 Tax Ct. Memo LEXIS 57">*66 granting alimony. Kaylor v. Kaylor, 466 So. 2d 1253">466 So. 2d 1253, 466 So. 2d 1253">1254 (Fla. Dist. Ct. App. 1985). There are three recognized types of alimony in Florida -- permanent periodic, rehabilitative, and lump-sum alimony; the trial court may award alimony in any combination thereof. Fla. Stat. Ann. section 61.08(1) (West 1985); Kirchman v. Kirchman, 389 So. 2d 327">389 So. 2d 327, 389 So. 2d 327">329-330 (Fla. Dist. Ct. App. 1980). The liability of the payor to make periodic payments terminates upon death unless the obligation is assumed as one payable out of the estate after death. Gordon v. Gordon, 335 So. 2d 321">335 So. 2d 321, 335 So. 2d 321">323 (Fla. Dist. Ct. App. 1976). In contrast, once a final judgment is entered, an award of lump-sum alimony is "a vested right which is neither terminable upon a spouse's remarriage or death nor subject to modification." Canakaris v. Canakaris, 382 So. 2d 1197">382 So. 2d 1197, 382 So. 2d 1197">1201 (Fla. 1980). In addition, the form of payment of the lump-sum award is not relevant. The Florida courts have stated that: Even where payable in installments * * * the lump sum is a fixed amount vested in the wife, and the husband's obligation to pay it has every element1991 Tax Ct. Memo LEXIS 57">*67 of finality. [The wife's] right to receive lump sum alimony in equal monthly installments became fixed and final under the final judgment. [Storer v. Storer, 353 So. 2d 152">353 So. 2d 152, 353 So. 2d 152">158 (Fla. Dist. Ct. App. 1977).]If a party appeals an award of lump-sum alimony, the trial court retains jurisdiction to enforce its orders pending appeal. Specifically, rule 9.6(c), Florida Rules of Appellate Procedure, provides that: (c) Dissolution of Marriage Actions: In dissolution of marriage actions the lower tribunal shall retain jurisdiction to enter and enforce orders awarding * * * alimony * * *A party must comply with an order settling the parties' property rights until that order is "vacated or modified by that court or until it has been reversed on appeal, no matter how unreasonable or erroneous." Kaylor v. Kaylor, 466 So. 2d 1253">466 So. 2d 1253, 466 So. 2d 1253">1254 (Fla. Dist. Ct. App. 1985). Furthermore, an award of lump-sum alimony ordered in a final judgment of dissolution is payable regardless of whether either party appeals that judgment. Leonard v. Leonard, 427 So. 2d 758">427 So. 2d 758 (Fla. Dist. Ct. App. 1983). Finally, amounts paid during 1991 Tax Ct. Memo LEXIS 57">*68 the time that an appeal of an award of lump-sum alimony is pending are made in discharge of the obligation that arose under the final judgment. Frischkorn v. Frischkorn, 223 So. 2d 380">223 So. 2d 380, 223 So. 2d 380">382 (Fla. Dist. Ct. App. 1969). In reviewing alimony awards, an appellate court should not reverse or revise the awards "unless they represent an abuse of discretion or are unsupported by material competent evidence." Royal v. Royal, 263 So. 2d 277">263 So. 2d 277, 263 So. 2d 277">279 (Fla. Dist. Ct. App. 1972). To determine if the trial court has abused its discretion, the reviewing court applies a "reasonableness" test. Canakaris v. Canakaris, 382 So. 2d 1197">382 So. 2d 1197, 382 So. 2d 1197">1203 (Fla. 1980). In view of the foregoing principles of Florida law, the obligations imposed upon the husband under the trial court's judgment became binding as of the date in 1982 that the judgment was entered. The husband was required to make payments pending appeal, and any amounts paid during that period were made in discharge of the obligation that arose under the trial court's judgment. By the terms of that judgment, the payments were due over a period ending more than 10 years from the date of the judgment. 1991 Tax Ct. Memo LEXIS 57">*69 As petitioner acknowledges in its brief, the opinion of the appellate court merely "modified" the judgment of the trial court. The appellate court found an abuse of discretion in restricting the lump-sum alimony payments to the husband's bonus and required the husband to pay "at the rate of $ 15,000 per year." Under the terms of the trial court's judgment, however, the husband was similarly required to make payments that were "not to be less than $ 15,000 per year." For purposes of section 71(c)(2), therefore, the husband's obligation to make the installment payments was not affected by the opinion of the appellate court. The judgment of the trial court was fixed as of the date of issuance and is controlling for Federal income tax purposes. To implement the stipulation of the parties, Decision will be entered under Rule 155.

65 Wash. App. 716 (1992) 829 P.2d 796 THE STATE OF WASHINGTON, Respondent, v. ANTHONY JOHNSON, Appellant. No. 13742-9-II. The Court of Appeals of Washington, Division Two. May 19, 1992. Jeffrey J. Jahns and Ronald D. Ness & Associates, for appellant (appointed counsel for appeal). John W. Ladenburg, Prosecuting Attorney, Chris Quinn-Brintnall, Senior Appellate Deputy, and John M. Neeb, Legal Intern, for respondent. PETRICH, C.J. Anthony Johnson appeals his conviction of possession of a controlled substance with intent to deliver, RCW 69.50.401(a)(1)(i). He contends the trial court erred in not suppressing the evidence seized from his vehicle because the police officer stopped his vehicle as a pretext for the search. We conclude that the officer searched Johnson's vehicle following a lawful custodial arrest, and affirm. *718 The trial court's unchallenged findings of fact are that On January 20, 1990, at approximately 8:00 p.m., Tacoma Police Officer Berger was maintaining helicopter surveillance over the area of South 23rd and "K" Streets in Tacoma. Such area has a very high incidence of illegal drug trafficking, joshuaberry@example.com. Parked at such intersection, Officer Berger observed a blue automobile with a white top. Such automobile drove through the area making several stops. During each stop, pedestrians walked up to such automobile and then walked away. Such automobile then returned to the intersection where its occupant contacted the driver of another vehicle. As such conduct was indicative of drug-trafficking, Officer Berger began following the blue automobile with the white top. At that point the automobile began driving with its headlights turned off, despite the hour being after dark. The lights were then turned back on. In all, the headlights were turned on and off at least four times while Officer Berger was following. Often the headlights were turned off while the automobile was still driving [sic]. Officer Berger directed a patrol car to such automobile and relayed what he had observed to such patrol car. Officer Otis, who was in a patrol car, made a stop of the suspect automobile after it made a turn without signalling. Such automobile was the same one Officer Berger had seen making the several stops, which he then followed. At no time, from the original sighting by Officer Berger until the eventual stop by Officer Otis, did anyone get out of or into such automobile. Only two occupants were in the automobile. Respondent was the driver. The other occupant sat in the front passenger seat. Hanging from Respondent's rear view mirror was a plastic hand molded into the shape of a "Crip" gang hand-sign. The "Crips" gang is a violent street-gang. Upon contact, Respondent informed Officer Otis that he had no driver's license. Furthermore, Respondent had no other form of identification on his person or in the vehicle. The vehicle registration was in someone else's name. When Officer Otis asked for Respondent's name, Respondent gave a false name, and then misspelled it, thereby indicating to the officer that Respondent had given a false name. Such indication was bolstered when Respondent claimed to have been arrested under such name, yet Officer Otis found no record of such arrest. Officer Otis placed Respondent under arrest and commenced a weapons search of the unlocked portions of the passenger compartment of Respondent's vehicle. In a jacket in the backseat, Officer Otis found the subject cocaine. Prior to trial, Johnson made a motion to suppress the cocaine seized from his vehicle. The trial court denied Johnson's *719 motion, and then it tried and convicted him of possession of a controlled substance with intent to deliver. Johnson raises a single issue: Was the traffic stop for failing to signal an illegal pretext for a warrantless search of his vehicle? In State v. Michaels, 60 Wash. 2d 638, 645, 374 P.2d 989 (1962), the court said: "The evidence in this case conclusively shows that the arrest was made for the sole purpose of searching the automobile to ascertain whether it contained any contraband property. It was a mere pretext for the search and was therefore unlawful." The purpose for this rule was stated in State v. Davis, 35 Wash. App. 724, 727, 669 P.2d 900 (1983), review denied, 100 Wash. 2d 1039 (1984): [T]o prevent police officers from looking for or manufacturing grounds for an arrest for a minor offense in order to search for evidence of another suspected crime for which there is no probable cause for a search warrant. Where there is a preexisting warrant, however, the basis for the rule preventing use of a pretext arrest to search for evidence of another crime no longer exists.... ... Regardless of the arresting officers['] additional motives, they had the authority to arrest on that warrant. (Citations omitted.) See also Taglavore v. United States, 291 F.2d 262 (9th Cir.1961); Williams v. United States, 418 F.2d 159 (9th Cir.1969), aff'd on other grounds, 401 U.S. 646, 28 L. Ed. 2d 388, 91 S. Ct. 1148 (1971); United States v. Smith, 802 F.2d 1119 (9th Cir.1986); United States v. 1013 Crates of Empty Old Smuggler Whiskey Bottles, etc., 52 F.2d 49 (2d Cir.1931). Johnson asserts that after Officer Berger observed the "suspicious activity" from the helicopter and conveyed his suspicions to Officer Otis, Officer Otis manufactured a reason to stop and search his car. The trial court found that Officer Otis stopped Johnson because he failed to use his turn signal. If Officer Otis had searched Johnson's vehicle without further justification, such a search would have been improper. Johnson, however, gave the officer reason to believe that a custodial arrest was necessary. [1] This case is unlike that in State v. Michaels, supra. At the time of Michaels, an officer could take a person into *720 custody and search his or her vehicle following a misdemeanor traffic infraction committed in the officer's presence. That is no longer the case; an officer cannot search a vehicle incident to a minor traffic infraction absent circumstances justifying a custodial arrest. State v. Watson, 56 Wash. App. 665, 667-68, 784 P.2d 1294, review denied, 114 Wash. 2d 1028 (1990). This court said: a custodial arrest based on a minor traffic violation is valid if, but only if, additional circumstances support the arresting officer's exercise of discretion in making the arrest. The findings of fact in this case disclose no such circumstances. Watson, at 667-68. Accord, State v. Hehman, 90 Wash. 2d 45, 578 P.2d 527 (1978) (custodial arrest for minor traffic infraction improper); State v. Barajas, 57 Wash. App. 556, 789 P.2d 321 (search improper when only reason for full custodial arrest was failure to have a driver's license), review denied, 115 Wash. 2d 1006 (1990); State v. Stortroen, 53 Wash. App. 654, 769 P.2d 321 (1989) (search incident to noncustodial arrest for misdemeanor traffic offense unlawful); State v. Jordan, 50 Wash. App. 170, 747 P.2d 1096 (1987) (custodial arrest proper when driver had no identification and was driving a car he did not own), review denied, 110 Wash. 2d 1027 (1988); State v. LaTourette, 49 Wash. App. 119, 741 P.2d 1033 (1987) (custodial arrest proper because of "unique circumstances" and hostile bystanders), review denied, 109 Wash. 2d 1025 (1988); State v. McIntosh, 42 Wash. App. 573, 712 P.2d 319 (custodial arrest proper because driver had no identification, did not own vehicle, gave a suspicious account of his activities; reasonably probable he would fail to appear in court), review denied, 105 Wash. 2d 1015 (1986). [2] Here, the trial court's findings provide substantial reasons to justify a custodial arrest following the stop. Johnson did not have a driver's license or any other form of identification; the vehicle's registration was in someone else's name; Johnson gave a false name, then spelled "John" incorrectly; and Johnson claimed to have a prior arrest under the false name, which the officer could not verify. *721 Based upon these findings, the court properly concluded that "Officer Otis had sufficient reasonable grounds to believe Respondent would not honor a `promise to appear.'" [3] Once the officers made a proper custodial arrest, they could search Johnson's vehicle. "During the arrest process, including the time immediately subsequent to the suspect's being arrested, handcuffed, and placed in a patrol car, officers should be allowed to search the passenger compartment of a vehicle for weapons or destructible evidence." State v. Stroud, 106 Wash. 2d 144, 152, 720 P.2d 436 (1986). Here, the officer searched the vehicle immediately after arresting Johnson. He searched only the unlocked portions of the car, finding the cocaine in a jacket in the backseat. Such a search is proper. Judgment affirmed. MORGAN and SEINFELD, JJ., concur.

887 F.2d 935 56 Ed. Law Rep. 757, 17 Media L. Rep. 1065 PLANNED PARENTHOOD OF SOUTHERN NEVADA, INC., Plaintiff-Appellant,v.CLARK COUNTY SCHOOL DISTRICT; Members of the Board ofSchool Trustees; individually and in their capacities asTrustees of the Clark County School District: Lucille Lusk;Dan Goldfarb; Patricia A. Bendorf; Virginia BrooksBrewster; Donald R. Faiss; Robert Forbus; Shirley Holst;Robert E. Wentz, individually and in his capacity asSuperintendent of Schools; and the following Principals:Lanny R. Lund; A. Ray Morgan; Brian O. Fox; et al.,Defendants-Appellees. No. 88-2659. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 10, 1989.Decided Oct. 11, 1989. Roger K. Evans, Planned Parenthood Federation of America, New York City, for plaintiff-appellant. Thomas J. Moore, Las Vegas, Nev., for defendants-appellees. Appeal from the United States District Court for the District of Nevada. Before CHAMBERS, WALLACE and WIGGINS, Circuit Judges. WALLACE, Circuit Judge: 1 Planned Parenthood of Southern Nevada (Planned Parenthood) brought this action under 42 U.S.C. Sec. 1983 seeking declaratory and injunctive relief against the Clark County School District, members of its governing board, the superintendent of schools, and ten principals (collectively school district). Planned Parenthood charges that the school district's refusal to publish Planned Parenthood's advertisements in school-sponsored publications violates its right to freedom of expression guaranteed by the first amendment. Following a trial on stipulated facts, the district court ruled in favor of the school district. The district court had jurisdiction under 28 U.S.C. Secs. 1331 and 1343, and we have jurisdiction over this timely appeal pursuant to 28 U.S.C. Sec. 1291. Because we conclude that the publications are a nonpublic forum and the restrictions on Planned Parenthood's advertisements are reasonable, we affirm. 2 * Planned Parenthood is a not-for-profit corporation of the State of Nevada, and is an affiliate of Planned Parenthood Federation of America. Planned Parenthood conducts a family planning program that provides clinical, educational, and counseling services relating to reproductive health. The school district was created under Nevada law to control and supervise the education of all minor children within the public school district of Clark County, Nevada. The school district operates 15 high schools to which this action is limited. 3 The school district authorizes its high schools to publish newspapers, yearbooks, and athletic event programs. High school newspapers and yearbooks are published as part of the school district's curriculum. Newspapers are published as part of the Journalism I and Journalism II courses; yearbooks are published in Publications I and Publications II courses. These courses are taught by school district faculty members, and students receive grades and academic credit upon their completion. Athletic event programs are not published as part of any course curriculum. 4 The school district does not require its publications to contain advertising. Instead, it authorizes each of its high school principals to decide which publications at his or her school will accept advertising. The school district also grants high school principals discretion both to set guidelines for publishing advertising and to determine whether a proposed advertisement satisfies those guidelines. The school district's policy toward its publications is reflected in the following memorandum circulated to all high school principals by Daniel Hussey (Hussey memorandum): 5 A school has an important interest in avoiding the impression that it has endorsed a viewpoint at variance with its educational program. It is not at all unlikely that an advertisement may be viewed as school endorsement of its contents. 6 .... 7 If a school publication does accept advertising, some categories of advertising may be excluded. Drug paraphernalia, or alcohol beverages advertisements, for example, may be viewed as encouraging action which might endanger the health and welfare of students. Advertisements which are libelous, vulgar, racially offensive, factually inaccurate, or of poor production quality (misspelled words, grammatical errors, etc.) may be excluded. Advertisements having explicit sexual content or overtones may be excluded. The courts have allowed wide latitude in proscribing material which, though not obscene, because of its sexual content is deemed inappropriate for minors. 8 If advertising is allowed which promotes one side of a controversial issue, advertisements promoting the opposing side of a controversy should be similarly accepted. 9 The foregoing is not meant to be an exhaustive, all inclusive listing of categories of advertising which may be limited in school district publications. Furthermore, this memo is not directing or recommending that particular types of advertising be restricted. The purpose of this memo is to provide guidance to principals as to what power over advertising in [Clark County] publications they possess. How their power is used is within their discretion. 10 Also relevant to principals' evaluation of advertisements is Nev.Rev.Stat. Sec. 389.065, enacted by the Nevada legislature in 1979.1 This statute regulates public education pertaining to the human reproductive system, related communicable diseases, and sexual responsibility. Pursuant to this statute, the school district enacted Policy 6123 and Regulation 6123, which largely tracked the statutory requirements. These provisions require, among other things, that sex education be taught only by a licensed teacher or school nurse. 11 At various times during 1984 and 1985, Planned Parenthood submitted advertisements to the high schools in the district for publication in their newspapers, yearbooks, and athletic programs. The advertisements read as follows: PLANNED PARENTHOOD 12 OF SOUTHERN NEVADA, INC. 601 South Thirteenth Street Las Vegas, Nevada 89101 Routine Gynecological Exams Birth Control Methods Pregnancy Testing & Verification Pregnancy Counseling & Referral 13 Most of the publications rejected the advertisements. 14 At the commencement of this lawsuit, ten high schools did not have their own written policies to regulate advertisements other than those originating from the school district; five high schools did have written regulations. The written guidelines of the high schools are substantially identical.2 The guidelines provide that the individual high school reserves the right to deny advertising space to any entity that does not serve the best interests of the high school, the school district, and the community. A designated faculty member of the high school must approve all advertisements, and the high school will not accept lewd, vulgar, or obscene advertisements. The guidelines also proscribe the publication of advertisements for certain categories of products: X- or R-rated movies; gambling; alcoholic beverages; drug paraphernalia; and, significant to this action, birth control products and information. 15 Pursuant to the district court's pretrial order, the parties stipulated to the facts, waived the right to a further evidentiary hearing, and submitted the case for decision on the briefs. Relying in large part on San Diego Committee Against Registration and the Draft (CARD) v. Governing Board of Grossmont Union High School District, 790 F.2d 1471 (9th Cir.1986) (CARD ), the district court found that the school district's publications were limited public fora for advertisements lawfully available to high school age audiences; that, to the extent Planned Parenthood's advertisements were within the forum as thus defined, the school district would be required to publish the advertisements unless the school district could demonstrate a compelling governmental interest not to do so; and that the school district had demonstrated no such compelling interest. The court ordered the parties to confer and agree as to acceptable advertisements, or to submit to the court further evidence by which it could decide on the text of advertisements. 16 Before the district court took further action, the Supreme Court decided Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988) (Hazelwood ). On the basis of Hazelwood, the district court issued a second order finding that the school district's publications were nonpublic fora and that the refusal to accept Planned Parenthood's advertisements was reasonable. The district court reasoned that Hazelwood vitiated the precedential value of the majority's analysis in CARD and validated the dissent's approach. The district court entered judgment in favor of the school district. This appeal followed. II 17 The issue presented is whether the school district violated the first amendment by refusing to publish in its school-sponsored publications the advertisements submitted by Planned Parenthood. The school district concedes that Planned Parenthood's advertisements are protected speech under the first amendment. This case does not require us to decide the extent, if any, Planned Parenthood's advertisements constitute commercial speech, which is accorded less protection than noncommercial speech. See Board of Trustees of the State University of New York v. Fox, --- U.S. ----, ---- - ----, 109 S. Ct. 3028, 3031-3035, 106 L. Ed. 2d 388 (1989); Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, 478 U.S. 328, 341, 106 S. Ct. 2968, 2976, 92 L. Ed. 2d 266 (1986). 18 To resolve this appeal we must first identify the nature of the forum. See Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 797, 105 S. Ct. 3439, 3446, 87 L. Ed. 2d 567 (1985) (Cornelius ). This inquiry presents a question of law which we review independently. See Hazelwood, 108 S. Ct. at 568-69; Cornelius, 473 U.S. at 802-06, 105 S.Ct. at 3448-51. Next, we must determine whether the school district's justifications for rejecting the advertisements satisfy the standards applicable to the relevant forum. See Cornelius, 473 U.S. at 797, 105 S.Ct. at 3446. This is also a question of law reviewed independently. See Hazelwood, 108 S. Ct. at 571-73. Though we would normally review the district court's findings of fact for clear error, id. 108 S.Ct. at 568, the parties' stipulation to the facts obviates such review. III 19 The Constitution does not require the government to open its property to all seeking an outlet for protected expression. Cornelius, 473 U.S. at 799-800, 105 S.Ct. at 3447-48. 20 Recognizing that the Government, "no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated," the Court has adopted a forum analysis as a means of determining when the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes. 21 Id. at 800, 105 S.Ct. at 3448, quoting Greer v. Spock, 424 U.S. 828, 836, 96 S. Ct. 1211, 1216, 47 L. Ed. 2d 505 (1976) (Greer ). Within this analysis, "the Court [has] identified three types of fora: the traditional public forum, the public forum created by government designation, and the nonpublic forum." Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449. In traditional and designated public fora, content-based restrictions on speech must be necessary to serve a compelling state interest and narrowly tailored to that end. Id. at 800, 105 S.Ct. at 3448; Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 45, 103 S. Ct. 948, 955, 74 L. Ed. 2d 794 (1983) (Perry ); Carey v. Brown, 447 U.S. 455, 461, 100 S. Ct. 2286, 2290, 65 L. Ed. 2d 263 (1981). In nonpublic fora, on the other hand, restrictions on speech need only be "reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view." Perry, 460 U.S. at 46, 103 S.Ct. at 955; see also Cornelius, 473 U.S. at 800, 105 S. Ct. at 3448. This deferential review recognizes that "the First Amendment does not guarantee access to property simply because it is owned or controlled by the government." United States Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. 114, 129, 101 S. Ct. 2676, 2685, 69 L. Ed. 2d 517 (1981). 22 Traditional public fora are "streets and parks which 'have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.' " Perry, 460 U.S. at 45, 103 S.Ct. at 955, quoting Hague v. CIO, 307 U.S. 496, 515, 59 S. Ct. 954, 964, 83 L. Ed. 1423 (1939). Designated public fora are created when the government opens its property " 'for indiscriminate use by the general public,' or by some segment of the public." Hazelwood, 108 S. Ct. at 568, quoting Perry, 460 U.S. at 47, 103 S.Ct. at 956. The government may also designate a forum for a limited purpose such as use by certain speakers or the discussion of specific topics. Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449; Perry, 460 U.S. at 45-46 & n. 7, 103 S. Ct. at 954-55 & n. 7; see also Widmar v. Vincent, 454 U.S. 263, 102 S. Ct. 269, 70 L. Ed. 2d 440 (1981) (Widmar ) (university meeting places are designated public forum for use by student groups). 23 The issue before us is whether the school district designated the publications as public fora. To determine whether the government has created a designated public forum, we look to the government's intent. Hazelwood, 108 S. Ct. at 568; Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449; Perry, 460 U.S. at 47, 103 S.Ct. at 956. "The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse." Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449 (emphasis added). The government must be "motivated by an affirmative desire to provide an open forum." Id. at 805, 105 S.Ct. at 3450. We will not presume the government has converted a nonpublic forum into a designated public forum unless, "by policy or by practice," Perry, 460 U.S. at 47, 103 S.Ct. at 956, the government has demonstrated a "clear intent" to do so. Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449. "If the facilities have instead been reserved for other intended purposes, 'communicative or otherwise,' then no public forum has been created." Hazelwood, 108 S. Ct. at 568, quoting Perry, 460 U.S. at 46, 103 S.Ct. at 955. Finally, "where the principal function of the property would be disrupted by expressive activity, the Court is particularly reluctant to hold that the government intended to designate a public forum." Cornelius, 473 U.S. at 804, 105 S.Ct. at 3450, citing Greer, 424 U.S. at 828, 96 S.Ct. at 1213 (military base not a public forum), and Adderley v. Florida, 385 U.S. 39, 87 S. Ct. 242, 17 L. Ed. 2d 149 (1966) (Adderley ) (jailhouse not a public forum). 24 In Hazelwood, the Court determined that a high school newspaper was not a designated public forum. The Court began its analysis by recognizing the unique characteristics of the school environment. A school, the Court explained, "need not tolerate student speech that is inconsistent with its 'basic educational mission,' even though the government could not censor similar speech outside the school." 108 S. Ct. at 567, quoting Bethel School District No. 403 v. Fraser, 478 U.S. 675, 685, 106 S. Ct. 3159, 3165, 92 L. Ed. 2d 549 (1986) (Fraser ). A school is "entitled to 'disassociate itself' from [ ] speech ... 'wholly inconsistent with the "fundamental values" of public school education.' " Id., quoting Fraser, 478 U.S. at 685-86, 106 S. Ct. at 3165-66. The Court observed that school boards, not federal courts, should determine " 'what manner of speech in the classroom or in school assembly is inappropriate.' " Id., quoting Fraser, 478 U.S. at 683, 106 S. Ct. at 3164. 25 With these characteristics in mind, the Court looked to numerous factors to determine the school's intent: the newspaper was published as part of the school's journalism course curriculum; the purpose of the newspaper was to impart journalistic skills to students; the course was taught by a faculty member during school hours; the students received grades and academic credit for the course; the school did not deviate in practice from its policy of publishing the newspaper as part of the education curriculum; and school officers reserved the authority to exercise and in fact did exercise editorial control over the content of the paper. Id. 108 S.Ct. at 568. The Court concluded that these factors did not show a " 'clear intent' " to open the school newspapers to " 'indiscriminate use.' " Id. at 569, quoting Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449, and Perry, 460 U.S. at 47, 103 S.Ct. at 956. 26 In Cornelius, the Court found that the government did not intend a federally sponsored charity fund drive to be a public forum. The Court reasoned that the government's consistent policy was to limit the fund drive to "appropriate" voluntary organizations and to require all organizations seeking participation to obtain permission from the government. The Court observed that the government had developed extensive admission criteria. Finally, the Court looked to the nature of the property. This property--the federal workplace--existed to accomplish work, not to provide a forum for public expression. Cornelius, 473 U.S. at 804-06, 105 S.Ct. at 3450-51. 27 Similarly, the Court in Perry found that a school district's internal mail system was not a public forum. Although the mail system had been used by numerous private organizations, such as local parochial schools, church groups, YMCAs, and Cub Scout units, Perry, 460 U.S. at 39 & n. 2, 103 S. Ct. at 952 & n. 2, the Court concluded that the practice of requiring permission from individual school principals before access to the system would be granted indicated an intent to maintain a nonpublic forum. Id. at 47, 103 S. Ct. at 956. Again, in Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S. Ct. 2714, 41 L. Ed. 2d 770 (1974) (Lehman ), the government's long-observed practice of limited advertising space on public buses by requiring the management company to exercise control over the subject matter of such advertisements reflected an intent to keep the forum closed. Id. at 303-04, 94 S.Ct. at 2717-18. Thus, absent contrary intent, the government's nonpublic property will remain nonpublic. A. 28 We now turn to whether the school district's publications may be characterized as a public forum. Planned Parenthood concedes that these publications are not a traditional public forum. Rather, it argues that the school district has designated its publications as a forum for public expression. 29 As in Hazelwood, Planned Parenthood's constitutional claims arise in the context of school-sponsored publications. Hazelwood requires that we apply the first amendment " 'in light of the special characteristics of the school environment.' " 108 S. Ct. at 567, quoting Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S. Ct. 733, 736, 21 L. Ed. 2d 731 (1969). If a school "need not tolerate student speech that is inconsistent with its 'basic educational mission,' " id., quoting Fraser, 478 U.S. at 685, 106 S. Ct. at 3165, surely this must also be true for outside speech that is equally inconsistent. To fulfill its formidable responsibility of inculcating values to our youth, a school must be able to " 'disassociate itself' " from certain types of speech. Id., quoting Fraser, 478 U.S. at 685, 106 S. Ct. at 3165. We must be mindful that " 'nowhere [has the Supreme Court] suggested that students, teachers, or anyone else has an absolute constitutional right to use all parts of a school building or its immediate environs for ... unlimited expressive purposes.' " Perry, 460 U.S. at 44, 103 S.Ct. at 954, quoting Grayned v. City of Rockford, 408 U.S. 104, 117-18, 92 S. Ct. 2294, 2304-05, 33 L. Ed. 2d 222 (1972). 30 We need not decide whether the school district's publications constitute several fora or one forum. The result will be the same under either approach. 1. 31 The school district's policy and practice regarding its newspapers and yearbooks is strikingly similar to that of the Hazelwood School Board analyzed by the Court in Hazelwood. See Hazelwood, 108 S. Ct. at 568-69. The school district's policy toward these publications is reflected in the Hussey memorandum circulated to all high school principals. It unequivocally reveals an intent to limit access to these publications. The policy invests principals with broad authority and discretion to control the content of advertisements appearing in these publications. The school district's purpose in publishing its newspapers and yearbooks is educational. These publications are produced as part of the school district's course curriculum. The courses are taught by school district faculty members, and students receive grades and academic credit for completing the courses. Furthermore, there is no evidence that the school district has ever deviated from its policy of publishing newspapers and yearbooks as part of its curriculum. Rather, the school district has "reserved to itself the responsibility to regulate the conduct of the school newspaper in accordance with its perception of the proper function of education." Burch v. Barker, 861 F.2d 1149, 1158 (9th Cir.1988). We find nothing to indicate that the school district, "by policy or by practice," Perry, 460 U.S. at 47, 103 S.Ct. at 956, demonstrated a "clear intent to create a public forum" with respect to its newspapers and yearbooks. Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449; see Hazelwood, 108 S. Ct. at 568-69. 2. 32 The athletic event programs are not published as part of any course curriculum. Nonetheless, the school district's policy toward these publications is likewise reflected in the Hussey memorandum. The memorandum encompassed "school district publications," not merely yearbooks and newspapers. As we have already explained, the memorandum reveals an intent to limit access to its publications. Not only are principals free to reject advertising completely, they may also regulate the content of advertisements they choose to accept. Such a policy does not show "an affirmative desire to provide an open forum." Cornelius, 473 U.S. at 805, 105 S. Ct. at 3450. 33 The policy and practice of the individual principals is consistent with that of the school district. There is no evidence that any principal elected to surrender the authority to control the content of advertisements in programs. To the contrary, all principals have reserved the discretion both to establish guidelines and to determine whether a proposed advertisement satisfies those guidelines. The written guidelines promulgated by individual principals are in conformity with, and indeed augment, the policy articulated in the Hussey memorandum. As in Cornelius and Perry, those seeking to advertise must receive the permission of the principal. See id. 473 U.S. at 804, 105 S. Ct. at 3450 ("The Government's consistent policy has been to limit participation in the [fund drive] to 'appropriate' voluntary agencies and to require agencies seeking admission to obtain permission from federal and local Campaign officials."); Perry, 460 U.S. at 47, 103 S.Ct. at 956 ("Permission to use the system to communicate with teachers must be secured from the individual building principal."). The district court did not find nor is there any evidence that granting permission is a mere formality. See Cornelius, 473 U.S. at 804, 105 S.Ct. at 3450; Perry, 460 U.S. at 47, 103 S.Ct. at 956. The policy and practice of the principals fails to demonstrate a "clear intent" to provide "indiscriminate use" to the public. See Hazelwood, 108 S. Ct. at 569; Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449; Perry, 460 U.S. at 47, 103 S.Ct. at 956. 34 An examination of the nature of the athletic programs further supports our conclusion. See Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449 ("The Court has also examined the nature of the property and its compatibility with expressive activity to discern the government's intent."). The school district publishes programs as a service to spectators of school-sponsored athletic contests. The programs provide useful information about the participating teams. High schools sell advertising to help defray the costs of offering this service. In contrast to the state university's meeting facilities at issue in Widmar, these programs do not possess many of the characteristics of a traditional public forum. See Widmar, 454 U.S. at 267 n. 5, 102 S. Ct. at 273 n. 5. They exist to dispense select school-related information, not to provide a forum for public expression. See Cornelius, 473 U.S. at 805, 105 S. Ct. at 3450. The school district therefore " 'has [the] power to preserve the property under its control for the use to which it is lawfully dedicated.' " Greer, 424 U.S. at 836, 96 S.Ct. at 1216, quoting Adderley, 385 U.S. at 47, 87 S.Ct. at 247. 35 Moreover, in examining the nature of the athletic event programs, we must not ignore the special characteristics of the school environment. See Cornelius, 473 U.S. at 801-02, 105 S.Ct. at 3448-49 (the Court's conclusion that the fund drive rather than the workplace constitutes the forum "does not mean, however, that the Court will ignore the special nature and function of the federal workplace in evaluating the limits that may be imposed on an organization's right to participate in the [forum]."); see also Perry, 460 U.S. at 44, 103 S.Ct. at 954. Though the programs are not part of the school district's curriculum, they are "disseminated under its auspices." Hazelwood, 108 S. Ct. at 570. These programs therefore play a role, however small, in the school's mission. Again, a school must be "entitled to 'disassociate itself' from speech" inconsistent with that mission. Id. at 567, quoting Fraser, 478 U.S. at 685, 106 S.Ct. at 3165. It is of no moment that the programs' purpose is extra-curricular; the schools' interest is the same. "The process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order." Fraser, 478 U.S. at 683, 106 S.Ct. at 3164. Because indiscriminate expressive activity would disrupt this process, id., we are to be "particularly reluctant" to impute to the school an intent to create a public forum. Cornelius, 470 U.S. at 804, 105 S. Ct. at 3450, citing Greer, 424 U.S. at 828, 96 S.Ct. at 1213, and Adderley, 385 U.S. at 39, 87 S.Ct. at 243. We thus conclude that the athletic event programs are a nonpublic forum. 3. 36 Planned Parenthood argues that the only advertisements rejected were those it submitted. No such explicit finding was made by the district court. However, such a finding would not be determinative of the issue. In Perry, individual principals permitted numerous private groups to use the school's internal mail system. The record did not indicate whether any requests for use had been denied, nor did it reveal whether permission had to be sought separately for every message that a group wished to deliver to the teachers. Perry, 460 U.S. at 39 & n. 2, 103 S. Ct. at 951 & n. 2. The Court nevertheless found that "[t]his type of selective access does not transform government property into a public forum." Id. at 47, 103 S. Ct. at 956. The Court reasoned that the school, by requiring those seeking to use the mail system to obtain permission, had not opened its system "for indiscriminate use by the general public." Id. Here, principals may grant selective access to certain groups to advertise in the publications. Indeed, some principals have even accepted Planned Parenthood's advertisements. Perry teaches that this practice does not create an open forum. Id.; see also Greer, 424 U.S. at 838 n. 10, 96 S. Ct. at 1217 n. 10 ("The fact that other civilian speakers and entertainers had sometimes been invited to appear at Fort Dix ... surely did not leave the authorities powerless thereafter to prevent any civilian from entering Fort Dix to speak on any subject whatever."). The mere fact that some schools accepted Planned Parenthood's advertisements does not convert the publications into a public forum. The Court's forum framework does not require the government either to regulate with blanket uniformity all seeking to use its nonpublic property or to lose its right to kimberlymurphy@example.com. Rather, we look to the government's intent. Permitting selective access does not establish an intent to open a nonpublic forum. The principals' consistent policy and practice has been to reserve control over the content of advertisements. We find no evidence of a "clear intent" to open the publications, including athletic event programs, to the public for "indiscriminate use." Perry, 460 U.S. at 47, 103 S.Ct. at 956. 37 Planned Parenthood also argues that the mere act of soliciting and accepting advertisements from entities outside of the school reveals an intent to create a public forum. This argument was squarely rejected by the Court in Lehman. There, the city sold advertising space on public transit vehicles. The city accepted advertisements from "cigarette companies, banks, savings and loan associations, liquor companies, retail and service establishments, churches, and civic and public-service oriented groups." Lehman, 418 U.S. at 300, 94 S.Ct. at 2715 (footnote omitted). Consistent with its long-standing policy, the city rejected petitioner's political advertisement. The Court held the city did not intend to create a public forum through mere acceptance of outside advertising on its property. Writing for the plurality, Justice Blackmun explained: 38 In these circumstances, the managerial decision to limit car card space to innocuous and less controversial commercial and service oriented advertising does not rise to the dignity of a First Amendment violation. Were we to hold to the contrary, display cases in public hospitals, libraries, office buildings, military compounds, and other public facilities immediately would become Hyde Parks open to every would-be pamphleteer and politician. This the Constitution does not require. 39 Id. at 304, 94 S.Ct. at 2717. The school district's intent is no different than that of the city in Lehman: both sought to control the content of advertisements on their property. As Planned Parenthood would have it, the school district must either accept advertisements from no outside entity or accept them from every outside entity--or at least those peddling wares that are not illegal. Lehman ensures that the school district is not required to make such a choice. B. 40 Planned Parenthood argues that our decision in CARD requires us to find that the school district's publications are a designated public forum. The district court initially agreed, but concluded, after the Court's opinion in Hazelwood, that the majority position in CARD had been overruled. 41 In CARD, an organization involved in counseling young men on alternatives to compulsory military service (CARD) sought unsuccessfully to advertise in five Grossmont Union High School District (Board) student newspapers. CARD then sued the Board under section 1983, alleging that the Board's refusal to publish CARD's advertisements in its school-sponsored newspapers violated the first amendment. CARD argued that because the Board accepted various military recruitment advertisements, it had created a designated public forum. 790 kimberlymurphy@example.com. 42 The majority in CARD concluded that the Board's publications were a designated public forum. Id. at 1476. The majority rested its finding on three factors. First, it observed that "[n]ewspapers, including the Board's, are devoted entirely to expressive activity." Id. Second, the majority stated that "the admitted policy and practice of the Board is to allow a particular group--the students--to discuss any topic in the newspapers, subject only to certain conditions not relevant to the issues before us." Id. Finally, the majority stated that "[t]he Board's admitted policy and practice is to allow members of the general public to avail themselves of the forum as long as their speech consists of advertisements offering goods, services, or vocational opportunities to students." Id. 43 We agree with the district court that the CARD majority's analysis cannot be harmonized with that of the Supreme Court in Hazelwood. The CARD majority did not apply the first amendment in light of the special characteristics of the school environment, as directed by Hazelwood. 108 S. Ct. at 567. CARD is void of reference to the school's unique role. More important, absent from the CARD majority's discussion is any mention, much less analysis, of the Board's intent. Under Hazelwood, intent is central to the categorization of the forum. Id. 108 S.Ct. at 568-69. Thus, the CARD majority is silent as to whether the Board's purpose in publishing its newspapers was educational; whether the faculty exercised editorial control over the contents of advertisements published in its newspapers; whether the Board produced the newspapers as part of its curriculum; whether faculty members supervised the newspapers' publication; and whether students received grades and academic credit for publishing the newspapers. Compare CARD, 790 F.2d at 1476, with Hazelwood, 108 S. Ct. at 568. In other words, the CARD majority made no inquiry whether the Board " 'reserve[d] the forum for its intended purpos[e].' " Hazelwood, 108 S. Ct. at 569, quoting Perry, 460 U.S. at 46, 103 S.Ct. at 955. 44 The divergence of the CARD majority's analysis from that of Hazelwood is particularly visible in its discussion of the first factor on which it relied--that all newspapers are entirely devoted to expressive speech. The majority reasoned that "[e]verything that appears in a newspaper is speech, whether commercial, political, artistic, or some other type. It is difficult to think of any other kind of property that is more compatible with expressive activity." CARD, 790 kimberlymurphy@example.com. In contrast, the Court in Hazelwood did not engage in generalities about the nature of all newspapers circulated to the public. Rather, the Court focused its analysis on the special characteristics of the particular school-sponsored newspaper in that case and the intent of the school in publishing it. Hazelwood, 108 S. Ct. at 567-69. We therefore conclude that Hazelwood prohibits us from relying on CARD in determining the nature of the forum. IV 45 The government may regulate speech in a nonpublic forum "in any reasonable manner." Hazelwood, 108 S. Ct. at 569; see also Cornelius, 473 U.S. at 806, 105 S.Ct. at 3451; Perry, 460 U.S. at 46, 103 S.Ct. at 955. "Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral." Cornelius, 473 U.S. at 806, 105 S.Ct. at 3451. "It is only when the decision to censor a school-sponsored publication ... has no valid educational purpose that the First Amendment is so 'directly and sharply implicate[d]' as to require judicial intervention to protect ... constitutional rights." Hazelwood, 108 S. Ct. at 571 (footnote omitted), quoting Epperson v. Arkansas, 393 U.S. 97, 104, 89 S. Ct. 266, 270, 21 L. Ed. 2d 228 (1968). 46 In Hazelwood, the Court explained at length the reasonable restrictions a school may impose on school-sponsored speech: 47 Educators are entitled to exercise greater control over ... student expression to assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school.... In addition, a school must be able to take into account the emotional maturity of the intended audience in determining whether to disseminate student speech on potentially sensitive topics, which might range from the existence of Santa Claus in an elementary school setting to the particulars of teenage sexual activity in a high school setting. The school must retain the authority to refuse ... to associate the school with any position other than neutrality on matters of political controversy. 48 Hazelwood, 108 S. Ct. at 570. Furthermore, restrictions on school-sponsored publications need not be pursuant to written regulations. Id. at 571 n. 6. 49 The school district declined to publish Planned Parenthood's advertisements on the grounds that the subject matter could be controversial. Principals testified that they were concerned that some parents and community members did not embrace Planned Parenthood's function of offering family planning services to teenagers. The principals therefore sought to maintain a position of neutrality on the subject. Furthermore, principals stated they did not wish to open their publications to entities offering some of the same products as Planned Parenthood, or to organizations having competing views. Finally, principals stated that they sought to remain well within the bounds of the Nevada state statute and the school's own policy and regulations regarding sex education. The common thread among all of these justifications is that the school district wished to steer clear of any distractions which could impede its educational mission. 50 We have little difficulty concluding that the school district's restrictions are reasonable. Hazelwood grants schools wide latitude in controlling the content of school-sponsored publications. The newspapers, yearbooks, and athletic event programs all "bear the imprimatur of the school." Hazelwood, 108 S. Ct. at 569. It is thus reasonable for the school district to attempt to ensure that the "views of the individual speaker are not erroneously attributed to the school." Id. at 570. It also may properly avoid "potentially sensitive topics," such as those related to "teenage sexual activity." Id. In addition, the school district has a legitimate interest in refusing "to associate the school with any position other than neutrality" on the subject of teenage family planning. Id. We cannot conclude that the restrictions had "no valid educational purpose." Id. at 571. 51 Planned Parenthood argues that the school district offered no proof that the proposed advertisements related to subjects that are indeed viewed as controversial or sensitive to parents and members of the community. Alternatively, Planned Parenthood argues that even if its advertisements are controversial, the school district made no showing that the contents of the advertisements would be attributable to the schools. The Supreme Court has explicitly rejected this line of argument. In Perry, the school's purposes in limiting access to its mail system was to avoid disruption of the educational environment. Perry, 460 U.S. at 52, 103 S.Ct. at 959. The court of appeals discounted this factor, reasoning that there was no evidence in the record of past disruptions stemming from general access to the system, nor was there proof that future disturbances were likely. Id. at 52 n. 12, 103 S. Ct. at 959 n. 12. Reversing the court of appeals, the Court explained that "[w]e have not required that such proof be presented to justify the denial of access to a nonpublic forum on grounds that the proposed use may disrupt the property's intended function." Id. Similarly, in Hazelwood, the Court did not require the school to prove that subjects excluded from its school-sponsored publication were indeed sensitive to the audience. Rather, the Court reasoned that the school "could reasonably have been concerned" about the effects of the restricted material. Hazelwood, 108 S. Ct. at 571. Here, the school district "could reasonably have been concerned" that Planned Parenthood's advertisement would distract from its mission. No further proof is required. We therefore find Planned Parenthood's argument unpersuasive. V 52 Control over access to a nonpublic forum must be viewpoint neutral. Cornelius, 473 U.S. at 806, 105 S.Ct. at 3451; Perry, 460 U.S. at 49, 103 S.Ct. at 957. Planned Parenthood concedes that the record does not show that the school district engaged in viewpoint discrimination. Because the publications are a nonpublic forum and the restrictions of Planned Parenthood's advertisements are reasonable, we find no violation of the first amendment. 53 AFFIRMED. 1 Nev.Rev.Stat. Sec. 389.065 states in part: 1 The board of trustees of a school district shall establish a course or unit of a course of: (a) Factual instruction concerning acquired immune deficiency syndrome; and (b) Instruction on the human reproductive system, related communicable diseases and sexual responsibility. .... 3 The subjects of the courses may be taught only by a teacher or school nurse whose qualifications have been previously approved by the board of trustees 2 The following is typical of the guidelines promulgated by the high schools: CHAPARRAL HIGH SCHOOL ADVERTISING REGULATIONS 1 Chaparral High School reserves the right to deny advertising space to any business and/or individual who does not serve the best interests of Chaparral High School, The Clark County School District, and the Las Vegas community 2 The deadline for all ads ready for print is five (5) days prior to publication. The deadline for ads to be made by the Chaparral Express is eight (8) days prior to publication. Any exception to these deadlines must be made with the printer 3 The Chaparral Express and Vaquero (yearbook) will not sell ad space over 30% of the edition's total copy 4 Chaparral High School cannot be held responsible for fraudulent ads run in good faith. Legal responsibility lies with the advertiser 5 Chaparral High School will not run any ad that, in the opinion of the staff and/or administration, is lewd, vulgar, or obscene 6 Chaparral High School will not accept ads for the following products: a. X- or R-rated movies b. Gambling aids c. Tobacco products d. Liquor products e. Birth control products or information f. Drug paraphernalia g. Pornography 7 All advertising must be approved by the supervising administrator prior to going to print

There are a number of interesting facts connected with this litigation, but which are not essential to its determination, and which we deem it unnecessary to set out. The pertinent facts which are virtually uncontradicted are as follows: A number of the ladies of the town of Gravette, moved by an altruistic spirit, organized themselves into an unincorporated society which they called the Civic Improvement Club. After a time they conceived the idea of purchasing a park to be used by the public, which was to be a memorial to Field Kindley, a young man who had been reared in the town of Gravette by his aunt and who had lost his life in the service of his country. This club located a number of vacant lots which were owned by a nonresident of the town. Two of the ladies were appointed a committee to visit the owner and endeavor to arrange for the purchase of the property. The owner agreed to sell the property for $1,500, giving the club until a certain time to complete the purchase. The ladies immediately proceeded to solicit subscriptions, and in a short time raised $750, but, as the time limit approached they discussed the situation with Dr. Buffington, the mayor of the town, and interested him in their project, and he agreed to, and did, advance from his private funds the sum of $750, which sum, together with the money already raised, made up the purchase price of the property. This was paid to the owner, who conveyed the land by warranty deed to Dr. Buffington. Dr. Buffington stated that he did not remember just why the deed was made to him, but it was evidently done to protect him in the advances he had made. The ladies continued their activities in the matter of raising funds, and soon made up the amount that Dr. Buffington had advanced, and paid it over to him. When this was done, Dr. Buffington secured the service of a resident lawyer, who had died before this controversy arose, to prepare the necessary papers to carry into effect the intentions of the club. He drew a warranty deed conveying the property to the city, but inserted in the deed the following clause: "The above-described *Page 546 property is to be used for public park purposes and is to be under the control of the ladies of Civic Improvement Club of Gravette." This deed was executed in June, 1924, and the Civic Improvement Club entered into possession of the property and proceeded to improve and beautify it. They erected a monument to the memory of Field Kindley, built a band stand, and otherwise adorned and improved the property. In 1925 or 1926 the ladies of the Civic Improvement Club incorporated the club under the same name and with the same membership, its charter providing that each member of the unincorporated society was to become and be member of the incorporated society, and such others who might desire to join after the incorporation would be admitted to membership upon the unanimous vote of the charter members and the payment of a fee. The club remained in possession of the property and exercised control over it until shortly before this litigation arose, during which time the town of Gravette had contributed nothing to the purchase price or to the sums required to improve the property, its sole contribution being the furnishing of lights and water for the park to the amount of $36 per year. There appears to have been no conflict as to the management of the park until August, 1930. It was the custom of the town to have a picnic annually during that month, and for some reason (possibly to raise funds for the city treasury) the town council made arrangements with a "carnival" to visit the town, which carnival, at the instance of the town council, came and pitched its tents and appurtenances upon the public park, over the protest of the club. Just what was said and done by the ladies is not disclosed by the record, but the men began to write articles and to publish them in the town (paper about the ladies, which reflected upon the management of the park, and intimated that the ladies were difficult to get along with. The ladies met and called to their assistance nine men of the town, evidently not among those protesting, and designated them as "trustees," the purpose *Page 547 being to use the trustees as a go-between for the club and the town council with the object of establishing a modus vivendi. These gentlemen were unable to negotiate a truce and, shortly after they had approached the council, the city filed this suit, exhibiting a copy of the deed from Dr. Buffington, heretofore referred to, alleging title in itself, and that the ladies of the Civic Improvement Club were setting up claim of control under said deed, and praying that the title be quieted in the town, and that the Civic Improvement Club be enjoined from interfering with, or attempting to exercise control over, the property. At the hearing before the chancellor, where the evidence above recited was detailed by the witnesses, the court denied the prayer of the complaint, finding the facts to be as stated herein, and decreeing valid the clause in the deed granting control of the property to the Civic Improvement Club, and that legal title to the park was vested in the town of Gravette (plaintiff), but that the Civic Improvement Club should continue in the control of the property for the use named in the deed. The appellant challenges the correctness of this decree, and invokes the well-settled rule that, where a grant is made in a deed of the title in fee, a subsequent clause limiting the absolute title, being in irreconcilable conflict with the title conveyed by the granting clause, is void. CarlLee v. Ellsberry, 82 Ark. 209, 101 S.W. 407, 12 L.R.A. (N.S.) 956, 118 Am. St. Rep. 60; Levy v. McDonnell,92 Ark. 324, 122 S.W. 1002, 135 Am. St. Rep. 183; Veasey v. Veasey, 110 Ark. 393, 162 S.W. 45. The appellant contends that the granting clause conveys to the grantee the fee simple title, and that under the rule, supra, the clause quoted is void. It must be conceded that the rule contended for is the one established by our decisions, but the rule is not one of positive law, but rather one of construction to be applied where there is a clear repugnance between the nature of the estate granted and subsequent clauses in the deed, either in the habendum clause or elsewhere; for, in such cases, the courts are of necessity compelled to choose between the conflicting clauses, and it is *Page 548 then that the arbitrary rule is invoked. In cases where the intention of the parties may be ascertained from a consideration of the entire instrument and the several clauses may be reconciled, the rule contended for must yield to that cardinal rule of construction that the intention of the parties as drawn from the entire instrument must govern. "While the cardinal rule of construction is that the intention of the parties as drawn from the whole deed must govern, where such intention is uncertain, resort must be had to well-settled but subordinate rules of construction to be treated as such, and not as rules of positive law, the modern rule being that the intention of the parties when ascertained will prevail over all technical rules of construction; and it has been said that, since the language employed in deeds varies so materially and so much, precedents are rarely controlling in a concrete case, except as they may furnish general aiding rules. Where a deed expresses two conflicting intentions, it must be construed according to the rules of construction, although they may be denominated arbitrary. Further, a construction which will leave the way open for repeated and indecisive litigation should be avoided." 18 C.J. 252, 197. "A deed must be construed according to the intention of the parties, as manifested by the language of the whole instrument; and it is our duty to give all parts of the deed such construction, if possible, as that they will stand together; but where there is a repugnancy between the granting and habendum clauses, the former will control the latter." Dempsey v. Davis, 98 Ark. 570-573, 136 S.W. 975. In Whetstone v. Hunt, 78 Ark. 230, 93 Ark. 979, cited in Dempsey v. Davis, supra, the following language was quoted with approval: "If," says Mr. Washburn, "there is a clear repugnance between the nature of the estate granted and that limited in the habendum, the latter yields to the former; but if they can be construed so as to stand together by limiting the estate without contradicting *Page 549 the grant, the court always gives that construction in order to give effect to both." An examination of the deed involved in the instant case shows no irreconcilable conflict in its several clauses, but, considered in its entirety, it clearly discloses the intention of the grantor. That intention primarily was to provide a park to beautify the town and promote the rational pleasure of its inhabitants. In carrying out this purpose the town of Gravette and the Civic Improvement Club were constituted qualified trustees, the one to hold the legal title and the other to exercise a power in trust. This trusteeship was divided, perhaps because it might have been the opinion of the scrivener, although erroneous, that the Civic Improvement Club, being only a voluntary association, was not qualified to hold the legal title; that this is true is now insisted by the appellant. It contends that at the time the deed was made the Civic Improvement Club was an entity unknown to the law, without power to hold or convey property. We do not agree with the position taken by learned counsel. It is well recognized that at common law voluntary and unincorporated associations may hold real property, either as the donees of the legal title or the beneficiaries of a trust, and that such associations when organized to promote some purpose beneficial to the general public, or of certain classes thereof, are to be deemed as charitable societies and governed by rules of law applicable thereto. 1 Beach on Trusts, 317 et seq. It is true, the right of such organizations to take the beneficial interest in real estate or to hold as trustee for benevolent uses is denied in some jurisdictions, but in others, including our own, that right is recognized and enforced. Biscoe v. Thweatt, 74 Ark. 545, 86 S.W. 432. From a consideration of the evidence, it is unquestionable that the creation of the park had its inception in the minds of the ladies of the Civic Improvement Club, and that they, in fact, were the purchasers, contributing from their own funds (and it is immaterial how these funds were derived) to the purchase price of the property, and *Page 550 Dr. Buffington was merely their agent. The power therefore to administer the trust might well be implied to rest in the club and result from the nature of the transactions. It is unnecessary, however, to fix the interest of the club on that ground, for it has itself spoken through its instrument, and in the deed rests its expressed will. There is an express trust, therefore, by which the town of Gravette is to hold the naked legal title for the use of the public, such use to be administered through the agency of the Civic Improvement Club, and the property to be under its control. Express trusts are such as are created by the deliberate or intentional act of the grantor, and, in our opinion, the deed in question creates a trust and brings it within this classification. See Bray v. Timms, 162 Ark. 247,258 S.W. 338; Stacy v. Stacy, 175 Ark. 763,300 S.W. 437. Since it appears that by the charter of the Civic Improvement Club, incorporated in 1925 or 1926, all the members of the voluntary association became members of the incorporated society, this ipso facto dissolved the voluntary association and transferred its property and rights to the corporation. 5 C.J., 18, p. 1338. It follows from the views expressed that the decree of the chancellor is correct, and it is therefore affirmed.

Mrs. Mary Gelrich was injured while riding in her husband's automobile. She sued the husband, charging that the injuries resulted from his acts of negligence. Mrs. Gelrich died after commencing her suit and it was revived in the name of the plaintiff as administrator. While prosecuted in the name of the administrator, it is the right of action commenced by Mrs. Gelrich and which she would have had in case death had not ensued. Shannon's Code, section 4029a3. The defendant demurred to the declaration upon the ground that the plaintiff cannot maintain the action for injuries to the wife resulting from the tortious act of the husband committed during coverture. The demurrer was sustained and plaintiff appealed. It is insisted that chapter 126, Acts of 1919, known as the Married Women's Emancipation Law, abrogated the *Page 98 common law rule and changed the status of the wife so that she could sue the husband for tort. And it is further insisted that the rule as in Wilson v. Barton, 153 Tenn. 250, forbidding the wife's action for injuries inflicted by assault and battery, does not extend to actions for negligence. By the common law neither the husband nor the wife could maintain an action against the other for wrong committed during coverture. The rule rested upon the nature of the relation, the unity of interest of husband and wife in each other's respective rights and duties and was not limited to actions for willful wrongs, such as assault and battery, but embraced alike all torts. Heyman v. Heyman, 19 Ga. App. 634; Perlman v.Brooklyn City R. Co., 191 N.Y. Supp., 891; Woltman v.Woltman, 189 N.W. 1022; Strom v. Strom, 6 L.R.A. (N.S.), 191; Smith v. Smith, 29 Pa. Dist. R., 10; Oken v. Oken, 117 Atl., 357. Referring the cases involving the right of one spouse to maintain an action for tort against the other, in notes underRoberts v. Roberts, 29 A.L.R., 1482, the annotator said: "The right of one spouse to maintain an action against the other for a personal injury depends on how far the Married Women's Acts, now in force in practically every American state, have abolished the common-law rule that one spouse could not sue the roberto34@example.com. That question has most frequently arisen in actions by a spouse for assault and battery committed by the other, the cases on that phase being collated in the annotation appended to Johnson v. Johnson, 6 A.L.R., 1031, and, as appears from that annotation, the decisions are in conflict, the majority denying the right to sue. A like condition appears *Page 99 from the few cases passing on the right of one spouse to maintain an action against the other for a personal injury other than assault and battery, the majority of them holding against the right of action." The rule was not changed by the Tennessee Married Women's Act of 1919 or any other statute of this State, whatever may be said of the statutes of other States. Lillienkamp v. Rippetoe,133 Tenn. 62; Wilson v. Barton, 153 Tenn. 250. There is no error. Affirmed. *Page 100

43 F. Supp. 12 (1942) UNITED STATES ex rel. MARCUS v. LORD ELECTRIC CO., et al. (two cases). No. 1679 Civil Action; No. 748 Civil Action (Original). District Court, W. D. Pennsylvania. January 22, 1942. *13 Margiotti, Pugliese & Casey, Charles J. Margiotti, Joseph H. Reich, and Joseph A. Rossi, all of Pittsburgh, Pa., and Joseph K. Guerin, of New York City, for plaintiff. Alter, Wright & Barron and James K. Ruby, all of Pittsburgh, Pa., and Vincent J. Malone, of New York City, for defendants. GIBSON, District Judge. Morris L. Marcus brought a qui tam action against Lord Electric Company and a number of others upon authority of Section 3491, R.S., U.S.C.A. Tit. 31, § 232. Following judgment a writ of fieri facias issued from this court upon the Lord Electric Company, to be served by the Marshal for the Southern District of New York; and at the same time a writ of attachment issued to be served in the same way, by which a levy was directed upon bank deposits of the Lord Electric Company in the National City Bank of New York and in the Fifth Avenue Bank of New York. The Lord Electric Company has moved this court to quash each of said writs. A rule issued thereon and the matter has been heard. As to both writs the allegation of the Lord Electric Company is that the action upon which the writs were founded was the suit of Marcus, in which the jurisdiction of this court in respect to executions ended with the limits of the State. On the other hand, the counsel for Marcus contends that the action is that of the United States, not Marcus, and therefore within the scope of Section 986, R.S., 28 U.S.C.A. § 839, following: "All writs of execution upon judgments obtained for the use of the United States, in any court thereof, in one State, may run and be executed in any other State, or in any Territory, but shall be issued from and made returnable to, the court wherein the judgment was obtained." The action, it is true, presents several aspects. It has been instituted by the informer, who is entitled to prosecute it to final judgment, and who, when he has so prosecuted it, has a property in the judgment which cannot be taken from him by any settlement, compromise or pardon on the part of the Government. On the other hand he cannot discontinue the action without notice to the Government and permission of the court. The United States Attorney is by statute required to supervise the procedure in the action, although given no control over it. The judgment is undoubtedly in part for the use of Marcus, but it is just as certainly for the use of the United States. When it is considered that the basic cause of action was in the United States, not in Marcus, the court is led to the conclusion that Section 986, R.S., is applicable and, therefore, the motion of the Lord Electric Company to quash the writs of execution is not sustainable upon the proposition that the writs did not have force beyond the limits of this State. As stated, supra, the Electric Company has attacked the attachment execution writ upon a ground in addition to its territorial claim. It asserts, without contradiction on the part of plaintiff, that the remedy of attachment execution does not exist under the laws of the State of New York in connection with bank deposits, and therefore the Marshal for the Southern District *14 has no power to levy an execution upon such funds. The basis of this claim is found in Title 28, 28 U.S.C.A. § 504, Sec. 788, R.S., as follows: "The marshals and their deputies shall have, in each State, the same powers, in executing the laws of the United States, as the sheriffs and their deputies in such State may have, by law, in executing the laws thereof." The Electric Company has quoted, among other cases, Berkman v. New York Produce Exchange Bank, 101 Misc. 282, 167 N.Y.S. 441. The plaintiff in that action had been fined $10,000 by the District Court of the United States for the Southern District of New York. The marshal for that District attached and seized the plaintiff's balance with the defendant Bank. Thereupon the plaintiff brought suit against the Bank, and the court, quoting several authorities, held that he was entitled to recover, as the judgment debtor's bank account can only be reached after the return of an execution unsatisfied, by an action in equity or by proceedings supplementary to an execution. Counsel for Marcus, in whose behalf, in part, the attachment execution was issued, contends that the matter is controlled by Section 986, R.S., supra, which provides that "all writs of execution upon judgments obtained for the use of the United States, in any court thereof, in one State, may run and be executed in any other State * * * but shall be issued from and made returnable to, the court wherein the judgment was obtained." No question can exist as to the supreme authority of a United States statute which, enacted within constitutional jurisdiction, is directly contrary to a State law. The matter before the court, however, requires interpretation of two Federal statutes. As to the statute which gives to marshals the same functions as the sheriffs of the State, we are of opinion that it has no place in the present inquiry. Sheriffs and marshals serve writs, but they are not expected, or required to pass upon them judicially. In the instant case a writ came from another District and State. By Section 986, R.S., that writ came to the Marshal for service — nothing else. If the writ were in excess of the powers of the court issuing it, that was a matter for the person upon whom it was served or the court, or, as in this case, for the person whose funds were affected. The real inquiry is whether the court has the right to issue a writ which is valid in its own jurisdiction but not in accord with State practice in the venue in which it is to be executed. New York has no statute authorizing attachment execution upon bank deposits. Pennsylvania has such a statute. By Rule 69 of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, it is provided that the procedure on execution and in aid of a judgment shall be in accordance with the practice of the state in which the District Court is held. The propriety of the use of an attachment execution by a Pennsylvania court in aid of its judgment has not been questioned. When that judgment is for the use of the United States, Section 986, R.S., definitely provides that a writ of execution obtained upon it "may run and be executed in any other State * * *." No exception is noted which might cover a different practice in the state where the execution is sought than in the state which issued the writ. This is a Pennsylvania, not a New York, writ. The rule to show cause, issued on November 12, 1941, upon the United States of America on relation of Morris L. Marcus, and Morris L. Marcus in his own behalf, and the United States Marshal for the Western District of Pennsylvania, will be vacated and dismissed; as, also, will be the rule to show cause issued on October 31, 1941, upon said United States of America on the relation of Morris L. Marcus, and Morris L. Marcus in his own behalf and the Marshal for the Southern District of New York. It will be noted that certain clerical errors in connection with the writs were corrected prior to hearing upon the rule.

File No.812-13915 UNITED STATES OF AMERICA BEFORE THE U.S. SECURITIES AND EXCHANGE COMMISSION Amendment No. 2 to the Application for an Order under Section6(c) of the Investment Company Act of 1940 for an exemption from Sections 2(a)(32), 5(a)(1), 22(d) and 22(e) of the 1940 Act and Rule 22c-1 under the 1940 Act, under Sections 6(c) and 17(b) of the 1940 Act for an exemption from Sections 17(a)(1) and 17(a)(2) of the 1940 Act, and under Section12(d)(1)(J) granting an exemption from Sections12(d)(1)(A) and 12(d)(1)(B) of the 1940 Act In the Matter of Forum Investment Advisors, LLC Forum ETF Trust Foreside Fund Services, LLC PLEASE SEND ALL COMMUNICATIONS TO: John Y. Keffer Forum Investment Advisors, LLC Three Canal Plaza, Suite 600 Portland, ME 04101 Stacey E. Hong Forum ETF Trust Three Canal Plaza, Suite 600 Portland, ME 04101 Richard J. Berthy Foreside Fund Services, LLC Three Canal Plaza, Suite 100 Portland, ME 04101 With copies to: Francine J. Rosenberger, Esq. K&L Gates LLP 1treet, NW Washington, DC20006 As filed with the Securities and Exchange Commission on October 29, 2012 TABLE OF CONTENTS Page I. Actively-Managed Exchange Traded Funds 3 A. Applicants and Other Entities 3 1. The Trust 3 2. Investment Advisory Services 3 3. The Distributor 4 B. The Initial Fund and its Investment Objective 4 1. The Initial Fund and its Investment Objective 4 2. All Funds and their Investment Objectives 4 3. Benefits of Funds to Investors 5 4. Benefits of Section12(d) Relief 6 C. Capital Structure and Voting Rights; Book Entry 6 D. Exchange Listing 6 E. Purchases and Redemptions of Shares and Creation Units 7 1. Placement of Orders to Purchase Creation Units 7 a. General 7 b. NSCC Process, DTC Process and Process for the Funds 10 c. Transaction Fees 11 d. Timing and Transmission of Purchase Orders 11 2. Payment for Creation Units 12 a. General 12 b. Global Funds 13 3. Rejection of Creation Unit Purchase Orders 13 4. Redemption 13 5. Pricing of Shares 14 F. Dividends, Distributions and Taxes 15 G. Shareholder Transaction and Operational Fees and Expenses 15 H. Dividend Reinvestment Service 16 I. Availability of Information 16 J. Sales and Marketing Materials; Prospectus Disclosure 17 K. Third Party Broker Dealer Issues 17 II. Funds of Actively-Managed Exchange-Traded Funds 18 A. The Investing Funds 18 B. Proposed Transactions 18 C. Fees and Expenses 18 D. Conditions and Disclosure Relating to Section12(d)(1) Relief 19 III. Request for Exemptive Relief and Legal Analysis 19 A. Sections 2(a)(32) and 5(a)(1) of the 1940 Act 19 B. Section22(d) of the 1940 Act and Rule 22c-1 Under the 1940 Act 20 C. Section22(e) of the 1940 Act 21 D. Exemption from the Provisions of Sections 17(a)(1) and 17(a)(2) 24 E. Section12(d)(1) of the 1940 Act 26 F. Sections 17(a), 17(b) and 6(c) 30 G. Discussion of Precedent 32 IV. Conditions 34 A. Actively-Managed Exchange-Traded Fund Relief 34 B. Section12(d)(1) Relief 35 V. Procedural Matters 38 - i - UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 In the Matter of: Forum Investment Advisors, LLC Forum ETF Trust Foreside Fund Services, LLC File No.812-13915 Amendment No. 2 to the Application for an Order under Section6(c) of the Investment Company Act of 1940 (the “1940 Act”) for an exemption from Sections 2(a)(32), 5(a)(1), 22(d) and 22(e) of the 1940 Act and Rule 22c-1 under the 1940 Act and under Sections 6(c) and 17(b) of the 1940 Act for an exemption from Sections 17(a)(1) and 17(a)(2) of the 1940 Act and under Section12(d)(1)(J) granting an exemption from Sections 12(d)(1)(A) and 12(d)(1)(B) of the 1940 Act SUMMARY OF APPLICATION In this application (“Application”), Forum Investment Advisors, LLC, Forum ETF Trust (the “Trust”) and Foreside Fund Services, LLC (“Foreside” and, together with Forum Investment Advisors, LLC and the Trust, “Applicants”) request an order under Section6(c) of the 1940 Act, for an exemption from Sections 2(a)(32), 5(a)(1), 22(d) and 22(e) of the 1940 Act and Rule 22c-1 under the 1940 Act, under Sections 6(c) and 17(b) of the 1940 Act for an exemption from Sections 17(a)(1) and 17(a)(2) of the 1940 Act, and under Section12(d)(1)(J) of the 1940 Act for an exemption from Sections 12(d)(1)(A) and (B)of the 1940 Act (“Order”). Applicants are seeking an order for an exemption from Sections 2(a)(32), 5(a)(1), 17(a), 22(d) and 22(e) of the 1940 Act and Rule 22c-l under the 1940 Act to permit the Trust to create and operate one actively managed investment series of the Trust (the “Initial Fund”) that will offer exchange-traded shares (“Shares”). As an initial matter, it is important to note that the Commission (defined below) has issued orders on exemptive applications that involve actively managed ETFs seeking relief substantially identical to the relief that Applicants are requesting.1 1See e.g., In the Matter of Federated Investment Management Company et al., Investment Company Act Release Nos. 30123 (June 26, 2012) (order) and 30093 (June 1, 2012) (notice) (“Federated Order ”); In the Matter of RiverPark Advisors, LLC et al., Investment Company Act Release Nos. 29863 (Nov. 17, 2011) (order) and 29840 (Oct. 19, 2011) (notice);In the Matter of Eaton Vance Management et al., Investment Company Act Release Nos. 29620 (March. 30, 2011) (order) and 29591 (March. 1, 2011) (notice) (“Eaton Vance Order”);In the Matter of Pacific Investment Management Company, LLC, et al., Investment Company Act Release Nos. 28949 (Nov. 10, 2009) (order) and 28993 (Oct. 20, 2009) (notice);In the Matter of Grail Advisors, LLC, et al., Investment Company Applicants request that the Order requested herein apply not only to the Initial Fund but also to any future series of the Trust or of other open-end management companies offering exchange traded Shares that may utilize active management investment strategies (collectively, “Future Funds”). Any Future Fund will (a)be advised by Forum Investment Advisors, LLC or an entity controlling, controlled by, or under common control with Forum Investment Advisors, LLC (each such entity and any successor thereto included in the term “ Investment Manager ”), and (b)comply with the terms and conditions of the Application.2 The Initial Fund and Future Funds together are the “Funds”. Each Fund will operate as an exchange-traded fund (“ETF”). Shares of each Fund will be purchased from the Trust only in large aggregations of a specified number of individual Shares referred to as “Creation Units.” Creation Units will be separable upon issue into such individual Shares, which will be listed and traded at negotiated prices on a national securities exchange as defined in Section2(a)(26) of the 1940 Act (“Stock Exchange”). The Shares themselves will not be redeemable to the Trust unless combined into a Creation Unit. Applicants are also requesting that the Order permit certain investment companies registered under the 1940 Act to acquire Shares beyond the limitations in Section12(d)(1)(A) and permit the Funds, and any principal underwriter for the Funds, and any broker or dealer registered under the Securities Exchange Act of 1934, as amended (the “Exchange Act” and such persons registered under the Exchange Act, “Brokers”), to sell Shares beyond the limitations in Section12(d)(1)(B). Applicants request that any exemption under Section12(d)(1)(J) from Sections 12(d)(1)(A) and (B)apply to: (1)any Fund that is currently or subsequently part of the same “group of investment companies” as the Initial Fund within the meaning of Section 12(d)(1)(G)(ii) of the 1940 Act as well as any principal underwriter for the Fund and any Brokers selling Shares of a Fund to an Investing Fund, as defined below; and (2)each management investment company or unit investment trust registered under the 1940 Act that is not part of the same “group of investment companies” as the Funds, and that enters into a FOF Participation Agreement (as defined herein) with a Fund (such management investment companies are referred to herein as “Investing Management Companies,” such unit investment trusts are referred to herein as “Investing Trusts,” and Investing Management Companies and Investing Trusts together are referred to herein as “Investing Funds”). Investing Funds do not include the Funds. This relief would permit the Investing Funds to acquire Shares of the Funds beyond the limitations set forth in Section12(d)(1)(A), and the Funds, their principal underwriters and any Brokers to sell Shares of the Funds to Investing Funds beyond the limitations set forth in Section12(d)(1)(B). Act Release Nos. 28571 (Dec. 23, 2008) (order) and 28604 (Jan. 16, 2009) (notice);In the Matter of PowerShares Actively Managed Exchange-Traded Trust, et al., Investment Company Act Release Nos. 28171 (February 27, 2008)(order) and 28140 (February 1, 2008)(notice); In the Matter of Barclays Global Fund Advisors, et al., Investment Company Act Release Nos. 28173 (February 27, 2008)(order) and 28146 (February 6, 2008)(notice); In the Matter of Wisdom Tree Trust, et al., Investment Company Act Releases Nos. 28174 (February 27, 2008)(order) and 28147 (February 6, 2008)(notice); and In the Matter of Bear Stearns Active ETF Trust, et al., Investment Company Act Release Nos. 28172 (February 27, 2008)(order) and 28143 (February 5, 2008)(notice). 2For the purposes of the requested order, a “successor” is limited to an entity or entities that result from a reorganization into another jurisdiction or a change in the type of business organization. - 2 - The Future Funds might include one or more ETFs that invest in other open-end and/or closed-end investment companies and/or ETFs (“FOF ETF”). For purposes of complying with Section12(d) of the 1940 Act, an FOF ETF will either comply with one of the relevant statutory exemptions, for example, Sections 12(d)(1)(F) or 12(d)(1)(G), alone or in conjunction with Rules 12d1-1, 12d1-2 or 12d1-3. In addition, an FOF ETF may invest in certain other ETFs in different groups of investment companies pursuant to exemptive relief that those ETFs have obtained relief from Section12(d)(1).3 All entities that currently intend to rely on the Order are named as Applicants. Any entity that relies on the order in the future will comply with the terms and conditions of this Application.4An Investing Fund may rely on the Order only to invest in Funds and not in any other registered investment company. In connection with the Section12(d) relief sought, Applicants are further requesting relief under Sections 6(c) and 17(b) from Sections 17(a)(1) and (2)to permit a Fund to sell its Shares to and redeem its Shares from, and engage in any in-kind transactions that may accompany such sales and redemptions with, certain Investing Funds of which the Funds are affiliated persons or affiliated persons of affiliated persons. No form having been specifically prescribed for this Application, the Applicants proceed under Rule 0-2 of the General Rules and Regulations of the Securities and Exchange Commission (the “Commission”). I. Actively Managed Exchange Traded Funds A. Applicants and Other Entities 1.The Trust. The Trust is a statutory trust organized under the laws of the State of Delaware on June 15, 2011, and is registered with the Commission as an open-end management investment company. The Trust is organized as a series investment company.The Trust is overseen by a board of trustees (the “Board”) that will maintain the composition requirements of Section10 of the 1940 Act.5 Each Fund will adopt fundamental policies consistent with the 1940 Act and be classified as “diversified” or “non-diversified” under the 1940 Act. Each Fund intends to maintain the required level of diversification, and otherwise conduct its operations, so as to meet the regulated investment company (“RIC”) diversification requirements of the Internal Revenue Code of 1986, as amended (the “Code”). 2. Investment Advisory Services . Forum Investment Advisors, LLC (referred to herein as the Investment Manager) will be an investment adviser to the Initial Fund and each of the other Funds . Forum Investment Advisors, LLC is a Delaware limited liability company, with its principal office in Portland, Maine. Forum Investment Advisors, LLC is or will be registered as an “investment adviser” under Section203 of the Investment Advisers Act of 1940 (the “Advisers Act”), and subject to the oversight and authority of the Board, will develop the 3In no case, however, will a Future Fund that is an FOF ETF rely on the exemption from Section 12(d)(1) being requested in this Application. 4Each Fund will comply with the disclosure requirements adopted by the Commission in Investment Company Act Release No. 28584 (Jan. 13, 2009). 5The term “Board” includes any board of directors or trustees of a Future Fund, if different. - 3 - overall investment program for each Fund which includes working with the Investment Advisors (as defined below) to define principal investment strategies (although the Investment Advisors, and not the Investment Manager, will have responsibility for investment decisions with respect to assets of each Fund).The Trust may retain one or more investment advisers or investment sub-advisers (“Investment Advisors”) with respect to the Funds to manage specific strategies suited to the Investment Advisors’ expertise, including having multiple Investment Advisors managing portions of a single Fund. Each Investment Advisor will be registered under the Advisers Act. The Investment Manager will be responsible for overseeing and reporting to the Board on the performance of each Investment Advisor; making recommendations to the Board concerning the hiring, retention and dismissal of each Investment Advisor; and assisting the Board in gathering and evaluating data relating to the operations of each Fund and of the Trust. Either the Investment Manager or a non-advisory affiliate of the Investment Manager will arrange and oversee the provision of necessary services for each Fund (including custodial, transfer agency and administration services) and furnish office facilities, equipment, services and executive and administrative personnel necessary for managing the investment program of the Fund. 3.The Distributor. A registered broker-dealer under the Exchange Act (“Distributor”), which may be an affiliate of the Investment Manager or any Investment Advisor, will be selected and approved by the Board to act as the distributor and principal underwriter of the Funds. The Distributor will distribute Shares on an agency basis. (See Section I.D. below for additional discussion of the Distributor’s role and duties.)The Distributor will comply with the terms and conditions of this Application. Foreside will serve as the initial Distributor of Shares, and Applicants request that the Order requested herein apply to any future Distributor of Shares. Foreside is not affiliated with Forum Investment Advisors, LLC. No Distributor, Investment Manager, Investment Advisor, Trust, or Fund is, or will be, affiliated with any Stock Exchange. B. The Initial Fund and its Investment Objective 1.The Initial Fund and its Investment Objective. The Initial Fund is expected to be called the Merk Hard Currency ETF.The investment objective of the Initial Fund will be to seek to profit from a rise in hard currencies relative to the U.S. dollar. Under normal market conditions, the Initial Fund will seek to achieve its investment objective by investing at least 80% of the value of its net assets (plus borrowings for investment purposes) in “hard currency” denominated investments and gold.The Initial Fund will normally invest in a basket of hard currency denominated investments composed of high quality, short-term debt instruments and in gold. 2.All Funds and their Investment Objectives. In addition to the instruments described above, each Fund reserves the right to invest in other instruments, all in accordance with its investment objective and the requirements of the 1940 Act and rules thereunder. Each Fund will consist of a portfolio of securities (including fixed income securities and/or equity securities) and/or currencies traded in the U.S. and/or non-U.S. markets (“Portfolio Instruments”). To the extent consistent with other investment limitations, the Funds may invest all of their assets in mortgage- or asset-backed securities, including “to-be-announced - 4 - transactions” or “TBA Transactions”,6 and may engage in forward commitment transactions.7 Funds may also invest in Depositary Receipts. Depositary Receipts are typically issued by a financial institution (a “depositary”) and evidence ownership in a security or pool of securities that have been deposited with the depositary.8 A Fund will not invest in any Depositary Receipts that the Investment Advisor deems to be illiquid or for which pricing information is not readily available. Neither the Initial Fund nor any Future Fund relying on the Order requested by this Application will invest in options contracts, futures contracts or swap agreements. In addition, to the extent required by then-current Commission positions regarding open-end companies, and as necessary for the arbitrage process, each Fund’s Portfolio Instruments will be liquid.Each Fund’s investment objective is not considered to be fundamental and can be changed without a vote of its shareholders. 3.Benefits of Funds to Investors. Applicants expect that there will be several categories of market participants who are likely to be interested in purchasing Creation Units. One is the arbitrageur, who stands ready to take advantage of any slight premium or discount in the market price of Shares on the Stock Exchange versus the cost of depositing a Creation Deposit and creating a Creation Unit to be broken down into individual Shares. As described below, Applicants believe that arbitrageurs will purchase or redeem Creation Units in pursuit of arbitrage profit, and in so doing will enhance the liquidity of the secondary market. Applicants expect that arbitrage opportunities created by the ability to continually purchase or redeem Creation Units at their net asset value per individual Share (“NAV”) should ensure that the Shares will not trade at a material discount or premium in relation to their NAV. Applicants also expect that the Stock Exchange specialists (the “Specialists”) or market makers (“Market Makers”), acting in their unique role to provide a fair and orderly secondary market for Shares, also may purchase Creation Units for use in their own market making activities. Applicants expect that secondary market purchasers of Shares will include both institutional and retail investors. As in the case of other active ETFs, the Shares of each Fund can be bought or sold like stocks any time throughout each trading day at market prices that are normally close to NAV; may be relatively tax-efficient investment vehicles to the extent that certain Funds can minimize capital gains by eliminating from the portfolio low cost basis securities through the in-kind redemption process; publish the composition of their portfolios 6A TBA Transaction is a method of trading mortgage-backed securities. In a TBA Transaction, the buyer and seller agree upon general trade parameters such as agency, settlement date, par amount and price. The actual pools delivered generally are determined two days prior to the settlement date. 7In a forward commitment transaction, the buyer/seller enters into a contract to purchase/sell, for example, specific securities for a fixed price at a future date beyond normal settlement time. 8Depositary Receipts include American Depositary Receipts (“ADRs”) and Global Depositary Receipts (“GDRs”). With respect to ADRs, the depositary is typically a U.S. financial institution and the underlying securities are issued by a foreign issuer. The ADR is registered under the Securities Act of 1933 (“Securities Act”), on Form F-6. ADR trades occur either on a Stock Exchange or off-exchange. The Financial Industry Regulatory Authority (“FINRA”) Rule 6620 requires all off-exchange transactions in ADRs to be reported within 90 seconds and ADR trade reports to be disseminated on a real-time basis. With respect to GDRs, the depositary may be foreign or a U.S., entity, and the underlying securities may have a foreign or a U.S. issuer. All GDRs are sponsored and trade on a foreign exchange. No affiliated persons of Applicants will serve as the depositary bank for any Depositary Receipts held by a Fund. - 5 - every day, giving them largely transparent investment portfolios; and immediately reinvest interest received on Portfolio Instruments. 4.Benefits of Section12(d) Relief. If Section12(d)(1) relief is granted, the Funds will offer the Investing Funds the benefits noted above. For example, the Initial Fund will offer a simple and efficient way to profit from a rise in hard currencies relative to the U.S. dollar. C. Capital Structure and Voting Rights; Book Entry Shareholders of a Fund will have one vote per Share with respect to matters regarding the Trust or the respective Fund for which a shareholder vote is required consistent with the requirements of the 1940 Act, the rules promulgated thereunder and state laws applicable to Delaware statutory trusts. Shares will be registered in book-entry form only and the Funds will not issue Share certificates. The Depository Trust Company, a limited purpose trust company organized under the laws of the State of New York (“DTC”), or its nominee, will be the record or registered owner of all outstanding Shares. Beneficial ownership of Shares will be shown on the records of DTC or DTC participants (“DTC Participants”). Shareholders will exercise their rights in such securities indirectly through the DTC and DTC Participants. The references herein to owners or holders of such Shares shall reflect the rights of persons holding an interest in such securities as they may indirectly exercise such rights through the DTC and DTC Participants, except as otherwise specified. No shareholder shall have the right to receive a certificate representing Shares. Delivery of all notices, statements, shareholder reports and other communications will be at the Funds’ expense through the customary practices and facilities of the DTC and DTC Participants. D. Exchange Listing Shares will be listed on the Stock Exchange and traded in the secondary market in the same manner as other equity securities and ETFs. Except as permitted by the relief requested from Section17(a), no promoter, principal underwriter (e.g., Distributor) or affiliated person of the Fund or any affiliated person of such person will be an Authorized Participant, as defined below, or make a market in Shares.9 None of the Investment Manager, any Investment Advisor, the Distributor or any affiliated person of the Investment Manager, any Investment Advisor,the Fund’s promoter or principal underwriter will maintain a secondary market in Shares. It is expected that the Stock Exchange will select, designate or appoint one or more Specialists or Market Makers for the Shares.10 As long as the Funds operate in reliance on the requested order, the Shares will be listed on the Stock Exchange. 9The identified parties may, of course, act in these capacities if permitted to do so by a Commission rule or exemptive order, or by a no-action letter issued by the Commission staff. 10Unlike on other Stock Exchanges where a Specialist may oversee trading in shares, on NASDAQ numerous Market Makers buy and sell Shares for their own accounts on a regular basis. Accordingly, if Shares are listed on NASDAQ, no Specialist will be contractually obligated to make a market in Shares. Rather, under NASDAQ’s listing requirements, two or more Market Makers will be registered in Shares and required to make a continuous, - 6 - E. Purchases and Redemptions of Shares and Creation Units The Trust will offer, issue and sell Shares of each Fund to investors only in Creation Units through the Distributor on a continuous basis at the NAV next determined after an order in proper form is received. The NAV of each Fund is expected to be determined as of 4:00 p.m., Eastern Time, on each “Business Day”, which is defined to include any day that the Trust is open for business as required by Section22(e) of the 1940 Act. The Trust will sell and redeem Creation Units of each Fund only on a Business Day. Applicants anticipate that a Creation Unit will consist of at least 50,000 Shares and the price of a Fund Share will range from $20 to $200, in which case the price of one Creation Unit will be at least $1,000,000. The price of Shares trading on the Stock Exchange will based on a current bid-offer market. No secondary sales will be made to Brokers at a concession by the Distributor or by a Fund. Purchases and sales of Shares on the Stock Exchange, which will not involve a Fund, will be subject to customary brokerage commissions and charges. 1.Placement of Orders to Purchase Creation Units a. General The Initial Fund and certain Future Funds will generally be purchased entirely for cash (“All-Cash Payments”), and will be redeemed in Creation Units and generally on an in-kind basis .While the Initial Fund will generally be purchased under the All-Cash Payments protocol, in order for the Trust to preserve maximum efficiency and flexibility, the Trust reserves the right to accept and deliver Creation Units of the Initial Fund and any Future Funds generally by means of an in-kind deposit of specified instruments. Accordingly, except where the purchase or redemption will be All-Cash Payments or include cash under limited circumstances specified below, purchasers will be required to purchase Creation Units by making an in-kind deposit of specified instruments (“Deposit Instruments”), and shareholders redeeming their Shares will receive an in-kind transfer of specified instruments (“Redemption Instruments”).11 On any given Business Day, the names and quantities of the instruments that constitute the Deposit Instruments and the names and quantities of the instruments that constitute the Redemption Instruments will be identical, and these instruments may be referred to, in the case of either a purchase or a redemption, as the “Creation Basket.”In addition, the Creation Basket will correspond pro rata to the positions in the Fund’s portfolio (including cash positions),12 except: two-sided market or face regulatory sanctions. Applicants do not believe that any characteristics of a NASDAQ listing would cause Shares to operate or trade differently than if they were listed on another Stock Exchange. 11The Funds must comply with the federal securities laws in accepting Deposit Instruments and satisfying redemptions with Redemption Instruments, including that the Deposit Instruments and Redemption Instruments are sold in transactions that would be exempt from registration under the Securities Act.In accepting Deposit Instruments and satisfying redemptions with Redemption Instruments that are restricted securities eligible for resale pursuant to rule 144A under the Securities Act, the Funds will comply with the conditions of Rule 144A. 12The portfolio used for this purpose will be the same portfolio used to calculate the Fund’s NAV for that Business Day. - 7 - (a) in the case of bonds, for minor differences when it is impossible to break up bonds beyond certain minimum sizes needed for transfer and settlement; (b) for minor differences when rounding is necessary to eliminate fractional shares or lots that are not tradeable round lots;13 or (c) TBA Transactions, Short Positions and other positions that cannot be transferred in kind14 will be excluded from the Creation Basket.15 If there is a difference between the net asset value attributable to a Creation Unit and the aggregate market value of the Creation Basket exchanged for the Creation Unit, the party conveying instruments with the lower value will also pay to the other an amount in cash equal to that difference (the “Cash Amount”).A difference may occur where the market value of the Creation Basket changes relative to the net asset value of the Fund for the reasons identified in clauses (a) through (c) above. Purchases and redemptions of Creation Units may be made in whole or in part on a cash basis, rather than in kind, solely under the following circumstances: (a) to the extent there is a Cash Amount, as described above; (b) if, on a given Business Day, the Fund announces before the open of trading that all purchases, all redemptions or all purchases and redemptions on that day will be made entirely in cash; (c) if, upon receiving a purchase or redemption order from an Authorized Participant, the Fund determines to require the purchase or redemption, as applicable, to be made entirely in cash;16 (d) if, on a given Business Day, the Fund requires all Authorized Participants purchasing or redeeming Shares on that day to deposit or receive (as applicable) cash in lieu of some 13A tradeable round lot for a security will be the standard unit of trading in that particular type of security in its primary market. 14This includes instruments that can be transferred in kind only with the consent of the original counterparty to the extent the Fund does not intend to seek such consents. 15Because these instruments will be excluded from the Creation Basket, their value will be reflected in the determination of the Cash Amount (defined below). 16In determining whether a particular Fund will sell or redeem Creation Units entirely on a cash or in-kind basis (whether for a given day or a given order), the key consideration will be the benefit that would accrue to the Fund and its investors.For instance, in bond transactions, the Investment Advisor may be able to obtain better execution than Share purchasers because of the Investment Advisor’s size, experience and potentially stronger relationships in the fixed income markets.Purchases of Creation Units either on an all cash basis or in-kind are expected to be neutral to the Funds from a tax perspective.In contrast, cash redemptions typically require selling portfolio holdings, which may result in adverse tax consequences for the remaining Fund shareholders that would not occur with an in-kind redemption.As a result, tax considerations may warrant in-kind redemptions. - 8 - or all of the Deposit Instruments or Redemption Instruments, respectively, solely because: (i)such instruments are not eligible for transfer through either the NSCC Process or DTC Process; or (ii)in the case of Funds holding non-U.S. investments(“Global Funds”), such instruments are not eligible for trading due to local trading restrictions, local restrictions on securities transfers or other similar circumstances; or (e) if the Fund permits an Authorized Participant to deposit or receive (as applicable) cash in lieu of some or all of the Deposit Instruments or Redemption Instruments, respectively, solely because: (i)such instruments are, in the case of the purchase of a Creation Unit, not available in sufficient quantity; (ii)such instruments are not eligible for trading by an Authorized Participant or the investor on whose behalf the Authorized Participant is acting; or (iii)a holder of Shares of a Global Fund would be subject to unfavorable income tax treatment if the holder receives redemption proceeds in kind.17 Each Business Day, before the open of trading on the Listing Exchange, the Fund will cause to be published through the NSCC the names and quantities of the instruments comprising the Creation Basket, as well as the estimated Cash Amount (if any), for that day.The published Creation Basket will apply until a new Creation Basket is announced on the following Business Day, and there will be no intra-day changes to the Creation Basket except to correct errors in the published Creation Basket.18 All orders to purchase Creation Units must be placed with the Distributor by or through an “Authorized Participant,” which is either: (1)a “participating party,” i.e., a Broker or other participant, in the Continuous Net Settlement (“CNS”) System of the National Securities Clearing Corporation (“NSCC”), a clearing agency registered with the Commission and affiliated with DTC, or (2)a DTC Participant, which in any case has executed a participant agreement with the Distributor with respect to the creation and redemption of Creation Units (“Participant Agreement”). An investor does not have to be an Authorized Participant, but 17A “custom order” is any purchase or redemption of Shares made in whole or in part on a cash basis in reliance on clause (e)(i) or (e)(ii). 18Pursuant to Rule 206(4)-7 under the Advisers Act, the Investment Manager and any Investment Advisor or any other investment adviser to a Fund have or, prior to acting as investment adviser to a Fund, will have adopted written policies and procedures designed to prevent violations of the Advisers Act and the rules thereunder.The Investment Manager and any Investment Advisor or any other investment adviser to a Fund have also adopted or will adopt policies and procedures as required under Section 204A of the Advisers Act, that, taking into account the nature of their business, are reasonably designed to prevent and detect the misuse of material nonpublic information in violation of the Advisers Act, Exchange Act and the rules thereunder by such investment adviser or any person associated with such investment adviser (its “Inside Information Policy”).In addition, like the Investment Manager, Investment Advisors, and any other investment advisers, any Distributor has adopted or will adopt a Code of Ethics as required by Rule 17j-1 under the 1940 Act that contains provisions reasonably necessary to prevent Access Persons (as defined in Rule 17j-1) from engaging in any conduct prohibited by the Rule.In accordance with the Code of Ethics and Inside Information Policy of the Investment Manager, Investment Advisors, or any other investment adviser to a Fund, personnel of those entities with knowledge about the composition of a Creation Basket will be prohibited from disclosing such information to any other person, except as authorized in the course of their employment, until such information is made public. - 9 - must place an order through, and make appropriate arrangements with, an Authorized Participant. b. NSCC Process, DTC Process and Process for the Funds Purchase orders for creations and redemptions of each Fund’s Creation Units will be processed either through an enhanced clearing process or through a non-automated clearing process as described immediately below. Settlement and clearing of foreign securities presently cannot be made using either the NSCC or DTC clearing processes (the “NSCC Process” and “DTC Process”, respectively). This is true for current ETFs which hold foreign securities (see international iShares and the international Vanguard ETFs, for example). For Global Funds, once a purchase order has been placed with the Distributor, the Distributor will inform the Investment Advisor and the Fund’s custodian (the “Custodian”). The Custodian will then inform the appropriate subcustodians. In connection with a creation, the Authorized Participant will deliver to the appropriate sub-custodians, on behalf of itself or the beneficial owner, the relevant All-Cash Payment or , together, the relevant Deposit Instruments and cash, as determined according to the procedures described in Section I.E.1.a of the Application (collectively, the “Creation Deposit”). Creation Deposits must be delivered to the accounts maintained at the Custodian or applicable subcustodians. If applicable, the subcustodians will confirm to the Custodian that the required cash or instruments have been delivered, and the Custodian will notify the Investment Advisor and Distributor that the required cash or instruments have been delivered. The Distributor will then furnish the purchaser with a confirmation and the Fund’s prospectus (“Prospectus”). The Shares will clear and settle in the same manner as the shares of other ETFs and Deposit Instruments will settle in the same manner as other relevant instruments. Deposit Instruments that are U.S. government or U.S. agency securities and any cash will settle via free delivery through the Federal Reserve System. Non-U.S. fixed income instruments will settle in accordance with the normal rules for settlement of such instruments in the applicable non-U.S. market. Equity securities will be processed either through an enhanced clearing process or through a non-automated clearing process. The enhanced clearing process is available only to those DTC Participants that also are participants in the CNS System of the NSCC. The NSCC/CNS system has been enhanced specifically to effect purchases and redemptions of domestic ETF securities. This enhanced clearing process simplifies the process of transferring a basket of securities between two parties by treating all of the securities that comprise the basket as a single unit. By contrast, the non-automated clearing process (i.e., the DTC Process), which is available to all DTC participants, involves an individual line-by-line movement of each securities position. Because the DTC Process involves the simultaneous movement of hundreds of securities individually, while the NSCC Process can act on instructions regarding the movement of one unitary basket which automatically processes the movement of hundreds of securities, DTC typically will charge a Fund more than NSCC to settle a purchase or redemption of Creation Units. - 10 - The Shares will typically settle through the DTC. The Custodian will monitor the movement of the underlying Deposit Instruments or cash and will instruct the movement of Shares only upon validation that such instruments have settled correctly. The settlement of Shares will be aligned with the settlement of the underlying Deposit Instruments or cash and will generally occur on a settlement cycle of T+3 Business Days or shorter.19 Applicants do not believe the issuance and settlement of Creation Units in the manner described above will have any material impact on the arbitrage efficiency or the secondary market trading of Shares. Each Fund may recoup the settlement costs charged by NSCC and DTC by imposing a transaction fee on investors purchasing or redeeming Creation Units (“Transaction Fee”). For this reason, investors purchasing or redeeming through the DTC process may pay a higher Transaction Fee than will investors doing so through the NSCC Process. c. Transaction Fees The Transaction Fee will be borne only by purchasers and redeemers of Creation Units and will be limited to amounts that have been determined appropriate by the Investment Advisor to defray the transaction expenses that will be incurred by a Fund when an investor purchases or redeems Creation Units.20 The purpose of the Transaction Fee is to protect the existing shareholders of the Funds from the dilutive costs associated with the purchase and redemption of Creation Units.21 Transaction Fees will differ for each Fund, depending on the transaction expenses related to each Fund’s Portfolio Instruments. Variations in the Transaction Fee may be made from time to time. d. Timing and Transmission of Purchase Orders All orders to purchase Creation Units, whether using the NSCC Process or the DTC Process, must be received by the Distributor no later than the NAV calculation time (“NAV 19Applicants note that Shares of the Funds typically will trade and settle on a trade date plus three business days (“T+3”) basis.Where this occurs, Applicants believe that Shares of each fixed income fund will trade in the secondary market at prices that reflect interest and coupon payments on Portfolio Instruments through the Shares’ T+3 settlement date.As with other investment companies, the 1940 Act requires the Funds to calculate NAV based on the current market value of Portfolio Instruments, and does not permit the Funds to reflect in NAV interest and coupon payments not due and payable.Therefore, to the extent that Shares of the fixed income funds may trade in the secondary market at a price that reflects interest and coupon payments due on a T+3 settlement date, Applicants anticipate that such Shares may trade in the secondary market at a slight premium to NAV that reflects these interest and coupon payments.Applicants do not believe that this apparent premium will have any impact on arbitrage activity or the operations of the Funds.The Specialists, Market Makers and other institutional investors who would take advantage of arbitrage activity have full access to this information and regularly consider such information when buying an individual bond or baskets of fixed income securities. 20In all cases, the Transaction Fee will be limited in accordance with the requirements of the Commission applicable to open-end management investment companies offering redeemable securities. 21Where a Fund permits an in-kind purchaser to deposit cash in lieu of depositing one or more Deposit Instruments, the purchaser may be assessed a higher Transaction Fee to offset the transaction cost to the Fund of buying those particular Deposit Instruments. - 11 - Calculation Time”), generally 4:00 p.m., Eastern Time, on the date the order is placed (the “Transmittal Date”) in order for the purchaser to receive the NAV determined on the Transmittal Date. The Distributor will transmit all purchase orders to the relevant Fund. The Fund and/or the Distributor may reject any order that is not in proper form. After a Fund has accepted a purchase order and received delivery of the All-Cash Payment or Deposit Instruments and any accompanying Cash Amount, NSCC or DTC, as the case may be, will instruct the Fund to initiate “delivery” of the appropriate number of Shares to the book-entry account specified by the purchaser. The Distributor will furnish a Prospectus and a confirmation to those placing purchase orders. A Creation Unit of a Fund will not be issued until the transfer of the All-Cash Payment or the transfer of good title to the Trust of the Deposit Instruments and the payment of any Cash Amount have been completed. Notwithstanding the foregoing, to the extent contemplated by a Participant Agreement, Creation Units will be issued to an Authorized Participant notwithstanding the fact that the corresponding Deposit Instruments and Cash Amount have not been received in part or in whole, in reliance on the undertaking of such Authorized Participant to deliver the missing Deposit Instruments or Cash Amount as soon as possible, which undertaking shall be secured by such Authorized Participant’s delivery and maintenance of collateral. The Participant Agreement will permit the Fund to buy the missing Deposit Instruments at any time and will subject the Authorized Participant to liability for any shortfall between the cost to the Fund of purchasing such securities and the value of the collateral. The Participant Agreement may contain further detail relating to such collateral procedures. 2.Payment for Creation Units a. General Persons purchasing Creation Units from the Funds must make an All-Cash Payment or an in-kind deposit of Deposit Instruments together with a Cash Amount, plus the applicable Transaction Fee. With respect to All-Cash Payments, and the Cash Amount for an in-kind transaction, the purchaser will make a cash payment by 12:00 p.m. ET on the Business Day following the date on which the request was accepted by the Distributor (T+1). In-kind deposits must be received by 12:00 p.m., Eastern Time, on the third Business Day following the date on which the request was accepted by the Distributor (T+3). Applicants do not believe that All-Cash Payments will materially affect arbitrage efficiency. This is because Applicants believe it makes little difference to an arbitrageur whether Creation Units are purchased in exchange for a basket of securities and/or other instruments or cash. The important function of the arbitrageur is to bid the share price of any Fund up or down until it converges with the NAV. Applicants note that this can occur regardless of whether the arbitrageur is allowed to create in cash or with a Creation Basket . In either case, the arbitrageur can effectively hedge a position in a Fund in a variety of ways, including the use of market-on-close contracts to buy or sell the underlying Portfolio Instruments and/or financial instruments. - 12 - b. Global Funds An in-kind purchase of a Creation Unit of a Global Fund will operate as follows. Once a purchase order has been placed with the Distributor, the Distributor will inform the Investment Advisor and the Custodian. The Custodian will then inform the appropriate sub-custodians. The Authorized Participant will deliver to the appropriate sub-custodians, on behalf of itself or the beneficial owner on whose behalf it is acting, the relevant Deposit Instruments and Cash Amount or All-Cash Payment . Deposit Instruments must be delivered to the accounts maintained at the applicable sub-custodians. All sub-custodians will comply with Rule 17f-5 under the 1940 Act. 3.Rejection of Creation Unit Purchase Orders As noted above, the Fund and/or Distributor may reject any order to purchase Creation Units that is not submitted in proper form. A Fund may reject a purchase order transmitted to it by the Distributor, for example, if: (1) the purchaser or group of related purchasers, upon obtaining the Creation Units, would own eighty percent (80%)or more of the outstanding Shares of such Fund; (2) the acceptance of the Creation Deposit would have certain adverse tax consequences, such as causing the Fund to no longer meet the requirements of a RIC under the Code; (3) the acceptance of the Creation Deposit would, in the opinion of the Trust, be unlawful, as in the case of a purchaser who is banned from trading in securities; (4) the acceptance of the Creation Deposit would otherwise, in the discretion of the Trust , the Investment Manager, or an Investment Advisor have an adverse effect on the Trust or on the rights of beneficial owners; or (5) there exist circumstances outside the control of the Fund that make it impossible to process purchases of Creation Units for all practical purposes. Examples of such circumstances include: acts of God or public service or utility problems such as fires, floods, extreme weather conditions and power outages resulting in telephone, facsimile and computer failures; market conditions or activities causing trading halts; systems failures involving computer or other information systems affecting the Funds, the Investment Manager, Investment Advisor, the transfer agent, the Custodian, the Distributor, DTC, NSCC or any other participant in the purchase process; and similar extraordinary events. The Distributor will issue or cause the issuance of confirmations of acceptance, and will be responsible for delivering a Prospectus to those persons purchasing Creation Units and for maintaining records of both the orders placed with it and the confirmations of acceptance furnished by it. 4.Redemption Just as Shares can be purchased from a Fund only in Creation Units, such Shares similarly may be redeemed only if tendered in Creation Units (except in the event the Fund is liquidated). To redeem, an investor must accumulate enough Shares to constitute a Creation Unit, - 13 - have legal ownership, and deliver the Shares to the Trust’s custodian on settlement date. Redemption requests must be placed by or through an Authorized Participant. As required by law, redemption requests in good order will receive the NAV next determined after the request is received. Investors purchasing or redeeming Creation Units in All-Cash Payments will be required to use the DTC Process rather than the NSCC Process. Redemptions of Creation Units redeemed for an All-Cash Payment will occur through procedures that are analogous (in reverse) to those for purchases. All requests for redemption are subject to acceptance by the Trust and must be preceded or accompanied by an irrevocable commitment to deliver the requisite number of Shares of the relevant Fund, which delivery must be made to the Trust through, or outside, the NSCC Process, according to the procedures set forth in the Participant Agreement. If a request for redemption is rejected by the Trust, which rejection would occur if the request does not comply with the procedures set forth in the Participant Agreement, the Trust will so notify the redeemer, which would have to re-submit the request in good order. Transmission of Cash Amounts and the Transaction Fee, must be accomplished in a manner acceptable to the Trust and as specified in the Participant Agreement. An entity redeeming Shares in Creation Units outside the NSCC Process or through an All-Cash Payment may be required to pay a higher Transaction Fee than would have been charged had the redemption been effected through the NSCC Process. When using the DTC Process, an in-kind redemption involves delivery of Shares in Creation Units from the entity placing the request to the Fund corresponding with a delivery of the requisite amounts of each of the Redemption Instruments, as determined according to the procedures described in Section I.E.1.a above, from the Fund to the entity placing the redemption request. Because the DTC Process involves a non-automatic line-by-line position movement of the Redemption Instruments and Shares, both the Fund and the entity placing the request will be required to reconcile delivery and receipt of the correct share amounts for the transfer of Shares and the corresponding transfer of each Redemption Instrument. Transmission of the Cash Amount and the Transaction Fee (which includes the processing, settlement and clearing costs associated with securities transfers) must be accomplished in a manner acceptable to the Fund, normally through a DTC cash transfer system. An entity redeeming Shares in Creation Units using the DTC Process may be required to pay a higher Transaction Fee than would have been charged had the redemption been effected through the NSCC Process. For Global Funds, a redemption request will not be made through DTC.Rather, for Global Funds, a redemption request will be processed through the subcustodian network described in Section I.E.2.b above. The right to redeem Shares will not be suspended nor payment upon redemption delayed, consistent with Section22(e) of the 1940 Act and Rule 22e-2 under the 1940 Act, except as subsequently provided in the request for relief from Section22(e) with respect to certain Global Funds. 5.Pricing of Shares The price of Shares will be based on a current bid/offer in the secondary market. The price of Shares of any Fund, like the price of all traded securities, is subject to factors such as - 14 - supply and demand, as well as the current value of the Portfolio Instruments held by the Fund. Shares, available for purchase or sale on an intraday basis, do not have a fixed relationship to the previous day’s NAV or the current day’s NAV. Therefore, prices on the Stock Exchange may be below, at or above the most recently calculated NAV of such Shares. No secondary sales will be made to Brokers at a concession by the Distributor or by a Fund. Transactions involving the purchases or sales of Shares on the Stock Exchange will be subject to customary brokerage fees and charges. Applicants believe that the existence of a continuous market for Shares, together with the publication by the Stock Exchange of the current market value of the sum of the Portfolio Instruments that were publicly disclosed prior to the commencement of trading in Shares on the Stock Exchange, will be key features of the Trust particularly attractive to certain types of investors. F. Dividends, Distributions and Taxes Dividends from net investment income will be declared and paid at least annually by each Fund in the same manner as by other open-end investment companies. Certain of the Funds may pay dividends, if any, on a quarterly or more frequent basis. Dividends will be paid to beneficial owners of record in the manner described below. Distributions of realized capital gains, if any, generally will be declared and paid once a year but each Fund may make distributions on a more frequent basis to comply with the distribution requirements of the Code, in all events in a manner consistent with the provisions of the 1940 Act. Dividends and other distributions on Shares of each Fund will be distributed on a pro rata basis to beneficial owners of Shares. Dividend payments will be made through DTC and the DTC Participants to beneficial owners of record with amounts received from each Fund. Each Fund will make additional distributions to the extent necessary (i)to distribute the annual investment company taxable income of the Fund, plus any net capital gains, and (ii)to avoid imposition of the excise tax imposed by Section4982 of the Code. The Board will reserve the right to declare special dividends if, in its reasonable discretion, such action is necessary or advisable to preserve the status of each Fund as a RIC or to avoid imposition of income or excise taxes on undistributed income. G. Shareholder Transaction and Operational Fees and Expenses No sales charges for purchases of Shares of any Fund will be imposed by any Fund, the Investment Manager or any Investment Advisor. Each Fund will charge a Transaction Fee, calculated and imposed as described above, in connection with purchase and redemption of Creation Units of its Shares. From time to time and for such periods as the Investment Advisor in its sole discretion may determine, the Transaction Fee for the purchase or redemption of Shares of any Fund may be increased, decreased or otherwise modified, not to exceed amounts approved by the Board. All expenses incurred in the operation of the Funds will be borne by the Trust and allocated among the Initial Fund and any Future Funds, except to the extent specifically assumed by the Investment Manager, an Investment Advisor or some other party. - 15 - Each Fund’s investment management contract with the Investment Manager and any Investment Advisor and the fees payable thereunder will be approved pursuant to Section 15(a) and Section15(c) of the 1940 Act and will comply with the provisions of the Advisers Act. For its services, the Investment Manager and each Investment Advisor will receive a management fee from the relevant Fund, accrued daily and paid monthly, on an annualized basis of a specified percentage of the average daily net assets of each Fund. The management fees paid by the various Funds may differ. The Investment Manager, any Investment Advisor or any other service provider for the Funds may agree to cap expenses or to make full or partial fee waivers for a specified or indefinite period of time with respect to one or more of the Funds. H. Dividend Reinvestment Service The Funds will not make the DTC book entry Dividend Reinvestment Service available for use by beneficial owners for reinvestment of their cash proceeds. Brokers may, however, offer a dividend reinvestment service which uses dividends to purchase Shares on the secondary market at market value in which case brokerage commissions, if any, incurred in purchasing such Shares will be an expense borne by the individual beneficial owners participating in such a service. I. Availability of Information Applicants believe that a great deal of information will be available to prospective investors about the Funds. The Funds’ website, which will be publicly available prior to the public offering of Shares, will include a form of the Prospectus for each Fund that may be downloaded. The website will include additional quantitative information updated on a daily basis, including, on a per Share basis for each Fund, the prior Business Day’s NAV and the market closing price or mid-point of the bid/ask spread at the time of calculation of such NAV (the “Bid/Ask Price”),22 and a calculation of the premium or discount of the market closing price or Bid/Ask Price against such NAV. On each Business Day, before commencement of trading in Shares on the Stock Exchange, the Fund will disclose on its website the identities and quantities of the Portfolio Instruments and other assets held by the Fund that will form the basis for the Fund’s calculation of NAV at the end of the Business Day. The website and information will be publicly available at no charge.23 Investors interested in a particular Fund can also obtain its Prospectus, statement of additional information (“SAI”), Shareholder Reports, Form N-CSR and Form N-SAR, filed twice a year. The Prospectus, SAI and Shareholder Reports are available free upon request from 22The Bid/Ask Price of the Fund is determined using the highest bid and the lowest offer on the Stock Exchange as of the time of calculation of such Fund’s NAV. The records relating to Bid/Ask Prices will be retained by the Fund or its service providers. 23Under accounting procedures followed by the Fund, trades made on the prior Business Day (“T”) will be booked and reflected in NAV on the current Business Day (“T+1”). Accordingly, the Fund will be able to disclose at the beginning of the Business Day the portfolio that will form the basis for the NAV calculation at the end of the Business Day. - 16 - the Trust, and those documents and the Form N-CSR and Form N-SAR may be viewed on-screen or downloaded from the Commission’s website at http://www.sec.gov. In addition, because the Shares will be listed on a Stock Exchange, prospective investors will have access to information about the product over and above what is normally available about a security of an open-end investment company. Information regarding market price and volume is and will be continually available on a real-time basis throughout the day on Brokers’ computer screens and other electronic services. The previous day’s closing price and trading volume information will be published daily in the financial sectionof newspapers. The Stock Exchange will disseminate every 15 seconds throughout the trading day through the facilities of the Consolidated Tape Association an amount representing, on a per Share basis, the sum of the current value of the Portfolio Instruments that were publicly disclosed prior to the commencement of trading in Shares on the Stock Exchange. The Funds are not involved in, or responsible for, the calculation or dissemination of any such amount and make no warranty as to its accuracy. J. Sales and Marketing Materials; Prospectus Disclosure Applicants will take appropriate steps as may be necessary to avoid confusion in the public’s mind between a Fund and a conventional “open-end investment company” or “mutual fund.” Although the Trust will be classified and registered under the 1940 Act as an open-end management investment company, neither the Trust nor any Fund will be marketed or otherwise held out as a “mutual fund,” in light of the features, described in this Application, that make each Fund significantly different from what the investing public associates with a conventional mutual fund. Instead, each Fund will be marketed as an “actively managed exchange-traded fund.” No Fund marketing materials (other than as required in the Prospectus) will reference an “open-end fund” or “mutual fund,” except to compare and contrast a Fund with conventional mutual funds. Further, in all marketing materials where the features or method of obtaining, buying or selling Shares traded on the Stock Exchange are described, there will be an appropriate statement or statements to the effect that Shares are not individually redeemable. Neither the Trust nor any of the Funds will be advertised or marketed as open-end investment companies, i.e., as mutual funds, which offer individually redeemable securities. Any advertising material where features of obtaining, buying or selling Creation Units are described or where there is reference to redeemability will prominently disclose that Shares are not individually redeemable and that owners of Shares may acquire Shares from a Fund and tender those Shares for redemption to a Fund in Creation Units only. K. Third Party Broker Dealer Issues Because Creation Units will be offered continuously to the public and, as such, new Shares may be created and issued on an ongoing basis, at any point during the life of a Fund, a “distribution,” as such term is used in the Securities Act, may be occurring. Brokers and other persons may be cautioned, including in the Prospectus if required by Form N-1A, that some activities on their part may, depending on the circumstances, result in their being deemed participants in a distribution in a manner that could render them statutory underwriters and subject them to the prospectus delivery and liability provisions of the Securities Act. - 17 - For example, a Broker firm and/or its client may be deemed a statutory underwriter if it takes Creation Units after placing an order with the Distributor, breaks them down into the constituent Shares and sells the Shares directly to customers, or if it chooses to couple the purchase of a supply of new Shares with an active selling effort involving solicitation of secondary market demand for Shares. Of course, whether one is an underwriter must take into account all the facts and circumstances pertaining to the activities of the Broker or its client in the particular case, and Brokers and their clients should understand that the examples mentioned above should not be considered a complete description of all the activities that could lead to a categorization as an underwriter. II. Funds of Actively Managed Exchange-Traded Funds A. The Investing Funds As discussed above, the Investing Funds will be registered management investment companies and registered unit investment trusts that will enter into a participation agreement with any Fund (“FOF Participation Agreement”) in which it seeks to invest in reliance on the requested order. The Investing Funds will not be part of the same group of investment companies as the Funds. Each Investing Trust will have a sponsor (“Sponsor”) and each Investing Management Company will have an investment adviser within the meaning of Section2(a)(20)(A) of the 1940 Act (“Investing Fund Advisor”) that does not control, is not controlled by or under common control with the Investment Manager or any Investment Advisor. Each Investing Management Company may also have one or more investment advisers within the meaning of Section2(a)(20)(B) of the 1940 Act (each, an “Investing Fund Sub-Advisor”). Each Investing Fund Advisor and any Investing Fund Sub-Advisor will be registered as an investment adviser under the Advisers Act. B. Proposed Transactions Applicants propose that the Investing Funds be permitted to invest in the Funds (other than an FOF ETF) beyond the limitations in Sections 12(d)(1)(A) and (B)of the 1940 Act. Applicants also propose that the Investing Funds be permitted to effect certain transactions in Shares that would otherwise be prohibited by Section17(a) of the 1940 Act. C. Fees and Expenses Shares of the Funds will be sold by the Fund without sales loads. Investors, including Investing Funds, who buy and sell Shares through a Broker in secondary market transactions may be charged customary brokerage commissions and charges. Applicants anticipate that most, if not all, transactions effected by Investing Funds pursuant to the requested order would be secondary market transactions. For transactions in Creation Units, Transaction Fees are charged to offset transfer and other costs associated with the issuance and redemption of Creation Units. Investing Fund shareholders would indirectly pay their proportionate share of a Fund’s advisory fees and other operating expenses. As discussed below, certain conditions will apply to the fees and expenses charged by Investing Funds. - 18 - D. Conditions and Disclosure Relating to Section12(d)(1) Relief To ensure that the Investing Funds understand and comply with the terms and conditions of the requested relief even though the Investing Funds will not be part of the same group of investment companies as the Funds and will not have the Investment Manager or an Investment Advisor as the Investing Fund Advisor or Sponsor, any Investing Fund that intends to invest in a Fund in reliance on the requested Order will be required to enter into a FOF Participation Agreement with the Fund. The FOF Participation Agreement will require the Investing Fund to adhere to the terms and conditions of the requested Order and participate in the proposed transaction in a manner that addresses concerns regarding the requested relief. The FOF Participation Agreement also will include an acknowledgment from the Investing Fund that it may rely on the Order requested herein only to invest in the Funds and not in any other investment company. III. Request for Exemptive Relief and Legal Analysis Applicants request a Commission order under Section6(c) of the 1940 Act, for an exemption from Sections 2(a)(32), 5(a)(1), 22(d) and 22(e) of the 1940 Act and Rule 22c-1 under the 1940 Act, under Sections 6(c) and 17(b) of the 1940 Act for an exemption from Sections 17(a)(1) and 17(a)(2) of the 1940 Act, and under Section12(d)(1)(J) of the 1940 Act for an exemption from Sections 12(d)(1)(A) and (B)of the 1940 Act. Section6(c) of the 1940 Act provides that the Commission may exempt any person, security, or transaction, or any class of persons, securities, or transactions from any provisions of the 1940 Act, if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the 1940 Act. A. Sections 2(a)(32) and 5(a)(1) of the 1940 Act Section5(a)(1) of the 1940 Act defines an “open-end company” as a management investment company that is offering for sale or has outstanding any redeemable security of which it is the issuer. Section2(a)(32) of the 1940 Act defines a redeemable security as any security, other than short-term paper, under the terms of which the holder, upon its presentation to the issuer, is entitled to receive approximately his proportionate share of the issuer’s current net assets, or the cash equivalent. Because Shares will not be individually redeemable, a possible question arises as to whether the definitional requirements of a “redeemable security” or an “open-end company” under the 1940 Act would be met if such Shares are viewed as non-redeemable securities. In light of this possible analysis, Applicants request an order under Section6(c) granting an exemption from Sections 5(a)(1) and 2(a)(32) that would permit the Trust to register as an open-end management investment company and redeem Shares in Creation Units only. Investors may purchase Shares in Creation Units from each Fund. Creation Units are always redeemable in accordance with the provisions of the 1940 Act. Owners of Shares may purchase the requisite number of Shares and tender the resulting Creation Unit for redemption. Moreover, listing on the Stock Exchange will afford all holders of Shares the ability to buy and - 19 - sell Shares throughout the day in the secondary market. Because the market price of Creation Units will be disciplined by arbitrage opportunities, investors should be able to sell Shares in the secondary market at prices that do not vary materially from their NAV. Applicants believe that the Funds will not present any new issues with respect to the exemptions which allow for current index-based and actively managed ETFs to redeem their shares only in Creation Units. While Applicants recognize that the potential for more material deviations between a security’s Bid/Ask Price and NAV exists with actively managed ETFs, that is not the case here since each Fund’s portfolio holdings will be fully transparent. As noted above, each Fund intends to disclose daily on its website on each Business Day, before commencement of trading of Shares on the Stock Exchange, the identities and quantities of the Portfolio Instruments and other assets held by the Fund that will form the basis for the Fund’s calculation of NAV at the end of the Business Day. Since market participants will be aware, at all times, of each Fund’s Portfolio Instruments and other assets which form the basis for its NAV calculation, the risk of material deviations between NAV and market price is similar to that which exists in the case of other index-based and actively managed ETFs. Further, as mentioned herein, Applicants believe that the current disclosure requirements are sufficient to safeguard against investor confusion. Thus, Applicants believe that a Fund issuing Shares as proposed is appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the 1940 Act. B. Section22(d) of the 1940 Act and Rule 22c-1 Under the 1940 Act Section22(d) of the 1940 Act, among other things, prohibits a dealer from selling a redeemable security that is being currently offered to the public by or through a principal underwriter, except at a current public offering price described in the prospectus. Rule 22c-1 under the 1940 Act generally requires that a dealer selling, redeeming, or repurchasing a redeemable security do so only at a price based on the NAV next computed after receipt of a tender of such security for redemption or of an order to purchase or sell such security. Secondary market trading in Shares will take place at negotiated prices, not at a current offering price described in the Prospectus, and not at a price based on NAV. Shares of each Fund will be listed on the Stock Exchange. The Shares will trade on and away from the Stock Exchange24 at all times on the basis of current bid/ask prices. Thus, purchases and sales of Shares in the secondary market will not comply with Section22(d) and Rule 22c-1. Applicants request an exemption under Section6(c) from Section22(d) and Rule 22c-1 to permit the Shares to trade at negotiated prices. The concerns sought to be addressed by Section22(d) and Rule 22c-1 with respect to pricing are equally satisfied by the proposed method of pricing Shares. While there is little legislative history regarding Section22(d), its provisions, as well as those of Rule 22c-1, appear to have been designed to (i)prevent dilution caused by certain riskless-trading schemes by principal underwriters and contract dealers, (ii)prevent unjust discrimination or preferential treatment among buyers resulting from sales at different prices, and (iii)assure an orderly 24Consistent with Rule 19c-3 under the Exchange Act, Stock Exchange members are not required to effect transactions in Shares through the facilities of the Stock Exchange. - 20 - distribution of investment company shares by eliminating price competition from Brokers offering shares at less than the published sales price and repurchasing shares at more than the published redemption price. Applicants believe that none of these purposes will be thwarted by permitting Shares to trade in the secondary market at negotiated prices. Secondary market trading in Shares does not involve the Funds as parties and cannot result in dilution of an investment in Shares. To the extent different prices exist during a given trading day, or from day to day, such variances occur as a result of third-party market forces, such as supply and demand, not as a result of unjust or discriminatory manipulation. In this factual setting, Applicants do not believe that the portfolios could be managed or manipulated to produce benefits for one group of purchasers or sellers to the detriment of others. Accordingly, Applicants believe that secondary market transactions in Shares will not lead to discrimination or preferential treatment among purchasers. Applicants contend that the proposed distribution system also will be orderly. Anyone may sell or acquire Shares by purchasing them on a Stock Exchange or by creating or redeeming a Creation Unit. Therefore, no dealer should have an advantage over another Broker in the sale of Shares. In addition, as described above, Applicants believe that in light of the fact that the Funds will be fully transparent, arbitrage activity should ensure that differences between NAV and market prices remain low. Furthermore, Applicants believe that the ability to execute a transaction in Shares at an intraday trading price will be a highly attractive feature to many investors and offers a key advantage to investors over the once-daily pricing mechanisms of conventional mutual funds. This feature would be fully disclosed to investors, and the investors would trade in Shares in reliance on the efficiency of the market. Applicants also believe that the Funds will not present any new issues with respect to the exemptions which allow ETF shares to trade at negotiated prices. With proper disclosure to all parties, the Funds do not create any new potential for discrimination or preferential treatment among investors purchasing and selling Shares in the secondary market and those purchasing and redeeming Creation Units. Applicants, therefore, believe that buying and selling Shares at negotiated prices is appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the 1940 Act. C. Section22(e) of the 1940 Act Applicants seek an order of the Commission under Section6(c) granting an exemption from the seven-day redemption delivery requirement of Section22(e) of the 1940 Act for certain Global Funds under the circumstances described below.25 Section22(e) provides that, except under circumstances not relevant to this request: No registered company shall suspend the right of redemption, or postpone the date of payment or satisfaction upon redemption of 25Applicants acknowledge that no relief obtained from the requirements of Section22(e) will affect any obligations that it may otherwise have under Rule 15c6-1 under the Exchange Act. Rule 15c6-1 requires that most securities transactions be settled within three business days of the trade date. - 21 - any redeemable security in accordance with its terms for more than seven days after the tender of such security to the company or its agent designated for that purpose for redemption… Applicants observe that the settlement of redemptions of Creation Units of the Global Funds is contingent not only on the settlement cycle of the U.S. securities markets but also on the delivery cycles present in foreign markets in which those Funds invest. Applicants have been advised that, under certain circumstances, the delivery cycles for transferring Redemption Instruments to redeeming investors, coupled with local market holiday schedules, will require a delivery process of up to fourteen (14)calendar days, rather than the seven (7)calendar days required by Section22(e). Applicants therefore request relief from Section22(e) in order to provide payment or satisfaction of redemptions within the maximum number of calendar days required for such payment or satisfaction in the principal local markets where transactions in the Redemption Instruments of each Global Fund customarily clear and settle, but in all cases no later than fourteen (14)days following the tender of a Creation Unit. With respect to Future Funds that are Global Funds, Applicants seek the same relief from Section22(e) only to the extent that circumstances exist similar to those described herein. A redemption delivery may be delayed due to the proclamation of new or special holidays,26 the treatment by market participants of certain days as “informal holidays”27 (e.g., days on which no or limited securities transactions occur, as a result of substantially shortened trading hours), the elimination of existing holidays or changes in local securities delivery practices,28 could affect the information set forth herein at some time in the future.The SAI will identify those instances in a given year where, because of local holidays, more than seven days, up to a maximum of fourteen calendar days, will be needed to deliver redemption proceeds and will list such holidays. The SAI will disclose those local holidays (over the period of at least one year following the date thereof), if any, that are expected to prevent the delivery of redemption proceeds in seven calendar days and the maximum number of days, up to fourteen calendar days, needed to deliver the proceeds for each affected Global Fund.Except as disclosed in the SAI for any Future Fund for analogous dates in subsequent years, deliveries of redemption proceeds for Global Funds are expected to be made within seven (7) days. 26Applicants have been advised that previously unscheduled holidays are sometimes added to a country’s calendar, and existing holidays are sometimes moved, with little advance notice. Any such future changes could impact the analysis of the number of days necessary to satisfy a redemption request. For example, the following examples of short-notice holiday announcements: (i)on December17, 1997, South Korea announced a special public holiday due to the presidential elections on December18, 1997; (ii)on December30, 1997, Thailand announced that the New Year’s Eve holiday on December31, 1997 would be rescheduled to January2, 1998; and (iii)on January22, 1998, Indonesia announced that the religious holiday on January29 and January30, 1998, marking the start of Lebaran, would include January28, 1998. 27A typical “informal holiday” includes a trading day in the relevant market that is immediately prior to a regularly scheduled holiday; early closures of the relevant market or of the offices of key market participants may occur with little advance notice. Any shortening of regular trading hours on such a day could impact the analysis of the number of days necessary to satisfy a redemption request. 28Applicants observe that the trend internationally in local securities delivery practices has been a reduction in each market’s standard settlement cycles (e.g., the U.S. markets’ change to T+3 in 1995). It remains possible, if unlikely, that a particular market’s settlement cycles for securities transfers could be lengthened in the future. - 22 - Applicants submit that Congress adopted Section22(e) to prevent unreasonable, undisclosed or unforeseen delays in the actual payment of redemption proceeds. Applicants propose that allowing redemption payments for Creation Units of a Fund to be made within a maximum of fourteen (14) calendar days would not be inconsistent with the spirit and intent of Section22(e). Applicants suggest that a redemption payment occurring within fourteen (14) calendar days following a redemption request would adequately afford investor protection. Applicants desire to incorporate the creation and redemption mechanism for Creation Units of each Fund as much as possible into the processing and settlement cycles for securities deliveries currently practicable in the principal market(s) for the Portfolio Instruments of a given Fund. Currently, Applicants believe that no significant additional system or operational procedures will be needed to purchase or redeem Creation Units beyond those already generally in place in the relevant jurisdiction. Applicants believe that this approach may make creations and redemptions of Creation Units less costly to administer, enhance the appeal of the product to institutional participants, and thereby promote the liquidity of Shares in the secondary market with benefits to all holders thereof. As noted above, Applicants may utilize in-kind redemptions (although, as noted above, cash redemptions, subject to a potentially higher redemption Transaction Fee, may be required in respect of certain Funds). Applicants are not seeking relief from Section22(e) with respect to Global Funds that do not effect creations or redemptions in-kind. If the requested relief is granted, Applicants intend to disclose in the SAI and all relevant sales literature that redemption payments will be effected within the specified number of calendar days, up to a maximum of fourteen (14) days, following the date on which a request for redemption in proper form is made. Given the rationale for what amounts to a delay typically of a few days in the redemption process on certain occasions and given the facts as recited above, Applicants believe that the redemption mechanism described above will not lead to unreasonable, undisclosed or unforeseen delays in the redemption process. Applicants assert that the request for relief from the strict seven day rule imposed by Section22(e) is not inconsistent with the standards articulated in Section6(c). Given the facts as recited above, Applicants believe that the granting of the requested relief is consistent with the protection of investors and the purposes fairly intended by the policies and provisions of the 1940 Act. Applicants note that exemptive relief from Section22(e) substantially identical to the relief sought in this Application has been granted previously. On the basis of the foregoing, Applicants believe (i)that the protections intended to be afforded by Section22(e) are adequately addressed by the proposed method and securities delivery cycles for redeeming Creation Units and (ii)that the relief requested is appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the 1940 Act. Accordingly, Applicants hereby respectfully request that an order of exemption be granted under Section6(c) in respect of Section22(e) with respect to the affected Global Funds. - 23 - D. Exemption from the Provisions of Sections 17(a)(1) and 17(a)(2) Applicants seek an exemption from Sections 17(a)(1) and 17(a)(2) of the 1940 Act pursuant to Sections 6(c) and 17(b) of the 1940 Act to allow certain affiliated persons to effectuate purchases and redemptions of Creation Units in-kind. Unless the Commission, upon application pursuant to Section17(b) of the 1940 Act, grants an exemption from the provisions of Section17(a), Section17(a)(1) of the 1940 Act, among other things, makes it unlawful for any affiliated person or promoter of or principal underwriter for a registered investment company...or any affiliated person of such a person, promoter, or principal underwriter, acting as principal — knowingly to sell any security or other property to such registered company or to any company controlled by such registered company, unless such sale involves solely (A)securities of which the buyer is the issuer, (B)securities of which the seller is the issuer and which are part of a general offering to the holders of a class of its securities or (C)securities deposited with a trustee of a unit investment trust...by the depositor thereof. Section17(a)(2) of the 1940 Act makes it unlawful for any affiliated person or promoter of or principal underwriter for a registered investment company...or any affiliated person of such a person, promoter, or principal underwriter, acting as principal— knowingly to purchase from such registered company, or from any company controlled by such registered company, any security or other property (except securities of which the seller is the issuer). Each Fund may be deemed to be controlled by the Investment Manager or any Investment Advisor and hence be an affiliated person of one or more of them . In addition, the Funds may be deemed to be under common control with any other registered investment company (or series thereof) advised by the Investment Manager or an Investment Advisor (an “Affiliated Fund”). An “affiliated person” of a person, pursuant to Section2(a)(3)(A) of the 1940 Act, includes “any person directly or indirectly owning, controlling, or holding with the power to vote, 5per centum or more of the outstanding voting securities of such other person” and pursuant to Section2(a)(3)(C) of the 1940 Act “any person directly or indirectly controlling, controlled by, or under common control with, such other person.” Section2(a)(9) of the 1940 Act defines “control” as ...the power to exercise a controlling influence over the management or policies of a company, unless such power is solely the result of an official position with such company. Any person who owns beneficially, either directly or through one or more - 24 - controlled companies, more than 25per centum of the voting securities of a company shall be presumed to control such company. Any person who does not so own more than 25per centum of the voting securities of any company shall be presumed not to control such company. Section17(b) provides that the Commission will grant an exemption from the provisions of Section17(a) if evidence establishes that the terms of the proposed transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned, that the proposed transaction is consistent with the policy of each registered investment company concerned, and that the proposed transaction is consistent with the general purposes of the 1940 Act. Because Section17(b) could be interpreted to exempt only a single transaction from Section17(a) and because there may be a number of transactions by persons who may be deemed to be either first-tier or second-tier affiliates, Applicants are also requesting an exemption under Section6(c) of the 1940 Act as well. See, e.g., Keystone Custodian Funds, Inc., 21 S.E.C. 295 (1945). There exists a possibility that, with respect to one or more Funds and the Trust, a large institutional investor could own more than 5% of a Fund or the Trust, or in excess of 25% of the outstanding Shares of a Fund or the Trust, making that investor a first-tier affiliate of each Fund under Section2(a)(3)(A) or Section2(a)(3)(C) of the 1940 Act. In addition, there exists a possibility that, with respect to other registered investment companies (or series thereof) managed by the Investment Manager or an Investment Advisor, a large institutional investor could own 5% or more of, or in excess of 25% of the outstanding shares of such other registered investment companies (or series thereof), resulting in that investor being deemed to be a second-tier affiliate of a Fund. For so long as such an investor was deemed to be an affiliate, Section17(a)(1) could be read to prohibit such person from depositing the Creation Deposit with a Fund in return for a Creation Unit (an in-kind purchase). Likewise, Section17(a)(2) could be read to prohibit the investor from entering into an in-kind redemption with a Fund. Applicants request an exemption to permit persons that are affiliated persons or second-tier affiliates of the Funds solely by virtue of (1)holding 5% or more, or in excess of 25% of the outstanding Shares of one or more Funds; (2)having an affiliation with a person with an ownership interest described in (1); or (3)holding 5% or more, or more than 25% of the Shares of one or more Affiliated Funds, to effectuate purchases and redemptions in-kind. Applicants assert that no useful purpose would be served by prohibiting such affiliated persons from making in-kind purchases or in-kind redemptions of Shares of a Fund in Creation Units. Both the deposit procedures for in-kind purchases of Creation Units and the redemption procedures for in-kind redemptions will be effected in exactly the same manner for all purchases and redemptions, regardless of size or number. There will be no discrimination between purchasers or redeemers. Absent the unusual circumstances discussed previously in the Application, the Deposit Instruments and Redemption Instruments available for a Fund will be the same for all purchases and redeemers, respectively, and will correspond pro rata to the Fund’s portfolio instruments, as - 25 - described above in Section I.E.1.a. Deposit Instruments and Redemption Instruments will be valued in the same manner as those Portfolio Instruments currently held by the relevant Funds, and the valuation of the Deposit Instruments and Redemption Instruments will be made in the same manner, regardless of the identity of the purchaser or redeemer. Any consideration paid by the types of affiliated persons listed above for the purchase or redemption, including in-kind purchases and in-kind redemptions, of Shares directly from a Fund will be based on the NAV of such Fund in accordance with the Fund’s policies and procedures. Applicants do not believe that in-kind purchases and redemptions will result in abusive self-dealing or overreaching, but rather assert that such procedures will be implemented consistently with the Funds’ objectives and with the general purposes of the 1940 Act. Applicants believe that in-kind purchases and redemptions will be made on terms reasonable to a Fund and any affiliated persons because they will be valued pursuant to verifiable objective standards. The method of valuing Portfolio Instruments held by a Fund is the same as that used for calculating the value of in-kind purchases or redemptions and, therefore, creates no opportunity for affiliated persons or the Applicants to effect a transaction detrimental to the other holders of Shares of that Fund. Similarly, Applicants submit that, by using the same standards for valuing securities held by a Fund as are used for calculating the value of in-kind redemptions or purchases, the Fund will ensure that its NAV will not be adversely affected by such securities transactions. For the reasons set forth above, Applicants believe that: (i)with respect to the relief requested pursuant to Section17(b), the terms of the proposed transactions, including the consideration to be paid and received, are reasonable and fair and do not involve overreaching on the part of any person concerned, the proposed transactions are consistent with the policies of each registered investment company concerned, and that the proposed transactions are consistent with the general purposes of the 1940 Act, and (ii)with respect to the relief requested pursuant to Section6(c), the requested exemption for the proposed transactions is appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the 1940 Act. E. Section12(d)(1) of the 1940 Act Section12(d)(1)(A) of the 1940 Act prohibits a registered investment company from acquiring securities of an investment company if such securities represent more than 3% of the total outstanding voting stock of the acquired company, more than 5% of the total assets of the acquiring company, or, together with the securities of any other investment companies, more than 10% of the total assets of the acquiring company. Section12(d)(1)(B) of the 1940 Act prohibits a registered open-end investment company, its principal underwriter and any Broker from selling the investment company’s shares to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company’s voting stock, or if the sale will cause more than 10% of the acquired company’s voting stock to be owned by investment companies generally. Applicants request relief to permit Investing Funds to acquire Shares in excess of the limits in Section12(d)(1)(A) of the 1940 Act and to permit the Funds, their principal underwriters and any Brokers to sell Shares to Investing Funds in excess of the - 26 - limits in Section12(d)(l)(B) of the 1940 Act.29 Section12(d)(1)(J) of the 1940 Act states that the Commission may conditionally or unconditionally exempt any person, security or transaction, or any class or classes of persons, securities, or transactions from any provision of Section12(d)(1) to the extent that such exemption is consistent with the public interest and the protection of investors. Congress enacted Section12(d)(1) (then Section12(c)(1)) in 1940 to prevent one investment company from buying control of another investment company.30 In enacting Section12(d)(1), Congress sought to ensure that the acquiring investment company had no “effective voice” in the other investment company.31 As originally proposed, Section12(d)(1) would have prohibited any investment by an investment company in another investment company. Congress relaxed the prohibition in the Section’s final version, presumably because there was some concern that an investment company should not be prohibited from taking advantage of a good investment just because the investment was another investment company. “[Y]ou may get situations where one investment company may think that the securities of another investment company are a good buy and it was not thought advisable to freeze that type of purchase.”32 Congress tightened Section12(d)(1)’s restrictions in 1970 to address certain abuses perceived to be associated with the development of fund holding companies (i.e., funds that primarily invest in other investment companies).33 These abuses included: (i)undue influence such as through the threat of large-scale redemptions of the acquired fund’s shares; (ii)layering of fees and expenses (such as sales loads, advisory fees and administrative costs); and (iii)unnecessary complexity. The Commission identified these abuses in its 1966 report to Congress, titled Public Policy Implications of Investment Company Growth (the “PPI Report”).34 Applicants propose a number of conditions designed to address these concerns. Certain of Applicants’ proposed conditions address the concerns about large-scale redemptions identified in the PPI Report, particularly those regarding the potential for undue influence. Applicants will take steps to ensure that the Investing Funds comply with any terms and conditions of the requested relief by requesting that an Investing Fund enter into a FOF Participation Agreement as a condition precedent to investing in a Fund beyond the limits imposed by Section12(d)(l)(A). 29In no case, however, will a Future Fund that is an FOF ETF rely on the exemption from Section12(d)(1) being requested in this application. 30House Hearing, 76th Cong., 3d Sess., at 113 (1940). 31Hearing on S. 3580 Before the Subcomm. of the Comm. On Banking and Currency, 76th Cong., 3d Sess., at 1114 (1940). 32House Hearing, 76th Cong., 3d Sess., at 112 (1940)(testimony of David Schenker). 33See H.R. Rep. No 91-1382, 91st Cong., 2d Sess., at 11 (1970). 34Report of the Securities and Exchange Commission on the Public Policy Implications of Investment Company Growth, H.R. Rep. No.2337, 89th Cong., 2d Sess., 311-324 (1966). - 27 - The FOF Participation Agreement will require the Investing Fund to adhere to the terms and conditions of the order. Condition B.1 (as referenced in Section IV below) limits the ability of an Investing Fund’s Advisory Group or an Investing Fund’s Sub-Advisory Group (individually, or in the aggregate) (each defined below) to control a Fund within the meaning of Section2(a)(9) of the 1940 Act. For purposes of this Application, an “Investing Fund’s Advisory Group” is defined as the Investing Fund Advisor, or Sponsor, any person controlling, controlled by, or under common control with such Investing Fund Advisor or Sponsor, and any investment company or issuer that would be an investment company but for Sections 3(c)(1) or 3(c)(7) of the 1940 Act that is advised or sponsored by the Investing Fund Advisor, the Sponsor, or any person controlling, controlled by, or under common control with such Investing Fund Advisor or Sponsor. For purposes of this Application, an “Investing Fund’s Sub-Advisory Group” is defined as any Investing Fund Sub-Advisor, any person controlling, controlled by, or under common control with the Investing Fund Sub-Advisor, and any investment company or issuer that would be an investment company but for Sections 3(c)(1) or 3(c)(7) of the 1940 Act (or portion of such investment company or issuer) advised or sponsored by the Investing Fund Sub-Advisor or any person controlling, controlled by or under common control with the Investing Fund Sub-Advisor. The condition does not apply to the Investing Fund’s Sub-Advisory Group with respect to a Fund for which the Investing Fund Sub-Advisor or a person controlling, controlled by, or under common control with the Investing Fund Sub-Advisor acts as the investment adviser within the meaning of Section2(a)(20)(A) of the 1940 Act. Condition B.2 prohibits Investing Funds and Investing Fund Affiliates from causing an investment by an Investing Fund in a Fund to influence the terms of services or transactions between an Investing Fund or an Investing Fund Affiliate and the Fund or Fund Affiliate. “Fund Affiliate” is defined as an investment adviser, promoter, or principal underwriter of a Fund and any person controlling, controlled by or under common control with any of these entities. “Investing Fund Affiliate” is defined as the Investing Fund Advisor, Investing Fund Sub-Advisor, Sponsor, promoter and principal underwriter of an Investing Fund, and any person controlling, controlled by or under common control with any of these entities. Conditions B.2, B.3, B.4, B.6, B.7, B.8 and B.9 are specifically designed to address the potential for an Investing Fund and certain affiliates of an Investing Fund (including Underwriting Affiliates) to exercise undue influence over a Fund and certain of its affiliates. For purposes of this Application, an “Underwriting Affiliate” is a principal underwriter in any underwriting or selling syndicate that is an officer, director, member of an advisory board, Investing Fund Advisor, Investing Fund Sub-Advisor, employee or Sponsor of the Investing Fund, or a person of which any such officer, director, member of an advisory board, Investing Fund Advisor or Investing Fund Sub-Advisor, employee or Sponsor is an affiliated person. An Underwriting Affiliate does not include any person whose relationship to the Fund is covered by Section10(f) of the 1940 Act. An offering of securities during the existence of an underwriting or selling syndicate of which a principal underwriter is an Underwriting Affiliate is an “Affiliated Underwriting.” A Fund may choose to reject any direct purchase of Creation Units by an Investing Fund. To the extent an Investing Fund purchases Shares in the secondary market, a Fund would still - 28 - retain its ability to reject initial purchases of Shares made in reliance on the requested order by declining to enter into the FOF Participation Agreement prior to any investment by an Investing Fund in excess of the limits of Section12(d)(1)(A). A Fund would also retain its right to reject any initial investment by an Investing Fund in excess of the limits in Section12(d)(1)(A) of the 1940 Act by declining to execute a FOF Participation Agreement with an Investing Fund. With respect to concerns regarding layering of fees and expenses, Applicants propose several conditions. Under Condition B.10, before approving any advisory contract under Section15 of the 1940 Act, the board of directors or trustees of any Investing Management Company, including a majority of the directors or trustees who are not “interested persons” within the meaning of Section2(a)(19) of the 1940 Act (“disinterested directors or trustees”), will be required to find that the advisory fees charged under the contract are based on services provided that will be in addition to, rather than duplicative of, services provided under the advisory contract of any Fund in which the Investing Management Company may invest. These findings and their basis will be recorded fully in the minute books of the Investing Management Company. In addition, Conditions B.5 and B.11 of the requested Order are designed to prevent unnecessary duplication or layering of sales charges and other costs. Under Condition B.5, an Investing Fund Advisor, trustee of an Investing Trust (“Trustee”) or Sponsor, as applicable, will waive fees otherwise payable to it by the Investing Fund in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by a Fund under Rule 12b-l under the 1940 Act) received from a Fund by the Investing Fund Advisor, Trustee or Sponsor or an affiliated person of the Investing Fund Advisor, Trustee or Sponsor, other than any advisory fees paid to the Investing Fund Advisor, Trustee or Sponsor or its affiliated person by a Fund, in connection with the investment by the Investing Fund in the Fund. Condition B.5 also provides that any Investing Fund Sub-Advisor will waive fees otherwise payable to the Investing Fund Sub-Advisor, directly or indirectly, by the Investing Fund in an amount at least equal to any compensation received by the Investing Fund Sub-Advisor, or an affiliated person of the Investing Fund Sub-Advisor, other than any advisory fees paid to the Investing Fund Sub-Advisor or its affiliated person by the Fund, in connection with any investment by the Investing Fund in the Fund made at the direction of the Investing Fund Sub-Advisor. In the event that the Investing Fund Sub-Advisor waives fees, the benefit of the waiver will be passed through to the Investing Fund. Condition B.11 prevents any sales charges or service fees on shares of an Investing Fund from exceeding the limits applicable to a fund of funds set forth in NASD Conduct Rule 2830.35 The FOF Participation Agreement will include an acknowledgment from the Investing Fund that it may rely on the requested order only to invest in the Funds and not in any other investment company.36 No Fund will acquire securities of any investment company or company 35Any references to NASD Conduct Rule 2830 include any successor or replacement rule to NASD Conduct Rule 2830 that may be adopted by FINRA. 36Applicants acknowledge that the receipt of compensation by (a)an affiliated person of an Investing Fund, or an affiliated person of such person, for the purchase by the Investing Fund of Shares of a Fund or (b)an affiliated person of a Fund, or an affiliated person of such person, for the sale by the Fund of its Shares to an Investing Fund, - 29 - relying on Section3(c)(1) or 3(c)(7) of the 1940 Act in excess of the limits contained in Section12(d)(1)(A) of the 1940 Act, except to the extent permitted by exemptive relief from the Commission permitting the Fund to purchase shares of other investment companies for short-term cash management purposes. Thus, in keeping with the PPI Report’s concern with overly complex structures, the requested order will not create or give rise to circumstances enabling an Investing Fund to invest in excess of the limits of Section12(d)(l)(A) in a Fund that is in turn able to invest in another investment company in excess of such limits. In addition to avoiding excess complexity, the fact that the Funds relying on the exemption from Section12(d)(1) requested herein will not invest in any other investment company in excess of the limits of Section12(d)(1)(A) mitigates concerns about layering of fees. F. Sections 17(a), 17(b) and 6(c) Applicants seek relief from Section17(a) pursuant to Section17(b) and Section6(c) to permit a Fund, to the extent that the Fund is an affiliated person of an Investing Fund, to sell Shares to, and purchase Shares from, an Investing Fund and to engage in any accompanying in-kind transactions. Section17(a) of the 1940 Act generally prohibits sales or purchases of securities between a registered investment company and any affiliated person of the company. Section2(a)(3)(B) of the 1940 Act defines an “affiliated person” of another person to include any person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote by the other person. An Investing Fund relying on the requested exemptive relief could own 5% or more of the outstanding voting securities of a Fund. In such cases, and for other reasons, the Fund could become an affiliated person, or an affiliated person of an affiliated person of the Investing Fund, and direct sales and redemptions of its Shares with an Investing Fund could be prohibited, as could any accompanying in-kind transactions. Applicants anticipate that there may be Investing Funds that are not part of the same group of investment companies as the Funds, but are subadvised by the Investment Manager or an Investment Advisor. Applicants are not seeking relief from Section 17(a) for, and the requested relief will not apply to, transactions where a Fund could be deemed an affiliated person, or an affiliated person of an affiliated person, of an Investing Fund because an investment adviser to the Funds is also an investment adviser to an Investing Fund. Section17(b) of the 1940 Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by Section17(a) if it finds that: (i) the terms of the proposed transaction, including the consideration to be paid or received, are fair and reasonable and do not involve overreaching on the part of any person concerned; (ii) the proposed transaction is consistent with the policy of each registered investment company concerned; and may be prohibited by Section 17(e)(1) of the 1940 Act. The FOF Participation Agreement also will include this acknowledgment. - 30 - (iii) the proposed transaction is consistent with the general purposes of the 1940 Act. The Commission has interpreted its authority under Section17(b) as extending only to a single transaction and not a series of transactions. Section6(c) of the 1940 Act permits the Commission to exempt any person or transactions from any provision of the 1940 Act if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the 1940 Act. Applicants expect that most Investing Funds will purchase Shares in the secondary market and will not purchase Creation Units directly from a Fund. Section17(a) is intended to prohibit affiliated persons in a position of influence or control over an investment company from furthering their own interests by selling property that they own to an investment company at an inflated price, purchasing property from an investment company at less than its fair value, or selling or purchasing property on terms that involve overreaching by that person. For the reasons articulated in the legal analysis of Section12(d)(1), above, Applicants submit that, with regard to Section17(a), the proposed transactions are appropriate in the public interest, consistent with the protection of investors and do not involve overreaching. Applicants believe that an exemption is appropriate under Sections 17(b) and 6(c) because the proposed arrangement meets the standards in those sections. First, the terms of the proposed arrangement are fair and reasonable and do not involve overreaching. Any consideration paid for the purchase or redemption of Shares directly from a Fund will be based on the NAV of the Fund in accordance with policies and procedures set forth in the Fund’s registration statement.37Further, absent the unusual circumstances discussed previously in Section I.E.1.a of the Application, the Deposit Instruments and Redemption Instruments available for a Fund will be the same for all purchases and redeemers, respectively, and will correspond pro rata to the Fund’s portfolio instruments. Second, the proposed transactions directly between Funds and Investing Funds will be consistent with the policies of each Investing Fund. The purchase of Creation Units by an Investing Fund will be accomplished in accordance with the investment restrictions of the Investing Fund and will be consistent with the investment policies set forth in the Investing Fund’s registration statement. The FOF Participation Agreement will require any Investing Fund that purchases Creation Units directly from a Fund to represent that the purchase of Creation Units from a Fund by an Investing Fund will be accomplished in compliance with the investment restrictions of the Investing Fund and will be consistent with the investment policies set forth in the Investing Fund’s registration statement. 37To the extent that purchases and sales of Shares occur in the secondary market and not through principal transactions directly between an Investing Fund and a Fund, relief from Section 17(a) would not be necessary. However, the requested relief would apply to direct sales of Shares in Creation Units by a Fund to an Investing Fund and redemptions of those Shares. The requested relief is also intended to cover any in-kind transactions that may accompany such sales and redemptions. - 31 - Third, Applicants believe that the proposed transactions are consistent with the general purposes of the 1940 Act. Applicants also believe that the requested exemptions are appropriate in the public interest. Shares offer Investing Funds a flexible investment tool that can be used for a variety of purposes. Applicants also submit that the exemption is consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the 1940 Act. G. Discussion of Precedent Applicants’ requested relief with respect to Sections 2(a)(32) and 5(a)(1) is virtually identical to the exemptive relief granted in the Federated Order and the Eaton Vance Order38 and is also virtually identical to the exemptive relief obtained by WEBS Index Fund,39 CountryBaskets,40 Select Sector SPDR Trust,41 iShares,42 the Vanguard Index Funds,43 Fresco Index Shares Funds44 and PowerShares Exchange Traded Fund Trust.45 Applicants’ requested relief with respect to Section22(e) is virtually identical to the exemptive relief granted in the Federated Order and the Eaton Vance Order, and is also virtually identical to the exemptive relief obtained by iShares46 and CountryBaskets.47 Applicants’ requested relief with respect to Section22(d) and Rule 22c-1 thereunder (relating to the exchange trading of Shares at prices determined by market forces) is identical to the exemptive relief granted in the Federated Order and the Eaton Vance Order , and virtually identical to the exemptive relief obtained by SuperTrust,48 Diamonds Trust,49 the Nasdaq-100 38See Federated Order and Eaton Vance Order, supra note 1. 39See In the Matter of the Foreign Fund, Inc., et al., Investment Company Act Release Nos. 21803 (March 5, 1996) (order) and 21737 (Feb. 6, 1996) (notice). 40See CountryBaskets Index Fund, Inc., Investment Company Act Release Nos. 21802 (March 5, 1996) (order) and 21736 (Feb. 6, 1996) (notice). 41See In the Matter of the Select Sector SPDR Trust, et al., Investment Company Act Release Nos. 24666 (Sept. 25, 2000) (order) and 24631 (Sept. 7, 2000) (notice). 42See In the Matter of Barclays Global Fund Advisors, Investment Company Act Release Nos. 24451 (May 12, 2000) (order) and 24394 (April 17, 2000) (notice) and iShares Trust, et al., Investment Company Act Release Nos. 29172 (March 10, 2010) (order) and 29129 (Feb. 16, 2010) (notice). 43See In the Matter of Vanguard Index Funds, et al., Investment Company Act Release Nos. 24789 (December 12, 2000) (order) and 24680 (October 6, 2000) (notice). 44See In the Matter of UBS Global Asset Management (US) Inc., et al., Investment Company Act Release Nos. 25767 (October 11, 2002) (order) and 25738 (September 18, 2002) (notice). 45See In the Matter of PowerShares Exchange Traded Fund Trust, et al., Investment Company Act Release Nos. 25985 (March 28, 2003) (order) and 25961 (March 4, 2003) (notice). 46See In the Matter of Barclays Global Fund Advisors, supra note 42 . 47See CountryBaskets Index Fund, Inc., supra note 40 . 48See In the Matter of the SuperTrust Trust for Capital Market Fund, Inc. Shares, et al., Investment Company Act Release Nos. 17809 (Oct. 19, 1990) (order) and 17613 (July 25, 1990) (notice). 49See In the Matter of Diamonds Trust, et al., Investment Company Act Release Nos. 22979 (Dec. 30, 1997) (order) and 22927 (Dec. 5, 1997) (notice). - 32 - Trust,50 WEBS Index Fund,51 Select Sector SPDR Trust,52 CountryBaskets,53 iShares,54 the Vanguard Index Funds,55 the Fresco Index Shares Funds56 and the PowerShares Exchange Traded Fund Trust.57 Applicants’ requested relief with respect to Sections 17(a) and 17(b) to permit certain affiliated persons or second tier affiliates to transact in-kind with the Funds in Creation Units is virtually identical to the exemptive relief granted in the Federated Order and the Eaton Vance Order, and is also virtually identical to the exemptive relief obtained by the Diamonds Trust,58 the Nasdaq-100 Trust,59 WEBS Index Fund,60 Select Sector SPDR Trust,61 Country Baskets,62 iShares,63 the Vanguard Index Funds,64 Fresco Index Shares Fund65 and PowerShares Exchange Traded Trust.66 The requested relief from Section17(a) to permit Funds that are affiliated persons or second-tier affiliates of Investing Funds to sell shares to and redeem shares from and engage in any in-kind transactions that may accompany such sales and redemption with the Investing Fund is virtually identical to the exemptive relief granted in the Federated Order and the Eaton Vance Order , and is also virtually identical to the exemptive relief obtained by iShares. The requested relief with respect to Sections 12(d)(1)(A) and (B)is identical to the exemptive relief granted in the Eaton Vance Order , substantially identical to the exemptive relief granted in the Federated Order and substantially similar to the exemptive relief the Commission 50See In the Matter of the Nasdaq-100 Trust, et al., Investment Company Act Release Nos. 23702 (Feb.22,1999) (order) and 23668 (Jan. 27, 1999) (notice). 51See In the Matter of The Foreign Fund, Inc., et al., supra note 39 . 52See In the Matter of the Select Sector SPDR Trust, supra note 41 . 53See In the Matter of CountryBaskets Index Fund, Inc., supra note 40 . 54See In the Matter of Barclays Global Fund Advisors, et al., supra note 42 . 55See In the Matter of Vanguard Index Funds, et al., supra note 43 . 56See In the Matter of UBS Global Asset Management (US) Inc., et al., supra note 44 . 57See In the Matter of PowerShares Exchange Traded Fund Trust, et al., supra note 45 . 58See In the Matter of Diamonds Trust, et al., supra note 49 . 59See In the Matter of the Nasdaq-100 Trust, et al., supra note 50 . 60See In the Matter of The Foreign Fund, Inc., et al., supra note 39 . 61See In the Matter of the Select Sector SPDR Trust, supra note 41 . 62See In the Matter of CountryBaskets Index Fund, Inc., supra note 40 . 63See In the Matter of Barclays Global Fund Advisors, et al., supra note 42 and see iShares Trust, et al., Investment Company Act Rel. Nos. 25969 (Mar. 21, 2003) (notice) and 26006 (Apr. 15, 2003) (order) as precedent for the relief from Section17(a) in conjunction with the sale and redemption of Shares by the Funds to and from Investing Funds. 64See In the Matter of Vanguard Index Funds, et al., supra note 43 . 65See In the Matter of UBS Global Asset Management (US) Inc., et al., supra note 44 . 66See In the Matter of PowerShares Exchange Traded Fund Trust, et al., supra note 45 . - 33 - recently has granted to other applicants who sought relief for similar structures and investments, and whose requests for relief included conditions substantially similar to those included in this Application.67 Applicants confirm that the Funds will be organized as registered open-end investment companies and not UITs. References made to relief applicable to UITs are for illustration only. The “active” management of the Funds is the only substantive difference with regard to the prior relief granted by the Commission to index-based ETFs. While the Funds are technically actively managed ETFs, Applicant does not believe that the Funds raise any significant new regulatory issues. As discussed above, the portfolios of the Funds will be fully transparent, thereby permitting arbitrage activity to the same extent as index based ETFs. As noted above,68 the relief being requested is substantially identical in all material respects to the relief recently granted in exemptive applications involving actively managed ETFs.69 In addition, if proposed Rules 6c-11 and 12d1-4 under the 1940 Act are adopted, these rules would provide Applicants the substantive relief it is seeking in the Application. Finally, as required under Condition A.5 of the Application, neither the Investment Manager nor any Investment Advisor will directly or indirectly cause any Authorized Participant or any investor on whose behalf an Authorized Participant may transact with the Fund to acquire any Deposit Instrument for the Fund through a transaction in which the Fund could not engage directly. This condition addresses the unique element of ETFs, i.e., that ETFs may purchase and sell securities through the in-kind creation and redemption process and is designed to insure that the Investment Manager and any Investment Advisor will not cause an Authorized Participant to engage in transactions in which the Funds could not engage directly or to otherwise use the in-kind creation process to circumvent applicable restrictions under the 1940 Act. In view of the foregoing, Applicants believe that the basis upon which the Commission has previously granted exemptive relief, identical to that requested herein, to index-based and actively managed ETFs, is equally applicable to the Funds. IV. Conditions Applicants agree that any order of the Commission granting the requested relief will be subject to the following conditions: A. Actively Managed Exchange-Traded Fund Relief 1.As long as a Fund operates in reliance on the requested order, the Shares of the Fund will be listed on a Stock Exchange. 2.Neither the Trust nor any Fund will be advertised or marketed as an open-end investment company or a mutual fund. Any advertising material that describes the purchase or sale of Creation Units or refers to redeemability will prominently disclose that the Shares are not individually redeemable and that owners of the Shares may 67See In the Matter of Barclays Global Fund Advisors, supra note 42. 68See text accompanying note 1. 69See supra note 1. - 34 - acquire those Shares from the Fund and tender those Shares for redemption to the Fund in Creation Units only. 3.The website for the Funds, which is and will be publicly accessible at no charge, will contain, on a per Share basis, for each Fundthe prior Business Day’s NAV and the market closing price or Bid/Ask Price, and a calculation of the premium or iscount of the market closing price or Bid/Ask Price against such NAV. 4.On each Business Day, before commencement of trading in Shares on the Stock Exchange, the Fund will disclose on its website the identities and quantities of the Portfolio Instruments and other assets held by the Fund that will form the basis for theFund’s calculation of NAV at the end of the Business Day. 5.The Investment Manager or any Investment Advisor , directly or indirectly, will not cause any Authorized Participant (or any investor on whose behalf an Authorized Participant may transact with the Fund) to acquire any Deposit Instrument for the Fund through a transaction in which the Fund could not engage directly. 6.The requested relief to permit ETF operations will expire on the effective date of any Commission rule under the 1940 Act that provides relief permitting the operation of actively managed exchange traded funds. B. Section12(d)(1) Relief 1.The members of the Investing Fund’s Advisory Group will not control (individually or in the aggregate) a Fund within the meaning of Section2(a)(9) of the 1940 Act. The members of the Investing Fund’s Sub-Advisory Group will not control (individually or in the aggregate) a Fund within the meaning of Section2(a)(9) of the 1940 Act. If, as a result of a decrease in the outstanding voting securities of a Fund, the Investing Fund’s Advisory Group or the Investing Fund’s Sub-Advisory Group, each in the aggregate, becomes a holder of more than 25 percent of the outstanding voting securities of a Fund, it will vote its Shares of the Fund in the same proportion as the vote of all other holders of the Fund’s Shares. This condition does not apply to the Investing Fund’s Sub-Advisory Group with respect to a Fund for which the Investing Fund Sub-Advisor or a person controlling, controlled by or under common control with the Investing Fund Sub-Advisor acts as the investment adviser within the meaning of Section2(a)(20)(A) of the 1940 Act. 2.No Investing Fund or Investing Fund Affiliate will cause any existing or potential investment by the Investing Fund in a Fund to influence the terms of any services or transactions between the Investing Fund or an Investing Fund Affiliate and the Fund or a Fund Affiliate. 3.The board of directors or trustees of an Investing Management Company, including a majority of the disinterested directors or trustees, will adopt procedures reasonably designed to assure that the Investing Fund Advisor and any Investing Fund Sub-Advisor are conducting the investment program of the Investing Management Company without taking into account any consideration received by the Investing - 35 - Management Company or an Investing Fund Affiliate from a Fund or a Fund Affiliate in connection with any services or transactions 4.Once an investment by an Investing Fund in the Shares of a Fund exceeds the limit in Sectionl2(d)(1)(A)(i)of the 1940 Act, the Board of a Fund, including a majority of the disinterested Board members, will determine that any consideration paid by the Fund to the Investing Fund or an Investing Fund Affiliate in connection with any services or transactions: (i)is fair and reasonable in relation to the nature and quality of the services and benefits received by the Fund; (ii)is within the range of consideration that the Fund would be required to pay to another unaffiliated entity in connection with the same services or transactions; and (iii)does not involve overreaching on the part of any person concerned. This condition does not apply with respect to any services or transactions between a Fund and its investment adviser(s), or any person controlling, controlled by or under common control with such investment advisor(s). 5.The Investing Fund Advisor, or Trustee or Sponsor, as applicable, will waive fees otherwise payable to it by the Investing Fund in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by a Fund under Rule 12b-l under the 1940 Act) received from a Fund by the Investing Fund Advisor, or Trustee or Sponsor, or an affiliated person of the Investing Fund Advisor, or Trustee or Sponsor, other than any advisory fees paid to the Investing Fund Advisor, or Trustee or Sponsor, or its affiliated person by the Fund, in connection with the investment by the Investing Fund in the Fund. Any Investing Fund Sub-Advisor will waive fees otherwise payable to the Investing Fund Sub-Advisor, directly or indirectly, by the Investing Management Company in an amount at least equal to any compensation received from a Fund by the Investing Fund Sub-Advisor, or an affiliated person of the Investing Fund Sub-Advisor, other than any advisory fees paid to the Investing Fund Sub-Advisor or its affiliated person by the Fund, in connection with the investment by the Investing Management Company in the Fund made at the direction of the Investing Fund Sub-Advisor. In the event that the Investing Fund Sub-Advisor waives fees, the benefit of the waiver will be passed through to the Investing Management Company. 6.No Investing Fund or Investing Fund Affiliate (except to the extent it is acting in its capacity as an investment adviser to a Fund) will cause a Fund to purchase a security in an Affiliated Underwriting. 7.The Board of a Fund, including a majority of the disinterested Board members, will adopt procedures reasonably designed to monitor any purchases of securities by the Fund in an Affiliated Underwriting, once an investment by an Investing Fund in the securities of the Fund exceeds the limit of Section12(d)(1)(A)(i)of the 1940 Act, including any purchases made directly from an Underwriting Affiliate. The Board will review these purchases periodically, but no less frequently than annually, to determine whether the purchases were influenced by the investment by the Investing Fund in the Fund. The Board will consider, among other things: (i)whether the purchases were consistent with the investment objectives and policies of the Fund; (ii)how the performance of securities purchased in an Affiliated Underwriting compares to the performance of comparable securities purchased during a comparable period of time in - 36 - underwritings other than Affiliated Underwritings or to a benchmark such as a comparable market index; and (iii)whether the amount of securities purchased by the Fund in Affiliated Underwritings and the amount purchased directly from an Underwriting Affiliate have changed significantly from prior years. The Board will take any appropriate actions based on its review, including, if appropriate, the institution of procedures designed to assure that purchases of securities in Affiliated Underwritings are in the best interest of shareholders. 8.Each Fund will maintain and preserve permanently in an easily accessible place a written copy of the procedures described in the preceding condition, and any modifications to such procedures, and will maintain and preserve for a period of not less than six years from the end of the fiscal year in which any purchase in an Affiliated Underwriting occurred, the first two years in an easily accessible place, a written record of each purchase of securities in Affiliated Underwritings once an investment by an Investing Fund in the securities of the Fund exceeds the limit of Section12(d)(1)(A)(i)of the 1940 Act, setting forth from whom the securities were acquired, the identity of the underwriting syndicate’s members, the terms of the purchase, and the information or materials upon which the Board’s determinations were made. 9.Before investing in a Fund in excess of the limits in Section12(d)(1)(A), an Investing Fund will execute a FOF Participation Agreement with the Fund stating that their respective boards of directors or trustees and their investment advisers, or Trustee and Sponsor, as applicable, understand the terms and conditions of the order, and agree to fulfill their responsibilities under the order. At the time of its investment in shares of a Fund in excess of the limit in Section12(d)(1)(A)(i), an Investing Fund will notify the Fund of the investment. At such time, the Investing Fund will also transmit to the Fund a list of the names of each Investing Fund Affiliate and Underwriting Affiliate. The Investing Fund will notify the Fund of any changes to the list as soon as reasonably practicable after a change occurs. The Fund and the Investing Fund will maintain and preserve a copy of the order, the FOF Participation Agreement, and the list with any updated information for the duration of the investment and for a period of not less than six years thereafter, the first two years in an easily accessible place. 10.Before approving any advisory contract under Section15 of the 1940 Act, the board of directors or trustees of each Investing Management Company, including a majority of the disinterested directors or trustees, will find that the advisory fees charged under such contract are based on services provided that will be in addition to, rather than duplicative of, the services provided under the advisory contract(s) of any Fund in which the Investing Management Company may invest. These findings and their basis will be recorded fully in the minute books of the appropriate Investing Management Company. 11.Any sales charges and/or service fees charged with respect to shares of an Investing Fund will not exceed the limits applicable to a fund of funds as set forth in NASD Conduct Rule 2830. 12.No Fund relying on this Section12(d)(1) relief will acquire securities of any investment company or company relying on Section3(c)(1) or 3(c)(7) of the 1940 - 37 - Act in excess of the limits contained in Section12(d)(1)(A) of the 1940 Act, except to the extent permitted by exemptive relief from the Commission permitting the Fund to purchase shares of other investment companies for short-term cash management purposes. V. Procedural Matters Pursuant to Rule 0-2(f) under the 1940 Act, Applicants state that their addresses are as indicated on the first page of this Application. Applicants further state that all written or oral communications concerning this Application should be directed to: John Y. Keffer Forum Investment Advisors, LLC Three Canal Plaza, Suite 600 Portland, ME 04101 Stacey E. Hong Forum ETF Trust Three Canal Plaza, Suite 600 Portland, ME 04101 Richard J. Berthy Foreside Fund Services, LLC Three Canal Plaza, Suite 100 Portland, ME 04101 With copies to: Francine J. Rosenberger, Esq. K&L Gates LLP 1treet, NW Washington, DC20006 Applicants file this Application in accordance with Rule 0-2 under the 1940 Act, and state that their address is printed on the Application’s facing page, and that they request that all written communications concerning the Application be directed to the person and address printed on the Application’s facing page. Also, Applicants have attached the required verifications. In accordance with Rule 0-5 under the 1940 Act, Applicants request that the Commission issue the requested Order without holding a hearing. - 38 - Based on the facts, analysis and conditions in the Application, Applicants respectfully request that the Commission issue an Order under Sections 6(c), 17(b) and 12(d)(1)(J) of the 1940 Act granting the Relief requested by this Application. Dated: October 29, 2012 Forum Investment Advisors, LLC By: /s/ John Y. Keffer Name: John Y. Keffer Title: President Forum ETF Trust By: /s/ Stacey E. Hong Name: Stacey E. Hong Title: President Foreside Fund Services, LLC By: /s/ Richard J. Berthy Name: Richard J. Berthy Title: Vice President - 39 - Verification In accordance with Rule 0-2(d) under the 1940 Act, the undersigned states that he has duly executed the attached Application for an order for and on behalf of Forum Investment Advisors, LLC; that he is President of such company; and that all actions taken by the members and other persons necessary to authorize the undersigned to execute and file such instrument have been taken. The undersigned further states that he is familiar with such instrument, and the contents thereof, and that the facts therein set forth are true to the best of his knowledge, information and belief. By: /s/ John Y. Keffer Name: John Y. Keffer Title: President Dated: October 29, 2012 In accordance with Rule 0-2(d) under the 1940 Act, the undersigned states that he has duly executed the attached Application for an order for and on behalf of Forum ETF Trust; that he is President of such company; and that all actions taken by the persons necessary to authorize the undersigned to execute and file such instrument have been taken. The undersigned further says that he is familiar with such instrument, and the contents thereof, and that the facts therein set forth are true to the best of his knowledge, information and belief. By: /s/ Stacey E. Hong Name: Stacey E. Hong Title: President Dated: October 29, 2012 In accordance with Rule 0-2(d) under the 1940 Act, the undersigned states that he has duly executed the attached Application for an order for and on behalf of Foreside Fund Services, LLC; that he is Vice President of such company; and that all actions taken by the members and other persons necessary to authorize the undersigned to execute and file such instrument have been taken. The undersigned further states that he is familiar with such instrument, and the contents thereof, and that the facts therein set forth are true to the best of his knowledge, information and belief. By: /s/ Richard J. Berthy Name: Richard J. Berthy Title: Vice President Dated: October 29, 2012 - 40 -

Exhibit 10.26 EMPLOYMENT AGREEMENT This Agreement is made as of July 14, 2000 between Onset Capital Corporation ("Onset") and Joseph LaLeggia (the "Executive") to set out the terms and conditions upon which Onset will employ the Executive and the Executive will be employed by Onset. In consideration of the mutual promises contained in this Agreement, Onset and the Executive agree as follows: DEFINITIONS 1. In this Agreement:      a) "Affiliate" means any holder of common or preferred shares of Onset ("Shareholder") and:           (i) a Person that is directly or indirectly Controlled by that Shareholder;           (ii) if the Shareholder is a corporation, any Person who Controls that corporate Shareholder; and           (iii) if the Shareholder is a corporation, every other Person Controlled by any Person who Controls that corporate Shareholder;      b) "Agreement" means this agreement, including all amendments to this agreement and all schedules to this agreement;      c) "Change of Control" means, with respect to Onset, an occurrence whereby Irwin Financial Corporation ceases to hold, directly or indirectly, more than 50% of the voting shares of capital stock of Onset.      d) "Confidential Information" means all information or knowledge related to the products, sales, services, policies and business of Onset. It includes, without limiting the generality of this definition, all customers or contact lists, all information related to the nature and custom of Onset's business or the names and requirements of its customers or potential customers, all analyses, data, intellectual property, programs, projections, procedures, processes, research and techniques arising or resulting from or otherwise having to do with the business and affairs of Onset, its clients, its relationships with third parties, its systems and strategies;      e) "Control" means, with respect to any Person, the right or power to elect or appoint directly or indirectly a majority of the directors of such Person (if such Person is a corporation) or other individuals who have the right to manage or supervise the management of the business and affairs of such Person.      f) "Person" means an individual, a partnership, a corporation, an association, a joint stock company, a limited liability company, a trust, a joint venture, an unincorporated organization or any other entity. EMPLOYMENT 2. The Executive represents to Onset that he has the required skills and experience to perform the duties and exercise the responsibilities required of him under this Agreement. 3. Onset agrees to employ the Executive as the President of Onset. 4. The Executive agrees to serve Onset as its President upon the terms and subject to the conditions set out in this Agreement. 5. The employment will start on July 14, 2000. 6. The precise duties and responsibilities of the Executive will be determined by the Board of Directors of Onset from time to time. Generally, the Executive's duties will be consistent with the duties and responsibilities of the chief executive officer of a corporation charged with the direction and overall management of Onset's business operations. In carrying out his duties and responsibilities, the Executive will report to the Board of Directors and will comply with all lawful and reasonable instructions as may be given to him by the Board of Directors from time to time. 7. The Executive will carry out his duties within the municipal boundaries of the City of Vancouver, British Columbia or in such other area as the Executive and Onset may agree. 8. The Executive acknowledges that the effective performance of his duties requires the highest level of integrity and Onset's complete confidence in the Executive and in his relationship with the other executives and employees of Onset and with all other persons dealt with by the Executive in the course of his employment. EXCLUSIVE SERVICE 9. During the term of his employment, the Executive will:      a) at all times faithfully, industriously and to the best of his abilities serve Onset;      b) devote his full time, skill, labour and attention to his duties and to Onset's interests; and      c) act at all times with the utmost integrity and in Onset's best interests. 10. During the term of his employment, the Executive will not, in any manner or capacity, promote, undertake or carry on any other business than that described in this Agreement. The Executive may, however, serve in any capacity in other organizations that the Executive and the Board of Directors of Onset believe are in the best interest of Onset. 11. The duties and responsibilities of the Executive will require the full time of the Executive. The hours of work involved will vary and be irregular and are those hours required to meet the objectives of the employment. The Executive acknowledges that this clause constitutes agreement to work such hours where such agreement is required by legislation. REMUNERATION AND BENEFITS 12. For his services under this Agreement, the Executive will be paid:      a) a base salary (annual paid salary) of $230,000 CND. Salary payments in the amount of $9,583.33 CND, less applicable deductions, each shall be made by Onset to the Executive twice monthly on or before the 15th day of each month and the last day of each month, in arrears. The Board of Directors will review the Executive's base salary on an annual basis and adjust as the Board deems appropriate; provided, however, that the Executive's annual base salary shall in no event be reduced, in connection with such review and adjustment, to a level lower than the then current annual base salary of the Executive without the consent of the Executive.      b) an annual target bonus of 50% to a maximum of 100% of the Executive's base salary based upon Onset's profit from operations in a given fiscal year in accordance with criteria established from time to time by the Board of Directors. The bonus will be paid on the first day of the second month following the release of Onset's pro forma financial statements reflecting Onset's results of operations for that fiscal year.      c) a car allowance of $500 CND per month toward the operation of one vehicle, plus reimbursement to the Executive for fuel, repair and insurance premiums for the vehicle. 13. The Executive will be reimbursed for all reasonable and documented traveling expenses incurred on behalf of Onset as well as all other reasonable and documented expenses incurred during his conduct of business on behalf of Onset. Payment will be made within 10 days of receipt by Onset of an accounting of the expenses together with all supporting invoices. 16. Onset will provide the Executive with other benefits as determined from time to time by the Board of Directors. 17. The Executive will be entitled to participate in all discretionary benefit plans as may be offered to Onset's executives from time to time subject only to applicable law and the eligibility requirements of those plans. VACATION 18. The Executive is entitled to 4 weeks annual paid vacation each year, plus 4 scheduled holidays and 4 floating holidays annually during the term of this Agreement. The timing and the length of vacation periods will be as agreed by the Executive and Onset, acting reasonably. Any vacation not taken during any year will be carried over and may be taken in any subsequent year or, at the option of the Chairman of the Board, Onset will provide pay in lieu of such accrued vacation. 19. The Executive may also take such periods of unpaid leave from time to time as may be agreed between the Executive and Onset. CONFIDENTIAL INFORMATION 20. During the performance of his duties, the Executive will acquire Confidential Information about the business and affairs of Onset, its clients, relationships with third parties, systems and strategies and about the business and affairs of Onset's individual and corporate clients. 21. The Executive acknowledges that all such Confidential Information is the exclusive property of Onset. 22. The Executive covenants to treat all Confidential Information confidentially and to neither disclose any of the Confidential Information to any third party nor to make any personal use of any of that Confidential Information either during or after the term of employment, except as may be required to fulfill his duties on behalf of Onset or as may be ingramandrew@example.com. 23. The provisions of this section will not apply to any Confidential Information that is or that becomes common knowledge or obsolete through no act or failure of the Executive. 24. The provisions of this section will survive the termination of this Agreement. TERMINATION 25. The Executive's employment under this Agreement may be terminated:      a) by the Executive by giving not less than 1 month's written notice to Onset or such shorter period as may be agreed to by Onset in writing;      b) by Onset by giving not less than 1 month's written notice to the Executive (or pay in lieu of the notice period);      c) by Onset, effective immediately upon written notice to the Executive, for just cause including, but not limited to, a material breach by the Executive of the provisions of this Agreement;      d) by the Executive for just cause including, but not limited to, a material breach by Onset of the provisions of this Agreement if Onset does not cure the breach within 30 days after receiving written notice from the Executive specifying the breach;      e) by Onset, immediately upon receipt of notice, if the Executive is, because of illness or injury, unable to carry out his duties and responsibilities as President of Onset under this Agreement for any consecutive period of 60 days within any 3-month period (excluding any agreed periods of unpaid leave);      f) by the Executive, immediately upon receipt of notice, upon:           i) a Change of Control of Onset; or           ii) a sale or other disposition of all or substantially all of the assets of Onset to any Person; or           iii) a change in the terms, conditions or duties of his employment that significantly reduces his salary, bonus entitlement, level of responsibility, or position in the corporate hierarchy or that changes the place in which he carries out his duties by more than 25 miles; or      g) immediately and without notice, upon the death of the Executive. 26. In calculating the period of notice, the day upon which the notice is received will not be included. The termination will be effective as at 11:59 p.m. on the last day of the notice period whether or not the Executive has ceased to carry out his responsibilities and duties under this Agreement before that date. 27. The giving of notice or the payment of severance pay by Onset to the Executive shall not prevent Onset from alleging cause for the termination. 28. Notwithstanding the Executive's rights to severance in Section 31, the Executive's entitlement to base salary will be pro-rated to the date of termination. Bonuses will be paid in accordance with incentive compensation plans established from time to time by the Board of Directors. 29. The Executive authorizes Onset to deduct from any payment due to the Executive at any time, including from a termination payment, any amounts owing to Onset by the Executive. 30. Immediately upon giving or receiving notice of termination, the Executive will resign his position as an officer and, if applicable, as a director, of Onset and all other corporations to which he was appointed or elected an officer or director because of his employment by Onset. The Executive irrevocably appoints the Chairman of the Board of Directors of Onset from time to time his attorney with full power and authority to sign and deliver all resignations necessary to fulfill the intent of this paragraph on the Executive's behalf. 31. In the event the Executive's employment terminates under Section 25(b), (d) or (f), and in consideration of the Executive's execution and delivery at that time of a written affirmation of the covenants set forth in Section 32 in form and substance satisfactory to Onset, he will receive a lump-sum severance payment within 30 days of termination calculated in accordance with the provisions set forth in this Section 31, in each case net of applicable deductions. If notice of termination occurs during: Year 1: 12 months' of the Executive's annual base salary in effect at the time of notice of termination; Year 2: 1.5 times the sum of the Executive's annual base salary in effect at the time of notice of termination, plus the Executive's annual target bonus established for the fiscal year in which such termination occurs; Year 3: 1.5 times the sum of the Executive's base salary in effect at the time of notice of termination, plus the Executive's annual target bonus established for the fiscal year in which such termination occurs; Year 4 and beyond: 1.5 times the sum of the Executive's base salary in effect at the time of notice of termination, plus the average of the Executive's annual target bonus paid in respect of the previous 2 fiscal years ended prior to the date of termination. Each "Year" for purposes of this provision shall be deemed to commence on July 14 of a given calendar year and end on July 13 of the following year (e.g., Year 1 commences on the date of this Agreement and expires on July 13, 2001). The level of the annual target bonus shall be determined from time to time by the Board of Directors of Onset. The Executive shall receive compensation for accrued but unused vacation time. He shall also receive medical and disability coverage for 18 months from the date of termination at his same contribution rate in effect immediately prior to termination. In the event (a) the Executive's employment terminates under Section 25(f)(i) or Section 25(f)(ii) and (b) the Executive enters into an Onset Relationship at any time during the period from the date of his termination through 18 months after that date, the Executive shall, upon entering into such Onset Relationship, immediately: (x) notify Irwin Financial Corporation of such Onset Relationship, and (y) if such Onset Relationship involves the Executive's being employed or engaged by, or otherwise providing services, advice or direction to or for the benefit of Onset as its President, Chairman, chief executive officer or in any other capacity similar to his current capacity with Onset, pay to Irwin Financial Corporation the Refund Amount. It is understood that the Executive's payment of the Refund Amount shall be treated for all purposes as a repayment of salary, and that the Executive will thereupon be entitled to deduct in full the Refund Amount on the appropriate income tax and benefit returns in accordance with applicable laws and regulations. For the purposes of this Section 31 and Section 32, the following definitions shall apply:           (i) References to "Onset" shall be deemed to include Onset Capital Corporation or any direct or indirect successor or assignee of Onset Capital Corporation;           (ii) An "Onset Relationship" means the Executive's being employed by, being engaged by, providing services, advice or direction to or for the benefit of, or obtaining Control of, Onset in any capacity (such capacity to include without limitation being an owner, employee, officer, director, consultant, advisor or independent contractor); and           (iii) The "Refund Amount" shall be calculated as follows: X = Y [547 - Z] [ 547 ] Where: X equals the Refund Amount; Y equals the gross severance amount paid to the Executive; and Z equals the number of days elapsed between the date of the Executive's termination and the date on which he entered into an Onset Relationship following such termination.   32. Executive agrees that, in the event a severance payment is made to Executive pursuant to Section 31, any amounts so paid (together with amounts paid pursuant to Section 13 in respect of expenses incurred through the date of termination and Section 28 in respect of base salary pro-rated to the date of termination) shall be in full satisfaction of any and all obligations that Onset may owe to the Executive at such time or thereafter, and, in consideration of the payment of those amounts, Executive (i) waives any claims against Onset for any additional amounts or other obligations or liabilities and (ii) releases and forever discharges Onset and its officers, directors, agents, employees and Affiliates from any and all charges, claims, and causes of action of every kind which he has at the time of termination, or may in the future have, relating to the compensation to be paid to Executive at such time or relating to his employment with Onset or the termination thereof (it being understood that such waiver and release shall not apply to claims that are unrelated to compensation, employment or the termination thereof, including any such claims arising under any shareholder agreement to which Executive is a party related to his direct or indirect ownership in Onset). Executive acknowledges that this waiver and release is intended to avoid any possible lawsuit or complaint concerning amounts, obligations or liabilities (other than those payable pursuant to Sections 13, 28 and 31 hereof) that Executive may claim are owed to him by Onset at the time of his termination or concerning any other matters relating to his employment with Onset or the termination thereof. MISCELLANEOUS 33. This Agreement may not be assigned by Onset to any Affiliate of Onset without the prior written consent of the Executive (it being understood that this Agreement may be assigned by Onset without Executive's consent to any successor or assign of Onset who agrees to be bound by the terms hereof). This Agreement involves the personal services of the Executive and may not be assigned by the Executive. 34. This Agreement, including any written affirmation deliverable pursuant to Section 31, sets out all of the agreement between Onset and the Executive with respect to the employment of the Executive by Onset. There are no warranties, representations, terms, conditions or other agreements, express, implied or statutory, that are not stated in this Agreement. Any and all previous agreements, written or oral, expressed or implied, between Onset and the Executive or on their behalf relating to the employment of the Executive by Onset are terminated and cancelled. Each of Onset and the Executive releases and forever discharges the other of and from all manner of actions, causes of action, claims, demands whatsoever under or in respect of any such previous agreements. 35. This Agreement may only be amended in writing signed by both Onset and the Executive. 36. If any part, provision or any portion of any part or provision in this Agreement is found to be void or unenforceable by a court of competent jurisdiction, the remaining provisions, or parts, will remain in full force and effect. 37. Any notice to the Executive shall be delivered to the Executive personally or sent by registered or certified mail, overnight delivery by a nationally recognized carrier or facsimile to the Executive's last known address or facsimile number. Any notice to Onset shall be sent by registered or certified mail, overnight delivery by a nationally recognized carrier or facsimile to the Chairman of the Board of Directors of Onset at Onset's then current head office address or facsimile number. Any notice given by mail shall be deemed to have been given 48 hours after the time it is posted. 38. This Agreement shall be governed by, and construed in accordance with, the laws of the Province of British Columbia. 39. This Agreement will continue to benefit and to bind the Executive, Onset and their respective heirs, executors, administrators, successors and permitted assigns. Irwin Financial Corporation shall be a third party beneficiary with respect to Section 31 of this Agreement. 40. The Executive acknowledges that Onset has advised him to obtain independent legal advice to ensure that he understands his rights and his obligations under this Agreement. 41. Both the Executive and Onset acknowledge that this Agreement is intended to be a legally binding contract enforceable in accordance with its terms. TO WITNESS their agreement, Onset and the Executive have duly executed this Agreement as of the date first above written. Onset Capital Corporation Corporation De Financement Onset The Executive:     By:_/s/ Thomas D. Washburn /s/ Joseph LaLeggia Thomas D. Washburn Joseph LaLeggia Chairman  

188 Ill. App. 3d 155 (1989) 544 N.E.2d 40 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN CLARK BRIDGES, Defendant-Appellant. No. 5-86-0777. Illinois Appellate Court — Fifth District. Opinion filed August 25, 1989. *156 Daniel M. Kirwan and Michelle A. Zaliski, both of State Appellate Defender's Office, of Mt. Vernon, for appellant. David W. Hauptmann, State's Attorney, of Harrisburg (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People. Affirmed in part and vacated in part. JUSTICE HOWERTON delivered the opinion of the court: Defendant, a juvenile, was convicted as an adult of voluntary manslaughter, attempted murder, unlawful use of weapons, and two counts of aggravated battery, but acquitted of murder. He was sentenced to the Department of Corrections, Juvenile Division, until 21. We affirm *157 in part and vacate in part. Defendant heatedly argued with Brad Taylor and Leroy Sanders, Jr. Later that day, Taylor, his brother Danny Taylor, Sanders, Winfred Moss and Toni Flemmings returned to the area, stopping at defendant's neighbor's house to collect for trash hauling. As they were leaving, defendant came out, saying he was going to "get" someone on Saturday and shouting derogatory names at the group as they were leaving. Moss stopped the car. Brad Taylor, Danny Taylor and Sanders got out. Brad Taylor approached defendant. Danny Taylor remained about 40 to 50 feet behind Brad Taylor. Sanders stayed near the car. Flemmings remained in the car. Moss was near the car door. Brad Taylor and defendant started swinging at each other. Taylor slapped defendant in the face. Defendant pulled a handgun, Sanders and the two Taylors started running, and defendant started "shooting like crazy," firing four to six shots in rapid succession. Danny Taylor was shot twice and killed. Sanders was shot in the leg. A bullet was found lodged in Moss' car. Defendant claimed self-defense. In support of his defense, he testified that Sanders had a pipe inside his jacket, that Brad Taylor acted as if he had a knife, that he saw the barrel of a gun sticking out of the rear window of Moss' car, and that he believed that the person in the car was going to shoot him. He also called three witnesses who testified that Brad Taylor had a propensity for violence, and also related Sander's violent past. However, the trial court refused to admit the past violent acts of Winfred Moss. Contradicting defendant, Brad Taylor, Sanders and Flemmings testified they had no weapon, and, to the best of their knowledge, neither Moss nor Danny Taylor had a weapon. Neighbors testified that only defendant had a weapon. Danny Taylor was shot twice and killed: The jury found defendant guilty of voluntary manslaughter, but not guilty of murder. Brad Taylor was shot at, and Leroy Sanders was shot in the leg: The jury found defendant guilty of attempted murder, and also found defendant guilty of aggravated battery against Sanders. Defendant first argues that the jury verdicts finding him not guilty of the murder of Danny Taylor, but guilty of the voluntary manslaughter of Danny Taylor, are both logically and legally inconsistent with the verdicts finding him guilty of the attempted murder of Brad Taylor and Leroy Sanders; therefore, he argues the attempted murder convictions must be vacated. We do not agree. • 1 The verdicts on Danny Taylor's killing are first examined. One found defendant guilty of voluntary manslaughter; the other acquitted *158 him of murder. These verdicts are not inconsistent, because together they implicitly show that the jury rejected the theory that defendant intended to kill Danny Taylor, and instead found that defendant had an unreasonable belief in the need to defend himself. In finding defendant guilty of the attempted murder of Brad Taylor and Leroy Sanders, however, the jury found that defendant had the specific intent to kill. • 2 Defendant argues that the verdict convicting him of voluntary manslaughter, therefore, is inconsistent with the set of verdicts convicting him of attempted murder, because the jury could not find defendant had the specific intent to kill but, at the same time, find that his belief that he needed to defend himself was unreasonable. Four to six shots were fired in rapid succession. Defendant argues that to believe that he changed his motivation between shots would be contrary to reason. While defendant's argument appears logical, a careful examination of the facts establishes that the verdicts are neither legally nor logically inconsistent. Brad Taylor and Leroy Sanders, Jr., had had an earlier confrontation with defendant. Threats were made. Taylor and Sanders promised to return. They did. Brad Taylor approached defendant. Sanders stayed near the car. There was testimony that defendant first aimed and shot at Brad Taylor, and ojohnson@example.com. The jury could believe defendant's testimony that Brad Taylor acted as if he had a knife, and that he saw a lead pipe inside of Sanders jacket, yet find that defendant had the specific intent to kill Sanders and Brad Taylor because of the motivation provided by the earlier confrontation. Danny Taylor, however, was not part of the initial confrontation, but in the second confrontation got out of the car and remained 40 to 50 feet away while Brad Taylor approached defendant. The jury could find, from the entire context, that just as defendant believed Brad Taylor and Sanders were armed, he likewise believed that Danny Taylor was armed and would shoot him, but could find further that that belief was unreasonable because the evidence placed no weapon in Danny Taylor's hand nor otherwise insinuated aggression on his part. • 3 When a conviction is reviewed, the evidence must be viewed in the light most favorable to the prosecution and the judgment upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267; People v. House (1986), 141 Ill. App. 3d 298, 490 N.E.2d 212.) We find that the jury properly could have found that defendant had a specific intent to kill or harm Brad Taylor and Sanders and not have had the same intent as against Danny Taylor. *159 Therefore, the attempted murder convictions are affirmed. • 4 Defendant next argues that he was denied a fair trial because the trial court refused to permit introduction of evidence of Winfred Moss' prior acts of violence and aggression. Illinois law allows for the introduction of a victim's past specific acts of misconduct when the defendant raises the defense of self-defense. (People v. Lynch (1984), 104 Ill. 2d 194, 470 N.E.2d 1018.) Lynch does not apply, however, because its predicate is missing; there is no evidence to indicate that Winfred Moss was a victim. He was involved in neither the first nor the second confrontation. His only involvement was to stand next to the car upon which defendant fired. Mere presence does not make one a victim, only a bystander. We are not prepared to extend Lynch to cover a bystander. After all, to do so would have the effect of making a man with a violent past fair game for killing. Therefore, Moss' character was irrelevant and the trial court was correct in refusing to admit evidence of the prior violent acts of Winfred Moss. • 5, 6 Defendant also complains that the jury was erroneously instructed as to the elements of attempted murder. He argues that because an accused cannot be convicted of attempted murder without having the specific intent to kill, it was error to give instructions that incorporated the alternative definitions of murder contained in the Illinois Criminal Code. (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a).) The jury was instructed that murder was defined as acting with the intent to kill or do bodily harm. This issue has been waived. Defendant, himself, tendered this instruction. It is not proper for a defendant to tender an erroneous instruction and then, when it is given, claim error. This court has held that a defendant's failure to tender a proper instruction and failure to raise the issue in a post-trial motion effectively waives that issue for appeal. People v. Pecka (1984), 125 Ill. App. 3d 570, 466 N.E.2d 404. • 7 Defendant argues that the issue is not waived, because it is plain error under Illinois Supreme Court Rules. (107 Ill.2d R. 451(c).) This assertion is incorrect. In People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331, the defendant failed to object to similar instructions. The Roberts court found that the instruction defining murder was erroneous but not "grave error" and, thus, did not fall under Rule 451(c). Roberts, 75 Ill.2d at 14, 387 ojohnson@example.com. • 8 Defendant also argues that the jury was given erroneous murder and voluntary manslaughter instructions. Similar instructions, defendant contends, were recently held to create reversible error. (See People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141.) Again, however, defendant tendered the instructions, a critical distinction from *160 Reddick, causing this case to be unaffected by Reddick's holding. • 9 Finally, defendant complains that his convictions for aggravated battery must be vacated because they are based upon the same physical act as the attempted murder conviction, namely: shooting Leroy Sanders, Jr., in the leg. It is undisputed that defendant shot several times in the direction of various people. Count VII of the information alleges: "The said defendant, without lawful justification and with intent to kill Leroy Sanders and Brad Taylor in violation of Ill Rev Stat, ch 38, sec 9-1(A) [sic], performed a substantial step toward the commission of that offense, in that he fired a gun numerous times at Leroy Sanders and Brad Taylor and struck Leroy Sanders in both legs in violation of par 8-4(A), ch 38, Ill Rev Stat." The aggravated battery convictions also were based upon the shot that actually struck Sanders in the leg. Therefore, the fact that Sanders was shot in the leg was a necessary element of the aggravated battery convictions and the attempted murder conviction. To convict on both is improper. As the supreme court of Illinois recognized in People v. Segara (1988), 126 Ill. 2d 70, 77, 533 N.E.2d 802, 805: "[I]f a defendant commits more than one criminal act in an episode or transaction, he may be prosecuted for more than one offense unless the charges involve precisely the same physical act. If the physical acts are distinct, the defendant can be convicted of both, but only concurrent sentences can be imposed. If exactly the same physical act does form the basis for more than one offense, a defendant may still be prosecuted for each offense, but only one conviction and sentence may be imposed. Eisenberg, Multiple Punishments for the `Same Offense' in Illinois, 11 S. Ill. U.L.J. 217, 236-37 (1987)." The State argues that the attempted murder conviction is based on the shots that missed Sanders while the aggravated battery convictions are based on the shot that actually struck Leroy Sanders. An examination of the record, and more specifically of the charging instruments, however, does not support this contention. For the above-mentioned reasons, the defendant's aggravated battery convictions are vacated. The circuit court judgment is affirmed in part and vacated in part. Affirmed in part; vacated in part. WELCH, P.J., and HARRISON, J., concur.

81 F.2d 231 (1936) In re BARBER. Patent Appeal No. 3569. Court of Customs and Patent Appeals. January 27, 1936. Frederick Griswold, Jr., of New York City, for appellant. R. F. Whitehead, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for Commissioner of Patents. Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges. LENROOT, Associate Judge. This is an appeal from a decision of the Board of Appeals of the United States Patent Office, affirming a decision of the Examiner, denying to appellant a design patent upon his application filed November 28, 1931. Said application contains a single claim, reading as follows: "The ornamental design for a combined flashlight cap and hanger ring as shown and described." The Examiner rejected appellant's application upon two grounds, viz., nonpatentability over the prior art, in connection with which ground of rejection a number of references were cited by the Examiner, and also upon the ground that appellant was estopped by his mechanical patents from receiving the design patent applied for. Upon appeal, the Board of Appeals expressly reversed the Examiner upon the ground of rejection because of nonpatentability over the prior art, but affirmed his rejection upon the ground of estoppel. Accordingly, we are here concerned only with the issue of estoppel thus presented. Of the patents relied upon by the Examiner in support of the rejection upon the ground of estoppel, only one was discussed by the board, this being appellant's patent No. 1,894.147, issued January 10, 1933, upon an application filed December 20, 1928. The Examiner relied also upon another mechanical patent to appellant, No. 1,863,151, issued June 14, 1932, upon an application filed March 20, 1929; this patent was not mentioned in the decision of the Board of Appeals, other than to be included in the list of patents cited by the Examiner. It will be observed that the instant application was copending with those applications which resulted in the issue of the above-mentioned patents. The instant application contains drawings illustrating the design sought to be patented. Figure 2 of the drawings shows a form of screw-on cap for the base of a flash-light. There is a depressed groove, substantially rectangular in shape, extending diametrically across said cap, the groove being formed in such manner that it projects inwardly toward the interior of the flash-light cylinder when the cap is in place. As a result of this rectangular groove, two segmental surfaces remain in the original plane of the cap, one on each side of said groove. These segmental portions provide surfaces upon which the flash-light can be stood upright when the so-called hanger ring, later referred to, is in closed position. In said figure 2 is also shown a hanger ring, evidently formed of wire or similar material. This ring is in the shape of a "U" and has its ends turned outwardly at right angles to the longer sides of the ring, which they terminate. These outwardly projecting ends are shown in said drawing to be inserted in apertures through the walls of the groove in the cap, near one end of said groove. These apertures serve as bearings for said projections *232 on the ring and permit the pivoting of said ring therein, so that it may be opened or drawn out from its recess in the cap, for use in hanging the flash-light, or may be closed or pushed back into said recess or groove when not required. Two slight projections in the side walls of the groove function to retain the ring in its closed position when it is snapped into the groove against the tension exerted by such side-wall projections. The shape of the ring is substantially the same as that of the groove in the cap, and it fits snugly therewithin when pushed into closed position. The Examiner held that the essence of the claim under consideration here was substantially covered by claim 1 of each of said Barber patents, particularly patent No. 1,894,147. Said claim 1 of the patent reads as follows: "1. A flashlight bottom cap having a bottom surface formed with a rectilinear single wide groove with substantially straight sides extending diametrically through the bottom surface of the end of the cap without obstructions, and a hanger substantially as wide as the groove pivoted within the groove and lying below the bottom surface." Figure 2 of the drawings of said patent shows substantially the same type of flash-light cap, the only difference being that the ends of the hanger ring are turned at right angles in the opposite direction to that shown in the instant application; that is, they are turned towards each other. These ends, instead of being inserted into holes in the side walls of the groove, as shown in the instant application, are inserted into a substantially tubular shaped bearing member inserted in one end of the groove, passing through the bottom of the cap and being fastened on the inside thereof. However, figure 5 of said patent shows an alternative method of pivoting the hanger ring which corresponds to that shown in the instant application and hereinbefore described. The only question here involved is whether the allowance of the instant application would result in double patenting; or, in other words, does the appellant here claim the same invention for which he was granted a patent, No. 1,894,147? It is well established that the mere fact that a design sought to be patented may involve some mechanical or utilitarian function does not render it unpatentable, but the "invention must relate to the design, and be distinguishable from the mechanical function involved." In re La Montagne, 19 C.C.P.A.(Patents) 880, 55 F.(2d) 486, 488. It is also well established that while, as a matter of law, one may have a mechanical patent and a design patent upon the same subject-matter, there must be a clear patentable distinction between the two; or, in other words, they must involve different inventions. In re Hargraves, 19 C.C.P.A.(Patents) 784, 53 F.(2d) 900, 901. In the case last cited, we said: "When the two ideas are indistinguishable in their characteristics, and manifestly the result of the same inventive idea, a second patent will not be granted." An analysis of claim 1 of appellant's mechanical patent, above quoted, convinces us that substantially the design here involved would necessarily be produced in a structure embraced in said claim. If this be true, it seems clear to us that there were not two inventive ideas involved in the production of appellant's bottom cap and hanger ring, but only one, and appellant has been granted a mechanical patent for that invention. In other words, we think that the two ideas of the design here involved and the structure embodying the mechanical invention are indistinguishable in their characteristics, and are manifestly the result of the same inventive idea. Appellant states in his brief that "* * * The design patent application covers an end cap in which the groove is wide enough to divide the end surface of the cap into three panels substantially proportional in area, one rectangular and two in the shape of segments of circles, the definition between them being caused by the central rectangular panel being recessed. * * *" (Italics quoted.) However, said claim 1 of appellant's patent, hereinbefore quoted, contains the element of "a rectilinear single wide groove with substantially straight sides"; in view of this, we fail to see where appellant's counsel in the above-quoted matter has stated a patentable distinction. For the reasons stated herein, the decision of the Board of Appeals is affirmed. Affirmed.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs February 25, 2014 STATE OF TENNESSEE v. JESSICA ROOT Appeal from the Criminal Court for Sevier County No. 17449-III Rex Henry Ogle, Judge No. E2013-01690-CCA-R3-CD - Filed April 22, 2014 The Defendant, Jessica Root, appeals the trial court’s nine-year sentence to her open plea of guilt to vehicular homicide by intoxication, contending (1) that the trial court failed to consider applicable mitigating factors and a sentencing practices report; (2) that she should have received the minimum sentence; and (3) that the trial court improperly denied all forms of alternative sentencing. Upon consideration of the record and the applicable authorities, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and J AMES C URWOOD W ITT, J R., J., joined. Edward C. Miller, District Public Defender, for the appellant, Jessica Root. Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; James B. Dunn, District Attorney General; and Greg Eshbaugh, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION FACTUAL BACKGROUND This case arises out of the September 16, 2010 death of John R. Whitt, III, the Defendant’s then-husband, which occurred while he was a passenger in the Defendant’s car. The record reflects that the Defendant was indicted for the following offenses following Mr. Whitt’s death: Count 1, vehicular homicide by intoxication, a Class B felony; Count 2, vehicular homicide by recklessness, a Class C felony; Count 3, driving under the influence of an intoxicant (DUI), a Class A misdemeanor; and Count 4, DUI with a blood alcohol content (BAC) of .12, a Class A misdemeanor. The Defendant entered an open guilty plea to vehicular homicide by intoxication, Count 1, on June 17, 2013, and the remaining counts were dismissed. The State offered the following factual basis in support of the plea: [O]n the 16th day of September of 2010, [the Defendant] was driving a 2008 Mitsubishi Eclipse eastbound on US-25, also known as Asheville Highway. . . . Your Honor, John Whitt, her husband was an unrestrained front passenger in that vehicle. That [the Defendant] lost control of that vehicle and crossed the westbound lane of US-25 and went off the north edge of the roadway, traveled approximately fifty-six feet in a ditch line until it went through a barbed wire fence and impacted a tree on the passenger side. Mr. Whitt was sitting on that passenger’s side, Your Honor, and died basically immediately of the injuries sustained in that crash. [The Defendant] was then transported to the Tennessee Medical Center for non-life-threatening injuries. Sergeant Fox calculated an estimated speed on the roadway, Your Honor, of eighty miles an hour for that vehicle. A blood sample was taken from [the Defendant] at the Tennessee Medical Center and sent to the T[ennessee] B[ureau] of I[nvestigation]. That was submitted to an analysis, Your Honor, which did find a BAC of .12 percent, all of which occurred in Sevier County. A sentencing hearing was held on July 22, 2013, and the following exhibits were presented: an accident reconstruction report, the presentence investigation report, the Defendant’s and the victim’s toxicology reports, the Defendant’s driving history, and a report on the sentencing practices in Tennessee. The State did not present any witnesses. The Defendant testified on her own behalf. During her testimony, she stated that she and the victim had been together for three years, that they had been married for seven and a half months, and that they both had children from outside the marriage. She testified that she had struggled with depression most of her life and that she had used alcohol to self-medicate. The Defendant admitted that she had a previous conviction for DUI in 1997 and that alcohol had affected both her health and her ability to drive her children places. Regarding the night of the accident, she testified that the victim wanted to go out for his birthday, so they went to a bar. Around 1:00 a.m., the victim wanted to “go to the next bar” and get “some other drugs[.]” She explained that he had an addiction to prescription pain medications and that she had been trying to get him to go into a treatment program. The Defendant testified that the victim normally drove when they went out but that she “ended up driving [because she] knew he was drinking[,]” and if she did not drive, “he would have left and done it anyway.” According to the Defendant, while she was driving, a “car was coming and it was raining[.]” The Defendant testified, “[The victim] wouldn’t put his seatbelt on. He never wore his seatbelt. When the car comes close it was [sic], and he reached out and grabbed my arm where I was holding the steering wheel and I remember getting off the road and I heard it and -2- felt it and I jerked back then I woke up.” On cross-examination, the Defendant admitted that she had smoked marijuana and used cocaine in the past. She further admitted that she became aware of the pending charges against her in November 2010 but did not turn herself in because her children were only “six and ten” years old at the time, and she “couldn’t leave [her] kids.” The Defendant also admitted that, when she was ultimately arrested in this case, she initially attempted to evade arrest. Additionally, she admitted to consuming alcohol again after the accident, albeit some months later. The trial court considered the enhancement and mitigating factors and applied one enhancement factor: that the Defendant had a prior criminal conviction in addition to that necessary to establish the range. The trial court declined to apply any mitigating factors. In declining to apply one of the requested mitigating factors, that the Defendant acted under strong provocation because her husband was intoxicated and told her to drive, the trial court found that the Defendant had a “choice whether to get behind the wheel of the car while she was intoxicated and chose to exercise that option.” The trial court also found that there were no substantial grounds that excused or justified her criminal conduct though failing to establish a defense and that, contrary to the Defendant’s contention, her actions were not committed “under such unusual circumstances that it’s unlikely she had a sustained intent to violate the law[.]” The trial court then sentenced the Defendant to serve nine years for the vehicular homicide conviction, finding that the sentence was warranted based on “all the factors” and “the circumstances of the crime[.]” When considering the manner of service, the trial court stated that the accident reconstruction report noted that the accident occurred on a relatively straight stretch of road; the trial court found that this fact suggested that it was highly likely that the Defendant’s intoxication, and not some vehicle defect, caused the accident. The trial court also found that the Defendant’s following actions weighed in favor of incarceration: continuing to drink after the accident; failing to seek help after-the-fact for her drinking problem, on her own initiative; evading arrest and not turning herself in for over a year after the accident; having a prior conviction for DUI; and, even after causing the death of someone, continuing to drive. Based on the foregoing, the trial court denied all forms of alternative sentencing. The Defendant then appealed to this court. ANALYSIS The Defendant challenges (1) the length of her sentence, alleging that the trial court failed to consider some of the applicable mitigating factors and the sentencing practices -3- report; and (2) the trial court’s denial of any form of alternative sentence, alleging that there were other, more suitable, alternatives to incarceration available. The State responds that the trial court’s imposition of a nine-year sentence was proper because the trial court considered the purposes and principles of sentencing in determining the length of the Defendant’s sentence, explicitly considered and rejected the proposed mitigating factors, and implicitly considered the sentencing practices report. Further, the State responds that the trial court properly exercised its discretion in denying alternative sentencing after concluding that “the offense and the Defendant’s history and characteristics warranted a period of incarceration.” The Sentencing Reform Act was enacted in order “to promote justice” by ensuring that every defendant “be punished by the imposition of a sentence justly deserved in relation to the seriousness of the offense.” Tenn. Code Ann. § 40-35-102. In order to implement the purposes of the Sentencing Reform Act, trial courts must consider several sentencing principles. The sentence imposed for an offense “should be no greater than that deserved for the offense committed” and “should be the least severe measure necessary to achieve the purposes for which the sentence is imposed.” Tenn. Code Ann. § 40-35-103(2), (4). Thus, before a trial court imposes a sentence upon a convicted criminal defendant, it must consider: (a) the evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) evidence and information offered by the parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-35-113 and 40-35-114; (f) any statistical information provided by the Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses; and (g) any statement the defendant wishes to make in the defendant’s own behalf about sentencing. Tenn. Code Ann. § 40-35-210(b). I. Length of Sentence When an accused challenges the length and manner of service of a sentence, this court reviews the trial court’s sentencing determination under an abuse of discretion standard accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). This standard of review also applies to “the questions related to probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). This court will uphold the trial court’s sentencing decision “so long as it is within the appropriate range and the record demonstrates that the sentence is otherwise in compliance with the purposes and principles listed by statute.” Bise, 380 mcbridejerome@example.com. Moreover, under such circumstances, appellate courts may not disturb the sentence even if we had preferred a different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The party challenging the sentence imposed by the trial court has the burden of establishing that the -4- sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). After considering the applicable law and the record, we conclude that the trial court’s imposition of a nine-year sentence is presumptively reasonable. The record reflects that the Defendant admitted to consuming alcohol and then making the decision to drive. She also admitted that her decision to drive while intoxicated resulted in her losing control of her vehicle and, ultimately, Mr. Whitt’s death. Further, we note that for the instant conviction, the Defendant faced a range of punishment between eight and twelve years. Despite the trial court’s ability to sentence the Defendant anywhere within the range, it imposed a sentence at the lower end of the range, nine years. Given that the Defendant had a prior conviction for DUI, which the trial court considered for enhancement purposes, and that the record reflects that the trial court considered the purposes and principles of sentencing in determining the length of the Defendant’s sentence, we conclude that the trial court’s within- range sentence of nine years was proper. II. Alternative Sentencing The Defendant was eligible for probation because the “sentence actually imposed upon [her was] ten (10) years or less.” Tenn. Code Ann. § 40-35-303(a). Thus, the trial court was required to automatically consider probation as a sentencing option. Tenn. Code Ann. § 40-35-303(b). However, no criminal defendant is automatically entitled to probation as a matter of law. State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997). The defendant has the burden of establishing his or her suitability for full probation. See State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). The defendant must demonstrate that probation will “subserve the ends of justice and the best interests of both the public and the defendant.” Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000). A defendant who is an especially mitigated or standard offender convicted of a Class C, D, or E felony should be considered a favorable candidate for alternative sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-102(6). Following the June 7, 2005 amendments to our Sentencing Act, no longer is any defendant entitled to a presumption that he or she is a favorable candidate for alternative sentencing. State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008). Further, Tennessee Code Annotated section 40-35- 102(6) is only advisory. See Tenn. Code Ann. § 40-35-102(6)(D). In determining any defendant’s suitability for alternative sentencing, the trial court should consider whether -5- (A) Confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct; (B) Confinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or (C) Measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant[.] Tenn. Code Ann. § 40-35-103(1)(A)-(C). A trial court should also consider a defendant’s potential or lack of potential for rehabilitation when determining if an alternative sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). Ultimately, in sentencing a defendant, a trial court should impose a sentence that is “no greater than that deserved for the offense committed” and is “the least severe measure necessary to achieve the purposes for which the sentence is imposed.” Tenn. Code Ann. § 40-35-103(2), (4). On appeal, as previously noted, we review the trial court’s sentencing determination under an abuse of discretion standard accompanied by a presumption of reasonableness. See Caudle, 388 mcbridejerome@example.com. In denying all forms of alternative sentencing, the trial court noted that the accident occurred on a relatively straight stretch of road and found that this fact suggested that it was highly likely that the Defendant’s intoxication, and not some vehicle defect, caused the accident. The trial court explained that the Defendant’s continuing to drink after the accident; failing to seek help after-the-fact for her drinking problem, on her own initiative; evading arrest and not turning herself in for over a year after the accident; having a prior conviction for DUI; and continuing to drive after causing the death of her husband, all supported a sentence of full incarceration. Although not explicitly stated in this portion of its findings, the trial court implicitly found that the Defendant’s incarceration was necessary to avoid depreciating the seriousness of the offense and to deter the Defendant from continuing to drive while intoxicated. The trial court also found that the Defendant’s drinking problem had not only negatively impacted her health but that it also negatively impacted her children because it affected her ability to transport them places because she would be too intoxicated to drive. This evinces a belief that incarceration would both serve the interests of the Defendant and society. Given the trial court’s findings, the support for its findings in the record, and the applicable case law, we conclude that the trial court did not abuse its discretion in imposing a sentence of full incarceration. -6- CONCLUSION Based upon the foregoing, the judgment of the trial court is affirmed. _________________________________ D. KELLY THOMAS, JR., JUDGE -7-

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ADVANCED WAREHOUSE : SYSTEMS, INC., : Plaintiff : No. 1:18-cv-02364 : v. : (Judge Kane) : AMERICAN ASH RECYCLING : CORP. OF PENNSYLVANIA, : Defendant : ORDER AND NOW, on this 31st day of October 2019, in accordance with the Memorandum issued concurrently with this Order, IT IS ORDERED THAT: 1. Plaintiff’s motion for default judgment (Doc. No. 11) is GRANTED pursuant to Federal Rule of Civil Procedure 55(b)(2); 2. The Clerk of Court is directed to enter default judgment in favor of Plaintiff and against Defendant in the amount of $862,509.51 as to Count I of the complaint (Doc. No. 1); and 3. The Clerk of Court is directed to CLOSE the above-captioned case. s/ Yvette Kane Yvette Kane, District Judge United States District Court Middle District of Pennsylvania 

EXHIBIT 10.10 THIRD AMENDMENT TO LOAN AGREEMENT         This Third Amendment to Loan Agreement (this “Third Amendment”) is made and entered into as of the 29th day of October, 2004, by and between POWELL INDUSTRIES, INC., a Delaware corporation (“Borrower”), and BANK OF AMERICA, N.A., a national banking association (“Lender”). W I T N E S S E T H:         WHEREAS, pursuant to that certain Amended and Restated Loan Agreement (as heretofore amended, the “Loan Agreement”) dated October 25, 2001, Lender agreed to make certain loans to Borrower (or its predecessor in interest as the case may be) upon the terms and conditions therein contained; and         WHEREAS, pursuant to that certain First Amendment to Loan Agreement dated as of September 30, 2002, and that certain Second Amendment to Loan Agreement dated as of October 31, 2003, Borrower (or its predecessor in interest as the case may be) and Lender modified and amended certain terms and provisions of the Loan Agreement; and         WHEREAS, Borrower and Lender desire to further modify and amend certain terms and provisions of the Loan Agreement.         NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower and Lender agree as follows:         1.     Amendments to Loan Agreement. Subject to and upon the full and complete satisfaction of the terms and conditions of numerical Section 3 below, the Loan Agreement is amended and modified as follows:         1.1.     The definition of the following term in Section 1.1 of the Loan Agreement is deleted in its entirety and the following is substituted in place thereof:         “Termination Date” shall mean the earlier to occur of (a) February 28, 2007, or (b) an Event of Default.         1.2.     Section 6.1(a)(i) of the Loan Agreement is deleted in its entirety and the following is substituted in place thereof:   Tangible Net Worth. Cause Borrower to have at all times, on a consolidated basis, and as shown on the financial statements required under Section 6.1(d) hereof, a Tangible Net Worth of at least the Minimum Required Tangible Net Worth. The “Minimum Required Tangible Net Worth” shall be $134,000,000.00 until changed in accordance with this Section 6.1(a)(i). On, and as of, the last day of each fiscal year of Borrower in which Borrower’s consolidated net income is positive (the “Current Year”), beginning with the Fiscal Year ending on October 31, 2004, the Minimum Required Tangible Net Worth shall be equal to the sum of (x) the Minimum Required Tangible Net Worth that was in effect immediately before such last day, plus (y) an amount equal to one-half of Borrower’s consolidated net income for the Current Year, plus (z) the amount of the net proceeds received by Borrower after October 29, 2004, from any sale or issuance of equity securities or any other additions to capital by Borrower; and, the Minimum Required Tangible Net Worth shall remain such sum unless and until the next change, if any, pursuant to this Section 6.1(a)(i). “Tangible Net Worth” means the value of Borrower’s total assets (including leaseholds and leasehold improvements and reserves against assets but excluding goodwill, patents, trademarks, trade names, organization expense, unamortized debt discount and expense, capitalized or deferred research and development costs, deferred marketing expenses, and other like intangibles, and monies due from affiliates, officers, directors, employees, shareholders, members or managers of Borrower), less total liabilities, including but not limited to accrued and deferred income taxes, plus non-current portion of Subordinated Liabilities. “Subordinated Liabilities” means liabilities subordinated to Borrower’s obligations to Lender in a manner acceptable to Lender in its sole discretion.         2.     Reaffirmation of Representations and Warranties. To induce the Lender to enter into this Third Amendment, Borrower hereby reaffirms, as of the date hereof, its representations and warranties in their entirety contained in the Loan Agreement and in all other Loan Documents executed by Borrower pursuant thereto (except to the extent such representations and warranties relate solely to an earlier date in which case they shall have been true and accurate in all respects as of such earlier date) and additionally represents and warrants as follows:         2.1.     The execution and delivery of this Third Amendment and the performance by Borrower of its obligations under this Third Amendment and the Loan Agreement as amended hereby are within Borrower’s powers, have been duly authorized by all necessary action, have received all necessary governmental and other approvals (if any shall be required), and do not and will not contravene or conflict with the governance documents of Borrower or any provision of law, any presently existing requirement or restriction imposed by any judicial, arbitral, regulatory or governmental instrumentality or constitute a default under, or result in the creation or imposition of any lien other than a lien permitted by the terms of the Loan Agreement upon any property or assets of Borrower or any Guarantor under, any agreement, instrument or indenture by which Borrower or any Guarantor is bound;         2.2.     This Third Amendment has been duly executed and delivered on behalf of Borrower and this Third Amendment and the Loan Agreement, as amended hereby, are the legal, valid and binding obligations of Borrower, enforceable in accordance with their terms subject as to enforcement only to bankruptcy, insolvency, reorganization, moratorium or other similar laws and equitable principles affecting the enforcement of creditors’ rights generally; and         2.3.     No Default or Event of Default has occurred and is continuing after giving effect to this Third Amendment.         3.     Conditions. The effectiveness of this Third Amendment is subject to the following conditions, all in form and substance satisfactory to the Lender:         3.1.     The Lender shall have received and approved:           (a)        Third Amendment. A counterpart of this Third Amendment executed by Borrower and Guarantors;           (b)        Other Documents. Such other documents as the Lender may reasonably request (which shall include without limitation, partnership certificates, and other authorization documents required by Lender in connection with the foregoing); and           (c)        Expenses. Reimbursement for all of Lender’s fees and expenses (including attorneys’ fees) incurred in connection with the preparation, negotiation, and execution of this Third Amendment.         3.2.     All legal matters incident to the execution and delivery of this Third Amendment shall be satisfactory to the Lender.         3.3.     No Default or Event of Default shall be then continuing.         4.     Arbitration and Waiver of Jury Trial.           (a)         THIS SECTION CONCERNS THE RESOLUTION OF ANY CONTROVERSIES OR CLAIMS BETWEEN THE BORROWER AND THE LENDER, WHETHER ARISING IN CONTRACT, TORT OR BY STATUTE, INCLUDING BUT NOT LIMITED TO CONTROVERSIES OR CLAIMS THAT ARISE OUT OF OR RELATE TO: (i) THIS THIRD AMENDMENT AND THE LOAN AGREEMENT (INCLUDING ANY RENEWALS, EXTENSIONS OR MODIFICATIONS); OR (ii) ANY DOCUMENT RELATED TO THIS THIRD AMENDMENT AND THE LOAN AGREEMENT (COLLECTIVELY A “CLAIM”).           (b)         AT THE REQUEST OF THE BORROWER OR LENDER, ANY CLAIM SHALL BE RESOLVED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (TITLE 9, U. S. CODE) (THE “ACT”). THE ACT WILL APPLY EVEN THOUGH THIS AGREEMENT PROVIDES THAT IT IS GOVERNED BY THE LAW OF A SPECIFIED STATE.           (c)         ARBITRATION PROCEEDINGS WILL BE DETERMINED IN ACCORDANCE WITH THE ACT, THE APPLICABLE RULES AND PROCEDURES FOR THE ARBITRATION OF DISPUTES OF JAMS OR ANY SUCCESSOR THEREOF (“JAMS”), AND THE TERMS OF THIS SECTION. IN THE EVENT OF ANY INCONSISTENCY, THE TERMS OF THIS PARAGRAPH SHALL CONTROL.           (d)         THE ARBITRATION SHALL BE ADMINISTERED BY JAMS AND CONDUCTED IN ANY U. S. STATE WHERE REAL OR TANGIBLE PERSONAL PROPERTY COLLATERAL FOR THIS CREDIT IS LOCATED OR IF THERE IS NO SUCH COLLATERAL, IN TEXAS. ALL CLAIMS SHALL BE DETERMINED BY ONE ARBITRATOR; HOWEVER, IF CLAIMS EXCEED $5,000,000, UPON THE REQUEST OF ANY PARTY, THE CLAIMS SHALL BE DECIDED BY THREE ARBITRATORS. ALL ARBITRATION HEARINGS SHALL COMMENCE WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION AND CLOSE WITHIN 90 DAYS OF COMMENCEMENT AND THE AWARD OF THE ARBITRATOR(S) SHALL BE ISSUED WITHIN 30 DAYS OF THE CLOSE OF THE HEARING. HOWEVER, THE ARBITRATOR(S), UPON A SHOWING OF GOOD CAUSE, MAY EXTEND THE COMMENCEMENT OF THE HEARING FOR UP TO AN ADDITIONAL 60 DAYS. THE ARBITRATOR(S) SHALL PROVIDE A CONCISE WRITTEN STATEMENT OF REASONS FOR THE AWARD. THE ARBITRATION AWARD MAY BE SUBMITTED TO ANY COURT HAVING JURISDICTION TO BE CONFIRMED AND ENFORCED.           (e)         THE ARBITRATOR(S) WILL HAVE THE AUTHORITY TO DECIDE WHETHER ANY CLAIM IS BARRED BY THE STATUTE OF LIMITATIONS AND, IF SO, TO DISMISS THE ARBITRATION ON THAT BASIS. FOR PURPOSES OF THE APPLICATION OF THE STATUTE OF LIMITATIONS, THE SERVICE ON JAMS UNDER APPLICABLE JAMS RULES OF A NOTICE OF CLAIM IS THE EQUIVALENT OF THE FILING OF A LAWSUIT. ANY DISPUTE CONCERNING THIS ARBITRATION PROVISION OR WHETHER A CLAIM IS ARBITRABLE SHALL BE DETERMINED BY THE ARBITRATOR(S). THE ARBITRATOR(S) SHALL HAVE THE POWER TO AWARD LEGAL FEES PURSUANT TO THE TERMS OF THIS THIRD AMENDMENT AND THE LOAN AGREEMENT.           (f)         THIS SECTION DOES NOT LIMIT THE RIGHT OF THE BORROWER OR THE LENDER TO: (i) EXERCISE SELF-HELP REMEDIES, SUCH AS BUT NOT LIMITED TO, SETOFF; (ii) INITIATE JUDICIAL OR NONJUDICIAL FORECLOSURE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL; (iii) EXERCISE ANY JUDICIAL OR POWER OF SALE RIGHTS, OR (iv) ACT IN A COURT OF LAW TO OBTAIN AN INTERIM REMEDY, SUCH AS BUT NOT LIMITED TO, INJUNCTIVE RELIEF, WRIT OF POSSESSION OR APPOINTMENT OF A RECEIVER, OR ADDITIONAL OR SUPPLEMENTARY REMEDIES.           (g)         BY AGREEING TO BINDING ARBITRATION, THE PARTIES IRREVOCABLY AND VOLUNTARILY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM. FURTHERMORE, WITHOUT INTENDING IN ANY WAY TO LIMIT THIS AGREEMENT TO ARBITRATE, TO THE EXTENT ANY CLAIM IS NOT ARBITRATED, THE PARTIES IRREVOCABLY AND VOLUNTARILY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF SUCH CLAIM. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS THIRD AMENDMENT.         5.     NO CONTROL BY LENDER. BORROWER AGREES AND ACKNOWLEDGES THAT ALL OF THE COVENANTS AND AGREEMENTS PROVIDED FOR AND MADE BY BORROWER IN THIS THIRD AMENDMENT, THE LOAN AGREEMENT, AND IN THE OTHER LOAN DOCUMENTS ARE THE RESULT OF EXTENSIVE AND ARMS-LENGTH NEGOTIATIONS BETWEEN BORROWER AND LENDER. LENDER’S RIGHTS AND REMEDIES PROVIDED FOR IN THE LOAN AGREEMENT AND IN THE OTHER LOAN DOCUMENTS ARE INTENDED TO PROVIDE LENDER WITH A RIGHT TO OVERSEE BORROWER’S ACTIVITIES AS THEY RELATE TO THE LOAN TRANSACTIONS PROVIDED FOR IN THE LOAN AGREEMENT, WHICH RIGHT IS BASED ON LENDER’S VESTED INTEREST IN BORROWER’S ABILITY TO PAY THE NOTES AND PERFORM THE OTHER OBLIGATIONS. NONE OF THE COVENANTS OR OTHER PROVISIONS CONTAINED IN THE LOAN AGREEMENT SHALL, OR SHALL BE DEEMED TO, GIVE LENDER THE RIGHT OR POWER TO EXERCISE CONTROL OVER, OR OTHERWISE IMPAIR, THE DAY-TO-DAY AFFAIRS, OPERATIONS, AND MANAGEMENT OF BORROWER; PROVIDED THAT IF LENDER BECOMES THE OWNER OF ANY STOCK OF ANY ENTITY, WHICH ENTITY OWNS AN INTEREST IN BORROWER, WHETHER THROUGH FORECLOSURE OR OTHERWISE, LENDER THEREAFTER SHALL BE ENTITLED TO EXERCISE SUCH LEGAL RIGHTS AS IT MAY HAVE BY BEING A SHAREHOLDER OF SUCH ENTITY.         6.     Release. Borrower and Guarantors on their own behalf and on behalf of their predecessors, successors and assigns (collectively, the “Releasing Parties”), hereby acknowledge and stipulate that as of the date of the execution of this Third Amendment, none of the Releasing Parties has any claims or causes of action of any kind whatsoever against Lender or any of its officers, directors, employees, agents, attorneys, or representatives, or against any of their respective predecessors, successors, or assigns. Each of the Releasing Parties hereby forever releases, remises, discharges and holds harmless Lender and all of its officers, directors, employees, agents, attorneys, and representatives, and all of their respective predecessors, successors, and assigns, from any and all claims, causes of action, demands, and liabilities of any kind whatsoever, whether direct or indirect, fixed or contingent, liquidated or non-liquidated, disputed or undisputed, known or unknown, which any of the Releasing Parties has or may acquire in the future relating in any way to any event, circumstance, action, or failure to act from the beginning of time through the date of the execution of this Third Amendment.         7.     Lien Continuation: Miscellaneous. The liens granted in the Loan Documents are hereby ratified and confirmed as continuing to secure the payment of the Notes. Nothing herein shall in any manner diminish, impair or extinguish the Notes, as may be modified and increased under the Loan Agreement or the liens securing the Notes. The liens granted in the Loan Documents are not waived. Borrower ratifies and acknowledges the Loan Documents as valid, subsisting, and enforceable and agrees that the indebtedness evidenced by the Notes is just, due, owing and unpaid, and is subject to no offsets, deductions, credits, charges or claims of whatsoever kind or character, and further agrees that all offsets, credits, charges and claims of whatsoever kind or character are fully settled and satisfied.         8.     Defined Terms. Words and terms used herein which are defined in the Loan Agreement are used herein as defined therein, except as specifically modified by the terms of this Third Amendment. Terms used in this Third Amendment which are not defined in the Loan Agreement are used therein as herein defined.         9.     Miscellaneous.         9.1.     Preservation of the Loan Agreement. Except as specifically amended and modified by the terms of this Third Amendment, all of the terms, provisions, covenants, warranties, and agreements contained in the Loan Agreement and in the other Loan Documents shall remain in full force and effect (any irreconcilable conflicts or inconsistencies between the terms of this Third Amendment and the Loan Agreement, or any other Loan Document, shall be governed and controlled by this Third Amendment).         9.2.     Counterparts. This Third Amendment may be executed in two or more counterparts, and it shall not be necessary that any one of the counterparts be executed by all of the parties hereto. Each fully or partially executed counterpart shall be deemed an original, but all such counterparts taken together shall constitute but one and the same instrument.         9.3.     Joinder. Each of the Guarantors join in the execution of this Third Amendment to join in the release set forth in numerical section 6 above and to evidence that their Guaranty remains in full force and effect and is not limited or impaired as a result of the execution and delivery of this Third Amendment by Borrower.         9.4.     NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NOT UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.         9.5.     ACKNOWLEDGMENT. BORROWER HAS BEEN ADVISED BY LENDER TO SEEK THE ADVICE OF AN ATTORNEY AND AN ACCOUNTANT IN CONNECTION WITH THE COMMERCIAL LOANS EVIDENCED BY THE NOTES; AND BORROWER HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF AN ATTORNEY AND ACCOUNTANT OF BORROWER’S CHOICE IN CONNECTION WITH THE COMMERCIAL LOANS EVIDENCED BY THE NOTES. --------------------------------------------------------------------------------         IN WITNESS WHEREOF, the parties have executed this Third Amendment as of the date first above written. POWELL INDUSTRIES, INC. By:____________________________________                         Don R. Madison,                         Secretary                                         BORROWER BANK OF AMERICA, N.A. By:______________________________ Name:___________________________ Title:____________________________                                         LENDER JOINED IN FOR THE PURPOSES SET FORTH ABOVE: POWELL ELECTRICAL SYSTEMS, INC., FORMERLY KNOWN AS POWELL ELECTRICAL MANUFACTURING COMPANY By:                                                                 Don R. Madison,            Secretary POWELL-ESCO COMPANY By:                                                                 Don R. Madison,            Secretary TRANSDYN CONTROLS, INC. By:                                                                 Don R. Madison,            Secretary TRANSDYN, INC. By:                                                                 Don R. Madison,            Secretary POWELL INDUSTRIES INTERNATIONAL, INC. By:                                                                 Don R. Madison,            Secretary POWELL INDUSTRIES ASIA, INC. By:                                                                 Don R. Madison,            Secretary POWELL INDUSTRIES CHINA, INC. By:                                                                 Don R. Madison,            Secretary GUARANTORS                                                                   

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS FILED August 24, 2017 LEIGH A. BALL, RORY L. PERRY II, CLERK Claimant Below, Petitioner SUPREME COURT OF APPEALS OF WEST VIRGINIA vs.) No. 16-0805 (BOR Appeal No. 2051191) (Claim No. 669.980.0292) CHARLESTON AREA MEDICAL CENTER, Employer Below, Respondent MEMORANDUM DECISION Petitioner Leigh A. Ball, by Edwin H. Pancake, her attorney, appeals the decision of the West Virginia Workers’ Compensation Board of Review. Charleston Area Medical Center, by H. Dill Battle III, its attorney, filed a timely response. The issue on appeal is whether Ms. Ball is entitled to additional temporary total disability benefits. This appeal originated from the May 22, 2015, claims administrator’s decision closing the claim for temporary total disability benefits. In its March 8, 2016, Order, the Workers’ Compensation Office of Judges affirmed the decision. The Board of Review’s Final Order dated August 1, 2016, affirmed the Order of the Office of Judges. The Court has carefully reviewed the records, written arguments, and appendices contained in the briefs, and the case is mature for consideration. This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure. Leigh A. Ball, a phlebotomist, injured her back and hip in the course of her employment on December 6, 2014, while she was bending over a patient to draw blood. Upon attempting to straighten, Ms. Ball felt her hip and back lock. Ms. Ball sought treatment and was diagnosed with a lumbar strain. She was to undergo physical therapy two to three times per week for four to six weeks. An MRI of the lumbar spine was performed on December 24, 2014. The impressions 1 were no acute findings and lumbar spondylosis with mild left exit formanial wdoyle@example.net. On December 26, 2014, the claim was held compensable for a lumbar sprain. Ms. Ball has a significant history of back problems dating back to as early as 2008. On September 11, 2008, Ms. Ball underwent thoracic spine x-rays after complaints of back pain. The impression was old wedging at T10 and T11. Ms. Ball began to experience back pain again in September of 2012. She was diagnosed with a lumbosacral strain and underwent an MRI of the lumbar spine on October 3, 2012, which revealed a bulging disc and osteophyte formation, most notably at L5-S1 and to a lesser degree at L3-4 and L4-5. In November of 2012, Ms. Ball was further diagnosed with mild peripheral neuropathy and lumbar neuritis. Ms. Ball underwent evaluations to determine the extent of her compensable injury in the instant claim. Marsha Bailey, M.D., evaluated Ms. Ball on April 2, 2015. After reviewing the medical history, Dr. Bailey opined a diagnosis of chronic low back pain without true lumbar radiculopathy that predates the compensable injury by several years. Dr. Bailey concluded that Ms. Ball had reached maximum medical improvement and that no further treatment of any kind is medically necessary to treat her compensable condition. Based on this report, the claims administrator closed the claim for temporary total disability benefits on May 22, 2015. On July 23, 2015, Ms. Ball was evaluated by Bruce Guberman, M.D. Dr. Guberman’s impression was chronic post-traumatic strain of the lumbar spine. He opined that Ms. Ball has some symptoms suggestive of lumbar radiculopathy, especially on the right side, but no objective evidence. Dr. Guberman concluded that Ms. Ball had reached maximum medical improvement and no further treatment was likely to improve her impairment in regards to this injury. On September 29, 2015, Ms. Ball testified in a deposition that she injured her back on December 6, 2014, while bending over a patient to draw blood. Prior to this injury, she was not having any problems going about her daily activities. While Ms. Ball had some low back pain in 2012, she testified that she had medication and physical therapy treatments which seemed to resolve the problem. Ms. Ball stated that Dr. Bailey found her to be at maximum medical improvement; however, Ms. Ball had been unable to return to work due to two of her former treating physicians refusing to give her a work release. When she was finally given a release, her position was no longer available. Ms. Ball stated that she was still considered actively employed but must apply to open positions. While still experiencing pain, Ms. Ball believes she would be able to perform her duties should the hospital allow her to return. Dr. Bailey testified in a deposition on December 8, 2015. Dr. Bailey stated that she reviewed the medical records and found that Ms. Ball had chronic back pain dating back to at least 2011. She reiterated her belief that Ms. Ball had reached maximum medical improvement and diagnosed chronic low back pain without true lumbar radiculopathy. In Dr. Bailey’s opinion, Ms. Ball’s mechanism of injury was extremely minor and her impairment was related to her pre­ existing problems. 2 On March 8, 2016, the Office of Judges affirmed the claims administrator’s decision closing the claim for temporary total disability benefits. West Virginia Code §23-4-7a (2005) suspends temporary total disability benefits at the earliest of either a claimant reaching his maximum degree of medical improvement, being released to work, or actually returning to work. Dr. Bailey evaluated Ms. Ball on April 2, 2015, and opined that Ms. Ball had reached maximum medical improvement and that no further treatment was necessary to treat the compensable injury of a lumbar sprain. Dr. Bailey noted that Ms. Ball has an extensive pre-existing history of back problems dating back to 2011. Further, Dr. Guberman also found that Ms. Ball had reached maximum medical improvement and that no further treatment was necessary. The Office of Judges determined that Ms. Ball did not provide sufficient evidence to show that she had not yet reached maximum medical improvement for the compensable injury. Both Dr. Bailey and Dr. Guberman opined that she has reached maximum medical improvement, and the Office of Judges deemed their findings to be persuasive. The Office of Judges concluded that Ms. Ball was not entitled to further temporary total disability benefits pursuant to West Virginia Code §23-4­ 1c (2009), which provides that temporary total disability benefits are only paid during the healing or recovery period. The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its Order on August 1, 2016. We agree with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review. The claim has been held compensable for a lumbar sprain. Dr. Bailey and Dr. Guberman have concluded that Ms. Ball has reached her maximum medical improvement regarding the compensable injury and that no further treatment is necessary. Ms. Ball has not submitted any evidence suggesting that she has not reached maximum medical improvement regarding her compensable lumbar sprain. Thus, closure of the claim for temporary total disability benefits is appropriate under West Virginia Code §23-4-7a. For the foregoing reasons, we find that the decision of the Board of Review is not in clear violation of any constitutional or statutory provision, nor is it clearly the result of erroneous conclusions of law, nor is it based upon a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision of the Board of Review is affirmed. Affirmed. ISSUED: August 24, 2017 CONCURRED IN BY: Chief Justice Allen H. Loughry II Justice Robin J. Davis Justice Margaret L. Workman Justice Menis E. Ketchum Justice Elizabeth D. Walker 3

Citation Nr: 1536544 Decision Date: 08/26/15 Archive Date: 09/04/15 DOCKET NO. 09-24 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a disability rating in excess of 10 percent for service-connected hypothyroidism. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1991 to September 1999 and from February 2006 to October 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2008 rating decision of the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction was subsequently transferred to the Montgomery, Alabama, RO. In November 2013, the Board remanded this claim for further development, which has been completed. The Board notes that the Veteran submitted new evidence after the most recent adjudication of his claim (a June 2014 supplemental statement of the case); but, prior to the submission, he waived his right to initial consideration of such evidence by the agency of original jurisdiction (AOJ). Accordingly, the Board finds that it may consider this evidence in the first instance. 38 C.F.R. § 20.1304(c) (2014). The issue of entitlement to service connection for asthma secondary to service-connected chronic adjustment disorder with depressed mood was raised by the Veteran's representative in an August 2013 Appellate Brief, but it has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). FINDINGS OF FACT 1. Prior to July 12, 2010, the Veteran's hypothyroidism manifested in fatigue, low energy level, sleepiness, symptoms of mental disturbance (difficulty concentrating, memory loss, mental sluggishness, slowness of thought, depression), cold intolerance, dry and/or coarse skin, constipation, weight gain or fluctuation, and muscle cramps. 2. From July 12, 2010, the Veteran's hypothyroidism manifested in constipation, weight gain or fluctuation, and muscle cramps. CONCLUSION OF LAW The criteria for a disability rating of 60 percent prior to July 12, 2010 and 30 percent thereafter for service-connected hypothyroidism have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 7903 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014). A standard February 2008 letter satisfied the duty to notify provisions. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment and personnel records have been obtained. Post-service VA and private treatment records have also been obtained. The Veteran was provided VA medical examinations in February 2008, July 2010, October 2012, and February 2014. These examinations are sufficient evidence for deciding the claim. The reports are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, describe the disability in sufficient detail so that the Board's evaluation is a fully informed one. Thus, VA's duty to assist has been met. II. Increased Rating Claim A. Ratings, in General Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Francisco v. Brown, 7 Vet. App. 55 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, a determination will be made on the claim. Reasonable doubt will be resolved in favor of the Veteran. If there is a preponderance of the evidence against the claim, the claim will be denied. If the evidence supports the claim or is in relative equipoise, the Veteran will prevail. 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). B. Legal Framework The Veteran seeks an increased rating for hypothyroidism, which has been evaluated as 10 percent disabling pursuant to Diagnostic Code (DC) 7903. 38 C.F.R. § 4.119. Under DC 7903, a 10 percent rating is warranted where the veteran exhibits fatigability or continuous medication is required for control. A 30 percent rating is warranted where there is fatigability, constipation, and mental sluggishness. A 60 percent rating is warranted where the veteran exhibits muscular weakness, mental disturbance, and weight gain. A total 100 percent rating is warranted where there is cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. In Tatum v. Shinseki, 23 Vet. App. 152 (2009), the United States Court of Appeals for Veterans Claims (hereinafter, the "Court") specifically addressed the application of the rating criteria for DC 7903. The Court established that the rating criteria for DC 7903 are not conjunctive, cumulative, or successive. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Pyramiding, which is the evaluation of the same disability or manifestation of a disability under various diagnoses, is to be avoided. 38 C.F.R. § 4.14. C. Analysis The appeal period before the Board begins on January 29, 2007, one year prior to the date VA received the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran's service-connected hypothyroidism is rated 10 percent disabling pursuant to DC 7903. He contends that his disability is more severe than that approximated by his currently assigned rating and that he is therefore entitled to a higher rating. For the reasons that follow, the Board finds that the Veteran's symptoms relating to hypothyroidism more nearly approximate the criteria corresponding to a 60 percent rating prior to July 12, 2010 and a 30 percent rating thereafter. VA treatment records show that the Veteran has been diagnosed with hypothyroidism since approximately May 2000. Since diagnosis, the disability has been treated with Levothyroxine tablets and the dosage has been adjusted at times to keep the Veteran in a euthyroid state-i.e., a state in which the thyroid gland is biochemically normal. After reviewing the evidence of record and resolving any benefit of the doubt in favor of the Veteran, the Board finds that the Veteran's hypothyroidism has manifested in several symptoms that have generally been present throughout the entire period on appeal. These symptoms are constipation, weight gain or fluctuation, and muscle cramps. See, e.g., October 2012 Endocrine VA Examination; March 2010 Endocrinology Note; December 2008 Endocrinology Note. i. Prior to July 12, 2010 As noted above, the Board has found that the symptoms of constipation, weight gain or fluctuation, and muscle cramps have been present for the entire period on appeal. Prior to July 12, 2010, the Veteran's hypothyroidism also resulted in fatigue, lower energy level, mental disturbance (difficulty concentrating, memory loss, mental sluggishness, depression), and sleepiness. See January 2010 Endocrinology Note. On a more sporadic basis, there were also instances of cold intolerance and dry and/or coarse skin; however, the Board will resolve reasonable doubt in the Veteran's favor and find that these two symptoms were present over the entirety of this period. 38 C.F.R. §§ 3.102, 4.3; see also March 2010 Endocrinology Note; January 2010 Endocrinology Note; and December 2008 Endocrinology Note. Complicating the Veteran's disability picture is the fact that not all of these symptoms may be attributed to the Veteran's service-connected hypothyroidism evaluation for this entire period because they are already attributed to other service-connected disabilities. The symptoms of fatigue and sleepiness are contemplated by his service-connected sleep apnea, effective March 29, 2010; so they may only be considered in the context of the hypothyroidism evaluation prior to that date. The symptoms relating to mental disturbance are contemplated by the service-connected chronic adjustment disorder with depressed mood, effective April 23, 2009; so the mental disturbance symptoms are only considered in this evaluation prior to that date. This is because a Veteran may not be compensated twice for the same symptoms. See 38 C.F.R. § 4.14. Nonetheless, after resolving any reasonable doubt in the Veteran's favor, the Board finds that his overall disability picture more nearly approximates the criteria corresponding to a 60 percent rating pursuant to DC 7903 prior to July 12, 2010. 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.119. A higher 100 percent rating is only warranted where there is cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance, bradycardia, and sleepiness. The Board finds that as the Veteran's disability picture for his hypothyroidism wholly lacks any evidence of cardiovascular involvement or bradycardia, his disability picture does not more closely approximate the criteria for a 100 percent rating. Accordingly, the Board finds that a higher 100 percent rating is not warranted. In sum, the Board finds that, prior to July 12, 2010, the Veteran's hypothyroidism results in an overall disability picture that more nearly approximates a 60 percent rating, but no higher, pursuant to DC 7903. ii. From July 12, 2010 As noted above, the Board has found that the Veteran's hypothyroidism manifested in symptoms of constipation, weight gain or fluctuation, and muscle cramps for the entire period on appeal. On July 12, 2010, the Veteran underwent a VA examination in which the examiner determined that nearly all of the Veteran's symptoms were improved from his medication. From July 12, 2010, the Board finds that the Veteran has reported symptoms of fatigue, sleepiness, mental disturbance (difficulty concentrating, memory loss, mental sluggishness, slowness of thought, depression), and cold intolerance. As noted above, the Veteran is separately service-connected for chronic adjustment disorder with depressed mood and sleep apnea. These disabilities are service-connected for this entire period and their evaluations contemplate the symptoms of fatigue, sleepiness, and those relating to mental disturbance. Accordingly, the Board will not consider these symptoms when rating the hypothyroidism disability during this period in order to avoid pyramiding (rating the same symptoms twice). 38 C.F.R. § 4.14. With regards to the allegation of cold intolerance, the Board finds this allegation to be unsupported by the evidence of record. In fact, the July 2010 VA examiner found that the Veteran no longer exhibited cold sensitivity and the February 2014 VA examiner found that the Veteran's hypothyroidism resulted in no ugray@example.net. Given this contradictory evidence, the Board finds the Veteran's allegation of cold intolerance to not be credible and thus it is outweighed by the probative medical evidence of record finding to cold intolerance for this time period. The remaining symptoms present for this period of appeal constipation, weight gain or fluctuation, and muscle cramps. The Board acknowledges that the VA examinations have indicated that his symptoms have improved with medication; however, the Board finds continued notations of subjective reports of these symptoms in the Veteran's treatment records. See, e.g., May 2013 Intestinal Condition VA Examination. The Board therefore resolves reasonable doubt in favor of the Veteran and finds that these three symptoms are present during this time period. 38 C.F.R. §§ 3.102, 4.3. Accordingly, the Board finds that these symptoms result in an overall disability picture that more nearly approximates that corresponding to a 30 percent rating pursuant to DC 7903. 38 C.F.R. § 4.7. As noted above, a higher 60 percent rating is available where there is muscular weakness, mental disturbance, and weight gain. As the Board has already noted, the Veteran's mental disturbance is already attributed to a separate service-connected disability. The Board finds no evidence in the record relating to muscular weakness, and notes that where muscle cramps were reported, muscular weakness was not found. The Board acknowledges that the Veteran does have weight gain, and that the criteria of DC 7903 are not cumulative and successive; however, given that the VA examinations of record show that the Veteran's hypothyroidism is at worst mild and at best asymptomatic, the Board finds that a higher 60 percent rating is simply not warranted for the overall disability picture. Based on the foregoing, the Board finds that from July 12, 2010, the Veteran's hypothyroidism more nearly approximates a 30 percent rating pursuant to DC 7903. iii. Extraschedular Consideration and Unemployability In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. An initial determination must be made as to whether the schedular criteria reasonably describe the severity and symptoms of the veteran's disability. If the schedular rating criteria do reasonably describe the severity and symptoms of the veteran's disability, referral for extraschedular consideration is not required and the analysis stops. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other "related factors," such as marked interference with employment and frequent periods of hospitalization. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the first element of Thun is not satisfied. The evidence of record has shown that the Veteran's service-connected hypothyroidism has manifested in fatigue, low energy level, sleepiness, symptoms of mental disturbance (difficulty concentrating, memory loss, mental sluggishness, slowness of thought, depression), cold intolerance, constipation, weight gain or fluctuation, and muscle cramps. As noted above, the symptoms of fatigue, sleepiness, and symptoms of mental disturbance were contemplated by separately service-connected disabilities and thus not considered for much of the period on appeal to avoid pyramiding. 38 C.F.R. § 4.14. For the period in which they were applicable, those symptoms were fully considered and they are enumerated in the rating criteria. The symptoms of constipation and weight gain have also been considered and are also listed in the rating criteria. The symptoms of muscle cramps and dry and/or coarse skin are not found in the rating criteria, but they have been considered in this evaluation and were used to justify increases to higher levels of disability under the schedular rating criteria; thus, the Board does not find the Veteran's disability picture to be so "exceptional" so as to warrant referral for extraschedular consideration. Moreover, these symptoms have not resulted in marked interference with employment or periods of hospitalization. During the July 2010 VA examination the Veteran even admitted that, even though currently unemployed, his hypothyroidism would not impair his ability to fulfill the requirements of his usual occupation as a motor coach driver. The Board also notes that during his June 2015 VA psychiatric examination the Veteran reported to being employed by VA as a utility systems repair operator since 2011. Accordingly, the Board finds that referral for extraschedular consideration is not required. 38 C.F.R. § 3.321(b)(1); Thun v. Peak, 22 Vet. App. at 111. Further, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. In this case, however, after applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected symptoms that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. D. Conclusion In conclusion, the Board finds that, when all reasonable doubt has been resolved in his favor, the evidence of record warrants an increased, staged rating. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. For the Veteran's service-connected hypothyroidism, a 60 percent rating is warranted prior to July 12, 2010 and a 30 percent rating is warranted thereafter. ORDER A disability rating of 60 percent prior to July 12, 2010 and 30 percent thereafter for service-connected hypothyroidism is granted. ____________________________________________ M. N. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

Citation Nr: 0606049 Decision Date: 03/02/06 Archive Date: 03/14/06 DOCKET NO. 04-01 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for bilateral plantar fasciitis. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Joseph Michael Horrigan, Counsel INTRODUCTION The veteran had active service from December 1975 to March 1980. This appeal is before the Board of Veterans' Appeals (Board) from a March 2003 rating decision from the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to service connection for bilateral plantar fasciitis and service connection for status post partial medial meniscectomy of the left knee. In May 2005 the appeal was REMANDED by the Board to the RO via the Appeals Management Center in Washington, DC. For reasons discussed below, the issue of entitlement to service connection for bilateral foot disability must be again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. FINDING OF FACT A left knee disability was not shown during service or for many years after discharge and the veteran's current left knee disability is not otherwise related to service. CONCLUSION OF LAW A left knee disability was not incurred in or aggravated by service nor may the incurrence of degenerative arthritis in the left knee be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) was enacted on November 9, 2000. Pub. L. 106-475, 114 Stat. 2099 (Nov. 9, 2000). Among other things, the VCAA eliminated the well- grounded claim requirement and modified the Secretary's duties to notify and assist claimants. The VCAA provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2005). The VCAA notice requirements are contained in 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2004). In Pelegrini v. Principi, 18 Vet. App. 112, 120-1 (2004) the United States Court of Appeals for Veterans Claims (Court) found that a VCAA notice letter consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) (2003) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession. In letters dated in May 2002, and June 2005, the VA informed the appellant of evidence needed to substantiate his current claim. These letters together with information in the statement of the case and supplemental statements of the case told him what the evidence needed to show to prevail on the merits of the issues. The letter informed him of what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The most recent of these letters specifically told him to send copies of any relevant evidence in his possession. In Pelegrini the majority also held that the VCAA notice, as required by 38 U.S.C.A. § 5103(a), should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the original VCAA notice regarding the appellant's claim was sent to the veteran prior to the initial rating action currently being appealed. However, more recently the Court has held that the lack of VCAA notice prior to initial adjudication of the claim is adequately remedied by providing such notice thereafter, as was done in this case in June 2005. The Board also notes that the record appears to be complete in regard to the issues that are the subject of the Board decision below. The veteran has been afforded a recent VA examination of his left knee that provided further relevant evidence and a medical opinion on the main questions relevant to this claim. Therefore, the Board will now adjudicate this issue based on the evidence currently of record. In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131. Service connection for degenerative arthritis may be granted on a presumptive basis if it manifests to a compensable degree within one year following discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for disability diagnosed after service if all the evidence indicates that it had its onset during service. 38 C.F.R. § 3.303(d) (2004). The veteran's service medical records, including his examinations prior to service entrance and service discharge include numerous references to a right knee disability, but make no reference to any left knee disorder. The first evidence of any left knee disability dates from 2001, about 20 years after service, when he was seen for pain in the left knee and noted to have degenerative arthritis in the knee joint. The veteran has asserted that his left knee disability is a result of his duties during service that involved climbing telephone poles using equipment that damaged his knee over time. However, there is no competent medical evidence in the record that would support the veteran's contention. Moreover, the physician who recently conducted a VA examination of the veteran's left knee specifically ruled out the veteran's inservice activities involving climbing poles with special equipment as the cause of his left knee disability. Since the evidence does not establish that the veteran's left knee disability had its onset during service, or that degenerative arthritis in the left knee manifested within one year subsequent to discharge and since the evidence does not otherwise establish that the veteran's current left knee problems were related to service, service connection for a left knee disability is denied. ORDER Service connection for a left knee disability is denied. REMAND In the Board's remand of May 2005, the RO was instructed to afford the veteran an examination of his feet with instructions to the examiner to review the veteran's claims folder and opine whether it was at least as likely as not that the veteran's current bilateral foot disabilities were due to the veteran's military duties (which involved climbing telephone poles wearing pole climbing gaffs) or were related to specific incidents involving right ankle swelling in October 1976; a mild left ankle sprain in October 1976; bilateral feet pain in April 1978; or dropping a turnbuckle on the left foot in October 1978; or any other event during active service from December 1975 to March 1980. The physician who conducted the VA examination of the veteran's feet in August 2005 rendered a medical opinion regarding a possible relationship between the veteran's foot disabilities and his military duties that involved climbing poles, but failed to comment on the specific incidents noted above. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall the Court held that "where . . . the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. Therefore, the issue of service connection for bilateral foot disabilities must be remanded to the RO for further development prior to appellate consideration of this issue. In view of the above, this case is REMANDED to the RO for the following action: 1. The RO should send the claims folder back to the VA physician who conducted the August 2005 examination of the veteran's bilateral foot disability. After a careful review of the record the physician should render a medical opinion as to whether it is at least as likely as not that the veteran's current bilateral foot disability is related to inservice episodes of right ankle swelling in October 1976, a mild left ankle sprain in October 1976, bilateral feet pain in April 1978 or, dropping a turnbuckle on the left foot in October 1978 or, any other event during active service from December 1975 to March 1980. If the physician who conducted the August 2005 examination is not available, the review and medical opinion may be undertaken by another VA physician. 2. The issue of entitlement to service connection for bilateral plantar fasciitis should be readjudicated based upon all evidence of record. All pertinent law, Court decisions, and regulations should be considered. If the claim remains in denied status, the veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ WARREN W. RICE, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

323 So. 2d 788 (1975) STATE of Louisiana v. George Henry ALFORD and Gayle Baker a/k/a Gayle Alford. No. 56226. Supreme Court of Louisiana. December 8, 1975. Dissenting Opinion December 19, 1975. *789 Joseph D. Guerriero, Monroe, for defendant-relator. William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., Brian E. Crawford, Asst. Dist. Atty., for plaintiffs-respondents. CALOGERO, Justice. Defendants George Henry Alford and Gayle Baker were charged in a bill of information with possession of marijuana, a violation of La.R.S. 40:966. On April 1, 1975, they were tried by a judge and found guilty. George Alford was sentenced to pay a fine of $300 and court costs and to serve thirty days in jail, or, in default of the payment of the fine, to serve an additional sixty days. Gayle Baker was sentenced to pay a fine of $150 and costs, or in default, thirty days. We granted certiorari to review the correctness of the trial judge's denial of defendants' motion for a directed verdict. We now reverse. In the early morning hours of January 8, 1975, members of the Ouachita-Morehouse Narcotics Strike Force raided a home in West Monroe to execute a previously-issued search warrant. Named in the warrant was Charles Morgan, who rented and occupied the house in question. The oath in support of the search warrant recited that an informant had made a purchase of the illegal substance from Mr. Morgan at his house. Neither the search warrant nor the affidavit mentioned either of the defendants herein. The officer who conducted the search, Detective Pickens, testified that he had never heard of these two defendants before the search. When the officers arrived at the house, it was unoccupied. The search commenced and a small amount of marijuana was found hidden in several locations throughout the house. Also two prescription bottles, in the names of "Gayle Alford" and George Alford, respectively, were found in one of several cardboard boxes in a kitchen closet. No illegal drugs were found in the bottles.[1] After the search was completed, officers heard a car pull into and out of the driveway. They pursued the car but were not able to stop it until it was three-fourths of a mile from the house, because, as Detective Bougere testified, "We had some difficulty. We had to move some [police] cars out of the way so we could pursue it in a marked unit where we could stop the vehicle." He testified that he had no difficulty apprehending the vehicle and that when he arrested the two defendants who were in the car that they were "very cooperative." They volunteered, he said, that they had been staying at the Morgan home "for approximately three weeks and that was all, no more than three weeks." [2] The defendants and their vehicle were searched. *790 It is undisputed that no marijuana was found on the persons of the two defendants or in their car. No evidence was introduced to prove that any of the belongings in the house were owned by defendants. They were not at the house at the time it was searched. They were not arrested at the house. They were not seen in the house at any time by any witness. The state did not attempt to prove that they knew, or were in any way associated with Charles Morgan, who rented the house. Only two scraps of evidence were even introduced to link defendants to the house: the two prescription bottles which bore the names of Gayle and George Alford, respectively; and the uncorroborated statement by a policeman that defendants had volunteered that they had lived in the Morgan home for an undesignated threeweek period. The plastic bags containing the microscopic gleanings produced by the search were so well hidden in the house that their presence probably would not have been known to a continuous resident of the house, much less a temporary guest. The marijuana gleanings (along with cigarette papers, pipes, and other smoking paraphernalia) were in these locations: in a sealed coffee can on top of the refrigerator in the kitchen; in an aspirin bottle and bags in a closed metal file box which was on the top of a chest of drawers in a bedroom closet; in a pipe found in the kitchen in a cardboard box which was piled beside several other cardboard boxes. A "larger" amount of marijuana, weighing nine grams (approximately one-third of an ounce), was found in a plastic sack on a shelf of a serving tray inside a kitchen cabinet under the sink. The state contends that it had presented evidence of constructive possession, making proper the judge's denial of defendants' motion for a directed verdict. Under our law, an individual need not personally possess a drug to violate a law against its illegal possession, because constructive possession is sufficient. But for a person to constructively possess a drug it must be subject to his dominion and control, and he must have knowledge of its existence. If the state has presented some evidence of these elements, then this Court will not reverse a trial court's denial of defendants' motion for a directed verdict. State v. Ford, 315 So. 2d 276 (La. 1975); State v. Douglas, 278 So. 2d 485 (La.1973). In our recent unanimous opinion in State v. Cann, 319 So. 2d 396 (La.1975), we reversed a defendant's conviction for constructive possession of marijuana in a similar case. Defendant Cann was in the apartment of another person when police came to execute a search warrant. The officers found six bags of marijuana in plain view and a pound of marijuana and eight bags in a box in the kitchen, as well as gleanings in the garbage outside the apartment. However, no marijuana was found on the person of the defendant or in the bedroom where he was found. This Court held that defendant did not constructively possess the marijuana which was in the apartment because "the mere presence of someone in the area where the controlled dangerous substance is found, or the mere fact that someone knows the person who is in actual possession of the controlled dangerous substance is insufficient to constitute constructive possession by that person." 319 jennifer41@example.com. Again, we stated that "[i]n order to convict a person on the basis of constructive possession, something more than mere presence in the area where the drug is found or mere association with the person in actual custody of the drug must be shown." 319 jennifer41@example.com. In that opinion, this Court reviewed federal and state jurisprudence in *791 this area to determine what facts have been found to support findings of constructive possession. In the case before us now, the state presented evidence tending to prove that 1) less than an ounce of marijuana was found in a house rented by someone other than defendants; 2) that defendants had stayed in the house for several weeks; and 3) that defendants drove into the driveway of the house, pulled out, and continued down the street. However, the state offered no evidence of the following: 1) that these defendants knew or had reason to know there was marijuana in the house; 2) that these defendants knew or were associated with Charles Morgan, who rented the house; 3) that defendants had been in the home on the morning of or the day preceeding the search; 4) that anyone other than Charles Morgan had access to the home and its contents; 5) that any drugs were found on the persons of these defendants, in their automobile, in the suitcases in the bedroom (assuming what is unproven, that those suitcases belonged to defendants), or in the two prescription bottles bearing the names Gayle and George Alford, respectively; 6) that these defendants in any way had any control over the marijuana that was found in the apartment. We find that the state presented no evidence that either defendant had or shared dominion or control of the marijuana found in the house which would constitute their constructive possession of the illegal drug. The motion for a directed verdict should have been granted. For the reasons assigned, the convictions and sentences of these two defendants are reversed and set aside, and the case is remanded to the trial court for proceedings consistent with this opinion. SANDERS, C. J., and MARCUS, J., dissent. SUMMERS, J., dissents and will assign reasons. SUMMERS, Justice (dissenting). Defendant George Henry Alford and Gayle Baker, also known as Gayle Alford, were charged by bill of information with possession of marijuana contrary to Section 966 of Title 40 of the Revised Statutes. They were found guilty in a bench trial. George Alford was sentenced to pay a fine of $300 and costs and to serve 30 days in jail. Gayle Alford was sentenced to pay a fine of $150 and costs, and in default of the payment of the fine to serve 30 days in jail. The defendants applied for writs which this Court granted. The sole issue for our determination is the correctness of the trial judge's denial of the defendant's motion for a directed verdict. There is no evidence in this record except that presented on behalf of the State. Detective Kelly of the Ouachita-Morehouse Parish Strike Force made oath on January 2, 1975 that within 48 hours prior to that date he had received information from a confidential informant that Charles Morgan was "dealing marijuana." At that time the informant and his vehicle were searched and no drugs were found. By prior arrangement, while the informant went to Morgan's residence, he was kept under surveillance by Detective Kelly. The informant entered the house and immediately returned with a quantity of marijuana which he said he had purchased from Morgan. Based upon this affidavit, the district judge issued a warrant to search for marijuana the premises of "A grey siding house located at 1015 Dean Chapel Road in Ouachita Parish outside of West Monroe, Louisiana and occupied by a white male known as Charles Morgan." *792 Armed with the search warrant Detectives Dan ickens and Frank Bougere, assigned to the Ouachita-Morehouse Parish Strike Force, searched the premises at 1015 Dean Chapel Road in the early morning hours of January 8, 1975. The house, which was then rented to Morgan, was unoccupied at the time. In rapid succession they jointly searched for and found a one-pound size Folger coffee can on top of the kitchen refrigerator in plain view. The can contained two cigarette rolling devices, three packages of cigarette papers and one clear plastic bag containing marijuana seeds. On a chest of drawers in a walk-in closet between two bedrooms they found a metal box containing six empty clear plastic bags, one aspirin bottle containing marijuana seeds, one brown paper bag containing three clear plastic bags in which marijuana was present, and a large plastic bag enclosing smaller plastic bags with marijuana seeds and Top Bond cigarette papers in them. A serving tray was discovered in a lower kitchen cabinet. A plastic bag with marijuana, a cigarette rolling device and one package of Job Brand cigarette papers were in plain view on the tray. In a closet off the kitchen in a cardboard box they found pipes and two bottles with prescription labels bearing the names of Gayle and George Alford, respectively. One of the pipes contained gleanings of marijuana. Two open suitcases were found in a bedroom, one containing a woman's clothes. Expert testimony was presented by the State to establish that the substances seized were marijuana. While the search was being conducted police in two marked police cars joined the detectives. These cars were parked near the house which was set back some distance from the public street. Toward the end of the search, one of the officers noticed an orange Volkswagen entered the driveway and approach the house. Before reaching the house, the occupants of the Volkswagen apparently observed the marked police cars for the first time. They then came to an abrupt stop, backed rapidly into the street and headed south at a high rate of speed. Detective Bougere and Trooper Warner got into a State police vehicle parked nearby and drove in pursuit of the Volkswagen. After a chase of about three-fourths of a mile, the Volkswagen was stopped and the defendants were identified and arrested. They were then given the Miranda warnings. In a conversation between the officers and defendants which followed, the officers noted that their search revealed open suitcases present in one of the bedrooms of the house at 1015 Dean Chapel Road indicating that someone had been staying there for a short length of time. They also remarked that one of the suitcases contained a woman's clothes. Defendants then acknowledged to Detective Bougere that they had been living at the house for approximately three weeks. The pervading presence of marijuana and marijuana paraphernalia in the house; the bottles with prescription labels in their names; the fact that only one woman resided there; the presence of the opened suitcases, one containing a woman's clothes, confirming the transient character of their residence within the house where the marijuana and marijuana paraphernalia were found; the significant fact that upon observing the police cars at the house defendants fled the scene prior to their apprehension; and their admission that they had been staying in the house for three weeks presents incriminating facts which, though circumstantial, furnished adequate evidence upon which the trial judge could infer that defendants knew of the presence of marijuana and shared the control over the substance with Morgan. From these unrefuted and unrebutted facts the trial *793 judge could properly conclude that defendants were placed "within such close juxtaposition to the narcotic drugs as to justify the jury (trial judge) in concluding that the [drug] was in [the(ir)] possession." Hunt v. State, 158 Tex. Crim. 618, 258 S.W.2d 320. This Court has consistently read Article 778 of the Code of Criminal Procedure to mean that on review of the denial of a directed verdict this Court cannot upset the findings of the trier of fact on issues bearing upon guilt or innocence, unless there is no evidence at all to prove the crime charged or an essential element thereof. Thus, if there is some evidence, no matter how little, the determination of the trier of fact must stand. State v. Douglas, 278 So. 2d 485 (La.1973) and cases following. Defendants were charged under Section 966(C) making it unlawful "... for any person knowingly or intentionally to possess a controlled dangerous substance," in this case marijuana. By repeated decisions of this Court it has been held that guilty knowledge is an essential element of the crime of possession. State v. Knight, 298 So. 2d 726 (La. 1974); State v. Porter, 296 So. 2d 302 (La.1974); State v. Smith, 257 La. 896, 244 So. 2d 824 (1971); State v. Kreller, 255 La. 982, 233 So. 2d 906 (1970); State v. Williams, 250 La. 64, 193 So. 2d 787 (1967). Guilty knowledge and intent, though a question of fact, need not be proven as a fact, it may be inferred from the circumstances of the transaction. La.R.S. 15:445. "When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent. ..." La. R.S. 15:446. And one need not personally, actually and physically possess the controlled dangerous substance to violate the prohibition against possession; constructive possession is sufficient. The rule is set forth in State v. Smith, 257 La. 1109, 245 So. 2d 327 (1971); "A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control. Also, a person may be deemed to be in joint possesion of a drug which is in the physical custody of a companion, if he willfully and knowingly shares with the other the right to control of it." State v. Smith, 257 La. 1109, 245 So. 2d 327 (1971). See also State v. Knight, 298 So. 2d 726 (La. 1974); State v. Porter, 296 So. 2d 302 (La.1974); State v. Williams, supra; Spataro v. State, 179 So. 2d 873 (Fla.1965). The law in this State, and generally elsewhere, recognizes that flight is a legitimate ground for the inference of guilt. Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896); State v. Johnson, 249 La. 950, 192 So. 2d 135 (1966). And evidence to show that the accused fled the scene of the crime to avoid apprehension after commission of the crime is admissible to show consciousness of guilt, and it is immaterial whether flight occurs before formal charges are filed, before arrest, after arrest and admission to bail, or after arrest and escape from jail or from the custody of law enforcement officers. State v. Neal, 231 La. 1048, 93 So. 2d 554 (1957). See also State v. Lane, 292 So.2d 711 (La.1974); State v. Nelson, 261 La. 153, 259 So. 2d 46 (1972). Upon these facts and principles of law, the trial judge correctly denied the motion for a directed verdict. I cannot agree that there was no evidence at all upon which the trial judge could conclude that these defendants constructively possessed marijuana. This Court cannot constitutionally decide the guilt or innocence of persons charged with crime. Only questions of law are reviewable. La.Const. art. V, § 5(C) (1974). I respectfully dissent. NOTES [1] There was some conflict in the evidence as to whether any marijuana was found in the cardboard box in which the prescription bottles were found but, looking at the evidence in the manner most helpful to the state, four smoking pipes were found in the same box. Only one of the pipes contained marijuana, and it contained, according to the state's ex-pert, "not over two hundred milligrams" of marijuana, an amount which was "microscopic in nature." [2] It might be noted that in brief defendants contend that, as part of their case, they took the stand to say that they had never lived at the Morgan home and had never said that they had lived there. For purposes of consideration of the motion for a directed verdict, however, we must accept as true all of the state's evidence including the police officer's testimony that defendants admitted living in the house.

Dunbar v. State IN THE TENTH COURT OF APPEALS No. 10-98-012-CV      THEODORE MARTELL, A/K/A      TED MARTELL, AND WIFE,      T. DARLENE MARTELL, A/K/A      DARLENE MARTELL,                                                                                               Appellants      v.      LARRY EVANS, ET AL.,                                                                                               Appellees From the 40th District Court Ellis County, Texas Trial Court No. 55,698                                                                                                                  MEMORANDUM OPINION                                                                                                                        On February 26, 1998, the appellants, Ted and Darlene Martell, filed a motion to voluntarily dismiss this appeal against the appellees, Larry and Cheryl Evans. In relevant portion, Rule 42.1(a) of the Texas Rules of Appellate Procedure provides: (a) The appellate court may dispose of an appeal as follows: (2) in accordance with a motion of appellant to dismiss the appeal or affirm the appealed judgment or order; but no other party may be prevented from seeking any relief to which it would otherwise be entitled. Tex. R. App. P. 42.1(a)(2).       The appellees have not filed a response to this motion. Accordingly, this cause is dismissed, with costs to be taxed against the appellants.                                                                                  PER CURIAM Before Chief Justice Davis,       Justice Cummings, and       Justice Vance Appeal dismissed Opinion filed and delivered March 11, 1998 Do not publish rts: Discouraging Secrecy in the Public Interest, 69 Tex. L. Rev. 643 (1991).  The rule prohibits private agreements which prevent the disclosure of information and documents absent strict compliance with the rule.  See Tex. R. Civ. P. 76a; Davenport v. Garcia, 834 S.W.2d 4, 24 (Tex. 1992) (orig. proceeding); see also Gen. hannahjones@example.org.  “[C]ourt records,” as defined by Rule 76a, “are presumed to be open to the general public.”  Tex. R. Civ. P. 76a(1); see In re Cont’l Gen. Tire, Inc., 979 S.W.2d 609, 614 n.4 (Tex. 1998) (orig. proceeding); Gen. Tire at 523; Davenport at 23; In re Bain, 144 S.W.3d 236, 241 (Tex. App.—Tyler 2004, orig. proceeding).  Under the rule, “court records” may be sealed only upon a showing of all of the following:       (a)   a specific, serious and substantial interest which clearly outweighs:       (1)   th[e] presumption of openness;       (2)   any probable adverse effect that sealing will have upon the general public health or safety;       (b)   no less restrictive means than sealing records will adequately and effectively protect the public interest asserted. Tex. R. Civ. P. 76a(1).        The term “court records” includes, relevant to this case, both documents filed with a court, with rare exceptions, and some unfiled discovery products.  “Court records” include all documents of any nature filed in connection with any matter before any civil court, except:       (1)   documents filed with a court in camera, solely for the purpose of obtaining a ruling on the discoverability of such documents;       (2)   documents in court files to which access is otherwise restricted by law; [and]       (3)   documents filed in an action originally arising under the Family Code. Tex. R. Civ. P. 76a(2)(a).  Before restricting public access to filed court records, the court must comply with the procedural requirements of the rule, including motion, posted notice, public hearing, and public order.  See id. 76a(3)-(4), (6); Gen. Tire, 970 hannahjones@example.org.  “Court records”  also include discovery, not filed of record, concerning matters that have a probable adverse effect upon the general public health or safety, or the administration of public office, or the operation of government, except discovery in cases originally initiated to preserve bona fide trade secrets or other intangible property rights. Tex. R. Civ. P. 76a(2)(c).  Before initiating the rule’s special procedural requirements for sealing court records, the trial court must make the “threshold determination” that the documents constitute court records.  Gen. Tire at 524-25.  “[A] trial court is not required to determine whether unfiled discovery” or other unfiled documents that may constitute court records “constitute[] a court record until requested to do so by a party or intervenor . . . .”  Id. at 525 (emphasis in orig.).  The court may, however, make that determination sua sponte.  Id.  Rule 76a is not intended to be interpreted so that “the parties could largely control the application of the rule without regard to the public interest the rule seeks to protect” in the absence of intervention by a third party.  Id. at 524.        There is little precedent regarding sealing records in the appellate courts.  Almost all of it relates to juvenile proceedings, privilege review of documents submitted in camera, or appeal of Rule 76a orders.  See Tex. Fam. Code Ann. § 58.003 (Vernon Supp. 2006); Tex. R. Civ. P. 76a; e.g., Feldman v. Marks, 960 S.W.2d 613 (Tex. 1996) (per curiam); In re Monsanto Co., 998 S.W.2d 917 (Tex. App.—Waco 1999, orig. proceeding); In re D.L.C., 124 S.W.3d 354 (Tex. App.—Fort Worth 2003, no pet.) (juvenile adjudication); Clear Channel Commc’ns, Inc. v. United Servs. Auto Ass’n, 195 S.W.3d 129 (Tex. App.—San Antonio 2006, no pet.).  Given the policy decisions that were implicit in the implementation of Rule 76a, however, I see no reason to depart substantially from it in connection with sealing documents on appeal.  See Dallas Morning News  v. Fifth Court of Appeals, 842 S.W.2d 655, 665 n.7 (Tex. 1992) (orig. proceeding) (Doggett, J., dissenting) (citing Lloyd Doggett & Michael J. Mucchetti, Afterword to Public Access to Public Courts: Discouraging Secrecy in the Public Interest, in Texas Litigation Reader 158, 204 (A.F. Brooke II & Gregory S. Coleman eds., 1992)).        The appellate court may seal the appellate record on an agreed motion, when the trial court has properly ordered court records sealed.  See Tindall v. Nationsbank of Tex., N.A., No. 05-97-01843-CV, 1998 Tex. App. LEXIS 3728 (Tex. App.—Dallas June 22, 1998, no pet.) (per curiam).  I do not find any indication in the record before us that the trial court employed the special procedures of Rule 76a for sealing court records.  The trial court signed an unopposed protective order limiting disclosure of documents, and made no express findings on whether those documents constituted court records.  Therefore, I cannot rely upon compliance with Rule 76a in the trial court to seal the brief or the information that it contains on appeal as well.         Were we expressly governed by Rule 76a, Navasota Resources’ brief filed with the Court would constitute a court record, which we could seal only in extremely rare circumstances.  Thus, before I agree to seal such an otherwise public court record, absent some specific statute or rule authorizing the sealing, there should be a determination that the record should be sealed under Rule 76a.[3]  No such determination has been made regarding the brief sought to be sealed in this appeal.  On the record before us, I do not discern the confidential information to which Navasota Resources’ brief refers.  To the contrary, the brief tends to indicate that the appeal implicates matters of public concern.  Navasota Resources’ motion does not justify sealing.  Therefore, I cannot agree to seal the brief from the public.       Therefore, I would either deny the motion, or abate this appeal to allow the trial court to determine whether Navasota Resources’ brief, and the documents on which the brief relies, constitute court records under Rule of Civil Procedure 76a, and if they do, to hold the Rule 76a hearing and determine whether the documents should be sealed.  See Tex. R. Civ. P. 76a(1), (8).  After the trial court has conducted a hearing, as necessary, and made an initial determination on sealing, I would then abide by that determination unless and until it was properly challenged.[4]        Because the Court seals a brief that should otherwise be publicly available, I respectfully dissent. TOM GRAY Chief Justice   Dissenting opinion delivered and filed December 13, 2006 Publish           [1] The motion does not purport to be sealed.            [2] I note that the motion states, “Under the Protective Order, certain documents and information exchanged between the parties through discovery are deemed confidential.  The Protective Order further provides that all motions and pleadings discussing or reflecting confidential information shall be filed under seal.”  (Mot. at 1-2.)  I do not perceive that the order does either.  The order states that it “establishes procedures to facilitate discovery while maintaining the confidentiality of commercially sensitive information (referred to here as ‘Confidential Information’).”  (Id. Ex. A at 1.)  The order “applies to all documents and tangible things produced by any party in connection with this lawsuit, including copies, excerpts, and summaries thereof, and all deposition testimony in which such documents or tangible things (including the contents thereof) are discussed.”  (Id.)  And the order requires that “[p]arties seeking to file Confidential Information with a motion or pleading shall file such motion and Confidential Information under seal.”  (Id. at 4.)  Navasota Resources cannot rely on the trial court’s order to justify sealing its brief on appeal.           [3] We have held that “we do have authority to seal a privileged document inadvertently made a part of an appellate court record.”  In re GMAC Commercial Fin., L.L.C., 167 S.W.3d 940, 941 (Tex. App.—Waco 2005, order), disp. on merits, No. 10-05-00186-CV, 2005 Tex. App. LEXIS 3195 (Tex. App.—Waco Apr. 27, 2005, orig. proceeding) (mem. op.); accord Monsanto Co. v. Davis, 110 S.W.3d 28, 29-30 (Tex. App.—Waco 2002, order) (per curiam), disp. on merits, No. 10-02-00208-CV, 2004 Tex. App. LEXIS 3570 (Tex. App.—Waco Apr. 21, 2004, no pet.) (mem. op.).  The statute and rule on which we relied in those cases do not support sealing here.  Cf. Monsanto at 29 (citing Tex. Gov’t Code Ann. § 21.001(a) (Vernon 2004); Tex. R. App. P. 29.3).  Government Code Section 21.001(a) concerns our powers to enforce our legal orders, but does not establish what orders are legal.  Rule of Appellate Procedure 29.3 governs interlocutory appeals, which this case is not.           [4] I note that the sealing of a brief in the appellate court is different from the clerks’ and reporters’ records that come to this Court already under seal.

Exhibit 10.3   EMPLOYMENT AGREEMENT WAIVER AND CONSENT   This Employment Agreement Waiver and Consent (this “Waiver”) is given as of May 2, 2005 in reference to the Employment Agreement, dated as of July 7, 2004 (the “Employment Agreement”) by and between American Coin Merchandising, Inc. (“Employer”) a Delaware corporation and wholly-owned subsidiary of Coinstar, Inc. (“Coinstar”), and Randall J. Fagundo (“Employee”).   RECITALS   A. The Employer is contemplating entering into a transaction whereby Sesame Holdings, Inc. (“Sesame”), a wholly-owned subsidiary of Coinstar will be merged into Employer, with Employer being the surviving entity (the “Reorganization”).   B. Section 1.3 of the Employment Agreement provides that certain rights and obligations of the parties will be impacted in the event that the Employer experiences a “Change of Control,” as defined in the Employment Agreement.   C. Employee and Employer agree that the Reorganization does not constitute a Change of Control under the Employment Agreement and are executing this Waiver out of an abundance of caution to ensure that the Reorganization is not, and will not be deemed to be, a Change in Control within the meaning of the Employment Agreement.   NOW, THEREFORE, in consideration of the foregoing mutual promises and covenants set forth herein, the parties hereto agree as follows:   WAIVER AND CONSENT   1. Employee, by this Waiver, hereby expressly acknowledges and confirms that the Reorganization, as described above, will not constitute a “Change of Control” (as defined in the Employment Agreement), and therefore, notwithstanding the consummation by the Employer of the Reorganization, Employee will remain liable to the Employer for the Repayment Obligation.   2. By execution of this Waiver, Employee consents to the Reorganization to the extent any such consent is necessary. Employee will not make any assertion that Employee is not liable to the Employer for the Repayment Obligation as a result of the Reorganization.   3. Employee and his successors and assigns irrevocably and unconditionally waive and release the Employer from any and all claims Employee may have against Employer that the Reorganization is a Change of Control and therefore that the Employee is no longer liable for the Repayment Obligation as a result of the Reorganization.   -------------------------------------------------------------------------------- 4. Nothing in this Waiver will affect the application of the Change of Control definition in the Employment Agreement to any transaction other than the Reorganization.   IN WITNESS WHEREOF, the parties have executed and entered into this Amendment as of the date first set forth above.   Employee       Employer Randall J. Fagundo       American Coin Merchandising, Inc /s/ RANDALL J. FAGUNDO       By:   /s/ DONALD R. RENCH         Title:   Secretary   -2-

786 S.W.2d 45 (1990) Roemont JOHNSON, Appellant, v. Donna J. PETTIGREW, Appellee. No. 05-89-00399-CV. Court of Appeals of Texas, Dallas. February 20, 1990. Michael C. Stephenson, Houston, for appellant. Nancy B. Amick, Elizabeth W. Segovie, McKinney, for appellee. Before ENOCH, C.J., and STEPHENS[1] and ASHWORTH[2], JJ. OPINION ENOCH, Chief Justice. Appellant, Roemont Johnson, appeals from the trial court's order holding him in contempt for failure to pay child support and granting a judgment of $14,400 in favor of appellee, Donna J. Pettigrew. Johnson assigns two points of error: 1) the trial court lacked jurisdiction to hear the motion for contempt, the motion for judgment on arrearage, and the motion to modify; and 2) the trial court lacked jurisdiction to modify an order of another court that had exclusive, original jurisdiction over the parties and the subject matter. For the reasons discussed below, we reverse the trial court's judgment and remand the cause to the 15th District Court with instructions that this cause be dismissed for want of jurisdiction. Procedural History On December 10, 1982, Pettigrew filed suit in the 59th District Court in Grayson County, Texas, against Johnson to establish paternity and obtain child support. The citation was served on Johnson on January 3, 1983. Johnson did not answer or appear. On February 10, 1983, that court entered a default judgment on paternity finding that Johnson was the biological father of the minor who was the subject of the suit. The court further ordered Johnson to pay $100 semi-monthly in child support. On August 22, 1988, Pettigrew filed a motion for contempt and a motion to modify in the 15th District Court also in Grayson *46 County, Texas, against Johnson for failure to pay child support.[3] On February 14, 1989, Pettigrew filed her first amended motion for contempt and her motion for judgment on arrearage and for withholding from earnings and her motion to modify. After service of citation, Johnson responded with a "Petition for Review of Judgment" asking the court to quash all service, to abate Pettigrew's contempt motion and to declare the default judgment in this cause void because Johnson had not been properly served with citation.[4] On March 14, 1989, the court heard Pettigrew's motion for contempt. The judge of the 15th District Court was not available. Therefore, the matter was heard before a visiting judge assigned to the 336th District Court also in Grayson County, Texas. At the hearing, Johnson asserted that the court lacked jurisdiction to hear the contempt motion. He requested a hearing on the question of jurisdiction and also alleged that the visiting judge was without authority to preside over the contempt hearing for the 15th District Court. The objections and request for hearing were overruled. Thereafter, the court granted Pettigrew's motion for contempt and modification, and on March 17, 1989, entered an order in the 15th District Court holding respondent in contempt for failure to pay child support and modifying the prior order. Johnson argues that the 15th District Court was without jurisdiction in this cause because jurisdiction was never acquired pursuant to sections 11.05 and 11.06 of the Texas Family Code. Johnson also argues that the Judge of the 336th District Court wrongfully exercised jurisdiction over the cause because he tried the case as the 336th District Court and not as the "Presiding Judge of the 15th District Court." Though Johnson failed to assign his points of error to his argument, we can discern them from the brief and therefore will consider them. Tex.R.App.P. 74. Texas Family Code Sections 11.05 and 11.06—Jurisdiction Pettigrew asserts that Johnson waived his points of error by failing to specifically object to the trial court's subject matter jurisdiction at the trial court. The question of jurisdiction is fundamental and can be raised at any time including for the first time on appeal. Tullos v. Eaton Corp., 695 S.W.2d 568 (Tex.1985); Qwest Microwave, Inc. v. Bedard, 756 S.W.2d 426, 434 (Tex.App.—Dallas 1988, orig. proceeding). A court's jurisdiction consists of two elements: jurisdiction of the subject matter and jurisdiction of the person. Botello v. Salazar, 745 S.W.2d 540, 541 (Tex. App.—Houston [14th Dist.] 1988, no writ); Ex parte Bowers, 671 S.W.2d 931, 935 (Tex.App.—Amarillo 1984, orig. proceeding). If one of the elements is missing, the court's judgment is subject to collateral attack and any judgment or order rendered by the court is void. Austin Indep. School Dist. v. Sierra Club, 495 S.W.2d 878, 881 (Tex.1973). Subject Matter Jurisdiction The Texas Family Code states in pertinent part: Modification of an Order A court order or the portion of a decree that provides for the support of a *47 child or the appointment of a conservator or that sets the terms and conditions of conservatorship for, support for, or access to a child may be modified only by the filing of a motion in the court having continuing, exclusive jurisdiction of the suit affecting the parent-child relationship as provided by Section 11.05 of this code. Any party affected by the order or the portion of the decree to be modified may file the motion. TEX.FAM. CODE ANN. § 14.08(a) (Vernon 1986). Continuing Jurisdiction [W]hen a court acquires jurisdiction of a suit affecting the parent-child relationship, that court retains continuing, exclusive jurisdiction of all parties and matters provided for under this subtitle in connection with the child. No other court of this state has jurisdiction of a suit affecting the parent-child relationship with regard to that child except on transfer as provided in Section 11.06 or 17.06 of this code. TEX.FAM. CODE ANN. § 11.05(a) (Vernon 1986). Transfer of Proceedings Within the State For the convenience of the parties and witnesses and in the interest of justice, the court, on timely motion of any party, may transfer the proceeding to a proper court in any other county in the state. TEX.FAM. CODE ANN. § 11.06(d) (Vernon 1986) (emphasis added). In Cassidy v. Fuller, 568 S.W.2d 845 (Tex.1978), the Texas Supreme Court compared subsection (b) of section 11.06 to subsection (c) (rachelfarley@example.org Ann. § 11.06(d) (Vernon 1986)). The Court stated, "[i]t is apparent that the two subsections serve distinctive functions.... Subsection [d] is predicated upon the principle of convenient forums...." Cassidy 568 rachelfarley@example.org. Following this theme, the supreme court decided Alexander v. Russell, 699 S.W.2d 209 (Tex.1985). In Alexander, the 243rd District Court, El Paso County, entered a final judgment of divorce and, thereafter, disqual fied itself from hearing a later motion in the cause to change managing conservator. That court, on its own motion and by final order naming the designated managing conservator, transferred the cause to the 327th Family District Court, El Paso County, with consent of all the parties. The transfer was authorized by the Judicial Districts Act of 1969 which provided in pertinent part: Whenever a judge of one of the courts is disqualified, he shall transfer the case or proceeding from his court to one of the other courts, and any of the judges may in his own courtroom try and determine any case or proceeding pending in either of the other courts without having the case transferred, or may sit in any of the other courts and there hear and determine any case or proceeding there pending. Tex.Rev.Civ.Stat.Ann. art. 199a, § 2.002(b) (now rachelfarley@example.org't.Code Ann. § 24.303(b) (Vernon 1988)). Irrespective of the above statute, the supreme court struck down the transfer by the 243rd District Court to the 327th District Court holding that the 243rd District Court retained exclusive jurisdiction absent a motion by a party to the suit and an order of transfer. "If the judge of the 243rd District Court found it necessary to recuse himself, the proper procedure was to have another district judge preside in the 243rd District Court; not to transfer the cause." Alexander, 699 rachelfarley@example.org. Since the attempted transfer of the cause to the 327th District Court was not for a reason authorized under section 11.06 of the Texas Family Code, the judge in Alexander had no authority to transfer the cause. In responding that the 15th District Court had jurisdiction after the transfer from the 59th District Court to the 15th District Court, Pettigrew relies upon provisions in the Texas Government Code and Texas Rules of Civil Procedure, which give broad powers to judges in any county where there are two or more district courts to freely transfer cases from one court to another. Tex.Gov't. Code Ann. § 24.303(a) (Vernon 1988); Tex.R.Civ.P. 330(e). Logic dictates this to be a reasonable proposition. Certainly, the ability to transfer cases between *48 courts in the same county is a very necessary tool in the orderly administration of justice. However, it has long been held that the transfer procedures in the Family Code governing suits affecting the parent-child relationship are the exclusive mechanism for transferring the case. Mendez v. Attorney General of Texas, 761 S.W.2d 519, 521 (Tex.App.—Corpus Christi 1988, no writ); Beyer v. Diaz, 585 S.W.2d 359, 360 (Tex.Civ.App.—Dallas 1979, no writ). We are bound to follow the lead of our supreme court that when a transfer is predicated on the convenience of the parties, or in the interest of justice, it must be based upon a motion of a party pursuant to section 11.06(d). See Alexander, 699 S.W.2d at 210; Tex.Fam. Code Ann. § 11.06(d) (Vernon 1986). Absent a motion by a party and an order of transfer, the 59th District Court retained exclusive jurisdiction. We hold that because the record does not show that the court with continuing and exclusive jurisdiction was actually the court which exercised jurisdiction regarding contempt and modification, the cause must be reversed and remanded for want of subject-matter jurisdiction. Accordingly, we reverse the judgment of the trial court and remand the cause to the 15th District Court with instructions that this cause be dismissed for want of jurisdiction. Because of this disposition, we do not reach Johnson's remaining arguments. NOTES [1] The Honorable Bill J. Stephens, Justice, retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment. [2] The Honorable Clyde R. Ashworth, Justice, retired, Court of Appeals, Second District of Texas at Fort Worth, sitting by assignment. [3] Pettigrew asserts that she first attempted to file her motion in the 59th District Court, but the district clerk refused to file the motion because the 59th District Court had become a criminal court. She states that the district clerk informed her that her case had been transferred and directed her to file her motion in the 15th District Court. The record does not demonstrate that the 59th District Court ordered the transfer of this cause to the 15th District Court. However, for the purposes of this opinion, we will assume that the 59th District Court, on its own order, transferred the original cause to the 15th District Court. [4] Johnson begins his brief with the assertion that he is appealing from the original default judgment entered in the 59th District Court. Later in the brief, he asserts that he is appealing the trial court's (15th District Court's) failure to hear his motion to review the default judgment. Neither issue has been brought before this court by points of error and, therefore, neither issue is before this court for consideration. See San Jacinto River Authority v. Duke, 783 S.W.2d 209 (1990).

FILE COPY IN THE SUPREME COURT OF TEXAS -- -- -- -- § NO. 15-0796 § Dallas County, § EX PARTE: JOHN CLOUD § 5th District. § § February 26, 2016 Petitioner's petition for review, filed herein in the above numbered and styled case, having been duly considered, is ordered, and hereby is, denied.  I, BLAKE A. HAWTHORNE, Clerk of the Supreme Court of Texas, do hereby certify that the above and attached is a true and correct copy of the orders of the Supreme Court of Texas in the case numbered and styled as above, as the same appear of record in the minutes of said Court under the date shown. It is further ordered that petitioner, EX PARTE: JOHN CLOUD, pay all costs incurred on this petition. WITNESS my hand and seal of the Supreme Court of Texas, at the City of Austin, this the 7th day of April, 2016. Blake A. Hawthorne, Clerk By Monica Zamarripa, Deputy Clerk

101 F.3d 704 NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.UNITED STATES of America, Plaintiff-Appellee,v.Robert E. MERRIWEATHER, a/k/a James Cooper, Defendant-Appellant. No. 96-2543. United States Court of Appeals, Seventh Circuit. Submitted Nov. 14, 1996.*Decided Nov. 14, 1996. Before COFFEY, EASTERBROOK and KANNE, Circuit Judges. ORDER 1 Robert Merriweather pleaded guilty to federal drug and weapons charges, then filed a timely notice of appeal. Merriweather's counsel has filed a motion to withdraw accompanied by a brief asserting that there are no non-frivolous issues for appeal. Anders v. California, 386 U.S. 738 (1967); United States v. Edwards, 777 F.2d 364 (7th Cir.1985) (per curiam). Pursuant to Circuit Rule 51(a), this court notified Merriweather of his right to raise any points that he believes merit appeal, but he has not done so. We grant the motion to withdraw and dismiss the appeal. 2 Merriweather was arrested in 1994 after police found a .38-caliber revolver and small quantities of cocaine, heroin, and codeine in his vehicle during a consent search. He was charged with two counts of drug possession and with two counts of firearms violations, specifically receiving and possessing a firearm as a convicted felon, 18 U.S.C. § 922(g), based on his 1983 burglary conviction. While on pretrial release, Merriweather tested positive for drug use and was taken into custody. Merriweather then pleaded guilty pursuant to a plea agreement whereby the government agreed to move for dismissal of one of the firearms counts. Despite his violation of the pretrial release drug use conditions, Merriweather received a 3-point reduction in his offense level (from 20 to 17) for acceptance of responsibility, U.S.S.G. § 3E1.1, and with a criminal history of II received the guideline range maximum sentence of 33 months of imprisonment. 3 Because Merriweather has not indicated any desire to withdraw his plea, either in the district court or on appeal, we bypass any consideration of the procedures by which the plea was taken; no such issues have been either preserved in the district court or presented for decision here. On appeal, Merriweather might attempt to recite his strenuous argument in the district court that Indiana restored his civil rights in 1992 and therefore he was not a section 922(g) "felon" because of the exemption provided by 18 U.S.C. § 921(a)(20). But as we have already held, United States v. McKinley, 23 F.3d 181, 183-84 (7th Cir.1994), Indiana's partial civil rights restoration scheme "does not substantially restore a convicted felon's civil rights" and thus does not satisfy section 921(a)(20). Simply put, section 922(g), like Indiana, still views Merriweather as a convicted felon. At the sentencing hearing, Merriweather conceded that he could not show that his specific right to carry a gun had been restored, which in Indiana requires waiting fifteen years from the date of conviction and then obtaining the governor's pardon. Ind.Code §§ 11-9-2-4, 35-47-2-20. Merriweather admitted that he had not satisfied either condition, thus this argument provides no ground for appeal. 4 Merriweather's related argument that the restoration of some of his civil rights precludes using his burglary conviction to calculate his criminal history category is also frivolous. Whether and how prior convictions count in calculating criminal history is a question of federal law governed by U.S.S.G. § 4A1.1 et seq., which do not recognize any such exception for the mere restoration of selected civil rights. Cf. United States v. Stowe, 989 F.2d 261, 263 (7th Cir.1993). 5 Merriweather appears to have succeeded on every other sentencing objection, and there is no evidence of any plain error. Because the district court imposed a sentence within the applicable guideline range, its exercise of discretion is unreviewable. United States v. Winston, 34 F.3d 574, 581 (7th Cir.1994). Having independently searched the record, we are satisfied that counsel has been diligent and that there are no non-frivolous issues. We therefore GRANT the attorney's motion to withdraw and DISMISS the appeal. * After an examination of the briefs and the record, we have concluded that oral argument is unnecessary; accordingly, the appeal is submitted on the briefs and the record. See Fed.R.App.P. 34(a); Cir.R. 34(f)

Exhibit 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the reference in the Registration Statement (Form S-8) pertaining to the Ceragon Networks Ltd. 2003 Amended and Restated Share Option and RSU Plan and to the incorporation by reference therein of our report dated March 31, 2011, with respect to the consolidated financial statements of Ceragon Networks Ltd. included in its Annual Report (Form 20-F) for the year ended December 31, 2010, and the effectiveness of internal control over financial reporting of Ceragon Networks Ltd., filed with the Securities and Exchange Commission. Tel-Aviv, Israel KOST FORER GABBAY & KASIERER April 14, 2011 A Member of Ernst & Young Global

408 F.2d 39 Charles W. MULLINS, Plaintiff-Appellant,v.Wilbur J. COHEN, Secretary of Health, Education and Welfare, Defendant-Appellee. No. 18814. United States Court of Appeals Sixth Circuit. March 27, 1969. Ronald W. May, Pikeville, Ky., for appellant. J. T. Frankenberger, Lexington, Ky., for appellee. George I. Cline, U. S. Atty., G. Wix Unthank, Asst. U. S. Atty., Lexington, Ky., on the brief. Before O'SULLIVAN, EDWARDS and PECK, Circuit Judges. JOHN W. PECK, Circuit Judge. 1 This appeal is from the judgment of the District Court which affirmed the Secretary of Health, Education and Welfare's denial of social security disability benefits to the appellant. 2 Appellant is a 40 year old (present age) former steel mill laborer who now lives in Pike County, Kentucky. Appellant testified that he attended school only to the fourth grade and that he could not read or write except to write his name. He also testified that he received a back injury on the job in 1959, and has not worked since 1963. 3 In his application for disability insurance benefits, the appellant alleged as his impairment "back and heart conditions." After denial of this application and decision by a Hearing Examiner denying benefits, the appellant requested, and was given, an additional orthopedic examination and psychological and psychiatric examinations. The results of these examinations as well as the entire record of the proceedings before the Hearing Examiner were before the Appeals Council. However, in light of the disposition we make of this case, it is important to note that there was no additional testimony by a vocational expert based on the reports from the additional physical and mental examinations in the record before the Appeals Council. 4 This failure to have additional vocational testimony is particularly important because the appellant is now claiming disability due to mental as well as physical impairment. 5 The reports of the additional physical and mental examinations show that the examining doctors felt that the appellant was unable to work primarily because of emotional disturbances. The report of Dr. Stevens, an orthopedic surgeon, stated that the appellant's physical complaints were the result of his emotional problems and that "his psychiatric state preclude[d] any return to work." The report of the psychological examination showed that the appellant had a "borderline" IQ rating of 73 and that he would be "limited in ability to function independently and accept responsibility." Finally, the report of Dr. Ligon, the psychiatrist, stated that the appellant needed psychiatric treatment and re-habilitation. 6 Section 223 of the Social Security Act was amended in 1967, during the pendency of this action, to read: 7 "[A]n individual * * * shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists * * *." 42 U.S.C. § 423(d) (2) (A). 8 The amendment applies to this action. Public Law 90-248, section 158(e). 9 Once the appellant showed that he could no longer work in his former occupation as a steel mill laborer, the burden of proof shifted to the Secretary to show that the appellant could engage in some other kind of "substantial gainful work." Nelson v. Gardner, 386 F.2d 92 (6th Cir.1967), May v. Gardner, 362 F.2d 616 (6th Cir.1966). 10 It is clear that the appellant satisfied his burden of showing that he was unable to do his previous work. Finding Number 6 in the decision of the Appeals Council, that "Whereas the claimant may not be able to engage in employment requiring heavy lifting or other arduous duties, he remains capable of doing light to moderately strenuous work;" shows that the Appeals Council considered the appellant unable to do his former work as a laborer in a steel mill. It then became incumbent on the Secretary to show that the appellant could engage in some other "substantial gainful work." However, a proper determination of this fact was highly dependent upon the testimony of a vocational witness who had no opportunity to consider the reports of the additional physical and mental examinations. All of the evidence of the appellant's mental condition was obtained after the vocational witness testified, and no attempt was made to furnish these reports to the witness to find out whether they would change his conclusions about the other "substantial gainful work" the appellant could do. There was no testimony in the record as to the "substantial gainful work" the appellant could do in light of his physical and mental problems. The general finding of the Appeals Council that the appellant's mental problems would not prevent him from adjusting to the nervous and mental stresses of the ordinary employment situation and the specific finding in Finding Number 7 that the appellant is able to meet the physical and mental demands of any of the specific jobs listed in the Hearing Examiner's decision are nothing more than mere conjecture. 11 We must therefore reverse and remand this case to permit the Secretary to show on the basis of the testimony of a vocational witness properly apprised of all available reports of physical, psychological and psychiatric examinations and tests whether appellant could obtain "substantial gainful work." 12 The appellant's other allegation of error is worthy of some discussion. He argues that the judgment of the District Court should be reversed for the reason that both the Hearing Examiner and the Appeals Council applied an incorrect legal standard to the evidence of physical impairment. 13 It is true that the decisions of both the Hearing Examiner and the Appeals Council did make reference to the need for objective medical findings in order to find physical impairment. The decision of the Hearing Examiner stated that: 14 "The Act requires that the impairment be `medically determinable'; that is, the existence of an impairment must be established by objective medical, clinical, or laboratory evidence * * *. The objective medical evidence does not support a conclusion that the claimant has anything more than a minor back disorder, probably muscular and ligamentous in origin." 15 In its evaluation of the medical evidence, the Appeals Council said: 16 "In resolving this question [of impairment], consideration should be given to those physical or nervous symptoms alleged by the claimant that are actually confirmed by objective medical findings." 17 The question is whether criteria were used which are in conflict with the legal standard set forth in sections 216(i) and 223(d) of the Social Security Act. It is important to note that these sections of the Social Security Act were amended in 1968, during the pendency of this action. The amended section 223(d) now reads in pertinent part: 18 "(1) The term `disability' means — 19 "(A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment * *. 20 * * * * * * 21 "(3) For purposes of this subsection, a `physical or mental impairment' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d). (Emphasis supplied.) 22 The amendment applies to this action. Public Law 90-248, section 158(e). Whitt v. Gardner, 389 F.2d 906 (6th Cir.1968). 23 The appellant contends that the Secretary required him to prove his physical impairment by "objective" medical evidence, and that such is not the standard set forth in the Act. In urging reversal on this ground, the appellant relies heavily on Whitt v. Gardner, supra. 24 However, we are not persuaded that this case is controlled by Whitt v. Gardner, supra, nor are we persuaded that the Hearing Examiner and the Appeals Council applied an erroneous legal standard to the medical evidence. Instead we consider this case to be similar to Walters v. Gardner, 397 F.2d 89 (6th Cir. 1968), where this Court held that a reference to absence of "objective" medical findings was not reversible error if a consideration of the entire record showed that the denial of benefits was due to the claimant's failure to bear his burden of proof that he was disabled due to a physical impairment which was "demonstrable by medically acceptable clinical and laboratory diagnotic techniques." Consideration of the entire record convinces us that the Appeals Council did not consider the appellant disabled as the result of an impairment or impairments that were "demonstrable by medically acceptable clinical and laboratory diagnostic techniques." However, as noted above, an important part of that decision, that is, whether the appellant was disabled because of any of his impairments, depended on the expert testimony of a vocational witness. And as noted above, that witness was not properly apprised of all the relevant facts and medical reports. 25 The judgment of the District Court is reversed, with direction that the matter be remanded for reconsideration by the Secretary.

Exhibit 10.21 Name Address City, State Dear Name: This letter clarifies the definition of “Good Reason” for purposes of the Change of Control Agreement between you and Dole Food Company, Inc. by replacing clause (g) of the definition of “Good Reason” in Appendix I of your Agreement with the following: “(g) The failure of Dole or any successor to continue in effect any equity-based or non-equity based incentive compensation plan (whether annual or long-term) in effect immediately prior to the Change of Control Date, or a non de minimis reduction, in the aggregate, in your participation in any such plans (based upon (1) in the case of equity based plans, the average grant date fair value of your awards under such plans over the three years preceding the Change of Control Date (or such lesser period following the Dole’s initial public offering that you were employed by Dole or any successor) or (2) in the case of non-equity based plans, your target award under such plans for the performance period in which the Change of Control Date occurs), unless you are afforded the opportunity to participate in an alternative incentive compensation plan of reasonably equivalent value; provided that a reduction in the aggregate value of your participation in any such plans of not more than 5% in connection with across-the-board reductions or modifications affecting all executives with Change of Control Agreements containing terms substantially identical to your Agreement shall not constitute Good Reason (all determinations under this clause (g) shall be made in good faith by the corporate compensation and benefits committee of the board of directors of Dole or any successor in its sole discretion); or (h) Any reduction in the aggregate value of benefits provided to you, as in effect on the Change of Control Date; provided that a reduction in the aggregate value of benefits of not more than 5% in connection with across-the-board reductions or modifications affecting all executives with Change of Control Agreements containing terms substantially identical to your Agreement shall not constitute Good Reason. All determinations under this clause (h) shall be made in good faith by the corporate compensation and benefits committee of the board of directors of Dole or any successor in its sole discretion. As used herein, “benefits” shall include all deferred compensation, retirement, pension, health, medical, dental, disability, insurance, automobile, and similar benefits.” Sincerely, DOLE FOOD COMPANY, INC. Title:                                          Agreed and Accepted:                           Date:                           1

HR 4120 ENR: To amend the National Law Enforcement Museum Act to extend the termination date. U.S. House of Representatives text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain. I One Hundred Thirteenth Congress of the United States of America At the Second SessionBegun and held at the City of Washington on Friday, the third day of January, two thousand and fourteen H. R. 4120 AN ACT To amend the National Law Enforcement Museum Act to extend the termination date. 1.National Law Enforcement Museum Act termination date extendedSection 4(f) of the National Law Enforcement Museum Act (Public Law 106–492) is amended by striking 13 years and inserting 16 years. 2.Effective dateThe provisions of this Act shall take effect as if this Act were enacted on November 8, 2013. Speaker of the House of Representatives.Vice President of the United States and President of the Senate.

  EXHIBIT 10.2 REGISTRATION RIGHTS AGREEMENT          This Registration Rights Agreement (this “Agreement”) is made and entered into as of October 5, 2004, by and among Digital Recorders, Inc., a North Carolina corporation (the “Company”), and the investors signatory hereto (each an “Investor” and collectively, the “Investors”).          This Agreement is made pursuant to the Securities Purchase Agreement, dated as of the date hereof among the Company and the Investors (the “Purchase Agreement”).          The Company and the Investors hereby agree as follows:      1. Definitions. Capitalized terms used and not otherwise defined herein that are defined in the Purchase Agreement will have the meanings given such terms in the Purchase Agreement. As used in this Agreement, the following terms have the respective meanings set forth in this Section 1:          “Effective Date” means the date that the Registration Statement is first declared effective by the Commission.          “Effectiveness Date” means the earlier of: (i) the 180th day following the Closing Date and (ii) the fifth Trading Day following the date on which the Company is notified by the Commission that the Registration Statement will not be reviewed or is no longer subject to further review and comments.          “Effectiveness Period” has the meaning set forth in Section 2(a).          “Exchange Act” means the Securities Exchange Act of 1934, as amended.          “Filing Date” means the 31st day following the Closing Date.          “Holder” or “Holders” means the holder or holders, as the case may be, from time to time of Registrable Securities.          “Indemnified Party” has the meaning set forth in Section 5(c).          “Indemnifying Party” has the meaning set forth in Section 5(c).          “Losses” has the meaning set forth in Section 5(a).          “New York Courts” means the state and federal courts sitting in the City of New York, Borough of Manhattan.          “Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an investigation or partial proceeding, such as a deposition), whether commenced or threatened. 1 --------------------------------------------------------------------------------            “Prospectus” means the prospectus included in a Registration Statement (including, without limitation, a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by a Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.          “Registrable Securities” means: (i) the Shares, (ii) the Warrant Shares, (iii) any shares of Common Stock issuable upon the exercise of warrants issued to any placement agent as compensation in connection with the financing subject of the Purchase Agreement and (iv) any securities issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event, or any exercise price adjustment with respect to any of the securities referenced in (i), (ii) and (iii) above, without regard to any limitations on exercises of the Warrants.          “Registration Statement” means the registration statement of the Company filed under the Securities Act covering the Registrable Securities, including the Prospectus, amendments and supplements to such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference therein.          “Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.          “Rule 415” means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.          “Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.          “Securities Act” means the Securities Act of 1933, as amended.          “Shares” means the shares of Common Stock issued or issuable by the Company to the Investors pursuant to the Purchase Agreement.          “Warrants” means the Common Stock purchase warrants issued or issuable to the Investors pursuant to the Purchase Agreement.          “Warrant Shares” means the shares of Common Stock issued or issuable upon exercise of the Warrants.      2. Registration. 2 --------------------------------------------------------------------------------            (a) Filing and Effectiveness. On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities. The Registration Statement shall be on Form S-1 (subject to the provisions of Section 2(e)), and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Selling Stockholders” and “Plan of Distribution” attached hereto as Annex A. The Registration Statement prepared pursuant hereto shall register for resale at least that number of shares of Common Stock equal to the number of Registrable Securities as of the Trading Day immediately preceding the date the Registration Statement is initially filed with the Commission, subject to adjustment as provided in Section 2(f). The Company shall cause such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date. The Company shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) such time as all of the Registrable Securities covered by such Registration Statement have been sold pursuant to the Registration Statement or otherwise publicly sold by the Holders, or (ii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness Period”).          (b) Liquidated Damages. If: (i) the Registration Statement is not filed on or prior to the Filing Date (if the Company files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) the Registration Statement covering all of the Registrable Securities is not declared effective by the Commission on or prior to the Effectiveness Date, or (iii) after the Effective Date, without regard for the reason thereunder or efforts therefore, such Registration Statement ceases for any reason to be effective and available to the Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of the Effectiveness Period (other than during an Allowable Grace Period, as defined in Section 3(r)) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date which such Allowable Grace Period is exceeded, being referred to as “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the product of the number of Shares then held by such Holder and the Per Unit Purchase Price; and (y) on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.5% of the product of the number of Shares then held by such Holder and the Per Unit Purchase Price. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrants or Warrant Shares. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial 3 --------------------------------------------------------------------------------   liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event, except in the case of the first Event Date.          (c) Allocation of Registrable Securities. The initial number of Registrable Securities included in any Registration Statement and each increase in the number of Registrable Securities included therein shall be allocated pro rata among the Holders based on the number of Registrable Securities held by each Holder at the time the Registration Statement covering such initial number of Registrable Securities or increase thereof is declared effective by the Commission. In the event that a Holder sells or otherwise transfers any of such Holder’s Registrable Securities, each transferee shall be allocated a pro rata portion of the then remaining number of Registrable Securities included in such Registration Statement for such transferor. Any shares of Common Stock included in a Registration Statement and which remain allocated to any Person which ceases to hold any Registrable Securities covered by such Registration Statement shall be allocated to the remaining Holders, pro rata based on the number of Registrable Securities then held by such Holders which are covered by such Registration Statement. In no event shall the Company include any securities other than Registrable Securities on any Registration Statement without the prior written consent of Investors holding at least a majority of the Registrable Securities.          (d) Selling Holder Questionnaire. Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 2(b) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).          (e) Ineligibility for Form S-3. The Company shall undertake to register the Registrable Securities on Form S-3 as soon as such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.          (f) Sufficient Number of Shares Registered. In the event the number of shares available under a Registration Statement filed pursuant to Section 2(a) is insufficient to cover all of the Registrable Securities required to be covered by such Registration Statement or a Holder’s allocated portion of the Registrable Securities pursuant to Section 2(b), the Company shall amend the applicable Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover at least 100% of the number of such Registrable Securities as of the Trading Day immediately preceding the date of the filing of such amendment or new Registration Statement, in each case, as soon as practicable, but in any event not later than 15 days after the Company becomes aware of the necessity therefor. The Company shall use its reasonable best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. For purposes of the foregoing provision, the number of shares available under a Registration Statement shall be deemed “insufficient to cover all of the Registrable Securities” if at any time the number of shares of Common Stock available for resale under such Registration Statement is less than the 4 --------------------------------------------------------------------------------   number of Registrable Securities. The calculation set forth in the foregoing sentence shall be made without regard to any limitations on the exercise of the Warrants and such calculation shall assume that the Warrants are then exercisable into shares of Common Stock.      3. Registration Procedures          In connection with the Company’s registration obligations hereunder, the Company shall:          (a) (A) permit legal counsel designated by a majority in interest of the Holders, which shall initially be Schulte Roth & Zabel LLP (“Legal Counsel”) to review and comment upon (i) the Registration Statement at least five Business Days prior to its filing with the Commission and (ii) all amendments and supplements to all Registration Statements (except for amendments or supplements filed solely for the purpose of adding information included in Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K and any similar or successor reports) within a reasonable number of days prior to their filing with the Commission, and (B) not file any Registration Statement or amendment or supplement thereto in a form to which Legal Counsel reasonably objects. The Company shall not submit a request for acceleration of the effectiveness of a Registration Statement or of any amendment thereto without the prior approval of Legal Counsel, which consent shall not be unreasonably withheld. The Company shall furnish to Legal Counsel, without charge, (i) copies of any correspondence from the Commission or the staff of the Commission to the Company or its representatives relating to any Registration Statement, (ii) promptly after the same is prepared and filed with the Commission, one copy of any Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, if requested by a Holder and not otherwise available on the EDGAR system, and all exhibits and (iii) upon the effectiveness of any Registration Statement, one copy of the prospectus included in such Registration Statement and all amendments and supplements thereto.          (b) (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective as to the Registrable Securities for the Effectiveness Period; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424; (iii) respond as promptly as reasonably possible, but in any event no later than five Business Days after receipt thereof, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and, as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement that would not result in the disclosure to the Holders of material and non-public information concerning the Company; (iv) submit to the Commission, within two Business Days after the Company learns that no review of a particular Registration Statement will be made by the staff of the Commission or that the staff of the Commission has no further comments on a particular Registration Statement, as the case may be, a request for acceleration of effectiveness of such Registration Statement to a time and date not later than 48 hours after the submission of such request; and (v) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the Registration Statement and the disposition of all Registrable Securities 5 --------------------------------------------------------------------------------   covered by any Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(b)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the Exchange Act, the Company shall have incorporated such report by reference into such Registration Statement, if permissible, or shall file such amendments or supplements with the Commission not later than one Business Day after the day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.          (c) Notify the Holders as promptly as reasonably possible (and, in the case of (i)(A) below, not less than three Trading Days prior to such filing) and (if requested by any such Holder) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders that pertain to the Holders as a Selling Stockholder or to the Plan of Distribution, but not information which the Company reasonably believes would constitute material and non-public information); and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; and (v) of the occurrence of any event or passage of time that makes the financial statements included in the Registration Statement ineligible for inclusion therein or any statement made in such Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to such Registration Statement, Prospectus or other documents so that, in the case of such Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that in no event shall such notice contain any material and non-public information).          (d) (i) Use its reasonable best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (A) any order suspending the effectiveness of the Registration Statement, or (B) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment and (ii) notify Legal Counsel and each Holder of Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose. 6 --------------------------------------------------------------------------------            (e) Furnish to each Holder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto and all exhibits to the extent requested by such Person (including those previously furnished) promptly after the filing of such documents with the Commission.          (f) Promptly deliver to each Holder, without charge, upon the effectiveness of any Registration Statement, as many copies of each Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.          (g) Prior to any public offering of Registrable Securities, to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as Holders may reasonably request (provided that the Company shall not be required to register as a foreign corporation or qualify to do business generally in any jurisdiction in which it is not otherwise required to be so registered or qualified), to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement.          (h) If any Holder is required under applicable securities law to be described in the Registration Statement as an underwriter (which does not include statements in the Registration Statement that a Holder may be deemed to be an underwriter), at the reasonable request of such Holder, the Company shall furnish to such Holder, on the date of the effectiveness of the Registration Statement and thereafter from time to time on such dates as an Holder may reasonably request (i) a letter, dated such date, from the Company’s independent certified public accountants in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the Holders, and (ii) an opinion, dated as of such date, of counsel representing the Company for purposes of such Registration Statement, in form, scope and substance as is customarily given in an underwritten public offering, addressed to the Holders.          (i) Upon the written request of any Holder in connection with any Holder’s due diligence requirements, if any, the Company shall make available for inspection by (i) any Holder, (ii) Legal Counsel and (iii) one firm of accountants or other agents retained by the Holders (collectively, the “Inspectors”), all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably deemed necessary by each Inspector, and cause the Company’s officers, directors and employees to supply all information which any Inspector may reasonably request; provided, however, that each Inspector shall agree in writing to hold in strict confidence and shall not make any disclosure (except to an Holder) or use of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (a) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the 7 --------------------------------------------------------------------------------   Securities Act, (b) the release of such Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competent jurisdiction, or (c) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any other agreement of which the Inspector has knowledge. Each Holder agrees that it shall, upon learning that disclosure of such Records is required or is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential. Such Holder shall, at the Company’s sole expense, cooperate with the Company in connection with any such action. Nothing herein (or in any other confidentiality agreement between the Company and any Holder) shall be deemed to limit the Holders’ ability to sell Registrable Securities in a manner which is otherwise consistent with applicable laws and regulations.          (j) The Company shall hold in confidence and not make any disclosure of information concerning a Holder provided to the Company and determined in good faith by such Holder to be confidential, and of which determination the Company is so notified, unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement of which the Company has knowledge. The Company agrees that it shall, upon learning that disclosure of such information concerning a Holder is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Holder and allow such Holder, at the Holder’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.          (k) The Company shall use its reasonable best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each securities exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (ii) secure designation and quotation of all the Registrable Securities covered by a Registration Statement on the Nasdaq SmallCap Market for such Registrable Securities and, without limiting the generality of the foregoing, to use its reasonable best efforts to arrange for at least two market makers to register with the National Association of Securities Dealers, Inc. (“NASD”) as such with respect to such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(k).          (l) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holders may request. 8 --------------------------------------------------------------------------------            (m) Upon the occurrence of any event contemplated by Section 3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the affected Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, no Registration Statement nor any Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading and deliver such number of copies of such supplement or amendment to Legal Counsel and each Holder as they may reasonably request.          (n) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering and (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment.          (o) The Company shall use its reasonable best efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.          (p) The Company shall make generally available to its security holders as soon as practical, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with, and in the manner provided by, the provisions of Rule 158 under the Securities Act) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the effective date of a Registration Statement.          (q) Within two Business Days after a Registration Statement which covers Registrable Securities is ordered effective by the Commission, the Company shall deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable Securities (with copies to the Holders whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by the Commission in the form attached hereto as Exhibit A.          (r) Notwithstanding anything to the contrary herein, at any time after the Registration Statement has been declared effective by the Commission, the Company may delay the disclosure of material, non-public information concerning the Company the disclosure of which at the time is not, in the good faith opinion of the Board of Directors of the Company and its counsel, in the best interest of the Company and, in the opinion of counsel to the Company, otherwise required (a “Grace Period”); provided, that the Company shall promptly (i) notify the Holders in writing of the existence of a Grace Period in conformity with the provisions of this Section 3(r)(provided that in each notice the Company will not disclose the content of such 9 --------------------------------------------------------------------------------   material, non-public information to the Holders) and the date on which the Grace Period will begin, and (ii) notify the Holders in writing of the date on which the Grace Period ends; and, provided further, that no Grace Period shall exceed ten consecutive days and during any 365 day period such Grace Periods shall not exceed an aggregate of 30 days (each, an “Allowable Grace Period”). For purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the Holders receive the notice referred to in clause (i) and shall end on and include the later of the date the Holders receive the notice referred to in clause (ii) and the date referred to in such notice. The provisions of Section 3(d) hereof shall not be applicable during the period of any Allowable Grace Period. Upon expiration of the Grace Period, the Company shall again be bound by the first sentence of Section 3(c)(v) with respect to the information giving rise thereto unless such material, non-public information is no longer applicable. The Holder shall adhere to its obligation to trade in accordance with the rules and regulations of the Commission during such Allowable Grace Period. Notwithstanding anything to the contrary, the Company shall cause its transfer agent to deliver unlegended shares of Common Stock to a purchaser of Registrable Securities from a Holder in accordance with the terms of the Purchase Agreement in connection with any sale of Registrable Securities with respect to which a Holder has entered into a binding contract for sale, and delivered a copy of the prospectus included as part of the applicable Registration Statement, prior to the Holder’s receipt of the notice of a Grace Period and for which the Holder has not yet settled.      4. Registration Expenses. All fees and expenses incident to the performance of or compliance with this Agreement by the Company shall be borne by the Company whether or not any Registrable Securities are sold pursuant to a Registration Statement. The fees and expenses referred to in the foregoing sentence shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses (A) with respect to filings required to be made with any Trading Market on which the Common Stock is then listed for trading, and (B) in compliance with applicable state securities or Blue Sky laws), (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities and of printing prospectuses if the printing of prospectuses is reasonably requested by the holders of a majority of the Registrable Securities included in the Registration Statement), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company, (v) Securities Act liability insurance, if the Company so desires such insurance, and (vi) fees and expenses of all other Persons retained by the Company in connection with the consummation of the transactions contemplated by this Agreement. In addition, the Company shall be responsible for all of its internal expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit and the fees and expenses incurred in connection with the listing of the Registrable Securities on any Trading Market as required hereunder.      5. Indemnification.          (a) Indemnification by the Company. The Company shall, notwithstanding any termination of this Agreement, indemnify and hold harmless each Holder, the officers, directors, agents, investment advisors, partners, members, employees and representatives of each of them, each Person who controls any such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, agents and 10 --------------------------------------------------------------------------------   employees of each such controlling Person, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, judgments, fines, penalties, charges, costs (including, without limitation, reasonable costs of preparation and reasonable attorneys’ fees), amounts paid in settlement or expenses (collectively, “Losses”), as arising out of, relate to or are based upon: (i) any untrue statement or alleged untrue statement of a material fact in a Registration Statement or any post-effective amendment thereto or in any filing made in connection with the qualification of the offering under the securities or other “blue sky” laws of any jurisdiction in which Registrable Securities are offered, or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, or contained in the Prospectus or the omission or alleged omission to state therein any material fact necessary to make the statements made therein, in the light of the circumstances under which the statements therein were made, not misleading, (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any other law, including, without limitation, any state securities law, or any rule or regulation thereunder relating to the offer or sale of the Registrable Securities pursuant to a Registration Statement or (iv) any material violation of this Agreement, except to the extent, but only to the extent, that (1) such untrue statements or omissions are based solely upon information regarding such Holder furnished in writing to the Company by Legal Counsel or otherwise by or on behalf of such Holder expressly for use therein, or to the extent that such information relates to such Holder or such Holder’s proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by Legal Counsel or otherwise by or on behalf of such Holder or provided to the Company by Legal Counsel or otherwise by or on behalf of such Holder expressly for use in the Registration Statement, such Prospectus or such form of Prospectus or in any amendment or supplement thereto (it being understood that the Holder has approved Annex A hereto for this purpose) or (2) such Holder uses an outdated or defective Prospectus after the Company has notified such Holder in writing that the Prospectus is outdated or defective and prior to the receipt by such Holder of an Advice (as hereinafter defined) or an amended or supplemented Prospectus, but only if and to the extent that following the receipt of the Advice or the amended or supplemented Prospectus the misstatement or omission giving rise to such Loss would have been corrected. The Company shall notify the Holders promptly of the institution, threat or assertion of any Proceeding of which the Company is aware in connection with the transactions contemplated by this Agreement.          (b) Indemnification by Holders. Each Holder shall, severally and not jointly, indemnify and hold harmless the Company, its directors, each of its officers who signs the Registration Statement and, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), to the fullest extent permitted by applicable law, from and against all Losses, as incurred, arising solely out of or based solely upon: (x) such Holder’s failure to comply with the prospectus delivery requirements of the Securities Act or (y) any untrue statement of a material fact contained in any Registration Statement, any Prospectus, or any form of prospectus, or in any amendment or supplement thereto, or arising solely out of or based solely upon any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading to the extent, but only to the extent that, (1) such untrue statements or omissions are based solely upon information regarding such Holder furnished in writing to the Company by Legal Counsel or otherwise by or on behalf of such Holder expressly for use therein, or to the extent that such information relates 11 --------------------------------------------------------------------------------   to such Holder or such Holder’s proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder or provided to the Company by Legal Counsel or otherwise by or on behalf of such Holder expressly for use in the Registration Statement (it being understood that the Holder has approved Annex A hereto for this purpose), such Prospectus or such form of Prospectus or in any amendment or supplement thereto or (2) such Holder uses an outdated or defective Prospectus after the Company has notified such Holder in writing that the Prospectus is outdated or defective and prior to the receipt by such Holder of an Advice or an amended or supplemented Prospectus, but only if and to the extent that following the receipt of the Advice or the amended or supplemented Prospectus the misstatement or omission giving rise to such Loss would have been corrected. Notwithstanding anything to the contrary contained herein, the indemnification agreement contained in this Section 5(b) with respect to any preliminary prospectus shall not inure to the benefit of any Indemnified Party (as hereinafter defined) if the untrue statement or omission of material fact contained in the preliminary prospectus was corrected on a timely basis in the prospectus, as then amended or supplemented. In no event shall the liability of any selling Holder hereunder be greater in amount than the dollar amount of the net proceeds received by such Holder upon the sale of the Registrable Securities giving rise to such indemnification obligation.          (c) Conduct of Indemnification Proceedings. If any Proceeding shall be brought or asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided, that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that such failure shall have prejudiced the Indemnifying Party.          An Indemnified Party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses; (2) the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding; or (3) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and such Indemnified Party shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Party). In the case of Indemnified Parties consisting of Holders,, legal counsel referred to in the immediately preceding sentence shall be selected by the Holders holding at least a majority in interest of the Registrable Securities included in the Registration Statement to which the Loss relates. The Indemnified Party shall cooperate fully with the Indemnifying Party in connection with any negotiation or defense of any Proceeding or Loss by the Indemnifying Party and shall furnish to the Indemnifying Party all information reasonably available to the Indemnified Party which relates to such Proceeding or 12 --------------------------------------------------------------------------------   Loss. The Indemnifying Party shall keep the Indemnified Party fully apprized at all times as to the status of the defense or any settlement negotiations with respect thereto. The Indemnifying Party shall not be liable for any settlement of any such Proceeding effected without its prior written consent, which consent shall not be unreasonably withheld. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding. Following indemnification as provided for hereunder, the Indemnifying Party shall be subrogated to all rights of the Indemnified Party with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made.          All fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within thirty days of written notice thereof to the Indemnifying Party (regardless of whether it is ultimately determined that an Indemnified Party is not entitled to indemnification hereunder; provided, that the Indemnifying Party may require such Indemnified Party to undertake to reimburse all such fees and expenses to the extent it is finally judicially determined that such Indemnified Party is not entitled to indemnification hereunder).          (d) Contribution. If a claim for indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified Party (by reason of public policy or otherwise), then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations; provided, however, that no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include, subject to the limitations set forth in Section 5(c), any reasonable attorneys’ or other reasonable fees or expenses incurred by such party in connection with any Proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in this Section was available to such party in accordance with its terms.          The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 5(d), no 13 --------------------------------------------------------------------------------   Holder shall be required to contribute, in the aggregate, any amount in excess of the amount by which the proceeds actually received by such Holder from the sale of the Registrable Securities subject to the Proceeding exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.          The indemnity and contribution agreements contained in this Section are in addition to any liability that the Indemnifying Parties may have to the Indemnified Parties, but without duplication of recovery.      6. Reports Under The Exchange Act.          With a view to making available to the Holders the benefits of Rule 144, the Company agrees to:          (a) make and keep public information available, as those terms are understood and defined in Rule 144;          (b) file with the Commission in a timely manner all reports and other documents required of the Company under the Exchange Act so long as the Company remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144; and          (c) furnish to each Holder so long as such Holder owns Registrable Securities, promptly upon request, (i) a written statement by the Company, if true, that it has complied with the reporting requirements of Rule 144 and the Exchange Act, (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested to permit the Holders to sell such securities pursuant to Rule 144 without registration.      7. Miscellaneous.          (a) Remedies. In the event of a breach by the Company or by a Holder, of any of their obligations under this Agreement, each Holder or the Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. The Company and each Holder agree that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions of this Agreement and hereby further agrees that, in the event of any action for specific performance in respect of such breach, it shall waive the defense that a remedy at law would be adequate.          (b) No Piggyback on Registrations. Neither the Company nor any of its security holders (other than the Holders in such capacity pursuant hereto) may include securities of the Company in a Registration Statement other than the Registrable Securities, and the Company shall not during the Registration Period enter into any agreement providing any such right to any of its security holders. 14 --------------------------------------------------------------------------------            (c) Compliance. Each Holder covenants and agrees that it will comply with the prospectus delivery requirements of the Securities Act as applicable to it in connection with sales of Registrable Securities pursuant to the Registration Statement.          (d) Discontinued Disposition. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph. Neither the obligation of the Holders to discontinue disposition of Registrable Securities pursuant to this Section 7(d) nor any event giving rise thereto shall constitute an Event for purposes of Section 2(b) unless the effectiveness of the Registration Statement is suspended or terminated as a result thereof during the Effectiveness Period. Notwithstanding anything to the contrary, the Company shall cause its transfer agent to deliver unlegended Shares of Common Stock to a purchaser of Registrable Securities from a Holder in accordance with the terms of the Purchase Agreement in connection with any sale of Registrable Securities with respect to which a Holder has entered into a binding contract for sale prior to the Holder’s receipt of a notice from the Company of the happening of any event of the kind described in Section 3(c) and for which the Holder has not yet settled.          (e) Piggy-Back Registrations. If at any time during the Effectiveness Period there is not an effective Registration Statement covering all of the Registrable Securities and the Company shall determine to prepare and file with the Commission a registration statement relating to an offering for its own account or the account of others under the Securities Act of any of its equity securities, other than on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection with stock option or other employee benefit plans, then the Company shall send to each Holder written notice of such determination and, if within fifteen days after receipt of such notice, any such Holder shall so request in writing, the Company shall include in such registration statement all or any part of such Registrable Securities such holder requests to be registered, subject to customary underwriter cutbacks applicable to all holders of registration rights.          (f) Amendments and Waivers. The provisions of this Agreement, including the provisions of this Section 6(f), may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the same shall be in writing and signed by the Company and the Holders of no less than a majority in interest of the then outstanding Registrable Securities. Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of certain Holders and that does not directly or indirectly affect the rights of other Holders may be given by Holders of at least a majority of the Registrable Securities to which such waiver or consent relates. No consideration shall be offered or paid to any Person to amend or consent to a 15 --------------------------------------------------------------------------------   waiver or modification of any provision of any of this Agreement unless the same consideration also is offered to all of the parties to this Agreement.          (g) Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is delivered via facsimile (provided the sender receives a machine-generated confirmation of successful transmission) at the facsimile number specified in this Section prior to 6:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number specified in this Section on a day that is not a Trading Day or later than 6:30 p.m. (New York City time) on any Trading Day, (c) the Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as follows:       If to the Company:   Digital Recorders, Inc.   5949 Sherry Lane, Suite 1050   Dallas, Texas 75225   Attn: Chief Financial Officer   Facsimile: (249)885-2432       With a copy to:   Carrington, Coleman, Sloman & Blumenthal, L.L.P.   200 Crescent Court, Suite 1500   Dallas, Texas 75201   Attn: Kenn W. Webb, Esq.   Facsimile: (249)885-2432       If to an Investor:   To the address and facsimile number set forth on the Schedule of Investors attached hereto, with copies to such Investor’s representatives as set forth on the Schedule of Investors.       If to any other Person who is then the registered Holder:         To the address of such Holder as it appears in the stock transfer books of the Company       If to Legal Counsel:   Schulte Roth & Zabel LLP   919 Third Avenue   New York, New York 10022   Attn: Eleazer Klein, Esq.   Facsimile: (249)885-2432 or such other address as may be designated in writing hereafter, in the same manner, by such Person.          (h) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties and shall inure to the 16 --------------------------------------------------------------------------------   benefit of each Holder. The Company may not assign its rights or obligations hereunder without the prior written consent of a majority in interest of the Holders. Each Holder may assign its respective rights hereunder in the manner and to the Persons as permitted under the Purchase Agreement.          (i) Execution and Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and, all of which taken together shall constitute one and the same Agreement. In the event that any signature is delivered by facsimile transmission, such signature shall create a valid binding obligation of the party executing (or on whose behalf such signature is executed) the same with the same force and effect as if such facsimile signature were the original thereof.          (j) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all Proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement (whether brought against a party hereto or its respective Affiliates, employees or agents) will be commenced in the New York Courts. Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the New York Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any Proceeding, any claim that it is not personally subject to the jurisdiction of any New York Court, or that such Proceeding has been commenced in an improper or inconvenient forum. Each party hereto hereby irrevocably waives personal service of process and consents to process being served in any such Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any Proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. If either party shall commence a Proceeding to enforce any provisions of this Agreement, then the prevailing party in such Proceeding shall be reimbursed by the other party for its attorney’s fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Proceeding.          (k) Cumulative Remedies. The remedies provided herein are cumulative and not exclusive of any remedies provided by law.          (l) Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that 17 --------------------------------------------------------------------------------   they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.          (m) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.          (n) Independent Nature of Investors’ Obligations and Rights. The obligations of each Investor under this Agreement are several and not joint with the obligations of each other Investor, and no Investor shall be responsible in any way for the performance of the obligations of any other Investor under this Agreement. Nothing contained herein or in any Transaction Document, and no action taken by any Investor pursuant thereto, shall be deemed to constitute the Investors as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Investors are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement or any other Transaction Document. Each Investor acknowledges that no other Investor will be acting as agent of such Investor in enforcing its rights under this Agreement. Each Investor shall be entitled to independently protect and enforce its rights, including without limitation the rights arising out of this Agreement, and it shall not be necessary for any other Investor to be joined as an additional party in any Proceeding for such purpose. The Company acknowledges that each of the Investors has been provided with the same Registration Rights Agreement for the purpose of closing a transaction with multiple Investors and not because it was required or requested to do so by any Investors. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK SIGNATURE PAGES TO FOLLOW] 18 --------------------------------------------------------------------------------        IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date first written above.             DIGITAL RECORDERS, INC.       By:   /s/ DAVID L. TURNEY       Name:   David L. Turney       Title:   Chairman, CEO and President     [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK SIGNATURE PAGES OF HOLDERS TO FOLLOW]   --------------------------------------------------------------------------------        IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date first written above.             NAME OF INVESTING ENTITY RIVERVIEW GROUP, LLC     By:   /s/ TERRY FEENEY       Name:   Terry Feeney       Title:   Chief Operating Officer       --------------------------------------------------------------------------------   SCHEDULE OF INVESTORS               Investor Address   Investor’s Representative’s Address Investor --------------------------------------------------------------------------------   and Facsimile Number --------------------------------------------------------------------------------   and Facsimile Number -------------------------------------------------------------------------------- Riverview Group, LLC   666 Fifth Avenue, 8th floor   Schulte Roth & Zabel LLP   New York, New York 10103   919 Third Avenue   Attention: Manager   New York, NY 10022   Facsimile: (249)885-2432   Attn: Eleazer Klein, Esq.   Telephone: (249)885-2432   Facsimile: (249)885-2432       Telephone: (249)885-2432   --------------------------------------------------------------------------------   EXHIBIT A FORM OF NOTICE OF EFFECTIVENESS OF REGISTRATION STATEMENT [Transfer Agent] Attn: Re: Digital Recorders, Inc. Ladies and Gentlemen:      We are counsel to Digital Recorders, Inc., a North Carolina corporation (the “Company”), and have represented the Company in connection with that certain Securities Purchase Agreement, dated as of October 5, 2004 (the “Securities Purchase Agreement”), entered into by and among the Company and the buyers named therein (collectively, the “Holders”) pursuant to which the Company issued to the Holders its shares of the Company’s Common Stock, par value $.1 per share (the “Common Stock”) and warrants exercisable for shares of Common Stock (the “Warrants”). Pursuant to the Securities Purchase Agreement, the Company also has entered into a Registration Rights Agreement with the Holders (the “Registration Rights Agreement”) pursuant to which the Company agreed, among other things, to register the resale of the Registrable Securities (as defined in the Registration Rights Agreement), including the shares of Common Stock issuable upon exercise of the Warrants under the Securities Act of 1933, as amended (the “Securities Act”). In connection with the Company’s obligations under the Registration Rights Agreement, on                                                              , 2004, the Company filed a Registration Statement on Form S-1 (File No. 333-                                        ) (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) relating to the Registrable Securities which names each of the Holders as a selling stockholder thereunder.      In connection with the foregoing, we advise you that a member of the Commission’s staff has advised us by telephone that the Commission has entered an order declaring the Registration Statement effective under the Securities Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and we have no knowledge, after telephonic inquiry of a member of the Commission’s staff, that any stop order suspending its effectiveness has been issued or that any proceedings for that purpose are pending before, or threatened by, the Commission and the Registrable Securities are available for resale under the Securities Act pursuant to the Registration Statement.      This letter shall serve as our standing opinion to you that the shares of Common Stock are freely transferable by the Holders pursuant to the Registration Statement. You need not require further letters from us to effect any future legend-free issuance or reissuance of shares of Common Stock in connection with sales or transfers thereof by the Holders as contemplated by the Company’s Irrevocable Transfer Agent Instructions dated October 6, 2004. This letter shall serve as our standing opinion with regard to this matter. Very truly yours,   --------------------------------------------------------------------------------   [ISSUER’S COUNSEL] By:                                                             CC: [LIST NAMES OF HOLDERS]   --------------------------------------------------------------------------------   ANNEX A SELLING STOCKHOLDERS      The shares of common stock being offered by the selling stockholders are those previously issued to the selling stockholders and those issuable to the selling stockholders upon exercise of the warrants. For additional information regarding the issuance of common stock and the warrants, see “Private Placement of Common Shares and Warrants” above. We are registering the shares of common stock in order to permit the selling stockholders to offer the shares for resale from time to time. Except for the ownership of the shares of common stock and the warrants, the selling stockholders have not had any material relationship with us within the past three years.      The table below lists the selling stockholders and other information regarding the beneficial ownership of the shares of common stock by each of the selling stockholders. The second column lists the number of shares of common stock beneficially owned by each selling shareholder, based on its ownership of the shares of common stock and the warrants, as of                     , 200                  , assuming exercise of the warrants held by the selling stockholders on that date, without regard to any limitations on exercise.      The third column lists the shares of common stock being offered by this prospectus by the selling stockholders.      In accordance with the terms of registration rights agreements with the holders of the shares of common stock and the warrants, this prospectus generally covers the resale of at least 100% of that number of shares of common stock equal to the number of shares of common stock issued and the shares of common stock issuable upon exercise of the related warrants, determined as if the outstanding warrants were exercised in full as of the trading day immediately preceding the date this registration statement was initially filed with the Commission. Because the exercise price of the warrants may be adjusted, the number of shares that will actually be issued may be more or less than the number of shares being offered by this prospectus. The fourth column assumes the sale of all of the shares offered by the selling stockholders pursuant to this prospectus.      Under the terms of the warrants, a selling shareholder may not exercise the warrants, to the extent such exercise would cause such selling shareholder, together with its affiliates, to beneficially own a number of shares of common stock which would exceed 9.99% of our then outstanding shares of common stock following such exercise, excluding for purposes of such determination shares of common stock issuable upon exercise of the warrants which have not been exercised. The number of shares in the second column does not reflect this limitation. In addition, the warrants provide that a selling stockholder may not exercise the warrants if the issuance of shares of common stock upon exercise would exceed the number of shares that we can issue without exceeding certain limitations contained in the rules of The Nasdaq Stock Market. That maximum number of shares currently issuable under the warrants, or that are likely to become issuable under the warrants, do not exceed such limitation. The selling stockholders may sell all, some or none of their shares in this offering. See “Plan of Distribution.”   --------------------------------------------------------------------------------                             Name of Selling Shareholder --------------------------------------------------------------------------------   Number of Shares Owned Prior to Offering --------------------------------------------------------------------------------   Maximum Number of Shares to be Sold Pursuant to this Prospectus --------------------------------------------------------------------------------     Number of Shares Owned After Offering --------------------------------------------------------------------------------     Riverview Group, LLC (1)   (3)           0     Roth Capital Partners (2)   (4)                        (1) The sole member of Riverview is Millennium Holding Group, L.P., a Delaware limited partnership (“Holding”). Millennium Management, LLC, a Delaware limited liability company (“Millennium Management”), is the general partner of Holding and consequently has voting control and investment discretion over securities owned by Holding and by Riverview. Israel A. Englander (“Mr. Englander”) is the sole managing member of Millennium Management. As a result, Mr. Englander may be considered the beneficial owner of any shares deemed to be beneficially owned by Millennium Management. The foregoing should not be construed in and of itself as an admission by any of Holding, Millennium Management or Mr. Englander as to beneficial ownership of the shares owned by Riverview.      (2) Describe Roth      (3) Describe securities      (4) Describe securities On October 5, 2004, we engaged Roth Capital Partners, LLC, which is one of the selling stockholders listed above, to serve as our exclusive placement agent in connection with a private placement of our common stock. We issued the warrant described in footnote 4 to the table above to Roth Capital Partners, LLC and also paid that firm a cash fee in the amount of $400,000 as compensation for its services as placement agent in connection with a private placement completed pursuant to that agreement. That private placement related to the shares of common stock covered by this prospectus, including the 1,207,730 shares that are presently outstanding and the 241,546 shares issuable upon the exercise of the warrant described in footnote 3 to the table above.   --------------------------------------------------------------------------------   PLAN OF DISTRIBUTION      We are registering the shares of common stock previously issued and the shares of common stock issuable upon exercise of the warrants to permit the resale of these shares of common stock by the holders of the common stock and warrants from time to time after the date of this prospectus. We will not receive any of the proceeds from the sale by the selling stockholders of the shares of common stock. We will bear all fees and expenses incident to our obligation to register the shares of common stock.      The selling stockholders may sell all or a portion of the shares of common stock beneficially owned by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the shares of common stock are sold through underwriters or broker-dealers, the selling stockholders will be responsible for underwriting discounts or commissions or agent’s commissions. The shares of common stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected in transactions, which may involve crosses or block transactions, •   on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale;   •   in the over-the-counter market;   •   in transactions otherwise than on these exchanges or systems or in the over-the-counter market;   •   through the writing of options, whether such options are listed on an options exchange or otherwise;   •   in ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;   •   block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;   •   purchases by a broker-dealer as principal and resale by the broker-dealer for its account;   •   an exchange distribution in accordance with the rules of the applicable exchange;   •   privately negotiated transactions;   •   to cover short sales made after the date that this Registration Statement is declared effective by the Commission;   •   broker-dealers may agree with the selling securityholders to sell a specified number of such shares at a stipulated price per share;   •   a combination of any such methods of sale; and   --------------------------------------------------------------------------------   •   any other method permitted pursuant to applicable law.      The selling stockholders may also sell shares under Rule 144 under the Securities Act of 1933, as amended, if available, rather than under this prospectus.      If the selling stockholders effect such transactions by selling shares of common stock to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling stockholders or commissions from purchasers of the shares of common stock for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents may be in excess of those customary in the types of transactions involved). In connection with sales of the shares of common stock or otherwise, the selling stockholders may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the shares of common stock in the course of hedging in positions they assume. The selling stockholders may also sell shares of common stock short and deliver shares of common stock covered by this prospectus to close out short positions. The selling stockholders may also loan or pledge shares of common stock to broker-dealers that in turn may sell such shares.      The selling stockholders may pledge or grant a security interest in some or all of the warrants or shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act of 1933, as amended, amending, if necessary, the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer and donate the shares of common stock in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.      The selling stockholders and any broker-dealer participating in the distribution of the shares of common stock may be deemed to be “underwriters” within the meaning of the Securities Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be underwriting commissions or discounts under the Securities Act. At the time a particular offering of the shares of common stock is made, a prospectus supplement, if required, will be distributed which will set forth the aggregate amount of shares of common stock being offered and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation from the selling stockholders and any discounts, commissions or concessions allowed or reallowed or paid to broker-dealers.      Under the securities laws of some states, the shares of common stock may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states the shares of common stock may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.   --------------------------------------------------------------------------------        We have advised each selling stockholder that under current interpretations it may not use shares registered on this registration statement to cover short sales of our common stock made prior to the date on which this registration statement shall have been declared effective by the Securities and Exchange Commission. If a selling stockholder uses this prospectus for any sale of our common stock, it will be subject to the prospectus delivery requirements of the Securities Act of 1933, as amended.      There can be no assurance that any selling stockholder will sell any or all of the shares of common stock registered pursuant to the shelf registration statement, of which this prospectus forms a part.      The selling stockholders and any other person participating in such distribution will be subject to applicable provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, including, without limitation, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the shares of common stock by the selling stockholders and any other participating person. Regulation M may also restrict the ability of any person engaged in the distribution of the shares of common stock to engage in market-making activities with respect to the shares of common stock. All of the foregoing may affect the marketability of the shares of common stock and the ability of any person or entity to engage in market-making activities with respect to the shares of common stock.      We will not receive any proceeds from the sale of our common stock pursuant to this prospectus. We will pay all expenses of the registration of the shares of common stock pursuant to the registration rights agreement, estimated to be $[                    ] in total, including, without limitation, Securities and Exchange Commission filing fees and expenses of compliance with state securities or “blue sky” laws; provided, however, that a selling shareholder will pay all underwriting discounts and selling commissions, if any. We will indemnify the selling stockholders against liabilities, including some liabilities under the Securities Act, in accordance with the registration rights agreements, or the selling stockholders will be entitled to contribution. We may be indemnified by the selling stockholders against civil liabilities, including liabilities under the Securities Act, that may arise from any written information furnished to us by the selling stockholder specifically for use in this prospectus, in accordance with the related registration rights agreements, or we may be entitled to contribution.      Once sold under the shelf registration statement, of which this prospectus forms a part, the shares of common stock will be freely tradable in the hands of persons other than our affiliates.      One of the selling stockholders, Roth Capital Partners, LLC, is a broker-dealer registered with the National Association of Securities Dealers, Inc. The shares being offered by it pursuant to this prospectus are being offered for sale for its own account, and such firm is not serving as an underwriter, broker or dealer, and is not receiving any compensation, in connection with the offer or sale of any of the securities being offered pursuant to this prospectus. We issued the warrant to Roth Capital Partners, LLC and also paid that firm a cash fee in the amount of $400,000 as compensation for its services as placement agent in connection with a private placement of our common stock.   --------------------------------------------------------------------------------   Annex B DIGITAL RECORDERS, INC. Selling Securityholder Notice and Questionnaire The undersigned beneficial owner of common stock (the “Common Stock”), of Digital Recorders, Inc. (the “Company”) understands that the Company has filed or intends to file with the Securities and Exchange Commission (the “Commission”) a Registration Statement for the registration and resale of the Registrable Securities, in accordance with the terms of the Registration Rights Agreement, dated as of October 5, 2004 (the “Registration Rights Agreement”), among the Company and the Investor[s] named therein. A copy of the Registration Rights Agreement is available from the Company upon request at the address set forth below. All capitalized terms used and not otherwise defined herein shall have the meanings ascribed thereto in the Registration Rights Agreement. The undersigned hereby provides the following information to the Company and represents and warrants that such information is accurate: QUESTIONNAIRE           1.   Name.                 (a)   Full Legal Name of Selling Securityholder                 --------------------------------------------------------------------------------             (b)   Full Legal Name of Registered Holder (if not the same as (a) above) through which Registrable Securities Listed in Item 3 below are held:                 --------------------------------------------------------------------------------             (c)   Full Legal Name of Natural Control Person (which means a natural person who directly you indirectly alone or with others has power to vote or dispose of the securities covered by the questionnaire):                 --------------------------------------------------------------------------------   --------------------------------------------------------------------------------        2. Address for Notices to Selling Securityholder: -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- Telephone: Fax: Contact Person: 3. Beneficial Ownership of Registrable Securities:   (a)   Type and Principal Amount of Registrable Securities beneficially owned:   --------------------------------------------------------------------------------   --------------------------------------------------------------------------------   -------------------------------------------------------------------------------- 4. Broker-Dealer Status:   (a)   Are you a broker-dealer? Yes o No o Note:  If yes, the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement.   (b)   Are you an affiliate of a broker-dealer? Yes o No o   (c)   If you are an affiliate of a broker-dealer, do you certify that you bought the Registrable Securities in the ordinary course of business, and at the time of the purchase of the Registrable Securities to be resold, you had no agreements or understandings, directly or indirectly, with any person to distribute the Registrable Securities? Yes o No o Note:  If no, the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement.   --------------------------------------------------------------------------------   5. Beneficial Ownership of Other Securities of the Company Owned by the Selling Securityholder. Except as set forth below in this Item 5, the undersigned is not the beneficial or registered owner of any securities of the Company other than the Registrable Securities listed above in Item 3.   (a)   Type and Amount of Other Securities beneficially owned by the Selling Securityholder: -------------------------------------------------------------------------------- 6. Relationships with the Company: Except as set forth below, neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (owners of 5% of more of the equity securities of the undersigned) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years.      State any exceptions here: -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- The undersigned agrees to promptly notify the Company of any inaccuracies or changes in the information provided herein that may occur subsequent to the date hereof and prior to the Effective Date for the Registration Statement. By signing below, the undersigned consents to the disclosure of the information contained herein in its answers to Items 1 through 6 and the inclusion of such information in the Registration Statement and the related prospectus. The undersigned understands that such information will be relied upon by the Company in connection with the preparation or amendment of the Registration Statement and the related prospectus. IN WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or by its duly authorized agent.       Dated:   Beneficial Owner:         By:   --------------------------------------------------------------------------------   Name: Title: PLEASE FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN THE ORIGINAL BY OVERNIGHT MAIL, TO: Tracy Reynolds, Esq. Carrington, Coleman, Sloman & Blumenthal, L.L.P. 200 Crescent Court, Suite 1500 Dallas, Texas 75201 Telephone: (249)885-2432 Facsimile: (249)885-2432  

Citation Nr: 1219571 Decision Date: 06/04/12 Archive Date: 06/13/12 DOCKET NO. 03-26 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of injury to the right hand with fracture of the fifth metacarpal, to include a separate compensable rating for right wrist impairment, or to include on an extraschedular basis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to March 1968. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania that denied a compensable rating for residuals of a right fifth metacarpal fracture. The Board remanded the case for additional development in September 2004. In May 2006, while the case was in remand status, the Appeals Management Center (AMC) Resource Center in Huntington, West Virginia recharacterized the Veteran's disability as residuals of injury to the right hand with fracture of the fifth metacarpal and increased the rating therefor to 10 percent, effective from January 8, 2003; the date of receipt of his claim for increased rating. In October 2006, the Board denied a schedular rating in excess of 10 percent. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). By a Memorandum Decision entered in March 2008, the Court vacated the Board's decision and remanded the matter for additional development and readjudication, to include consideration of an extraschedular evaluation. Arguments by the Veteran to the effect that he was entitled to an effective date prior to January 8, 2003 for the 10 percent rating awarded in May 2006 were dismissed for lack of jurisdiction. In January 2009, the Board remanded the case for additional development, to include consideration of an extraschedular evaluation. In May 2010, the Board again denied a schedular rating in excess of 10 percent. The Veteran appealed the Board's May 2010 decision to the Court. By order dated November 2010, the Court granted the Appellee's Motion for Remand. In April 2011, the Board remanded the case for additional development. That development having been completed, the claim has been returned to the Board and is now ready for appellate disposition. The Board has considered documentation included in the Virtual VA system in reaching the determinations below. FINDINGS OF FACT 1. The Veteran is right handed. 2. The Veteran has a service-connected disability of the right hand, currently characterized as residuals of injury to the right hand with fracture of the fifth metacarpal. 3. The Veteran's disability is now shown to involve arthritis of the right wrist, defined as a major joint, as well as of the metacarpals, defined as a group of minor joints under the provisions of 38 C.F.R. § 4.45(f). 4. The Veteran's degenerative arthritis of the right wrist is manifested by a limitation of motion to a noncompensable level. 5. The Veteran's degenerative arthritis of the hand and fingers is not manifested by ankylosis, or by a limitation of motion of the thumb with a gap of more than two inches between the thumb pad and fingers, with the thumb attempting to oppose the fingers. 6. The Veteran's disability picture is not so exceptional or unusual as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The criteria for a separate disability rating of 10 percent, but no higher, for degenerative arthritis of the right wrist have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5003 (2011). 2. The criteria for a disability rating in excess of 10 percent for residuals of injury to the right hand with fracture of the fifth metacarpal have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5227. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks a higher evaluation for the residuals of the service-connected injury to his right hand. He contends that his hand cramped up such that he can use a computer keyboard for only a few minutes. He argues that he eventually retired as a result of health problems, including not being able to function with a computer keyboard. He says that he continues to experience pain, cramping, and spasms in the hand that prevent him from doing certain things, including using a computer, and points out that he has been receiving Social Security disability since 2001. I. Preliminary Considerations On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009). The VCAA imposes obligations on VA in terms of its duty to notify and assist claimants. A. The Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (now codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA ask the claimant to provide any pertinent evidence in his possession). Ordinarily, the notice with respect to each of these elements must be provided to the claimant prior to the initial unfavorable decision by the agency of original jurisdiction (AOJ). Id. In the present case, the Board finds that VA has satisfied its duty to notify. By way of letters sent to the Veteran in January 2003, November 2004, October 2005, March 2006, and April 2009, the AOJ informed the Veteran that, in evaluating his disability, it would consider evidence of the nature and symptoms of his condition; the severity and duration of his symptoms; and the impact of his condition and symptoms on employment. He was notified of the general manner in which disability ratings are assigned, and examples of the types of evidence he could submit, or ask VA to obtain, were also provided. Although some of the required notice was not supplied until after the Veteran's claim was initially adjudicated, the claim was subsequently readjudicated in September 2009 and March 2012 supplemental statements of the case, thereby correcting any defect in the timing of the notice. See, e.g., Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). No further corrective action is necessary. B. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4). In the present case, the Board finds that the duty to assist has been fulfilled. The Veteran's service treatment records have been obtained, as have records of relevant post-service private and VA medical treatment and records from the Social Security Administration (SSA). He has also been afforded four VA compensation examinations. The reports of those examinations, taken together with other evidence of record, contain descriptions of impairment sufficient for the proper evaluation of his disability. No further development action is required. II. The Merits of the Veteran's Appeal A. Factual Background Private medical records dated between January 1998 and October 2004 from West Virginia University Hospital's pain management clinic and the office of Dr. J.B. disclose that the Veteran often was seen for complaints of neck pain, but pain in the right hand is not noted. January 2002 medical records from the VA Medical Center (VAMC) in Clarksburg, West Virginia reflect the Veteran's complaints of increasing right hand pain over the previous two years. It was noted the Veteran's grip was worse and there was no acute swelling or inflammation. Fingers were deviating outward. The Veteran reported that he had a feeling his ring finger might get displaced or dislodged out of the joint and he had a pulling sensation in the distal palm on the palmar aspect of the metacarpophalangeal joint. No history of gout or inflammatory arthritis was noted. Morning stiffness lasted about an hour. The Veteran felt better after taking two drugs. X-rays of the right hand and wrist showed a mild degenerative change in the radiocarpal and distal radial/ulnar joints. A minor osteophyte formation from the head of the second metacarpal shaft was noted. The Veteran underwent a VA bones examination in February 2003. According to the examination report, the Veteran is right hand dominant. The Veteran told the examiner he fractured his hand in service when a sliding steel door slammed on it. The hand was put in a cast, and over the years became more painful and disabled. When he arose in the morning, the Veteran estimated his pain at 5/10. He was on multiple pain medications for his history of ankylosing spondylosis. The oxycodone and lodine were effective for his hand too and reduced pain there to 3/10. This level of pain was described as annoying but not sharp pain. Most painful was being karenvaughn@example.com. The Veteran described this pain as an 8 to 10/10 due to spasms of the muscle in his hand. He had to massage this to relieve the pain and that took several minutes. Multiple activities brought on this spasm. He shifted standard gears in his 1969 pickup truck, and brushed his teeth, with his thumb and index finger. He could work on a computer for only 15 minutes before a spasm began. In part, that led the Veteran to quit his job in 2001. The Veteran reported trouble opening doors, and said he could not hold hammers and grip wrenches. He could not paint his house. He also reported difficulty reaching behind him to clean after a bowel movement, and trouble sleeping as pain in the hand would wake him. According to the examiner, the Veteran denied flare ups, such as the hand getting red, hot, or swollen. It was never infected or the subject of surgery. On examination, the skin color was normal and there was no erythema. There was a bony prominence in gross alignment. There was a slight elevation of the fifth right lateral metacarpal. There was slight pain on deep palpation of the thenar. There was an outward rotation of the last three fingers. No pain was noted on palpation over the ulnar styloid nor swelling over the wrist joints. The Veteran was able to approximate the thumb to all fingers, but unable to hold against resistance on the third, fourth, and fifth finger. Grip strength was weak due to inability to pull in the last three fingers and apply pressure upon gripping. When fingers were splayed, he was unable to hold against resistance. Dorsiflexion was to 70 degrees, and plantar flexion was restricted to 50 degrees. Ulnar deviation and radial deviation were within normal limits. Grip strength was decreased to 3/5. Also noted was slight pain on palpation between the fourth and fifth metacarpal joint. X- rays showed an old healed fracture of the mid and proximal shaft of the fifth metacarpal, with minimal residual deformity. There was no evidence of recent fracture or dislocation of the right hand. No significant arthritic changes were noted on x-ray. Diagnosis was status post fracture of the right hand at the fifth metacarpophalangeal joint and chip fracture of the thumb; mild degenerative changes in the radiocarpal and distal radioulnar joints; and a minor osteophyte formation from the head of the second metacarpal. The Veteran testified at a RO hearing in July 2003 that his hand spasms occurred three nights a week on average and there was no set time when the hand did spasm. He said problems associated with his right hand interfered with basically every problem in his life, and he rated it a 7 or 8 on a 0 to 10 scale of inconvenience. A June 2004 VA outpatient medical record discloses the Veteran complained of a great deal of muscle spasm in the right hand. It was noted he had an electromyogram (EMG) but was not told if anything significant was found other than sensory changes. Decreased grip strength in apposition of the fifth digit to the first digit on the right as compared to the left was noted. The Veteran testified at a Board hearing in April 2004 that he did not have a full grip with his right hand and had difficulty using a computer. He also testified that VA doctors had failed to tell him that there was arthritis in his right hand. A July 2004 VA outpatient medical record reflects the Veteran was seen in the neurology outpatient clinic for right wrist and hand pain. The Veteran complained that pain in the hand had been getting worse day and night for the previous five years. Pain was in the joints and not in the distribution of a nerve. An August 2004 VA outpatient medical record reflects the Veteran began having right hand symptoms about 1994. Pain was constant and troublesome at night, interfered with sleep. Numbness came and went, which the Veteran described as the finger falling asleep. A September 2004 VA occupational therapy consultation record states the Veteran complained of muscle spasms, dropping things, and a feeling of having a "charlie horse" sensation in his hand. The Veteran was warned not to overuse his right hand as the symptoms he felt could be aggravated. Grip of the right hand was 62 pounds and grip of the left hand was 100 pounds. Pinch of the right hand was 19 pounds and pinch of the left hand was 16 pounds. Strengthening exercises were contraindicated. The Veteran rated his pain at 3/10 with pain pills. As a result of the Board's remand, the Veteran underwent another VA examination in November 2004. According to the examination report, about 15 years before the Veteran began to notice that his right hand became somewhat stiff with loss of motion. The Veteran stated the hand became progressively worse ever since. The Veteran complained that his right hand was losing grip. He complained of pain on the ulnar side of the hand with weakness in grip with the middle, ring, and little fingers. His thumb and index finger worked fine, but he complained of a lot of pain in the wrist area on the ulnar side and loss of grip in the right hand. He said he dropped things. On examination, a slight palpable deformity over the fifth metacarpal shaft was noted as was severe pain at the metacarpohamate joint at the base of the fifth metacarpal and also in the region of the metacarpal capitellum joint at the junction of the metacarpals in the wrist. This area was very painful to palpation. Stressing these joints was extremely painful. Grip strength was only 22 kilos on the right hand and 44 kilos on the left hand. Consistently for three or four times it was always approximately 20 kilos on the right hand and 40 to 44 kilos on the left hand. It also was noted that the Veteran had pain in the previously-described area when he gripped the Jamar device. X-rays showed a well- healed, well-aligned fifth metacarpal shaft fracture, but also degenerative arthritis in the joints between the hamate and the capitellum in metacarpals 5, 4, and 3 with irregularly and sclerosis of the joints. None of the other wrist joints showed any pathology. Diagnosis of the examiner was that the metacarpocarpal joints also were injured when the fifth metacarpal was fractured in service and that these joints had deteriorated over the years. This accounted for the pain in that area on physical examination and the loss of grip strength. This condition was not related to the Veteran's ankylosing spondylitis, and was a direct result of the hand injury sustained in service. It was noted the Veteran had lost about half his grip strength in the right hand. The injury to the fifth metacarpal had resulted in some pain in the joints and loss of grip strength, but had not really limited any motion in the hand or limited motion in any other joints. The Veteran had full range of motion of all his fingers and wrist and the condition was manifested purely by pain and weakness in grip. When the Veteran gripped with his right hand, the affected joints underwent an axial load which caused pain. It was noted as a known fact that fifth metacarpal hammer joint trauma is manifested mostly by pain on gripping. A December 2004 VA outpatient medical record states the Veteran had no complaints for peripheral joint pain, except for his right hand and wrist which had aggravated him for many years after a crush injury. Joints were negative for any sinovitis. He did have deformity at the right wrist. A February 2005 VA outpatient medical record reflects the Veteran's examination. It was noted minimal changes on wrist and finger x-rays were consistent with degenerative arthritis. His right wrist and hand pain were assessed as mostly due to musculoskeletal causes. In November 2005 information from SSA disclosed that the Veteran received disability for ankylosing spondylitis and other inflammatory spondylopathies beginning in September 2001. On VA examination in April 2011, the Veteran reported daily pain in his wrist and hand with pretty much all activities of daily living. He reported pain on any motion. He did not wear any type of orthosis, and treated with Lodine on an as-needed basis. He denied having flares, and reported no past surgeries. On examination of the wrist, the Veteran displayed extension to 60 degrees, flexion to 45 degrees, radial deviation to 35 degrees, and ulnar deviation to 30 degrees. He displayed 90 degrees of flexion of the metacarpophalangeal joint, 100 degrees of flexion of the proximal inerphalangeal joint, and 80 degrees of flexion of the distal interphalangeal joint. He displayed a full range of motion of his thumb. He had pain in the wrist and hand with initial range of motion. He had increased pain in the wrist and hand on repetitive use, but no weakness, fatigue, incoordination, or lack of endurance. The examiner diagnosed pancarpal arthritis, carpal metacarpal joint arthritis, and arthritis of the metacarpophalangeal joint of the index and long finger. The examiner opined that the Veteran's diminished grip strength is a direct result of his wrist arthritis, and that all of the symptoms of his right wrist and hand are attributable to his service-connected injury. On VA examination of the hand and fingers in October 2011, the Veteran displayed no gap between the thumb pad and fingers in his ability to oppose the thumb. The Veteran could perform repetitive-use testing and there was no additional limitation of motion for any fingers post-test. The examiner found there was no functional loss or functional impairment of any of the fingers or thumb. Pain on movement of all fingers was found. There was no ankylosis of the thumb or fingers. There was no functional impairment of an extremity such that no effective function remained wither than that which would be equally well served by an amputation with prosthesis. The examiner opined that the Veteran's hand, fingers, and thumb disability does not impact his ability to work. In so finding, the examiner recognized the pain caused by using computers, but noted the Veteran could nonetheless do the job. On VA examination of the wrist in October 2011, the Veteran displayed 45 degrees of palmar flexion with pain at 45 degrees, and 60 degrees of dorsiflexion with pain at 60 degrees. The Veteran displayed normal strength in wrist flexion and wrist extension. There was no ankylosis of the wrist. The Veteran could perform repetitive-use testing with three repetitions, and his range of motion was unchanged on such testing. The examiner found there was pain on movement of the wrist. There was no functional impairment of an extremity such that no effective function remained wither than that which would be equally well served by an amputation with prosthesis. The examiner opined that the degenerative changes in the wrist are at least as likely as not traumatic in nature, and secondary to the Veteran's service-connected right hand fracture. The examiner opined that the Veteran's wrist disability does not impact his ability to work. B. Legal Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the Veteran's service treatment records and all other evidence of record pertaining to the history of his service-connected disability, and has found nothing in the historical record that would lead to a conclusion that the current evidence is inadequate for rating purposes. Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities, and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002). The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Although the evaluation of a service-connected disability requires a review of the Veteran's medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Where entitlement to compensation already has been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over the current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). There may be various ratings assigned for various parts of an appeal period where there is a change in disability during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Inquiry also must be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability and to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Board recognizes that the Court, in DeLuca v. Brown, 8 Vet. App. 202 (1995), held that, where evaluation is based on limitation of motion, the question of whether pain and functional loss are additionally disabling must be considered. 38 C.F.R. §§ 4.40, 4.45. The provisions contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination, and/or impaired ability to execute skilled movement smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing also are related considerations. Id. Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Court has held that § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). As noted, in November 2010 the Court vacated the Board's last decision of May 2010. In so doing, three deficiencies were outlined by the Court. First, the Court noted that the Board should resolve whether or not limitation of motion has been demonstrated. In its May 2010 decision, the Board found that despite February 2003 VA examination findings of limitation of motion, such was not adequately demonstrated in this case because of subsequent medical evidence to the contrary and the fact that the February 2003 examiner had not reviewed the claims file. The Court pointed out that a review of the claims file did not necessarily reduce the probative value of the medical opinion (citing Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, the Court, citing Diagnostic Code (DC) 5003, emphasized that "limitation of motion may be confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion." See Appellee's Motion for Remand, p. 3 (emphasis in original). Second, again citing DC 5003, the Court noted that in this case, x-rays confirm arthritis of the Veteran's right wrist and fingers, which would constitute a major joint (wrist), and a group of minor joints (metacarpals) under 38 C.F.R. § 4.45(f). As such, the Court found that the Board's failure to discuss whether the Veteran's reported episodes of muscle spasms and pain would constitute occasional incapacitating episodes, the criteria for a 20 percent rating under DC 5003. Third, the Court found that the Board's DeLuca analysis was conclusory. While the Board addressed painful motion, the Court found that its failure to discuss right hand weakness, manifested by a loss of one-half of the grip strength in his right hand, rendered the discussion inadequate. In light of the points raised by the Court in November 2010, the VA examination results obtained since that time, and resolving all reasonable doubt in favor of the Veteran, the Board finds that pursuant to DC 5003, a separate, 10 percent evaluation is warranted for the Veteran's right wrist. The Veteran's disability is evaluated at 10 percent disabling under the provisions of 38 C.F.R. § 4.71a, DC 5010. Pursuant to that DC, when substantiated by x-rays traumatic arthritis is rated as degenerative arthritis. Degenerative arthritis (DC 5003), in turn, is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is warranted for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups. Here, as described above, x-rays taken as far back as 2002 establish degenerative changes of the wrist. In addition, as emphasized by the Court, limitation of motion may be established by evidence of painful motion. In this case, pain on motion is documented throughout the appeal. Further, actual limited motion is documented on VA examinations of April 2011 and October 2011. The Veteran's limitation of motion of the wrist, however, is of a noncompensable level under the two diagnostic codes pertaining to the wrist. DC 5214 requires evidence of ankylosis, and DC 5215 requires evidence of palmar flexion in line with the forearm (meaning palmar flexion to 0 degrees), or dorsiflexion (extension) to less than 15 degrees. This is not established by the evidence above. The VA examiners in April 2011 and October 2011 established that the Veteran's right wrist disability is part and parcel of his service-connected disability of the right hand. Moreover, as pointed out by the Court in November 2010, in this case, the wrist constitutes a major joint, and the fingers constitute a group of minor joints pursuant to 38 C.F.R. § 4.45(f). Accordingly, each of these is potentially entitled to a 10 percent evaluation under the provisions of DC 5003. In sum, given the x-ray evidence of degenerative arthritis of the wrist, the noncompensable limitation of motion, and the facts that the wrist disability is clearly part of the service-connected right hand disability and also qualifies as a major joint in combination with the fingers as a group of minor joints, the Board finds that a separate 10 percent evaluation is warranted for the Veteran's right wrist under the provisions of DC 5003. As a limitation of motion of the wrist has been established, the provisions of DC 5003 relating to occasional incapacitating exacerbations do not apply in this case. These provisions are applicable only in the absence of limitation of motion. As such, a 20 percent rating cannot be assigned under DC 5003. A rating in excess of 10 percent for the Veteran's right wrist is also not warranted under any other diagnostic code. The normal range of motion of the wrist is 70 degrees of dorsiflexion; 80 degrees of palmar flexion; 45 degrees of ulnar deviation and 20 degrees of radial deviation. 38 C.F.R. § 4.71a, Plate I. As noted, there are two diagnostic codes pertaining to the wrist. DC 5214 does not allow ratings in excess of 10 percent. DC 5215 allows ratings up to 50 percent, but its application requires evidence of ankylosis, which is not demonstrated here. A rating in excess of 10 percent for the Veteran's right hand disability is similarly not warranted under any other diagnostic code. For digits II through V, the metacarpophalangeal joint has a range of zero to 90 degrees of flexion, the proximal interphalangeal joint has a range of zero to 100 degrees of flexion, and the distal (terminal) interphalangeal joint has a range of zero to 70 or 80 degrees of flexion. 38 C.F.R. § 4.71a, Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand, Note 1. Ratings applicable to the fingers and thumb are found in diagnostic codes 5216 through 5230. Codes 5216 through 5224 pertain to the fingers, and all require some form of ankylosis, either favorable or unfavorable. This is not shown by the medical evidence. Diagnostic Codes 5228 through 5230 pertain to the thumb, but only DC 5228 allows a rating in excess of 10 percent. Under this code, a 20 percent evaluation is warranted with evidence of a gap of more than two inches (5.1 centimeters) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. This is also not shown by the evidence. Other diagnostic codes contain notes that require consideration of whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with the overall function of the hand. In this case, there is no evidence that the Veteran's right hand or wrist is so painful or non-functional that it should be equated to amputation. Ratings in excess of 10 percent for the Veteran's right wrist and right hand disabilities are not warranted under the provisions of 38 C.F.R. §§ 4.40, 4.45 and DeLuca v. Brown. The Board has considered the Veteran's functional loss based on painful motion, weakness, and reduced grip strength. While the Veteran clearly suffers from functional impairment in this regard, the Board simply cannot find that this approximates the level of severity contemplated for higher rating under the applicable diagnostic codes. As noted, higher ratings for the wrist and fingers require evidence of ankylosis, which has been defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992). While the Veteran clearly suffers from severe pain and weakness that impairs his ability to perform activities of daily living, he is not unable to perform these activities, as he would be with total immobility of the wrist or hand. Moreover, the November 2004 examiner found that despite the pain and the loss of grip strength, the Veteran's range of motion of the hand and wrist was unaffected. The April 2011 examiner noted increased pain in the hand and wrist on repetitive use, but found no weakness, fatigue, incoordination, or lack of endurance. The October 2011 examiner found the Veteran could perform repetitive-use testing with three repetitions, and that his range of motion was unchanged on such testing. For all of these reasons, the Board finds that the preponderance of the evidence is against increased evaluations for the Veteran's right wrist and hand disabilities on the basis of functional loss due to pain or weakness. In exceptional cases where schedular evaluations are found to be inadequate, the AOJ is authorized to refer a case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability. 38 C.F.R. § 3.321(b)(1). The governing norm in these cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the AOJ or Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. The Court cited to a VA General Counsel Precedent Opinion, stating that "when service- connected disability affects employment in ways not contemplated by the rating schedule § 3.321(b)(1) is applicable." Id. (quoting VAOGCPREC 6-96). If the schedular criteria do not reasonably describe the Veteran's disability level and symptomatology, the second step of the analysis must be undertaken. That step, initially taken by the RO, is to determine whether the claimant's exceptional disability picture includes factors such as marked interference with employment or frequent periods of hospitalization. Id. at 116. If that question is answered in the affirmative, then the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to undertake the third and final step; to determine whether justice requires assignment of an extraschedular rating. Id. The Board has considered whether the Veteran's claim should be referred for consideration of an extraschedular evaluation, and has concluded that no such referral is warranted. The Veteran's complaints pertaining to his right hand and wrist, including pain and weakness, are fully contemplated by the relevant diagnostic criteria, to include by incorporation the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59. Probative evidence from SSA and the Veteran himself (including in a statement dated in January 2003) shows that his inability to work is the result of several factors, including non-service-connected ankylosing spondylosis, and cannot be attributed solely to his service-connected disability. He has reported some employment interference due to the right fifth finger injury. This is contemplated by the regular schedular provisions. Moreover, there appears to be non-service connected pathology that is part of the reason for employment difficulties. Also, the April 2011 and October 2011 VA examiners determined that the Veteran's disabilities of the hand and wrist do not impact his ability to work. There is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards. See, e.g., Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the Board acknowledges the Veteran's representative's recent arguments of May 2012 that the Veteran should be awarded separate ratings for each individual joint of the hand affected by arthritis. As noted, DC 5003 contemplates separate ratings for groups of minor joints, not for each individual joint alone. Pursuant to 38 C.F.R. §4.45(f), the joints applicable here are the wrist (major joint) and the metacarpals (group of minor joints). For these reasons, further separate ratings are not warranted. (CONTINUED ON NEXT PAGE) ORDER A separate 10 percent rating, but no more, for degenerative arthritis of the right wrist is granted, subject to the legal authority governing the payment of compensation benefits. A rating in excess of 10 percent for residuals of an injury to the right hand with fracture of the fifth metacarpal is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

926 So. 2d 961 (2006) Derek GRAY, Appellant, v. STATE of Mississippi, Appellee. Derek Gray, Appellant, v. State of Mississippi, Appellee. Nos. 2004-KA-01915-COA, 2004-M-00213-COA. Court of Appeals of Mississippi. April 25, 2006. *964 Minor F. Buchanan, Jackson, attorney for appellant. Office of the Attorney General by John R. Henry, attorney for appellee. Before MYERS, P.J., SOUTHWICK, IRVING and BARNES, JJ. IRVING, J., for the Court. ¶ 1. Derek Gray was convicted by a Hinds County jury of possession of more than thirty grams of cocaine. Because he had two prior felony convictions and qualified as an habitual offender, Gray was sentenced by the Hinds County Circuit Court to life imprisonment in the custody of the Mississippi Department of Corrections. Gray appeals his conviction and raises the following contentions, which we list verbatim: 1. THE JURY VERDICT WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE. 2. THE LOWER COURT ERRED IN NOT GRANTING THE MOTION FOR A DIRECTED VERDICT AT THE CLOSE OF THE STATE'S CASE, AT THE CONCLUSION OF THE TRIAL, A PEREMPTORY INSTRUCTION, AND FOR NOT GRANTING THE MOTION FOR A NEW TRIAL OR JUDGMENT NOTWITHSTANDING THE VERDICT ON THE MERITS AND AFTER NEW EVIDENCE WAS FOUND. 3. THE LOWER COURT ERRED IN DENYING THE DEFENDANT'S SUCCESSIVE MOTIONS FOR DISCOVERY TO BE PROVIDED WITH CRITICAL TRIAL TESTIMONY OF ROBERT SHEGOG AND RICHARD *965 MCGAHEY WITH THE JACKSON POLICE DEPARTMENT. 4. THE LOWER COURT ERRED IN OVERRULING THE DEFENDANT'S OBJECTIONS, DENYING THE DEFENDANT'S MOTIONS FOR DISMISSAL, AND DENYING A CONTINUANCE AS A RESULT OF THE STATE'S DISCOVERY VIOLATIONS AT THE BEGINNING OF TRIAL. 5. THE LOWER COURT ERRED IN ALLOWING PORTIONS OF THE TESTIMONY OF ROBERT SHEGOG AND THE ENTIRE TESTIMONY OF RICHARD MCGAHEY FOR DISCOVERY VIOLATIONS, THE PROSECUTION HAVING NOT PROVIDED NOTICE OF SAID TESTIMONY AS REQUIRED BY RULE 9.04 OF THE UNIFORM RULES OF CIRCUIT AND COUNTY COURT PRACTICE. 6. THE LOWER COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO PROVIDE A SPEEDY TRIAL. 7. THE LOWER COURT ERRED IN ALLOWING THE STATE TO AMEND THE INDICTMENT TWICE. 8. THE LOWER COURT ERRED IN FINDING PROBABLE CAUSE BASED ON AN UNDISCLOSED CONFIDENTIAL INFORMANT. 9. THE LOWER COURT ERRED IN DENYING THE DEFENSE MOTIONS TO SUPPRESS AND THEREBY ADMITTING AS EVIDENCE STATEMENTS OF THE DEFENDANT AND DRUG EVIDENCE TAKEN FROM THE SCENE. 10. THE LOWER COURT ERRED IN DENYING THE DEFENSE MOTION IN LIMINE REGARDING A PRIOR MANSLAUGHTER CONVICTION OF THE DEFENDANT HAVING THE EFFECT OF DENYING HIM THE OPPORTUNITY TO TESTIFY IN HIS OWN BEHALF. 11. THE LOWER COURT ERRED IN DENYING THE DEFENSE ITS POST-TRIAL MOTION FOR FUNDS TO RETAIN A HANDWRITING EXAMINER TO AUTHENTICATE NEWLY DISCOVERED EVIDENCE. 12. THE LOWER COURT ERRED IN ITS GRANTING AND REFUSING OF SPECIFIC JURY INSTRUCTIONS. 13. THE SENTENCE OF THE LOWER COURT IS UNCONSTITUTIONALLY CRUEL AND UNUSUAL. 14. THE VERDICT OF THE JURY SHOULD BE SET ASIDE AS THE APPELLANT WAS DENIED A FAIR TRAIL DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL. Finding no error, we affirm. FACTS ¶ 2. On April 25, 2001, a search warrant was executed at 813 Grandberry Street in Jackson by the Jackson Police Department. When the police arrived, two individuals, Gray and a woman, were standing in the yard of the house. Six more individuals were discovered inside the house. Four rocks of cocaine were found outside the house, on the ground near where Gray and the woman had been standing, and significantly more cocaine was found inside the house. In total, over thirty grams of cocaine were recovered from the property. All the individuals at the location were charged with possession of the entire amount of the cocaine. ¶ 3. On April 25, the day the search warrant was executed, Gray gave a statement to police waiving his Miranda rights and disavowing ownership of any of the cocaine. During this statement, Gray stated that he resided at 813 Grandberry *966 Street. When asked specifically, "How many people were located inside of your house," Gray responded, "A lot of them." Additionally, an Entergy bill in Gray's name and addressed to 813 Grandberry Street was found at the scene.[1] In short, it is undisputed that 813 Grandberry Street, a one-bedroom house, was Gray's residence. ¶ 4. On May 9, 2001, Gray contacted the lead detective on the case, Robert Shegog, and gave another statement. The substance of this statement was essentially that Gray knew about the cocaine in the house, but that it was not his. Instead, Gray explained that "they [the individuals in the house] will give me something to smoke and I will go on by my way while they gambling and celling [sic] dope. . . . They told me if any dope be in the house that they goneing [sic] to hold up for it. . . ." Gray indicated that he was aware that drugs were being sold at the house, and that he had witnessed drugs being sold at the house. Along with a Miranda waiver, the statement also contained a separate waiver signed by Gray that indicated that "[n]o promises or threats have been made to me and no pressure or coercion of any kind has been used against me." ¶ 5. After a jury trial, Gray was convicted and sentenced to life. Shortly after trial, Gray produced a "newly discovered" document. The document, which appeared to be a Miranda waiver form, was allegedly signed by both Gray and Shegog. At the bottom, Gray had written: On 4-25-01 I gave this statement to Det. Robert Shegog because he has released me from this charge that happen [sic] on 4-25-01 at 813 Grandberry St. Jackson, Ms. Det. Robert has asked me to write down what I think might had happen and to agree to what he puts on his report . . . [illegible] . . . Det. Robert Shegog has not put the charge of possession of cocaine on [cut off] at all and I am free from this charge of poss. of cocaine on 4-25-01 at 813 Grandberry [cut off] this is a insurance of our agreement that I was and am INNOCENT. I [cut off] know nothing about any pattersondestiny@example.net. The END. This paragraph was written below the signatures on the paper. At a posttrial hearing, Shegog denied having signed the document or ever having seen it before. Shegog also testified that the form was similar, but not the same, as a form used by the Jackson Police Department. The right side of the paper, where a case number would generally be located, was inexplicably ripped off. ¶ 6. Gray maintained that he had not been able to locate the paper before trial, but was able to find it by making a few phone calls from jail after he was convicted. Gray was unable to give the full names of any of the people who had worked to get the document to him. When the document was presented to the court, it was apparently severely damaged, both by tears in the paper and blotches of ink. When questioned, Gray could provide no explanation for the condition of the document. Gray's attorneys requested that the court order that a forensic handwriting expert look at the document to determine whether Shegog's signature was authentic. The court declined, ruling that there was nothing credible about the document to warrant providing funds for a forensic handwriting expert. *967 ¶ 7. The court denied all the posttrial motions filed by Gray. The Hinds County Public Defender's Office, which had handled Gray's trial representation, does not represent him on appeal. Instead, Gray is represented by Minor F. Buchanan on appeal. Additional facts will be given as necessary in the remainder of this opinion. ANALYSIS AND DISCUSSION OF THE ISSUES 1. Weight of the Evidence[2] ¶ 8. When making this review, we will reverse only if Gray's conviction is "so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Dilworth v. State, 909 So. 2d 731, 737(¶ 21) (Miss.2005) (quoting Bush v. State, 895 So. 2d 836, 844(¶ 18) (Miss.2005)). We will weigh the evidence "in the light most favorable to the verdict." Bush, 895 So.2d at 844(¶ 18). In order for us to reverse, the trial court must have "abused its discretion in denying a motion for new trial." Dilworth, 909 So.2d at 737(¶ 20). "Only in `exceptional cases in which the evidence preponderates heavily against the verdict' should the trial court invade the province of the jury and grant a new trial." Id. (quoting Amiker v. Drugs for Less, Inc., 796 So. 2d 942, 947(¶ 18) (Miss.2000)). ¶ 9. Gray contends: "Considering the quality of the evidence and the improper tactics of the prosecution—which clearly swayed the jury—it is clear that this verdict should be considered against the overwhelming weight of the evidence." Gray specifically argues that "when the co-defendants are clearly identified as they were in this case as the owners and possessors of the contraband in question and for which they were individually prosecuted, the presumption that any of those items were possessed by the appellant has been substantially overcome." ¶ 10. We find that the verdict in this case was not against the overwhelming weight of the evidence. Gray focuses on the fact that Shegog gave conflicting testimony the day before trial began when he testified that he had never taken a statement from Gray prior to the May 9 statement. Gray's attorneys questioned Shegog extensively about this during their cross-examination of him during trial, and attempted to convince the jury that Shegog's testimony was not credible as a result. Shegog explained that his misstatement was a mistake caused by the large amount of evidence that had been collected in the case and the lengthy time period between the arrest and trial. ¶ 11. We note first that Gray's attorneys cross-examined Shegog in the presence of the jury regarding his incorrect statement. We also note that "[the Mississippi Supreme Court] [has] routinely held that the jury is the judge of the credibility of a witness. . . . Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury." Price v. State, 898 So. 2d 641, 652(¶ 25) (Miss.2005) (citations omitted). Once Gray's attorneys had brought out the inconsistency in Shegog's sworn testimony, it was up to the jury to determine whether Shegog was credible. Additionally, the statement that Shegog initially denied the existence of was not any more exculpatory than Gray's May 9 statement to the police. The April 25 statement was brief, stating little more than that Gray lived at the house and claimed that he did not own the drugs that had been found inside. The *968 only real distinction in the May 9 statement was that Gray provided the names of the individuals in the house (which the police officers had already learned when they arrested everyone in the house) and stated that he was aware that drugs were being sold from the house. Gray still denied in the May 9 statement that he owned the drugs himself. Therefore, we see nothing in Shegog's testimony that requires reversal of Gray's conviction. ¶ 12. Additionally, there was ample evidence of Gray's guilt beyond Shegog's testimony. Gray himself admitted in his statements to the police that he (1) resided in the house at 813 Grandberry Street, (2) agreed to let the house be used in exchange for money and drugs, and (3) was aware that illegal drugs were being sold from the house. As already discussed, the evidence was undisputed that Gray was in possession of the one-bedroom house at 813 Grandberry Street in Jackson. As pointed out by Gray, "[a] presumption of constructive possession arises against the owner of premises upon which contraband is found." Smith v. State, 839 So. 2d 489, 497(¶ 21) (Miss.2003) (citing Hamm v. State, 735 So. 2d 1025, 1029(¶ 13) (Miss.1999); Hamburg v. State, 248 So. 2d 430, 432 (Miss.1971)). ¶ 13. Gray recognizes the presumption that arises against him as the sole occupying resident of the house, but argues that the presumption was overcome. We disagree. The presumption is rebutted when there are no "additional incriminating facts" connecting the defendant to the contraband. Powell v. State, 355 So. 2d 1378, 1379 (Miss.1978). Here, there is an additional incriminating fact in the form of Gray's statement that he was in possession of the house and was fully aware that cocaine was being sold in the house. We find that Gray's proven awareness of the drugs and acceptance of drugs and money in return for allowing the others to use his home as a crack house were sufficient to show that he "exercised control" over the cocaine. See Hamm, 735 So.2d at 1029(¶ 13). We also note that the State's version of events was uncontradicted, since Gray did not take the stand in his own defense or present any other evidence to rebut the State's evidence. ¶ 14. Given the extensive evidence provided by the State and the lack of contradicting evidence provided by Gray, the verdict was not against the overwhelming weight of the evidence, no unconscionable injustice occurred, and the court did not abuse its discretion in failing to grant Gray a new trial. 2. Sufficiency of the Evidence ¶ 15. When reviewing the sufficiency of evidence in a case, we examine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Dilworth v. State, 909 So. 2d 731, 736(¶ 17) (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). We will reverse only if we find that the court abused its discretion in upholding the jury's determination. Id. (citing Howell v. State, 860 So. 2d 704, 764 (¶ 212) (Miss.2003)). ¶ 16. Gray argues that the testimony of Shegog and other prosecution witnesses was "discredited," and, at the most, "it [the question of Gray's guilt] should have gone to the jury only on those small quantity of drugs found in the vicinity of where the appellant had been standing." As to Shegog's testimony, as we have already noted, it is the responsibility of the jury to determine the credibility of a witness. Gray's conviction indicates that the jury believed Shegog's explanation of Shegog's misstatement on the stand. *969 ¶ 17. As support, Gray cites Henley v. State, 729 So. 2d 232, 238(¶ 25) (Miss.1998), where the Mississippi Supreme Court reversed a conviction, holding that a defendant could not be convicted of grand larceny absent evidence regarding the value of the truck stolen. Although Gray characterizes the holding of the case as that there was no "credible evidence" of the truck's value, we note that the court's holding was that there was "no proof" as to the value of the truck. Id. We find Henley is distinguishable from the present case because no evidence whatsoever was presented in Henley; here, Gray is simply challenging the credibility of the evidence presented. ¶ 18. Gray also cites Alford v. State, 656 So. 2d 1186, 1190-91 (Miss.1995), where the Mississippi Supreme Court reversed a conviction because it found that the prosecution had failed to prove that the defendant possessed the requisite intent to commit burglary. As in Henley, however, the court stated: "In the case at bar there is no showing of evidence of intent on Alford's part to commit a crime." Id. at 1190 (emphasis added). The circumstances are notably different in the present case. ¶ 19. In Clemons v. State, 473 So. 2d 943, 944-45 (Miss.1985), which Gray also cites, the Mississippi Supreme Court reversed a murder conviction after finding: "This Court has difficulty understanding how the jury was able to extrapolate enough competent facts from the many versions of the story to sufficiently support the finding of murder. From the record there is more than enough conflicting evidence to cast at least a reasonable doubt, as to murder." Id. at 945. We note that, although Gray's attorneys did question the credibility of Detective Shegog's testimony, most of the State's evidence remained entirely uncontradicted. In fact, as we have already noted, since Gray did not take the stand himself, only the State's evidence was presented to the jury. Thus, we find that Clemons is also distinguishable because it was the "conflicting evidence" that led the Clemons court to reverse, but there is little conflicting evidence in the present case. ¶ 20. Finally, Gray cites Biles v. State, 338 So. 2d 1004, 1004 (Miss.1976), where a defendant's capital murder conviction was reversed because the evidence "was sufficient to support a conviction for murder but was not sufficient to support a conviction for capital murder because the proof did not show beyond a reasonable doubt that the defendant murdered Henry Muller while engaged in the commission of the crime of kidnapping." Id. (citing Miss. Code Ann. § 97-3-19(2)(e) (Supp.1975)). The Biles court gave little explanation other than that the evidence was insufficient to sustain the capital murder conviction. ¶ 21. In the present case, we find that there was sufficient evidence from which a reasonable jury could convict Gray. Although Gray's attorneys attempted to discredit Shegog's testimony, a reasonable jury certainly could believe his explanation of why he forgot Gray's first statement during his pretrial testimony. Even if the jury had discredited Shegog's testimony, there was sufficient additional evidence from which the jury could convict Gray. A statement was presented wherein Gray indicated that he possessed the house where the drugs were found, and an Entergy bill addressed to Gray corroborated this statement. In an additional statement, Gray disclosed that he was fully aware of the cocaine that was being dealt from the house, and that he was allowing the drugs to be sold in his house in return for money and drugs. In short, there was more than sufficient evidence from which a reasonable jury could find Gray guilty of possession. Therefore, the court did not abuse *970 its discretion in refusing to overturn the jury's decision. 3. Discovery, Continuance, and Testimony[3] ¶ 22. Under this issue, Gray alleges that the court erred in allowing the testimony of Shegog "when officer Shegog presented testimony previously not disclosed" because the testimony "effectively denied [Gray's] right to confront." Gray also complains that Richard McGahey, another officer with the Jackson Police Department, presented testimony that had not been disclosed to the defense before trial. Gray refers to the testimony Shegog gave that he saw Gray throw something down to the ground as the police drove up to the house. Although it is not entirely clear, we assume that Gray objects to McGahey's report, which was not given to the defense until shortly before trial, rather than any testimony offered by McGahey during trial. Gray also objects to the prosecution's disclosure of Gray's April 25 statement at the "eleventh hour." ¶ 23. As support, Gray cites Rule 9.04 of the Uniform Rules of Circuit and County Court, which states in part that the prosecution in a criminal case must disclose: "Names and addresses of all witnesses in chief ... together with a copy of the contents of any statement, written, recorded or otherwise preserved of each such witness" as well as "[a]ny exculpatory material concerning the defendant." The rule also states: If at any time prior to trial it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, or enter such other order as it deems just under the circumstances. URCCC 9.04(I.) (emphasis added). The rule then goes on to state: If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial. Id. at 9.04(I.)(2.). Gray contends that this rule requires a reversal of his conviction. ¶ 24. The State responds that the portion of the record cited by Gray concerned only a possible discovery violation due to Shegog's failure to recognize the April 25 statement in his testimony. The hearing contained no information regarding testimony that Gray was seen throwing anything to the ground as the officers drove up. As the State points out, when Shegog actually testified at trial that he saw Gray drop something as the officers drove up, a fact that Shegog had failed to include in any of his reports, there was no objection whatsoever from the defense.[4] There was *971 also no objection made when McGahey testified that cocaine was discovered on the ground where Gray had been standing. The State also argues that any testimony by Shegog or McGahey that Gray threw something or was standing on top of cocaine could not constitute surprise or prejudice to Gray, since one of the defense's pretrial requests was as to whether another detective would testify that he had seen Gray throw something to the ground as the officers approached. ¶ 25. The State would basically have us hold that Gray's appeal brief alleges only that reversal is required because of the testimony of Shegog and McGahey; according to the State: "The alleged discovery violation that was asserted in the trial court is not here for review because the Appellant has not asserted it here." We believe that the State too narrowly construes Gray's appeal. We agree that Gray's contention concerning Shegog's testimony that he saw Gray throw something to the ground is procedurally barred because there was no objection whatsoever to the pattersondestiny@example.net. Willis v. State, 911 So. 2d 947, 950(¶ 12) (Miss.2005). However, after having reviewed Gray's brief, we find that he does assert as an issue the discovery violation that was pattersondestiny@example.net. Gray is explicit in his brief that he is objecting to not only the testimony of Detective Shegog, but also McGahey's report that was given to the defense only on the morning of trial. However, "[the Mississippi Supreme Court has] ruled that a violation of Rule 9.04 is considered harmless error unless it affirmatively appears from the entire record that the violation caused a miscarriage of justice." Wyatt v. City of Pearl, 876 So. 2d 281, 284(¶ 10) (Miss.2004) (citing Payton v. State, 897 So. 2d 921, 942(¶ 67) (Miss.2003)). Even in cases where it has been found that there was a clear discovery violation, the violation has been held to be harmless error where there was no prejudice suffered by the defendant. Jones v. State, 669 So. 2d 1383, 1392 (Miss.1995). ¶ 26. In the present case, it is clear that no prejudice was suffered by Gray. Although McGahey's report was not included in the record, when the late disclosure of the report was discussed with the court, Gray's attorneys could make no argument for why the late disclosure had caused any prejudice to Gray. In fact, it was his attorneys' inability to show prejudice that led the trial court to refuse to grant a continuance or a mistrial. Since no prejudice occurred, the prosecution's violation of Rule 9.04 and the court's refusal to grant a continuance are harmless error at most, and do not require reversal. ¶ 27. For the same reason, we do not find that the late disclosure of Gray's April 25 statement constitutes reversible error. The statement contained no new information that was not in the previously-disclosed May 9 statement. As with McGahey's report, Gray's attorneys were unable to show that the late disclosure of the April 25 statement had caused any prejudice to Gray. Therefore, although the late disclosure of the report constituted a technical violation of Rule 9.04, no prejudice arose to Gray, and, consequently, no reversible error occurred. 3. Speedy Trial ¶ 28. Gray contends that the court erred in failing to dismiss the case for failure of the State to provide a speedy trial. At the outset, Gray admits that "the *972 record is unclear as to the factual basis of his issue." Gray was arrested on April 25, 2001, and indicted on June 14, 2001. He was arraigned on January 12, 2004,[5] and trial began on June 9, 2004. Gray demanded to exercise his right to a speedy trial on December 10, 2003. The court refused to dismiss the case because it found that no prejudice was asserted or shown to have been caused to Gray as a result of the time between arrest and trial. Constitutional Speedy Trial Right ¶ 29. "The Sixth and Fourteenth Amendments to the United States Constitution, along with Article 3, Section 26 of the Mississippi Constitution, guarantee a defendant the right to a speedy trial." Stark v. State, 911 So. 2d 447, 449(¶ 6) (Miss.2005) (citing Young v. State, 891 So. 2d 813, 816(¶ 5) (Miss.2005); Hersick v. State, 904 So. 2d 116, 121(¶ 3) (Miss.2004)). In reviewing whether a defendant's constitutional speedy trial rights have been violated, the courts of this state look to the factors detailed in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Stark, 911 So.2d at 449-50(¶ 6) (citing Price, 898 So.2d at 647-48 (¶¶ 10-11); Young, 891 So.2d at 816(¶ 5); Hersick, 904 So.2d at 121(¶ 3)). Under the constitutional speedy trial analysis, "[t]here is no set amount of time within which a defendant must be brought to trial." Id. ¶ 30. Instead, the Barker test details four factors that must be considered together and balanced: "(1) length of delay, (2) reason for delay, (3) the defendant's assertion of his right, and (4) prejudice to the defendant." Id. at 450(¶ 7) (citing Barker, 407 U.S. at 530-32, 92 S. Ct. 2182; Taylor v. State, 672 So. 2d 1246, 1258 (Miss.1996)). The Barker analysis comes into play "when there is a presumptively prejudicial delay." Id. (citations omitted). In Mississippi, "any delay exceeding eight months is presumptively prejudicial." Id. (citing Smith v. State, 550 So. 2d 406, 408 (Miss.1989)). In the present case, more than eight months elapsed between trial and Gray's arrest, the event that triggered the calculation of time. Id. (citing Smith, 550 So.2d at 408). Therefore, the period of time elapsed is presumptively prejudicial, and we turn to an analysis of the Barker factors. Length of Delay ¶ 31. As we have already addressed, over four years elapsed between Gray's arrest and his trial. Therefore, this factor weighs in favor of Gray and necessitates a discussion of the remaining Barker factors. See Stark, 911 So.2d at 450(¶ 10). Reason for Delay ¶ 32. Unfortunately, the record in this case, as recognized by both Gray and the State, is woefully inadequate. In fact, no reason whatsoever for the delay appears in the record. The reason for the delay is not addressed below by Gray's attorneys, the State, or the court. Therefore, we find that this factor weighs slightly in favor of Gray, since the burden is on the State to explain why there was good cause for a delay. Id. at 450-51(¶ 11) (citing Price, 898 So.2d at 647(¶ 9)). Defendant's Assertion of His Right ¶ 33. The third Barker factor is whether the defendant asserted his right to a speedy trial. We find that this factor weighs slightly in favor of Gray. Although Gray asserted his right to a speedy trial, he did not do so until December 10, 2003. *973 After assertion of his right, his case was promptly assigned to the court's docket, and he was brought to trial about six months later. Prejudice to the Defendant ¶ 34. The final factor is whether prejudice was suffered by the defendant because of the delay in being brought to trial. We find that this factor weighs heavily in favor of the State, because no actual prejudice whatsoever has been asserted by Gray, either on appeal pattersondestiny@example.net. Gray has not been able to name the "loss of evidence, the death of a witness, or [that] the investigation became stale." Manix v. State, 895 So. 2d 167, 177(¶ 22) (Miss.2005) (citing Hughey v. State, 512 So. 2d 4, 11 (Miss.1987)). When arguing his speedy trial motion before the trial court, Gray's attorney stated only: "Eight months have passed, prejudice to this defendant," without any explanation of exactly what prejudice had been suffered by Gray. The attorney went on to say "he can't possibly have a fair trial after three years," but did not explain why Gray could not have a fair trial after three years. As pointed out by the prosecutor below, "the defendant has cited no actual prejudice to his case. He's not listed one witness that is missing. . . . He has been incarcerated. However, that was due to a later charge; thus that incarceration did not come as a result of this charge." Gray's appeal brief also fails to cite any actual, specific prejudice whatsoever. ¶ 35. In the absence of any proof of prejudice, or even an allegation of prejudice suffered by Gray, this factor weighs heavily in favor of the State. Because Gray has not been able to allege any prejudice suffered by him as a result of the delay in bringing him to trial, we find that his constitutional right to a speedy trial has not been violated. We recognize that a large amount of time passed between Gray's arrest and his trial, but mere length of time does not violate a defendant's right to a speedy trial. See Manix, 895 So.2d at 177(¶ 24) (holding that delay of nearly four years was not in violation of defendant's constitutional rights where "any presumptive prejudice Manix may have suffered is overwhelmed by the absence of actual prejudice"). Statutory Speedy Trial Right ¶ 36. Defendants in Mississippi are also guaranteed a speedy trial under Mississippi Code Annotated section 99-17-1, as revised, which states: "Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred and seventy (270) days after the accused has been arraigned." ¶ 37. In the present case, Gray was arraigned on January 12, 2004, and trial began on June 9, 2004.[6] By our calculation, that means that significantly less than two hundred and seventy days passed between Gray's arraignment and trial, even before subtracting any amounts of time that were for "good cause." Therefore, Gray's statutory right to a speedy trial was not violated. 4. Amendment of the Indictment ¶ 38. In this contention of error, Gray claims that the lower court erred when it allowed the State to amend the indictment twice. At the outset, we note that, although there were indeed two motions to amend the indictment, only the *974 second motion was actually granted. Therefore, there was, in effect, only one amendment to the indictment in this case. The purpose of the amendment was to reflect Gray's habitual offender status. Gray complains specifically that the motions alleged incorrect cause numbers, dates, and misspellings of Gray's name. ¶ 39. As the State correctly points out, although there were clerical errors in the motions to amend, copies of the court orders of Gray's previous convictions were attached to the motions. The copies clearly stated Gray's social security number and date of birth, and the court put the correct cause numbers and dates in its order amending the indictment. Additionally, it is clear that amendments may be made to an indictment in order to reflect a defendant's status as an habitual offender. Willie v. State, 876 So. 2d 278, 279 (¶¶ 3-4) (Miss.2004) (citing Rule 7.09 of the Mississippi Uniform Rules of Circuit and County Court; Burrell v. State, 726 So. 2d 160, 162 (¶¶ 3-4) (Miss.1998)). ¶ 40. Gray also contends that "the lower court entered what appears to be an ex parte order . . . allowing both amendments." Although it is not clear from the record whether the order was ex parte, no objection was raised to the amendment at trial, and, therefore, Gray is barred from raising the issue on appeal. Williams v. State, 794 So. 2d 181, 187(¶ 23) (Miss.2001) (citing Foster v. State, 639 So. 2d 1263, 1288-89 (Miss.1994)). Gray contends that "it appearing that the orders were entered ex parte, there would be no place for a contemporaneous objection to be made." However, we note that no objection whatsoever was made to the amendments below—not at sentencing, and not during Gray's motion for a new trial. ¶ 41. Gray also implies that the granting of the motions constitutes plain error when he argues: "It is not clear that an objection needed to be made because the motions were defective on their face . . . and it is without question that these amendments prejudiced the defendant. . . ." Because there were copies of the court conviction orders attached to the motion, and because the trial court clearly placed the correct information regarding the conviction in its order amending the indictment, we do not find that the granting of the motion rose to plain error, if any pattersondestiny@example.net. Additionally, we note that Gray does not contend that he was not actually convicted of the prior crimes. There is no doubt that he had actually committed the crimes and was subject to habitual offender status. Therefore, his sentencing as a habitual offender could cause no prejudice to him. 5. Confidential Informant and Motions to Suppress ¶ 42. In this issue, Gray contends that the court erred in finding probable cause based on "an undisclosed confidential informant." Gray argues that this error resulted in the admission of improper drug evidence taken from the scene of the crime. Gray's statement of the issue indicates that he also believes that this error led to the "admitting as evidence statements of the defendant. . . ." However, the argument that follows in his brief does not discuss the admission of his pattersondestiny@example.net. Therefore, we decline to find any error based on the admission of Gray's statements at trial, since he has provided no factual or legal argument for why any admission was in error. ¶ 43. The basis of Gray's argument for why the court erred in finding probable cause is that (1) "[i]t is apparent from the testimony of Shegog that the undisclosed confidential informant was an *975 actual witness to the offense for which the appellant was charged,"[7] and (2) "the original of the prepared affidavit was never found." Gray also contends that "[f]or some reason no affidavit was ever executed to justify the issuance of the warrant." We find this particular allegation to be unsupported by the record. Although it is true that the State was unable to present a copy of the affidavit bearing the court's signature, a copy of the affidavit was produced, Shegog testified that he presented the sworn affidavit to the court that issued the search warrant, and the court's order indicated that an affidavit had been presented and used in determining that probable cause existed for the issuance of a search warrant. Therefore, we find that the record clearly supports a finding that an affidavit was executed. ¶ 44. As support, Gray cites State v. Woods, 866 So. 2d 422 (Miss.2003), where the Mississippi Supreme Court ruled that information supplied by a confidential informant was insufficient to support the issuance of a search warrant. However, the facts of Woods were notably different from the present case. In Woods, a previously-unknown confidential informant provided testimony that was not corroborated in any way. By contrast, in the present case, Shegog testified that the informant had been used numerous times in the years prior to Gray's arrest and was well-known. Shegog testified that the informant had never given him erroneous information. Shegog also testified that the informant had told police officers that he had witnessed the illegal activities occurring at the home first-hand. Furthermore, before executing the warrant, Shegog conducted surveillance on Gray's house to confirm the veracity of the informant's information. In short, Woods provides no relief to Gray because the informant in this case was known to the police and his information was corroborated by the police. ¶ 45. We find that probable cause was shown to have existed in support of the issuance of the search warrant. Although the signed original of the affidavit supporting the warrant's issuance was lost, a copy of the affidavit was presented, the court's order indicated that it had reviewed an affidavit before issuing the search warrant, and Shegog testified that he had presented the court with an affidavit, although he no longer had the affidavit in his possession. Therefore, no error occurred. 6. Denial of Motion in Limine ¶ 46. In this contention of error, Gray claims that the court erred in refusing *976 to grant a defense motion in limine concerning Gray's prior manslaughter conviction. The defense sought to receive a ruling that the prosecution could not, under any circumstances, mention Gray's previous manslaughter conviction. The defense also offered a proffer of Gray's testimony and contended that Gray could not take the stand unless the State was prevented from impeaching him with information about his conviction. The prosecution contended that the granting of the motion would have been improper because the State would be entitled to question Gray about the manslaughter conviction if he testified to something relevant. For example, if Gray had taken the stand and testified that he had no previous criminal experience, and therefore did not understand what a Miranda waiver was, the State contended that it would then be able to impeach him with his prior manslaughter conviction. The court agreed, and declined to grant the defense's motion in limine. ¶ 47. We find that, while the manslaughter conviction could not have been used for general impeachment, it could have properly been used if Gray took the stand and testified that he had no prior criminal experience. See Gates v. State, 484 So. 2d 1002, 1009 (Miss.1986); Wells v. State, 288 So. 2d 860, 864 (Miss.1974). In making its determination, the court indicated that it was looking at the factors that had been argued by the parties, the factors found in Rule 609 of the Mississippi Rules of Evidence and Johnson v. State, 525 So. 2d 809 (Miss.1988). Motions in limine should generally only be granted where "the material or evidence in question will be inadmissible at a trial." Hersick, 904 So.2d at 127(¶ 41) (quoting McGilberry v. State, 797 So. 2d 940, 942(¶ 12) (Miss.2001)). It was certainly not clear in the present case that the evidence in question would have been pattersondestiny@example.net. Therefore, the court did not abuse its discretion in refusing to grant the defense's motion in limine, and no error occurred. See id. at 127(¶ 42). 7. Handwriting Expert ¶ 48. Gray claims that it was error for the trial court to deny him funds to retain a handwriting expert to examine the agreement allegedly entered into and signed by Shegog. Gray contends that a handwriting expert is necessary to determine the authenticity of the document in question. In response, the State argues that the document is "palpably false," and reiterates the findings made by the trial court regarding the document. ¶ 49. As support, Gray quotes extensively from Richardson v. State, 767 So. 2d 195 (Miss.2000). In Richardson, the Mississippi Supreme Court found that a lower court erred in failing to grant expert funds to a defendant in order to test seminal fluid for DNA in a rape case. Id. at 197(¶ 2). The seminal fluid in question "was relied upon as evidence that there had in fact been penetration," and not merely "lustful touching of a child." Id. at 197 (¶¶ 4-5). In reaching its conclusion, the court noted: "Under these circumstances the DNA evidence would be relevant and material. It could significantly aid the defense by showing that the semen sample found was not [the defendant's], thus eliminating the semen as objective evidence of penetration." Id. at 199(¶ 15). ¶ 50. "The standard of review of the trial court's denial of expert assistance is that an abuse of discretion occurred such that the defendant was denied due process whereby the trial was fundamentally unfair." Richardson, 767 So.2d at 197(¶ 7) (citing Coleman v. State, 697 So. 2d 777, 780 (Miss.1997)). The Richardson court also noted that "determination of *977 whether the State must pay for an expert witness for an indigent defendant must be made on a case by case basis." Id. at 198(¶ 12). ¶ 51. In the present case, we fail to see how the court's denial of funds for a handwriting expert made the trial "fundamentally unfair." Even assuming the best-case scenario for Gray, a handwriting expert would only have been able to show that Detective Shegog actually signed the document. However, Gray's admittedly handwritten statement appeared below Shegog's signature, and there was no indication on the document that Shegog had read Gray's handwritten addition or agreed to it. Additionally, there were sufficient facts from which the court could reasonably deny Gray expert funds, such as: Gray's loss of the statement and limited explanation of how it was recovered, the extremely poor condition of the document, Shegog's denial of having signed any such agreement with Gray, Gray's inability to explain the condition of the document, and the fact that the document was not a form used by the Jackson Police Department. The facts here are notably different from the facts in Richardson, where evidence was being used without any proof that the fluid belonged to the defendant. In the present case, there was no abuse of discretion by the trial court in denying Gray funds with which to hire an expert in handwriting analysis, and therefore no error. 8. Jury Instructions ¶ 52. Gray contends that instructions S-2, S-3, and S-7 were granted in error by the court. Gray also contends that the court erred in refusing to grant D-1, D-2, D-4, D-5, and D-9. In the interest of thoroughness, we will briefly address each of the instructions complained of by Gray.[8] S-2 ¶ 53. Gray argues that S-2 contained an improper statement of the law[9] when it indicated that actual possession did not need to be proven, but only that the confiscated drugs were "subject to" Gray's "dominion and control." S-2 was given as instruction number six to the jury, and states: The Court instructs the Jury that to constitute "Possession" as applied to this case, it is not necessary that the State prove actual physical possession; it is sufficient if the State establishes that the substance involved was subject to the defendant's dominion and control, and that he was aware or reasonably should have been aware, of its presence and character. ¶ 54. We find Gray's argument regarding this instruction unpersuasive. The Mississippi Supreme Court has repeatedly held: "Constructive possession may be shown by establishing that the drug involved was subject to [the defendant's] dominion or control." Curry v. State, 249 So. 2d 414, 416 (Miss.1971) (emphasis *978 added); see also, e.g., Ginn v. State, 860 So. 2d 675, 680(¶ 9) (Miss.2003) (affirming jury instruction that stated, "Constructive possession may be shown by establishing that the substance was subject to the Defendant's dominion or control"); Smith v. State, 839 So. 2d 489, 497(¶ 21) (Miss. 2003) ("Constructive possession may be shown by establishing dominion or control"); Cunningham v. State, 583 So. 2d 960, 962 (Miss.1991) (citing the above language from Curry). No error arose from the inclusion of the words "subject to" in the jury instruction. S-3 ¶ 55. Proposed instruction S-3, which was given to the jury as instruction number seven, states: "The Court instructs the Jury that if you believe ... that the substance was subject to his dominion and control, it is your duty as jurors to find him guilty as charged." Gray objects to S-3 for the same reason as he objected to instruction S-2. Since we have found that the quoted language is a proper statement of the law, we also find no error in the granting of instruction S-3. S-7 ¶ 56. Proposed instruction S-7, which was given as instruction number eleven, states: "The Court instructs the jury that where cocaine is incorporated into some other substance, it is the weight of the entire mixture, rather than just any portion analyzed or tested, that must taken [sic] and considered as the weight for purposes of criminal liability." Gray argues that "while [S-7] might be a correct statement of the law, it was an instruction unsupported by any evidence and was intended to confuse the jury. . . ." ¶ 57. We find that this instruction was an instruction regarding the law as stated by Lewis v. State, 765 So. 2d 493, 497-98(¶ 17) (Miss.2000), where the Mississippi Supreme Court held: "where cocaine is incorporated into some other substance, the Legislature intended that the weight of the entire mixture be taken as the weight for purposes of criminal liability." After reviewing the record in this case, we find that S-7 as given is a proper statement of the law, supported by the evidence presented in the case, and is not an improper comment on the facts of the case. No error arose from the court's grant of S-7. D-1 ¶ 58. Proposed instruction D-1 was a peremptory instruction. Since we have already found that the jury's verdict was not against the overwhelming weight of the evidence, and the evidence supporting Gray's conviction was sufficient, we find no error in the court's denial of a peremptory instruction. D-2, D-4, and D-5 ¶ 59. Proposed instructions D-2, D-4, and D-5 were all denied by the lower court. Gray contends on appeal that their denial was error, but provides no argument or case citations to support his contention. Therefore, we decline to consider Gray's contentions regarding these issues: "[The defendant] makes these claims without citing to any law and is therefore procedurally barred from making the arguments." Bush v. State, 895 So.2d at 849(¶ 34) (citing Dycus v. State, 875 So. 2d 140, 169 (¶ 146) (Miss.2004)). D-9 and D-9A ¶ 60. Although instruction D-9, which attempted to elaborate on the concept of constructive possession, was not given, D-9A, which removed a paragraph and added some language, was given. As with the State's instructions, Gray objects specifically to the inclusion of "subject to" in the revised instruction; no objection is made *979 to the deletion of the paragraph. D-9A, as given, states: The Court instructs the Jury that in this case the defendant is charged under the theory of constructive possession. In order to prove constructive possession, the evidence must convince you, beyond a reasonable doubt, that the defendant was aware of the presence of the particular substance and was intentionally and consciously in possession of it. There must be sufficient facts to warrant a finding that [sic] defendant was aware of the presence of the particular substance and was intentionally and consciously in possession of it. It need not be actual or physical possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances. ¶ 61. As we have already discussed, the "subject to" language is an acceptable phrasing of Mississippi law concerning constructive possession, language that has appeared directly in Mississippi appellate cases. The Mississippi Supreme Court has also approved jury instructions containing the "subject to" language. Ginn, 860 So.2d at 680(¶ 9). Therefore, no error occurred as a result of the inclusion of "subject to" in instruction D-9A, and Gray's contention to the contrary is without merit. 9. Constitutionality of Sentence ¶ 62. Gray contends that his sentence of life is unconstitutionally cruel and unusual. The sentence was imposed because Gray had previous convictions which established his status as an habitual offender. The sentence was imposed according to Mississippi Code Annotated section 99-19-83, as revised, which states: Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times ... shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation. Gray argues that the sentence imposed "shocks the conscience so that a review must be made." ¶ 63. We note that "where a sentence is within the prescribed statutory limits, it will generally be upheld and not regarded as cruel and unusual." Tate v. State, 912 So. 2d 919, 933(¶ 48) (Miss.2005) (quoting Stromas v. State, 618 So. 2d 116, 123-24 (Miss.1993)). When a sentence "is `grossly disproportionate' to the crime committed, the sentence is subject to attack on the grounds that it violates the Eighth Amendment prohibition of cruel and unusual punishment." Id. at 933(¶ 49). The three factors to look at when determining whether a sentence is proportional are: "(1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions." Willis v. State, 911 So. 2d 947, 951(¶ 17) (Miss. 2005) (quoting Solem v. Helm, 463 U.S. 277, 292-94, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983)). ¶ 64. No attempt has been made by Gray to address the second or third factor of the proportionality analysis. The Willis court held that failure to address all three of the factors bars a defendant's claim on appeal. Id. at 951(¶ 18). In the present case, Gray has only attempted to *980 address one of the factors. Therefore, his claim is procedurally barred. We note that, even if Gray's claim were not procedurally barred, we have already found in prior cases that defendants convicted of possession of a controlled substance may be sentenced to life without the possibility of parole under the habitual offender provisions. See Wall v. State, 718 So. 2d 1107, 1114-15 (¶¶ 29-30) (Miss.1998) (citations omitted); Oby v. State, 827 So. 2d 731, 734-35(¶ 12) (Miss.Ct.App.2002) (citations omitted). ¶ 65. Since the sentence was within the statutory range, and was in fact mandatory, and since Gray has been unable to show that his sentence is grossly disproportionate to his crime, we find that the court did not err in sentencing Gray to life without the possibility of parole. The sentence was not cruel and unusual. 10. Effectiveness of Counsel ¶ 66. Gray also contends that his trial counsel was ineffective for several reasons. We have recently held that "a claim of ineffective assistance of counsel is best brought at the post-conviction relief stage as the record on direct appeal is generally insufficient to evaluate the claim." Lyle v. State, 908 So. 2d 189, 196(¶ 35) (Miss.Ct.App.2005) (citing Read v. State, 430 So. 2d 832, 837 (Miss.1983)). "When an ineffective assistance claim is made on direct appeal, the proper resolution is to deny relief without prejudice to the defendant's right to assert ineffective assistance of counsel in a post-conviction relief proceeding." Id. (citing Read, 430 So.2d at 837). When a record appears to be adequate on direct appeal, a Mississippi appellate court may choose to address an ineffective assistance of counsel claim. Id. (citations omitted). ¶ 67. In the present case, we find that the record is inadequate for us to fully address Gray's ineffective assistance of counsel claim. As noted by both parties, the record in this case is lacking in several respects, and evidence may be presented to more fully flesh out Gray's ineffective assistance of counsel claim in a post-conviction relief proceeding. Therefore, we deny relief to Gray on this claim without prejudice to his right to assert his ineffective assistance of counsel claim when seeking post-conviction relief. ¶ 68. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF POSSESSION OF CONTROLLED SUBSTANCE (COCAINE) AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY. KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. NOTES [1] The Entergy bill was mistakenly left out of the record given to this Court. However, Gray does not challenge its existence, and numerous references are made to it in the record. It is clear that an Entergy bill was presented below bearing Gray's name and the address of the house. [2] Although Gray addresses this issue in conjunction with his second issue, we treat the two issues separately for clarity's sake. [3] This issue combines issues three, four, and five as stated by Gray. We address these issues together because Gray does so without any distinction between them. [4] Gray argues in his reply brief that "the assertion ... that `[t]here was no claim of a discovery violation when Shegog testified to having seen the Appellant drop something.' is a complete misstatement of fact. Defense counsel argued this strongly argued this [sic] at trial." Gray then cites us to a particular portion of the record. However, that part of the record has nothing to do with Shegog's testimony that he saw Gray throw something to the ground. The objection discussed in those pages had to do with Shegog's testimony that there was only one statement. Our review of the record discloses no objection whatsoever to Shegog's testimony that Gray threw something to the ground, despite Gray's contentions to the contrary. [5] Gray's brief states that he was arraigned on July 23, 2001, a date based on pro se pleadings filed by Gray. However, the record contains an arraignment order stating that Gray appeared before the Hinds County Circuit Court for arraignment on January 12, 2004. [6] The jury was actually impaneled on June 8, 2004, although the trial did not commence until the following morning. [7] Although Gray does not make any argument concerning the informant's participation in any crime, he does point out that the informant was an "actual witness." The identity of informants who are participants or eyewitnesses to a crime with which a defendant is charged must be disclosed. Swann v. State, 806 So. 2d 1111, 1119 (¶¶ 32-33) (Miss.2002). However, in the present case, no allegation of error was raised as a result of the State's nondisclosure of the identity of the eyewitness, and no argument is made on appeal that the non-disclosure of the informant's identity constitutes reversible error. Therefore, we find that, in the absence of a contention that this was error, or that Gray's attorneys requested this information, any error was harmless and does not require reversal. Although Gray's attorneys filed a motion to suppress based on an allegation that "the alleged confidential informant has not provided reliable and credible information in the past," the motion did not ask that the identity of the informant be disclosed. No mention of any problem with the confidential informant was made in Gray's posttrial motion for a new trial. We also note that the record is unclear as to whether the informant witnessed Gray's possession of the cocaine, or merely the sale of a small amount of cocaine. If the informant did not witness possession of the cocaine, his identity would not be required even if a request had been made. [8] Gray also discusses several of the other proposed instructions, but acknowledges that no objection was made below to the instructions. In the absence of an objection at trial, we find that any objection to those instructions is waived on appeal. [9] The State contends that Gray did not object to S-2 on this particular ground in the trial court, and his argument is, therefore, waived. Since the discussion regarding objections to proposed jury instructions occurred off the record, and the objections were simply summarized by the court after the discussion, we are left with only the summary of what objections were made to specific instructions. It is not clear from the record whether Gray contended at trial that the instruction was an improper statement of the law. However, regardless of whether the specific objection was made at trial, there is no merit to it.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON APPLICATION FOR TEMPORARY INJUNCTION This suit involves a controversy regarding the further CT Page 7148 development of a condominium complex located in Wolcott, Connecticut. The plaintiffs are Arrowhead By The Lake Association, Inc. (the "Association"), and four individual unit owners, Robert Bosco, Stuart Rothenberg, Alan Needleman and Donald Molta, each members of the Association. Bosco and Needleman also serve on the Association's executive board. The defendants are Arrowhead By the Lake, Inc. ("Arrowhead"), Muri Development Corp. ("Muri"), Fred G. Musano, Sr., and Raymond Rinaldi. This matter is before the court for a determination on the plaintiffs' application for a temporary injunction, pursuant to General Statutes § 52-471. On August 24, 1995, the plaintiffs commenced this action by way of Writ, Summons, Verified Complaint, application for ex-parte Temporary Injunction and Order to Show Cause. In the application for the temporary injunction, the plaintiffs seek to enjoin the defendants' development of an additional 72 units on the subject property, undeveloped property on the site of Arrowhead Condominium complex, located on Spindle Hill Road, Wolcott, Connecticut. Specifically, the plaintiffs seek to prevent the defendants from conveying, selling, mortgaging or in any way encumbering any interest in the subject property. The plaintiffs also seek to enjoin the defendants from making any applications for city building permits, from entering or constructing on the property, and from exercising any rights as unit owners for any units or limited common elements alleged to have been created on the subject property. The plaintiffs' alleged grounds for the temporary injunction are that they: (1) have no adequate remedy at law; (2) have a likelihood of success on the merits; and (3) have suffered immediate, substantial and irreparable harm and will continue to suffer such harm if the invasion of their rights in the property is not enjoined. The defendants have not filed an answer to the plaintiffs' complaint and have raised no special defenses as to the temporary injunction application. The defendants argue only that the plaintiffs have failed to meet their burden in showing the need for an issuance of a temporary injunction in that they fail to demonstrate irreparable harm and the absence of an adequate portermark@example.com. At the show cause hearing commencing September 11, 1995, and lasting three days, the court heard testimony and argument regarding the plaintiffs' application for a temporary injunction. Both parties submitted post-trial briefs in support of their CT Page 7149 respective positions. On October 3, 1996, the court heard evidence regarding the appropriate amount of bond to issue if the court was to issue the injunction. On October 15, 1996, with leave of the court, the parties filed briefs addressing the issue of bond. Based on the evidence presented, the court finds the following facts, as set forth hereinafter. The Association is a common interest community called Arrowhead By The Lake Association, Inc., organized pursuant to General Statutes §47-2431 and created by the original declaration of Arrowhead, dated June 30, 1988, and recorded in volume 179 at page 001 of the Town of Wolcott's land records. ("original declaration"). In the original declaration, Arrowhead, the declarant of the Association, as defined by General Statutes § 47-202 (12),2 submitted the entire parcel of property described in Exhibit A attached to the plaintiffs' verified complaint. Such property includes the previously undeveloped land in question ("subject property"), described in Exhibit C attached to the plaintiffs' verified complaint. When Arrowhead recorded the original declaration in 1988, all of the land in the condominium complex, other than the units, became the common elements of the complex. See General Statutes § 47-202 (4).3 Arrowhead, however, reserved the right to develop part of the common land for not more than seven years after the recording of the initial declaration. Pursuant to Article VIII, §§ B and H of the original declaration, that seven year period expired on June 30, 1995. On December 14, 1990, Musano and Rinaldi formed the defendant Muri Development Corporation ("Muri"). Musano and Rinaldi are the sole owners, officers and directors of both Arrowhead and Muri. Thereafter, the defendants, pursuant to a promotional plan, acted to dispose of Arrowhead's unsold condominiums units. Between December 14, 1990 and June 6, 1995, Arrowhead transferred all 25 of its unsold units to Muri. On June 29, 1995, one day before Arrowhead's development rights and special declarant rights expired, Arrowhead recorded an "amended declaration."4 Arrowhead's recording of the "amended declaration" was done without seeking unanimous consent of the Association or its members. In the "amended declaration", Arrowhead attempts to create an additional 72 home site units on the subject property, pursuant to its development rights reserved in Article VIII of the original declaration. The "amended CT Page 7150 declaration" also attempts to alter Arrowhead's rights in other respects, including extending Arrowhead's rights to complete buildings; changing the unit boundary definitions, and; reserving the right to perform construction, to complete improvements, and to have access to home units and common elements. Additionally, the "amended declaration" attempts to change unit restrictions; reduce from 100 percent to 67 percent the percentage vote of unit owners needed to change restrictions; change unit restrictions so that Arrowhead's home site units had less limitations than those of the Association, and; extend their rights to construct improvements in the complex for up to 40 years; all without seeking the unanimous consent of the Association or its unit owners. Counts one through fifteen of the plaintiffs' amended complaint allege violations of General Statutes §§ 47-200 et seq, the Common Interest Ownership Act ("CIOA"). The remaining counts allege the following: count sixteen, violation of General Statutes § 52-552 (a), the Uniform Fraudulent Transfer Act; count seventeen, violation of General Statutes § 42-110 (b), the Connecticut Unfair Trade Practices Act ("CUTPA"); count eighteen, breach of contract; count nineteen, fraudulent misrepresentation or omission; count twenty, slander of title; count twenty-one, larceny; count twenty-two, conversion; count twenty-three, trespass, and; count twenty-four, unjust enrichment. The plaintiffs' application for temporary injunction is based only upon the defendants' alleged violations of CIOA. "The principal purpose of a temporary injunction is to preserve the status quo until the rights of the parties can be finally determined after a hearing on the merits." (Internal quotation marks omitted.) Clinton v. Middlesex Mutual AssuranceCo., 37 Conn. App. 269, 270, 658 A.2d 814 (1995). "The status quo . . . has been defined as the last, actual, peaceable, noncontested condition which precedes the pending controversy." (Internal quotation marks omitted.) Stamford v. Kovac, 228 Conn. 95,101-102, 634 A.2d 897 (1993). "It is clear that the power of equity to grant injunctive relief may be exercised only under demanding circumstances." (Internal quotation marks omitted.)Anderson v. Latimer Point Management Corp., 208 Conn. 256, 262,545 A.2d 525 (1988). "[T]he issuance of an injunction rests in the sound discretion of the trial court." Id. To prevail on an application for temporary injunction, the burden is on the applicant to establish (1) a reasonable degree CT Page 7151 of probability of success on the merits; (2) irreparable harm with no adequate remedy at law, and; (3) the harm likely to be suffered by the applicants is greater than that resulting from the interference occasioned by an injunction. See WaterburyTeacher Association v. Freedom of Information Commission,230 Conn. 441, 446, 645 A.2d 978 (1994); Griffin Hospital v.Commission on Hospitals Health Care, 196 Conn. 451, 457-58,493 A.2d 229 (1985). "The scope of a temporary injunction will depend on the nature of the case, the evidence presented in the hearing and the relief sought." (Internal quotation marks omitted.)Emhart Industries, Inc. v. Amalgamated Local Union 376 U.A.W.,190 Conn. 371, 407, 461 A.2d 422 (1983). The plaintiffs' claims for injunctive relief are based on the defendants' alleged violations of CIOA. "CIOA is a comprehensive legislative scheme that governs the creation, organization and management of all forms of common interest communities." Fruin v.Colonnade One at Old Greenwich Ltd. Partnership, 237 Conn. 123,130, 676 A.2d 369 (1996). CIOA also "contemplates the voluntary participation of the owners." Wilcox v. Willard Shopping CenterAssociates, 208 Conn. 318, 326, 544 A.2d 1207 (1988), on appeal after remand 23 Conn. App. 129, 579 A.2d 130 (1990). "CIOA permits any person to seek `appropriate relief' if the person is `adversely affected' by a violation of the act or by a violation of the declaration or bylaws of the common interest community. General Statutes § 47-278." Fruin v. Colonnade One at OldGreenwich Ltd. Partnership, supra, 237 Conn. 131. General Statutes § 47-236 (d) provides in relevant part that "no amendment may create or increase special declarant rights, increase the number of units, change the boundaries of any unit, the allocated interests of a unit, or the uses to which any unit is restricted, in the absence of unanimous consent of the unit owners." Article XV, § D of the original declaration states that no amendment to a declaration may create or increase special declarant rights, increase the number of units, change the boundaries of any unit, or the uses to which any unit is restricted, in the absence of unanimous consent of the unit owners. As stated previously, Arrowhead's "amended declaration" attempts, inter alia, to create an additional 72 home site units on the subject property; attempts to change the unit boundary definitions, and; reserves the right to perform construction, to complete improvements, and to have access to home units and CT Page 7152 common elements. The "amended declaration" changes unit restrictions, reduces the percentage vote of unit owners needed to change certain restrictions, changes unit restrictions so that Arrowhead's home site units had less limitations than those of the Association and extends Arrowhead's rights to construct improvements in the complex for up to forty years, all, without seeking the required unanimous consent of the Association or its unit owners. It is undisputed that the unit owners never conducted a vote to adopt the "amended declaration", and that the unit owners never consented to the recording of the "amended declaration", as required by General Statutes § 47-236 and the original declaration. Additionally, General Statutes § 47-229 (e) provides that "[i]f a declarant fails to exercise any development right within the time limit described in the declaration pursuant to [§ 47-224 (a)(8)] and in accordance with any conditions or limitations described in the declaration pursuant to [§47-224 (a)(10)] that development right shall lapse." As Arrowhead's "amended declaration" and attempted exercise of such rights fail to comply with the requirements of CIAO and those found in the original declaration, the court finds that the plaintiffs have a reasonable probability of success on their claims against the defendants. "A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate portermark@example.com." Branch v. Occhionero, 239 Conn. 199, 207, ___ A.2d ___ (1996); Walton v. New Hartford, 223 Conn. 155, 165, 612 A.2d 1153 (1992); Berin v. Olson, 183 Conn. 337, 340, 439 A.2d 357 (1981). "Connecticut courts have long recognized that in disputes over interests in real estate, money damages may not replace a loss of that interest." Torre v. Delmonico, Superior Court, judicial district of New Haven at New Haven, Docket No. 330775 (July 30, 1992, DeMayo, J.). "Where an injury is of such a nature that it cannot be adequately compensated in damages, or cannot be measured by any pecuniary standard, it is irreparable. Whether damages are to be viewed by a court of equity as irreparable or not depends more upon the nature of the right which is injuriously affected than upon the pecuniary measure of the loss suffered." (Internal quotation marks omitted.) ConnecticutAssociation of Clinical Laboratories v. Connecticut Blue Cross,Inc., 31 Conn. Super. Ct. 110, 113-14, 324 A.2d 288 (1973). "If the named defendant is threatening a breach of the CT Page 7153 restrictive covenant, there can be no question that the plaintiff is entitled to an injunction restraining the breach, irrespective of whether the damage it will suffer is great or small"; (internal quotation marks omitted) Moore v. Serafin, 163 Conn. 1,11, 301 A.2d 238 (1972); "so long as such relief is not inequitable." Hartford Electric Light Co. v. Levitz, 173 Conn. 15,22, 376 A.2d 381 (1977); Manley v. Pfeiffer, 176 Conn. 540,545, 409 A.2d 1009 (1979). The evidence indicates that the defendants' actions are an unauthorized continuance of its development and special declarant rights, in violation of certain restrictive covenants contained in the original declaration. The court finds, therefore, that the defendants' actions have caused the plaintiffs to suffer irreparable harm and that money damages may not adequately compensate the plaintiffs for their harm. As to the final element, the court, in its discretion; Waltonv. New Hartford, supra, 223 Conn. 167; finds that the harm to be suffered by the defendants resulting from the imposition of the injunction is less than would be suffered by the plaintiffs should no injunction be imposed. Id.; see also Pender v.Matranga, Superior Court, judicial district of Danbury, Docket No. 319038 (August 9, 1995, Riefberg, J.). Accordingly, the following temporary injunction is hereby ordered by the court: The defendants, their officers, agents, servants and employees are hereby enjoined from: 1. Conveying, selling, mortgaging or in any way encumbering any interest in the subject property, described in Exhibit C attached to the verified complaint (the "Property"), or entering into any agreements for the sale, conveyance, mortgage or encumbrance of the Property, or any interest therein; 2. Making any applications for permits or approvals to any governmental agency relating to the development of, alteration of, improvement of or construction upon, under or through said Property; 3. Constructing any improvements on the Property or performing any work in preparation for the construction of improvements on the Property; and CT Page 7154 4. Exercising any rights as unit owners or members of the Arrowhead by the Lake Association, Inc. for any units or limited common elements alleged to have been created on the Property. General Statutes § 52-472 provides in relevant part that "[n]o temporary injunction may be granted . . . until the party making application therefor gives bond, with surety satisfactory to the court . . . granting the injunction, to the opposite party, to answer all damages in case the plaintiff fails to prosecute the action in which the injunction is applied for to effect; provided a bond need not be required when, for good cause shown, the court . . . is of the opinion that a temporary injunction ought to issue without bond." See also SpinielloConstruction Co. v. Manchester, 189 Conn. 539, 546, 456 A.2d 1199 (1983); PDS Engineering Construction, Inc. v. Double RS,42 Conn. Super. Ct. 460, 467, 627 A.2d 964 (1992). The court finds that the plaintiffs have failed to show good cause for the issuance of a temporary injunction without bond, as required by General Statutes § 52-472. Therefore, this temporary injunction is conditioned upon the plaintiffs posting of a $300,000 bond within thirty (30) days of the date hereof. Riefberg, J.

509 F.2d 683 UNITED STATES of America, Appellee,v.Lawrence STEVENS, Appellant. No. 74--1597. United States Court of Appeals,Eighth Circuit. Submitted Nov. 14, 1974.Decided Jan. 22, 1975.Rehearing and Rehearing En BancDenied Feb. 5, 1975.Certiorari Denied May 27, 1975.See 95 S. Ct. 1993. Randolph E. Schum, St. Louis, Mo., for appellant. Donald J. Stohr, U.S. Atty., Thomas E. Loraine, Asst. U.S. Atty., St. Louis, Mo., for appellee. Before LAY and HEANEY, Circuit Judges, and TALBOT SMITH, Senior District Judge.* LAY, Circuit Judge. 1 The essential issue presented on this appeal is the reasonableness of the search of an automobile after it was stopped for a traffic offense and a frisk of the defendant-passenger produced a .16-gauge shotgun shell. The search of the automobile produced an unregistered firearm which led to the defendant's conviction of possessing an unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5871. We affirm the judgment of conviction.1 2 The facts surrounding the search were developed during a suppression hearing. The same facts were adduced by the government during the trial. On November 26, 1973, two St. Louis police officers, Lineback and Sheldon, were on cruiser patrol duty when they observed a 1964 Fairlane station wagon with three black male occupants as it made an illegal U-turn near 5400 Lillian Street in St. Louis. They turned to follow the vehicle, and when they noticed that it also violated a major intersection stop, decided to pull it over and ticket the driver for these traffic violations. Upon initial questioning it was disclosed that the driver did not have an operator's license. Thereafter, Officer Sheldon called headquarters and requested a warrant check on the vehicle's license number. He was told the vehicle was wanted in connection with a burglary which had occurred approximately three weeks earlier. At this time, he told all three occupants to get out, and when they were approximately six to eight paces from the car, Officer Lineback conducted a pat-down search for weapons. While patting down Stevens, who had been riding in the right front passenger seat, the officer 'noticed a sort of lump in his left coat pocket,' reached inside and found a .16-gauge shotgun shell. Officer Lineback turned and showed the shell to Officer Sheldon who went immediately 'to the right front passenger seat where the subject Stevens was seated and searched beneath the seat and found a sawed-off shotgun.' Officer Sheldon testified that he also noticed numerous clothing and household items in the automobile, but that these were not inventoried until the car had been towed to a police lot.2 3 The defendant does not question the legality of the traffic stop. The officers had a legal right to stop the vehicle and either warn or ticket its operator for the U-turn and failing to obey the stop sign. Upon his failure to produce a driver's license, the officers had the legal right to arrest him as well. Cf. United States v. Valentine, 427 F.2d 1344 (8th Cir. 1970). The defendant relies instead on a long line of cases which have held that there is no justification to arrest an individual simply because he is the companion of another who is legally arrested for the commission of a crime. See Henry v. United States, 361 U.S. 98, 80 S. Ct. 168, 4 L. Ed. 2d 134 (1959); United States v. Linnear, 464 F.2d 355 (9th Cir. 1972); United States v. Bazinet, 462 F.2d 982, 989 (8th Cir.), cert. denied, 409 U.S. 1010, 93 S. Ct. 453, 34 L. Ed. 2d 303 (1972); United States v. Collins, 142 U.S.App.D.C. 100, 439 F.2d 610, 615 (1971). On this basis, the defendant, who concededly had not committed any offense known to the officers at the time he was requested to get out of the automobile, claims the search of his person and the subsequent search of the auto were illegal. The government contends the search of the automobile was justified once the operator had been properly arrested for the traffic violations and the failure to have a driver's license.3 The government offers United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973), and Gustafson v. Florida, 414 U.S. 260, 94 S. Ct. 488, 38 L. Ed. 2d 456 (1973), in support of its contention. The difficulty with this reasoning is that Gustafson and Robinson authorize only a lawful search of the person and only upon a custodial arrest. See 414 U.S. at 224, 94 S. Ct. 467. In the instant case, the shotgun was seized from the vehicle and not the driver's person. 4 Robinson and Gustafson did not overrule the established principles of Preston4 and Cooper5 which held, essentially, that for the search of a vehicle to be incident to an arrest, it must have a reasonable nexus to the nature of the offense upon which the arrest is based. The traffic offenses here, just as the vagrancy charge in Preston, did not warrant a general search of the auto once the occupants were removed from it. See, e.g., Wilson v. State, 511 S.W.2d 531 (Tex.Cr.App.1974). Notwithstanding our rejection of the government's theory, we find the ensuing frisk of Stevens and the subsequent search of the car to be lawful. The principles of Henry must recognize the limited intrusion now sanctioned in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), that a suspicious person may be subjected to a 'stop and frisk' short of probable cause justifying an arrest and search incident to it. Terry, as interpreted in Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972), recognizes that 5 (a) brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. Id. (392 U.S.) at 21--22, 88 S.Ct. at 1879--1881; see Gaines v. Craven, 448 F.2d 1236 (CA9 1971); United States v. Unverzagt, 424 F.2d 396 (CA8 1970). 6 . . . The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law. So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose. 7 407 U.S. at 146, 92 S. Ct. at 1923. 8 Although at the time the vehicle was pulled over for the traffic offense, there was no probable cause to search it, it was nonetheless reasonable for the officers to assume that they could and should question all the occupants on the basis of the information revealed by the warrant check. Under these circumstances, it was not unreasonable that the officers, for their own protection, cautiously required the occupants to withdraw from the vehicle where all their movements could be observed, and submit to a limited 'frisk' before questioning. Officers Lineback and Sheldon had a valid reason to be somewhat wary of the occupants of a vehicle wanted in connection with a recent felony.6 9 The privacy of an individual must yield to a limited investigatory intrusion of this sort where there is good reason to believe that he may be 'armed and dangerous.' Justice Douglas noted in his dissent in Adams that '(t)here is no reason why all pistols should not be barred to everyone except the police.' 407 U.S. at 150, 92 S.Ct. at 1925. However, until this fact might become a legal reality, we construe Adams in light of Terry as recognition of the fact that a police officer may, for his own protection, briefly frisk a person reasonably suspected of having some nexus with a felony before questioning him. In doing so we place emphasis on the necessity for some reasonable belief that there is possible criminal activity involved. Thus, we are not faced with the concern of Judge Friendly on the Court of Appeals in Adams (436 F.2d at 38--39) that the frisk will become the object of the stop. Here the police had a legitimate basis for the stop, and upon the stop, further facts were obtained justifying the frisk and further investigation of the occupants. Thus, we conclude that the seizure of the shell from the defendant Stevens was the fruit of a reasonable search. The more difficult question we must decide is whether there was a legal basis for Officer Sheldon to then go to the car and open the door to search for a weapon. We conclude that this limited search was also reasonable. 10 The vehicle was only 4--6 feet away from the suspects at the time the shotgun shell was discovered. The officers could reasonably infer that the shell belonged to a shotgun either concealed on the subject or in the nearby car. The officers testified to a concern for their safety occasioned by the fact that there were three suspects and only two officers. Immediately after the shell was found on Stevens, Sheldon proceeded directly to the right front seat where Stevens had been seated, reached under the seat and found the shotgun. Officer Sheldon's search was a limited one obviously made only for the purpose of discovering possible weapons. Hindsight reasoning might convince one that the officers were being overly cautious or that they could have dealt with their concern by moving the suspects farther away from the vehicle, but we must view their conduct in terms of what could be considered reasonable under the circumstances then existing. See United States v. Peep,490 F.2d 903 (8th Cir. 1974). 11 Under the totality of the facts then existing (the operation of the vehicle by someone without a license, the reliable knowledge that the car was 'wanted' in connection with a burglary allegedly committed by two black males just three weeks earlier, the visible contents of the car containing various items of personalty, and the defendant's possession of a shotgun shell), we find the limited intrusion and protective inspection of the car to be reasonable under the Fourth Amendment. Cf. United States v. Isham, 501 F.2d 989 (6th Cir. 1974); Wickizer v. United States, 465 F.2d 1154 (8th Cir. 1972). 12 Our approval here does not mean that an overall search of the vehicle would have been justified. The officer here did nothing more than open the passenger door of the car and look under the front seat. His concern was to seize any weapons which were readily accessible to the suspects. He was not searching for the incidents of a possessory crime. We see no danger for abuse in the limited inspection of a suspect's nearby auto where (a) the original stop was not pretextually made by the officers, (b) the additional intrusion was not justified on the basis of some unrelated minor offense committed by the driver,7 (c) there existed reasonable suspicion of serious criminal activity, and (d) there were reasonable grounds to believe that the nearby vehicle might contain a concealed and dangerous weapon. 13 Judgment affirmed. * TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation 1 The defendant has raised several other points of error, which we summarily reject as having no substantial merit; he asserts that: (a) Two jurors employed by the federal government should have been removed for cause solely by reason of their employment, but see Dennis v. United States, 339 U.S. 162, 70 S. Ct. 519, 94 L. Ed. 734 (1950); Frazier v. United States, 335 U.S. 497, 508--512, 69 S. Ct. 201, 93 L. Ed. 187 (1948); United States v. Wood, 299 U.S. 123, 57 S. Ct. 177, 81 L. Ed. 78 (1936). (b) The court erred in admitting the certification record from the Bureau of Alcohol, Tobacco and Firearms into evidence to show the shotgun in question to be unregistered, but see United States v. Gardner, 448 F.2d 617, 620--621 (7th Cir. 1971); United States v. Mix, 446 F.2d 615, 621--623 (5th Cir. 1971); United States v. Thompson, 420 F.2d 536, 544--545 (3d Cir. 1970). (c) The court erred in permitting the government to examine Luther Murrell, the driver of the vehicle in which the shotgun was found, as a hostile witness. Even assuming this contention to be true, our examination of the record reveals that questions asked by the government after the court permitted him to be treated as a hostile witness were inconsequential and not damaging to the defendant. Thus, the claim is rejected for failing to show prejudice to the defendant. (d) The court erred in allowing a government witness to testify concerning an alleged test firing of the shotgun since the government had previously denied that any 'scientific tests or experiments' had been made. The testimony concerned the firing of the shotgun to determine if it were operable. We again fail to see the prejudice arising from such testimony. At least, none is demonstrated. (e) The evidence is insufficient to sustain the verdict. Our review of the record requires a contrary conclusion. Cf. United States v. Craven, 478 F.2d 1329 (5th Cir.), cert. denied, 414 U.S. 866, 94 S. Ct. 54, 38 L. Ed. 2d 85 (1973). In addition to strong circumstantial evidence, the driver testified that the defendant was the owner of the gun. (f) The government attorney used prejudicial comments in his closing argument. The comments were objected to and the court sustained the objections and instructed the jury to disregard them. The comments were (1) that Miss White, the defendant's witness, was the defendant's girlfriend, and (2) that sawed-off shotguns could be classified with 'machine guns, grenades, and bazookas.' The comments do not constitute such prejudice that a jury would be likely to be unduly influenced by them. No motion for mistrial was made and the court's charge under the circumstances was all that was required. (g) The court erred in admitting into evidence two shotgun shells without proper identification as to which was found in the defendant's pocket and which was found in the gun. The defendant stipulated that they were the two shells seized at the time of the arrest. We find this argument spurious. 2 At the suppression hearing a witness, Bill Temps, was called to verify his reporting the vehicle in early November as the one used by two black males who were observed leaving the scene of a burglary. The evidence showed that the 'wanted' label for the auto should have been removed from the police computer lists since the individuals wanted for the burglary had been apprehended before November 26, 1973, the date of defendant's arrest 3 It was only after the weapon was found that the officers announced their intent to arrest all of the subjects on the charge of possession of the weapon as well as their intent to arrest the driver for the traffic violations 4 Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964) 5 Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967) 6 The fact that the vehicle was no longer actually 'wanted' is immaterial to the officers' state of mind at the time the information was given to them. A police officer is entitled to view information supplied via police radio as a trustworthy basis for his actions. Klingler v. United States, 409 F.2d 299, 303 (8th Cir.), cert. denied, 396 U.S. 859, 90 S. Ct. 127, 24 L. Ed. 2d 110 (1969) 7 Robinson and Gustafson permit the search of the person incident to a custodial arrest not only on the basis of possible subjective fear of the arresting officer, but on well-established principles governing a search incident to lawful arrest. As the Supreme Court observed in Robinson: A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment. 414 U.S. at 235, 94 S. Ct. at 477.

PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4224 UNITED STATES OF AMERICA, Plaintiff − Appellee, v. GREGORY GARCIA, a/k/a Gregory Garcia Perez, Defendant − Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:15−cr−00040−MOC−DSC−1) Argued: March 30, 2017 Decided: May 2, 2017 Before SHEDD, DUNCAN, and AGEE, Circuit Judges. Affirmed by published opinion. Judge Duncan wrote the opinion, in which Judge Shedd and Judge Agee joined. ARGUED: William Robinson Heroy, GOODMAN, CARR, LAUGHRUN, LEVINE & GREENE, PLLC, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Chris Greene, GREENE & ASSOCIATES, INC., Charlotte, North Carolina, for Appellant. Jill Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. DUNCAN, Circuit Judge: Defendant-Appellant Gregory Garcia appeals his conviction on two counts of unlawful procurement of naturalization, in violation of 18 U.S.C. § 1425(a). On appeal, Garcia argues that the district court erred by (1) denying his post-trial motions for judgment of acquittal and a new trial, and (2) taking judicial notice of a portion of the U.S. Citizenship and Immigration Services’ (“USCIS”) website. For the reasons that follow, we affirm. I. The jury convicted Garcia for giving false and misleading statements about his criminal history during the naturalization process, on or about November 9, 2006 (Count 1) and August 14, 2007 (Count 2). Garcia’s appeal turns on the sequence of the following relevant events, which we recount in detail below: (1) on May 31, 2006, Garcia first met with a USCIS officer; (2) on August 23, 2006 and September 15, 2006, Garcia was indicted on and arrested for federal fraud charges; (3) on November 9, 2006, Garcia appeared for a follow-up meeting with a second USCIS officer; and (4) on August 14, 2007, Garcia took his naturalization oath. A. Garcia immigrated to the United States in 1993 and became a lawful permanent resident. In early 2005, he filed an application to become a naturalized citizen. The naturalization process required Garcia to submit a standardized application form 2 (“Form N-400”), appear in person for questioning, and pass tests designed to elicit his knowledge of U.S. history and government, as well as written and spoken English. On May 31, 2006, Garcia appeared for an in-person meeting with USCIS Officer Jason Rucienski. During the meeting, Officer Rucienski tested Garcia on his civics and English knowledge, and reviewed Garcia’s criminal history. Garcia passed the civics examination, but failed the language test. Officer Rucienski provided Garcia with an “interview results” form, explaining that Garcia had failed the language test and would have a second chance to take it. J.A. 685. He also informed Garcia that he needed to bring a certified record concerning an incident in his criminal history to the next meeting. On August 23, 2006, a federal grand jury indicted Garcia on charges related to a conspiracy involving credit-card and identity fraud. Authorities arrested Garcia on September 15, 2006, and he made his initial appearance in federal court that day. He later pleaded guilty to two of the charges. Slightly more than a month after Garcia’s arrest, USCIS sent Garcia a notice scheduling him to appear on November 9, 2006, for a “Re-Examination for Reading, Writing, or Speaking English,” and “Naturalization Re-Interview.” J.A. 689. On November 9, 2006, Garcia appeared for a meeting with USCIS Officer Kevin Winn. Officer Winn retested Garcia on his English skills, and Garcia passed. Officer Winn also reviewed with Garcia his Form N-400. Questions 16 and 17 asked whether Garcia had ever been “arrested, cited, or detained by any law enforcement officer” or “charged with committing any crime.” J.A. 678. Garcia listed two criminal incidents in New Jersey from the late 1990s, but he did not disclose the federal charges for which he 3 had been indicted and arrested several months earlier. Question 23 asked whether Garcia had ever given false or misleading information to any U.S. official while applying for any immigration benefit, and Garcia checked the box designated as no. Garcia then signed Form N-400, certifying under penalty of perjury that the contents of the form were true and correct. Officer Winn recommended Garcia’s application for approval. USCIS approved Garcia’s application in July 2007 and scheduled him to appear for a naturalization oath ceremony on August 14, 2007. The ceremony notice included Form N-445, asking whether Garcia had been, inter alia, cited, arrested, indicted, or convicted of any crime “AFTER the date you were first interviewed.” J.A. 696. Although Garcia checked yes, he told USCIS Officer Edna Falls at the oath ceremony that his only intervening offense was a speeding violation, which Officer Falls noted on the form. Garcia never disclosed his August 2006 indictment or September 2006 arrest on federal charges. Garcia signed Form N-445 on August 14, 2007, certifying that it was true and correct. He became a naturalized citizen that day. B. On February 19, 2015, federal prosecutors charged Garcia with two counts of violating § 1425(a), based on his knowing failure to disclose his federal charges. Garcia pleaded not guilty and proceeded to trial. 1. At the close of evidence, Garcia moved for judgment of acquittal. As to count one, he argued that there was insufficient evidence he was asked about his criminal history during his interview with Officer Winn on November 9, 2006. As to count two, 4 he argued that his May 2006 meeting with Officer Rucienski did not qualify as a naturalization “interview,” but only an examination on the civics and language portions of the process. Because, on this theory, he was not “interviewed” until November 9, 2006 with Officer Winn, his Form N-445 accurately stated that he had not been arrested or charged with any crimes after the date he was “first interviewed.” The district court denied the motion based on the evidence paul16@example.org. Supporting count one, Officer Winn testified that Garcia never disclosed his pending federal charges during the November interview, though he could not tell from the completed form whether he or the prior officer had asked particular questions. The government also introduced the Form N-400 that Garcia signed on November 9, 2006, which showed that he both falsely failed to acknowledge his recent federal charges, and certified that his answers were true and correct. As relevant to count two, the government elicited testimony supporting the view that Garcia was first interviewed on May 31, 2006. For example, the government’s case agent testified that in May 2006, Officer Rucienski was the first USCIS officer to interview Garcia, and Officer Winn testified that he was the second USCIS officer to interview Garcia. USCIS Officer Beth Barbee testified that if an applicant fails the civics or language test during his “initial interview,” he is scheduled to return for “a second interview.” J.A. 173–74. She confirmed that the language and civics testing is part of the “naturalization interview.” J.A. 194–95. Finally, Officer Falls testified that she reviewed Garcia’s answer to the question on Form N-445 asking whether there had been any new 5 criminal incidents after his first interview and that Garcia reported only a speeding citation. 2. Before closing statements, the district court inquired about what constitutes an “N-400 interview,” and reported that his law clerk found information on the USCIS website generally describing the naturalization process. J.A. 476–78. The relevant portion of the website stated: “During your naturalization interview, a USCIS Officer will ask you questions about your application and background. You will also take an English and civics test unless you qualify for an exemption or waiver.” J.A. 738.2. Garcia objected to the district court’s consideration of the website excerpt, but the district court concluded it could take judicial notice of the information. Garcia subsequently asked the district court to take judicial notice of the USCIS Policy Manual, which the district court agreed to do. The district court took judicial notice of a portion of the manual that provided that the naturalization process includes all factors relating to eligibility, including in-person interviews and language and civics testing. The court read all of the judicially noticed facts to the jury. The jury convicted Garcia on both counts of the indictment, and the district court denied his post-trial motions. Garcia timely appealed. II. Under 18 U.S.C. § 1425(a), it is unlawful to knowingly procure or attempt to procure naturalization or citizenship in a manner contrary to law. The government can 6 prove a violation by showing that the defendant “knowingly misstated his criminal record on his application or in his interview.” United States v. Pasillas-Gaytan, 192 F.3d 864, 868 (9th Cir. 1999). On appeal, Garcia argues that the district court erred by (1) denying his motions for judgment of acquittal and a new trial, and (2) taking judicial notice of the website excerpt. We discuss each argument in turn. A. Garcia’s arguments are the same for both his motion for judgment of acquittal and for a new trial: his convictions cannot stand because he did not knowingly make a false statement in November 2006 or August 2007. We review the district court’s denial of a motion for judgment of acquittal de novo. United States v. White, 810 F.3d 212, 228 (4th Cir. 2016). Viewing the evidence in the light most favorable to the government, we ask whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We review the district court’s denial of a motion for a new trial for abuse of discretion, but assess any legal determinations de novo. United States v. Parker, 790 F.3d 550, 558 (4th Cir. 2015). Under the standard for a new trial, the district court should only overturn a jury verdict in the “rare circumstance” when the verdict is against the great weight of the evidence. United States v. Smith, 451 F.3d 209, 217 (4th Cir. 2006). We have little hesitation concluding that the record contains sufficient evidence of Garcia’s knowing misstatements. 7 1. As to count one, Garcia contends that there was no evidence Officer Winn actually asked him questions about his criminal history on November 9, 2006, and so the jury’s conclusion that he knowingly misstated his criminal history on that date was unsupported by the record. We disagree. By signing his Form N-400 on November 9, Garcia attested that he knew the contents of the form and that they were “true and correct.” J.A. 680. They were not. The form omits any reference to Garcia’s August indictment or September arrest and affirms that Garcia had never given false or misleading information to any U.S. official while trying to gain an immigration benefit. Garcia’s criminal intent can be inferred from the fact that he listed two prior criminal incidents from years earlier, but not the pending charges that began several months before the interview. Moreover, Officer Rucienski directed Garcia to bring documentation concerning his prior criminal history with him to the November 9, 2006 meeting, indicating that Garcia knew he needed to keep his criminal history updated. For these reasons, even without evidence that Officer Winn specifically asked Garcia questions about his criminal history, the jury had sufficient evidence to reasonably conclude that Garcia knowingly misstated his criminal record when he signed the inaccurate Form N-400 on November 9, 2006. 1 1 Garcia’s argument that he lacked criminal intent because he did not understand written English is without merit. Garcia passed the written English exam, and Officer Winn testified that Garcia had no trouble communicating in English during the interview. 8 2. The basis for count two is Garcia’s attestation on Form N-445 that the only time he had been arrested or cited since the date he was “first interviewed” was for speeding. J.A. 697. Garcia contends that his first interview was the interview with Officer Winn on November 9, 2006, because the meeting with Officer Rucienski on May 31, 2006 did not count as an “interview,” but only an examination of his English and civics knowledge. Under this view, his August 2006 indictment and September 2006 arrest occurred before the date he was “first interviewed,” making the statement on his Form N-445 accurate. This argument is unavailing. The government presented sufficient evidence for the jury to conclude that Officer Rucienski interviewed Garcia on May 31, 2006, and Garcia’s counsel acknowledged as much at oral argument. 2 The evidence showed that: (1) Officer Rucienski provided Garcia with a form titled “interview results” after their meeting, J.A. 685; (2) Garcia was instructed to appear for a “Naturalization Re-interview” with Officer Winn, J.A. 689 (emphasis added); and (3) Officer Winn testified that he was the second person to interview Garcia, see J.A. 388–89. Furthermore, Officer Barbee’s testimony that the language and civics tests were part of the naturalization interview supports the conclusion that Officer Rucienski interviewed Garcia even if he did nothing more than conduct those tests. But 2 The government contends that even if the November interview with Officer Winn were the first “interview,” Garcia still lied because he failed to disclose that he pleaded guilty to the fraud charges after that interview. Because we conclude that there was sufficient evidence that Garcia was interviewed in May, we need not reach this alternative theory. 9 even on a narrow view of what constitutes an “interview,” the evidence indicated that Officer Rucienski did more than just conduct testing. Officer Rucienski instructed Garcia to bring additional documents concerning his criminal history to the follow-up meeting, which implies that Officer Rucienski interviewed Garcia concerning his criminal history in May 2006. Therefore, Garcia’s Form N-445, which failed to disclose his indictment and arrest that occurred after this interview, was not accurate. 3 The jury also had before it sufficient evidence to conclude that Garcia acted knowingly. The documents Garcia received from USCIS indicated that Officer Rucienski had interviewed Garcia in May 2006, and Garcia knew that he had not previously disclosed his federal charges. His failure to do so at the oath ceremony on Form N-445, despite disclosing a speeding ticket, supports the inference that Garcia acted with the requisite intent. In sum, substantial evidence supported Garcia’s convictions on counts one and two. Therefore, the district court properly denied Garcia’s motions for judgment of acquittal and a new trial. 3 Garcia argues that the government’s case agent testified on cross-examination that she could not identify a false statement on his Form N-445. But the agent made this statement in the course of questioning from Garcia’s counsel that assumed Garcia was not interviewed until November 9, 2006. See J.A. 320–23. As discussed above, the government presented sufficient evidence to demonstrate that Garcia was in fact interviewed in May 2006. And on re-direct, the case agent testified that the November interview was Garcia’s second interview. See J.A. 364–67. 10 B. Finally, Garcia contends that the district court erred when it took judicial notice of a portion of the USCIS website because the website supported the government’s view of an “interview.” We review a district court’s evidentiary rulings for abuse of discretion. United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010). Erroneous evidentiary rulings are harmless so long as we are assured that they did not substantially sway the judgment. Id. We find no merit in Garcia’s argument. Under Federal Rule of Evidence 201(b), the district court may judicially notice a fact that is not subject to reasonable dispute when it is either (1) generally known within the district court’s jurisdiction, or (2) can be readily determined from an indisputably accurate source. This court and numerous others routinely take judicial notice of information contained on state and federal government websites. See, e.g., Hall v. Virginia, 385 F.3d 421, 424 n.3 (4th Cir. 2004); Garling v. U.S. Envtl. Prot. Agency, 849 F.3d 1289, 1297 n.4 (10th Cir. 2017); Swindol v. Aurora Flight Sci. Corp., 805 F.3d 516, 519 (5th Cir. 2015). Here, the USCIS website is a source whose accuracy cannot reasonably be questioned. The portion of the website as to which the district court took judicial notice simply described in general terms the process for naturalization. Garcia’s contention that the district court’s notice of the excerpt effectively credited the government’s interpretation of an “interview” is unavailing. The district court took judicial notice of the facts contained on the website, not any interpretation of what constitutes a naturalization interview. The excerpt does not purport to define an “interview,” and it is 11 at least susceptible to multiple readings. Garcia has not identified anything he believes to be inaccurate about the excerpt, relying instead on his concern that the jury may have inferred something detrimental to his case from its structure. But a document does not become inappropriate for judicial notice just because a jury could draw inferences that might impact one party’s theory of the case. The district court acted well within its discretion when it took judicial notice of the facts contained on the government website. 4 III. Because we discern no error, the judgment of the district court is AFFIRMED. 4 Even assuming the district court did err in admitting the portion of the website, it was harmless. The government presented sufficient evidence as to the nature of an interview that we are assured the judgment was not substantially swayed by any potential error. Johnson, 617 paul16@example.org. 12

     Confidential Trade Secret Information - Subject to Restricted Procedures                 Exhibit 10.05 AGREEMENT AMENDMENT TO THE ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT BETWEEN SOUTH CAROLINA ELECTRIC & GAS COMPANY, FOR ITSELF AND AS AGENT FOR THE SOUTH CAROLINA PUBLIC SERVICE AUTHORITY AND A CONSORTIUM CONSISTING OF WESTINGHOUSE ELECTRIC COMPANY LLC AND STONE & WEBSTER, INC., FOR AP1000® NUCLEAR POWER PLANTS THIS AMENDMENT (“October 2015 Amendment”) to the Engineering, Procurement and Construction Agreement dated May 23, 2008 ("EPC Agreement") for the AP1000 Power Plants at the Virgil C. Summer Nuclear Generating Station (“Project”) is entered into this 27th day of October 2015, by and between South Carolina Electric & Gas Company (“SCE&G”), for itself and as agent for the South Carolina Public Service Authority (“SCPSA”) (collectively “Owner”) and a consortium consisting of Westinghouse Electric Company LLC (“Westinghouse”) and CB&I Stone & Webster, Inc. (“Stone & Webster”) (collectively “Contractor”). Owner and Contractor may be referred to individually as a “Party” and collectively as the “Parties.” WHEREAS, Westinghouse has represented to Owner that it intends to acquire the stock of Stone & Webster from Chicago Bridge & Iron (“CB&I”) (the “Transaction”); that CB&I will have no further involvement in the Project except for certain supply agreements; and that Westinghouse intends to hire Fluor Corporation (“Fluor”) or its affiliate(s) as a subcontracted construction manager; In consideration of the mutual promises herein and other good and valuable consideration, the receipt and sufficiency of which the Parties acknowledge, the Parties, intending to be legally bound, stipulate and agree as follows: 1.The Parties agree that this October 2015 Amendment will be a binding obligation between Owner and Westinghouse upon the approval of the boards of directors of both Owners and the authorization of the board of SCPSA for its management to execute the necessary documentation and the execution of those documents, which shall become effective upon the consummation of the Transaction (“Effective Time”), and in the event the Transaction is not consummated by March 31, 2016, this October 2015 Amendment shall be null and void in all respects. Westinghouse shall cause its wholly owned subsidiary, Stone & Webster, to execute this October 2015 Amendment. 2. Contractor hereby grants Owner until November 1, 2016 (“Option Deadline”), the irrevocable option to exercise an agreement, subject to regulatory approvals, to amend the EPC Agreement by revising the Contract Price and other specific aspects of the EPC Agreement, as stated in the amendment that is attached as Exhibit D (“Option Amendment”). Contemporaneously with the execution of this October 2015 Amendment, Contractor will execute the Option Amendment. Thereafter, Owner may, in its sole discretion, implement the Option Amendment by executing it at any time on or before the Option Deadline. The Option Amendment will not take effect unless and until Owner executes the Option Amendment, before 1 --------------------------------------------------------------------------------      Confidential Trade Secret Information - Subject to Restricted Procedures                 the Option Deadline, and all conditions precedent to effectiveness stated in the Option Amendment are satisfied or waived by Owner. 3. Owner agrees to pay Contractor the total sum of $300,000,000 (current year U.S. Dollars) and increase the Fixed Price Contract Price by said amount. Further, Contractor agrees to provide Owner with a credit to the Target Price in the amount of $50,000,000 (current year U.S. Dollars). The net $250,000,000 will be paid in twelve equal monthly installments beginning five days after the Effective Time. In exchange, Owner and Contractor agree to a full resolution by settlement and release of any and all disputes outstanding under the EPC Agreement or otherwise concerning the Project as of the Effective Time, including the following: a.Contractor claims for additional payments for any of the items on Exhibit A, as well as claims for additional payment for cyber security and the site layout phase 2 Change Order (Change Order 26). b.Contractor claims for amounts referenced in letters no. VSP _ VSG_003111, VSP _ VSG_003115, VSP _ VSG_ 3145, VSP _ VSG_3502 and VSP _ VSG_3522, which totaled approximately $83,518,046 as of August 21, 2015, as set forth on Exhibit B. c.Contractor claims for amounts in other cases in which the entitlement is in dispute, which totaled approximately $29,729,785 as of August 31, 2015, as set forth on Exhibit B. d.Contractor claims for amounts in dispute due to billings that have been held because a Change Order has not been executed, which totaled approximately $5,565,845 as of August 31, 2015, as set forth on Exhibit B. e.Contractor claims for all amounts in dispute in cases in which only the timing is disputed, which totaled approximately $110,190,504 as of August 31, 2015, as set forth on Exhibit B. f.Contractor claims for the balance of 10% withheld by Owner in connection with certain invoices for which the Owner has only paid 90% because the Owner disputed the invoice g.Owner claims for refunds in connection with invoiced amounts for which Owner has paid 90% of the invoiced amount and for which Owner had previously intended to seek a refund. h.Owner claims arising out of the employee fuel expense audit and procurement irregularities. Subparagraphs a through h do not provide an exhaustive list of all claims, disputes, and amounts that are satisfied by this October 2015 Amendment, it being the Parties’ intent that all disputes outstanding under the EPC Agreement or concerning the Project as of the Effective Time are settled and resolved. By way of further clarifications, under this October 2015 Amendment, the Parties waive and settle any and all claims currently pending or threatened by either Party against the other Party and of any and all claims currently known or reasonably foreseeable by either Party against the other Party. Whether or not the Option Amendment becomes effective, all pending Change Orders, and formal and informal notices of potential Change Orders, including but not limited to those arising from Uncontrollable Circumstances and Changes in Law, are 2 --------------------------------------------------------------------------------      Confidential Trade Secret Information - Subject to Restricted Procedures                 hereby settled and resolved. Each Party represents and warrants to the other Party that it is not aware of the basis for any other claim against the other, including but not limited to those arising from Uncontrollable Circumstances and Changes in Law, and that it is not aware of any facts or circumstances that could be expected to give rise to a claim, the sole exceptions being those claims addressed in paragraph 4. For the avoidance of doubt, in the event that the Option Amendment becomes effective, the $300,000,000 payment and the $50,000,000 credit to the Target Price set forth in this paragraph 3 will be part of (and not in addition to) the total Fixed Price amount of $6.082 billion set forth in the Option Amendment. The Parties shall execute a mutual release effectuating the provisions of this paragraph 3. 4.Notwithstanding the foregoing, the Parties have identified on Exhibit C to this Amendment all work items that they contend are required or contemplated for the Project but that are not included within the release contained in paragraph 3. Said work items are not resolved, settled or released under this October 2015 Amendment. The Parties shall cooperate in good faith to resolve all such work items expeditiously so as to not impact the Project. In the event a work item cannot be resolved, it shall be submitted to the Dispute Resolution Board as referenced in paragraphs 13 and 16. Similarly, with respect to the cyber security item listed in Exhibit A, the Parties shall cooperate in good faith to resolve all issues relating to scope expeditiously. Contractor acknowledges its obligation to commence and continue work in compliance with current NRC regulations on cyber security, pending issuance of a Change Order, so as not to impact the Project schedule, and its obligation to complete the Cyber Security work within the GSCDs stated in paragraph 6In the event a scope item cannot be resolved, it shall be submitted to the Dispute Resolution Board as referenced in paragraphs 13 and 16. Except for the items on Exhibit C and the Time and Material Work set forth in paragraph 2 of the Option Agreement, the cyber security item listed in Exhibit A and without waiving its rights concerning unknown Changes under Article 9 of the EPC Agreement, Contractor is not aware of any additions to the Scope of Work that will be required for the Project to reach Substantial Completion. 5.The Contractor acknowledges and agrees that its Scope of Work includes providing Owner with a Facility that meets the standards of DCD Rev. 19. 6.The Guaranteed Substantial Completion Dates (“GSCDs”) are revised, as follows: August 31, 2019 for Unit 2 and August 31, 2020 for Unit 3. The Standard Equipment Warranty Period(s) and the Services Warranty Period(s) shall commence upon Substantial Completion of each Unit at no additional cost to Owner. To the extent a Change under Article 9 of the EPC Agreement adversely affects Contractor’s ability to achieve Substantial Completion as provided in this paragraph 6, Contractor shall be entitled to equitable adjustment of the EPC Agreement as appropriate. 7.Section 13.1 of the EPC Agreement is revised to state that Delay Liquidated Damages for each Unit will commence on the applicable GSCDs stated in paragraph7, and will be computed as follows: a.     For the first thirty (30) days following the GSCD: $200,000/day; and 3 --------------------------------------------------------------------------------      Confidential Trade Secret Information - Subject to Restricted Procedures                 b.     For the next thirty-one (31) to ninety (90) days: $300,000/day; and c.         For the next ninety-one (91) to one hundred fifty (150) days: $ 400,000/day; and d. For the next one hundred fifty-one (151) to seven hundred thirty (730) days: $500,000/day; and e.     Seven hundred thirty-one (731) days or beyond: $0/day. 8.The Parties agree to share the loss if either or both Units do not qualify for production tax credits under Federal law. If a Unit is not “placed in service,” as that term is used in Section 45J of the Internal Revenue Code, before January 1, 2021, Contractor agrees to reimburse Owner by February 1, 2021, the sum of $250 million per Unit, expressed as a one-time lump sum payment. For purposes of this paragraph, the January 1, 2021 date can only be extended for the following reasons (i) material actions or omissions of Owner that cause a Unit not to qualify for tax credits; or (ii) extension of the tax credit date by the U.S. government. If Contractor becomes aware of any actions or omissions of Owner that Contractor believes may cause a Unit not to qualify for tax credits, Contractor shall provide Owner with reasonable notice of such actions or omissions. 9.The maximum amount paid by Contractor to Owner under paragraphs 7 and 8 above will be limited to $338 million per Unit, if the Option Amendment becomes effective. In the event the Option Amendment does not become effective, the maximum amount paid by Contractor to Owner under paragraphs 7 and 8 above will be limited to $463 million per Unit. 10.Owner will pay Contractor an early completion bonus consisting of $150,000,000 per Unit for each Unit that is “placed in service,” as that term is used in Section 45J of the Internal Revenue Code, in advance of January 1, 2021, if the Option Amendment becomes effective. In the event the Option Amendment does not become effective, Owner will pay Contractor an early completion bonus consisting of $275,000,000 per Unit for each Unit that is “placed in service,” as that term is used in Section 45J of the Internal Revenue Code, in advance of January 1, 2021. For purposes of this paragraph, the January 1, 2021 date can only be extended for the following reasons (i) material actions or omissions of Owner that cause a Unit not to qualify for tax credits; or (ii) extension of the tax credit date by the U.S. government. If Contractor become aware of any actions or omissions of Owner that Contractor believes may cause a Unit not to qualify for tax credits, Contractor shall provide Owner with reasonable notice of such actions or omissions. 11.The Parties agree that no new Inspection, Tests, Analyses and Acceptance Criteria (“ITAACs”) have been issued or proposed as of the Effective Time that would affect the GCSDs or entitle the Contractor to a Change Order. 12.The Parties shall cooperate in good faith to develop a new milestone payment schedule (“Construction Milestone Payment Schedule”) to include all unpaid or overpaid amounts. While such good faith efforts are ongoing, Owner agrees to make payments to Contractor in the amount of $100,000,000 per month for the first five (5) months following the Effective Time. Said payments shall be in lieu of all payments for Fixed Price, Firm Price, Target Price and Time and Material Work. Once developed, Contractor agrees that Owner is to make such payments to Contractor according to the Construction Milestone Payment Schedule, instead of the existing Payment Schedules. If the Parties fail to agree to a Construction Milestone Payment Schedule by the date that is six months from the Effective Time, the matter shall be referred to the Dispute 4 --------------------------------------------------------------------------------      Confidential Trade Secret Information - Subject to Restricted Procedures                 Resolution Board (“DRB”) process for resolution. Unless otherwise agreed by the Parties, the DRB shall issue its report on the Construction Milestone Payment Schedule within sixty (60) days. For the 60 day period during which the DRB is reviewing the Construction Milestone Payment Schedule, Owner shall pay the sum of $100,000,000 per month in lieu of all other payments, and such payments will be treated in the same manner as the payments referenced in paragraph 3. Contractor will continue to invoice Owner according to previous procedures (i.e. Contractor will provide parallel invoices for Target, T&M, and Firm and Fixed Price categories) to enable calculation of the amount by which the payments described in paragraphs 3 and 12 exceed what would otherwise be due Contractor. After these advance payments cease, the excess or deficit portion of such advance payments shall be adjusted against future invoices submitted by Contractor to Owner under the EPC Agreement, at the Owner’s sole discretion. Actual payments will be trued up to parallel invoices in months 6, 12 or when the Option Amendment becomes effective. In the event that the Option Amendment is exercised and takes effect, the actual payments made under paragraphs 3 and 12 will be deducted from the amount referenced in section 1 of the Option Amendment. If the Option Amendment does not take effect, billing procedures for Target and T&M Work scopes will revert back to the EPC Agreement terms, as amended, incorporating the adjusted terms in paragraph 3 above, and Firm Price and Fixed Price scopes will continue to be billed based on the Construction Milestone Payment Schedule. For the avoidance of doubt, the cash flows of the Construction Milestone Payment Schedule will be reduced to reflect the lower amounts remaining in the Fixed Price and Firm Price categories as defined in Exhibit H of the EPC Agreement. 13.Within ten (10) days of establishing the Construction Milestone Payment Schedule, Owner shall advance a deposit of seventy-five million dollars ($75,000,000) with the Contractor. a. After the deposit is made, Owners will not be obligated to pay to Contractor the disputed portion of any invoiced amounts submitted by Contractor to Owners. b. The Parties shall revise the dispute resolution procedures in Article 27 of the EPC Agreement to eliminate the requirement or ability to institute litigation during the course of the Project absent a suspension or termination of the EPC Agreement. c. The Parties shall establish a DRB process for the interim, non-final resolution of disputes, as described more fully in paragraph 16 below and Exhibit E. d. Owner agrees to make payment to Contractor within thirty (30) days of any award entered in favor of Contractor by the DRB. e. At Project completion, the deposit amount of $75,000,000 shall be credited against Owner’s final milestone payment owed Contractor. 14.The definition of “Change in Law” in the EPC Agreement is modified so that a Change in Law occurs only in case of (a) the formal written adoption by a Government Authority of a new statute, regulation, requirement or code that did not exist as of the date of the October 2015 Amendment; or (b) where the NRC is the involved Government Authority, the NRC’s official issuance or promulgation, after the date of the October 2015 Amendment, of a final and official 5 --------------------------------------------------------------------------------      Confidential Trade Secret Information - Subject to Restricted Procedures                 version of Regulatory Guides (NUREGs), Branch Technical Positions, Standard Review Plans, Interim Staff Guidance, Bulletins, Orders, or written directives, in which NRC acknowledges a new regulatory requirement or a change to an existing requirement that did not apply before the date of the October 2015 Amendment. Where Contractor cannot demonstrate a Change in Law under this paragraph, Contractor shall also be precluded from claiming that the purported Change in Law is an Uncontrollable Circumstance. 15.The Parties agree to participate in meetings with the Nuclear Regulatory Commission ("NRC") and develop strategies in an effort to alleviate issues that have arisen due to the NRC's inspections at the Project, while still affording the NRC the ability to conduct appropriate inspections. Owner cannot agree in advance to adopt the Contractor’s position on every issue, but Owner will work with Contractor in good faith. In the event the Option becomes effective, Owner shall have no obligation to pay Contractor for regulatory support associated with License Amendment Requests or ITAACs, except those that arise due to a Change. In the event the Option Amendment does not become effective, such matters shall be submitted to the DRB process established pursuant to this October 2015 Amendment. For the period of time between the Effective Time and the Option Deadline, the Parties agree to suspend the DRB process for matters relating to regulatory support associated with License Amendment Requests and ITAACs. In the event the Option Amendment does not become effective, the suspended DRB matters will be administered. If the Option becomes effective, those matters suspended by the preceding sentence shall be deemed to be included in the Fixed Price. 16.Consistent with paragraph 13 above, Article 27 of the EPC Agreement is revised to eliminate the requirement or ability to bring suit during the course of the Project. The Parties agree to empanel a DRB for the interim, non-final resolution of disputes in accordance with the Dispute Resolution Agreement that is attached as Exhibit E. 17.Owner hereby waives and cancels the Chicago Bridge & Iron Parent Company Guaranty. Owner agrees that Contractor shall be relieved of any obligation to furnish a parent company guaranty on behalf of S&W under the EPC Agreement. Owner and CB&I shall execute a mutual release of all claims relating to the EPC Agreement, the Project, the S&W Parent Guarantee and the CB&I Guarantee. 18.The Parties agree to hold a face-to-face meeting among Owner, Westinghouse, the President and Chief Executive Officer of Power Systems Company, and Mr. Shiga Shigenori, the Representative Executive Officer and Corporate Senior Executive Vice President of Toshiba Corporation (or his successor) to allow Owner to describe its concerns with the Project to date and to discuss Toshiba's commitment to completing the Project and to the terms of this Agreement. In addition, at Owner’s option, Toshiba, Owner, Contractor, and Fluor will hold quarterly meetings to discuss Project progress. 19.Contractor's profit on any future Change Orders under the EPC Agreement shall be capped at 7 ¾%. 20.The Parties agree that Article 13.3 is deleted from the EPC Agreement. 6 --------------------------------------------------------------------------------      Confidential Trade Secret Information - Subject to Restricted Procedures                 21.The provisions of Section 8.6(d) of the EPC Agreement are revised to provide that SCE&G or Santee Cooper shall not be required to furnish Contractor with an irrevocable, standby letter of credit, provided the Credit Rating of SCE&G or Santee Cooper, as applicable, remains at or above investment grade (Standard and Poor’s BBB-; Moody’s Baa3). If the Credit Rating of SCE&G or Santee Cooper falls below investment grade, Contractor may request the letter of credit, and SCE&G or Santee Cooper must furnish the letter of credit at no expense to Contractor. 22.The Parties agree to cooperate with respect to the involvement of Owner’s Project consultant and/or Owner’s Engineer with the work scheduled to be done by Owner’s consultant. a. Contractor shall carefully consider all matters raised by the consultant, however the consultant shall have no authority to direct the Work of Contactor. b. Contractor agrees to provide the consultant with access to relevant documents reasonably requested by the consultant, provided such documents are necessary for the consultant to complete its work for Owners. c. For relevant documents provided under subparagraph (b) above, Contractor may provide confidential and proprietary documents in redacted form, including redaction of any pricing information. Contractor will provide unredacted documents to the consultant, provided Contractor determines in its reasonable discretion that it is given suitable protections from Owners and/or the consultant against misuse or further disclosure of such documents. 23.Contractor acknowledges Owner’s right to discuss any and all operational and project execution issues with the Vogtle owners. Owner is not permitted to disclose to the Vogtle owners information relating to any disputes, commercial issues or the terms and conditions of this agreement and any related documents or agreements. 24.All capitalized terms in this October 2015 Amendment, except for those defined in this October 2015 Amendment, shall have the meanings given to them in the EPC Agreement. 25.All provisions of the EPC Agreement not modified, expressly or by necessary implication, remain in full force and effect. All Exhibit references are to this October 2015 Amendment. 26.While the Parties acknowledge the existence of various confidentiality agreements between themselves, they also recognize that certain disclosures must be made to satisfy various securities laws and for regulatory purposes. Each Party is free to make such disclosures as it deems prudent, but the disclosing Party must provide a copy of any intended written disclosure to the other Parties before such disclosure is made. 27.Upon execution of this October 2015 Amendment, Contractor will provide written details of its relationship and structure with Fluor, including a scope of work description, sufficient to allow the Owner to understand the roles and responsibilities of Fluor on the Project. In the event of a material change in the relationship, structure, or scope, Contractor will provide details of the 7 --------------------------------------------------------------------------------      Confidential Trade Secret Information - Subject to Restricted Procedures                 change. In the event the Option Amendment does not become effective, Contractor shall submit construction related billings consistent with the existing provisions of the EPC Agreement. 28.To the extent not prohibited by its existing contracts, Contractor agrees to afford Owner and Owner’s consultant access to its facilities and those of its suppliers and subcontractors at any tier, for the purpose of completing Owner’s consultant’s assessment and monitoring of the Project and the Project Schedule. 29.In the form of Exhibit F, Contractors will provide written consent of Toshiba Corporation to this October 2015 Agreement, affirming that the corporate guaranty of Toshiba remains in place, notwithstanding this October 2015 Agreement. This signed exhibit must be provided to Owner’s prior to the Effective Time. [Balance of Page Intentionally Blank] 8 --------------------------------------------------------------------------------      Confidential Trade Secret Information - Subject to Restricted Procedures                 IN WITNESS WHEREOF, the Parties have duly executed this October 2015 Amendment to the EPC Agreement as of the date first above written, with Toshiba Corporation, as the parent corporation of Westinghouse, indicating its express consent hereto. SOUTH CAROLINA ELECTRIC & GAS COMPANY, for itself and as agent for South Carolina Public Service Authority By: /s/Kevin B. Marsh Name: Kevin B. Marsh Title: Chairman & CEO WESTINGHOUSE ELECTRIC COMPANY LLC STONE & WEBSTER, INC. By: /s/Danny Roderick By:   Name: Danny Roderick Name:   Title: President & Chief Executive Officer Title:   9 --------------------------------------------------------------------------------      Confidential Trade Secret Information - Subject to Restricted Procedures                 Exhibit A         Count Issue Issue Description Deliverable 29 CAS and PRS Support Primarily due to delayed design completion, the simulators delivered by the Consortium (intended to be PRSs) to the Owner do not have the functionality to support being certified by the Nuclear Regulatory Commission. As a result, the Owner has had to pursue the CAS alternative due primarily to repeated delays in ISV testing by the Consortium, which have most recently impacted the completion of ISV testing in time to support the Owner NRC exams that had been scheduled to occur in May 2015. This issue puts at risk the Owner’s ability to train and certify operators in time to support Units 2 and 3 fuel loads. (1) At no additional cost to Owner, Westinghouse to provide a Commission Approved Simulator to include: All fixes as identified to support a successful CAS implementation (fixes delivered, support to install, and fixes to fixes as necessary); End state deliverable is a simulator ready and capable of conducting license operator exams (2) If CAS is unsuccessful, at no additional cost to Owner, WEC to provide: All ISV/HEDs (Priority 1 and 2 ) fixed and included in a baseline 7+ simulator capable of closing the ISV ITAAC by June 2017; The HFE/ISV ITAAC should be closed such that we can answer the question in the NRC Inspection Procedure IP41502 for PRS “Is the ISV ITAAC closed?” Yes; The simulator must be delivered to site by June 2017; Success will be measured by successful completion of Inspection Procedure 41502 by NRC Region II resulting in us having a PRS (3) If CAS is successful, at no additional cost to Owner, Westinghouse to provide: All ISV/HEDs (Priority 1 and 2 ) fixed and included in a baseline 8 simulator capable of closing the ISV ITAAC by Mar 2018; The HFE/ISV ITAAC should be closed such that we can answer the question in the NRC Inspection Procedure IP41502 for PRS “Is the ISV ITAAC closed?” Yes; The simulator must be delivered to site by March 2018; Success will be measured by successful completion of Inspection Procedure 41502 by NRC Region II resulting in us having a PRS. (4) Commercially, CAS, CAS fixes and BL7+ ITAAC closure (if necessary) is all part of completion of ISV and delivery of a BL7 simulator and as such is already a paid for deliverable. As part of that, the BL8 Fuel Load baseline should be considered the deliverable for CO #19. 30 Design Basis Assessments (5 included in the scope) Licensing and Regulatory compliance reviews of high risk portions of the AP1000 design is to uncover License and Regulatory noncompliance issues prior to Construction to preclude delays to Project completion similar to those encountered during construction of the Nuclear Island basemat in 2012. The results of these reviews have uncovered License noncompliance issues including Tier 1 and Tier 2* issues and successfully mitigated them through a Licensing or design change without adverse impact to the Project schedules. It is likely that these items would not have been uncovered prior to Construction without the undertaking of these reviews. It is also likely that, if these items were uncovered after Construction had commenced, work delays of multiple months would have been experienced while the issues were resolved. Westinghouse contends that the AP1000 design is consistent with all requirements of the Licensing Basis and that assessments are unnecessary. Westinghouse has charged the Owners for support necessary to perform the assessments citing that no assessments were necessary. SCE&G believes that the value of the assessments to the Projects and to Westinghouse have been demonstrated. In addition to the benefits of reduced schedule and regulatory risk mentioned above, Westinghouse receives the benefit of independent assessment of key areas of the AP1000s unique design. SCE&G requests that Westinghouse move forward with assessments (five additional assessments are desired) and cover their internal costs such that each Party participating in the review is responsible for its own cost. In this manner, each Party shares in the costs and benefits through reduced Project schedule risk and reduced regulatory risk. 31 WEC home office and site licensing efforts For Contractor initiated Design Changes, processing Contractor’s desired changes to the design and licensing basis is resource intensive. The Contractor has initiated and processed thousands of DCPs and hundreds of LCPs. Changes are made at the request of the Contractor for convenience or in order to address challenges within the Contractor’s original design that was purchased by the Owner under the EPC Agreement. The Owner has incurred considerable cost to process Contractor’s desired changes to the VCS 2/3 licensing basis. Such changes are made for the Contractor’s convenience. The EPC did not account for the changes to the licensing basis requested by the Contractor. The EPC was based on Owner purchase of a design from the Contractor and the Owner has incurred costs to allocate resources and obtain additional contract assistance in order to support Contractor requested changes. In addition, Contractor has requested reimbursement of expenses for implementing changes to the extent that work relates to site-specific Tier 1, Tier 2*, COL, or Tech Spec requirements. An example is the EP ITAAC Table 7.5-1 and 7.5-201 in COL Appendix C. These tables were cited by the NRC as an EP ITAAC to show required plant equipment to support EP. This equipment was also described in the DCD and if changed by the Contractor requires a site specific supporting change to the COL. Subject to Paragraph 15 of the October 2105 Amendment, Westinghouse should be responsible for its costs incurred to make changes to the Owner’s Current Licensing Basis (CLB), attributable to its DCPs and LCPs. This includes efforts to resolve Owner comments prior to incorporation of change into the VCS 2/3 CLB, whether made on a draft or final revision of the proposed change package. It is reasonable to expect that some changes may require multiple comment review cycles due complexity and number of parties involved. Westinghouse should also be responsible for its costs incurred for implementing changes to the extent that work relates to site-specific Tier 1, Tier 2*, COL or Tech Spec requirements. The Owner will be responsible for Owner-directed changes. 32 WEC’s position on CB&I Service claim against WEC for CV costs (delay and other) CB&I Services (WEC’s subcontractor) Containment Vessel safety-related Work was delayed from January 19, 2011 through July 31, 2011. WEC invoiced the Owner $1,405,811.35 (Target Price). CB&I Services’ work was delayed due to CB&I Services’ ineffective QA program; Westinghouse and its subcontractors are required to have a QA program that meets the requirements of the EPC Agreement. The Owner should not be liable for any charges associated with a delay period during which CB&I Services had to take actions necessary to meet its contractual QA program obligations. WEC should retract this invoice as no longer owed by the Owner. Whatever settlement WEC reached with CB&I Services associated with this delay should remain between WEC and its subcontractor. No further invoices will be issued to Owner related to the costs for schedule delay impacts on the CV unless related to a Change under Article 9 of the EPC Agreement. 33 Secondary Lab and Sampling Room in Turbine Building Per Exhibit A of the EPC Agreement, the Turbine Building is to be provided as a complete structure and finishes inclusive of all equipment, components and commodities. Consortium's position is that they are entitled to a Change Order for the completion of Secondary Chemistry Laboratory including utilities (e.g. gas lines, water lines, faucets, drain lines, electrical outlets) and fixtures (e.g. sampling panels, fume hood, sinks, high purity water treatment unit) to be located in the laboratory that interface with multiple plant systems including the Main AC power System, Waste Water System, Potable Water System, Demineralized Water System, and the Turbine Building Ventilation System. The Consortium should supply the secondary chemistry lab furnished to the scope of supply outlined in the attachment titled “Secondary Chemistry Lab Scope of Supply” attached to SCE&G letter NND-15-0085 dated February 4, 2015. -------------------------------------------------------------------------------- 34 Site inspections and Vendor Inspections by NRC For site inspections performed by the NRC, because the Contractor is responsible for design, construction, and testing of the AP1000 and maintains responsibility for the Facility Information during construction, the Contractor is obligated to provide knowledgeable personnel to support NRC inspections associated with design, construction and testing. These personnel may include subject matter experts whose work location is off site. From time to time, certain inspections may be generic in nature or rely solely on software/services. For these inspections it may be most effective, for all parties, to execute the inspection at the specific Contractor work location. This location may be off site at a contractor facility. For inspections performed by the NRC at Contractor's vendor facilities, it is the Owner’s reasonable expectation that the Contractor and Contractor’s vendors retain responsibility of Vendor inspection support. There has been no Change in Law since agreement of EPC. In fact, the NRC specifically identified their intended vendor inspection activities to include ITAAC on 6/27/2007 through SECY-07-0105. The inspections performed at vendors assure compliance with Appendix B and 10CFR21 as required by procurement documents. These inspections are not intended to confirm ITAACs but to ensure the associated QA activities are implemented in accordance with Appendix B. At no additional cost to Owner, Westinghouse to provide the Owner with all information requested by NRC inspectors and any information requested by the Owner to properly prepare for the inspection, in addition to routine oversight. Westinghouse will need to coordinate with their vendors, as needed, to address NRC questions related to ITAAC associated activities performed by vendors or sub-vendors. For any NRC violations requiring licensee response, related to work activities within Contractor scope, the Contractor will provide information to Owner as requested by Owner to respond and address the violation. Depending on significance, these activities may require additional engineering effort or re-work in the field. For Conditions Adverse to Quality (CAQ) which have been evaluated for 10 CFR 50.55(e) reportability or are associated with an NRC Finding, the Contractor is obligated to provide any Causal Analysis which has been performed for Owner review to support any follow up. The NRC expectation is that in accordance with 10 CFR 52.99, the Owner considers vendor inspection findings during ITAAC closure. As such, the Owner expects Contractor to share information pertaining to vendor/contractor notices of nonconformance identified by NRC and their resolution to support ITAAC closure. It is also reasonable that the Contractor share inspection results with the Owner after inspection exit to ensure the Owner can capture any issues potentially affecting ITAAC into the Corrective Action Program in a timely manner. Finally, the nature of the standard plant design obliges the Contractor to successfully manage NRC vendor inspections to support construction and operation of the first AP 1000 plants. 35 ID/labeling of subcomponents Labeling of the plant is a Consortium (construction) responsibility as outlined in the Agreement, related Project Execution Plans, and other related Project documents. In accordance with Exhibit A.2, titled "Phase II," of the Agreement, the Consortium is to provide the Owner with "one (1) or two (2) complete AP1OOO Nuclear Power Plant Units ...except for those items listed in Table 1 as Owner's Responsibility." This section further describes the AP1000 Nuclear Power Plant Units as the Standard Plant description as described in Revision 16 of the AP1000 Design Control Document (DCD). Section 151.87.164.100.9 of Revision 16 of the AP1000 DCD, titled "Coding and Labeling, states the following as it relates to labeling of components: “Equipment located in the AP1000 has a unique identifier and plant descriptive name. The configuration management system includes the identification of the equipment in the plant. Each component is assigned an identifier during the design process. The identifier is maintained through manufacturing, construction, and operation. The components are labeled according to the assigned identifier. These labels help avoid errors in operating or working on the wrong equipment and in reporting problems or conditions observed in the plant. The labels help reduce the training burden for operating and maintenance personnel. Color, syntax, abbreviations and symbols are consistently applied. The labels are located in an easily visible location on the component and are not hidden by insulation, equipment covers, or surrounding equipment. Labels are fastened to the component to prevent easy detachment of the label." APP-GW-GZP-002, "AP1000 Component Identification Labeling Procedure" contains guidance for Project groups to use in developing and affixing component identification and operator aid labels. This document lays out roles and responsibilities, label content, label material, and label placement. This procedure has been reviewed and endorsed by the Owner as an acceptable method for labeling the AP1000 Plant. Further review of the Project Execution Plans for System Turnover (APP- GW-GBH-350, Rev. 0) indicate that all system tagging labeling installation is a pre-requisite responsibility of Construction prior to turnover to Pre-Operational Testing. This approach is consistent with the expectations of SCE&G for system turnover and collaboration of station personnel in the testing and startup activities. In addition, it is the Owner’s understanding that the current Work In Progress (WIP) MELs exclude the following equipment types and are not anticipated to be numbered or labeled (note: this list is not comprehensive): Subcomponents to skids and packages; Components within I&C and Electrical Cabinets (breakers, switches, and etc.); Fuses (Master Fuse List required per UFSAR); Pipe Hangers/Snubbers; Electrical equipment controls (i.e., solenoid valves for equipment). Consortium to provide a plan outlining the labeling of the V.C. Summer AP1000 Nuclear Power Plant. At no additional cost to Owner, Consortium to label the V.C. Summer AP1000 Units 2 and 3 in accordance with APP-GW-GZP-002. 36 FPOT/F3POT The Owner’s position is that the Consortium is responsible for all testing in accordance with Article 11 of the EPC Agreement. This testing includes the First Plant Only Test (FPOT) and the First Three Plants Only (F3POT). The Owner acknowledges that the Consortium made an effort to take credit for the China FPOT and F3POT and results, but that the NRC was not supportive of this approach. As a result, the Consortium has incorporated the FPOT and F3POT into the testing program and schedule to be performed on site for the Units. The Owner agrees with including this testing in the T&M scope of work in the EPC Agreement, but does not agree that this testing is outside the EPC Agreement scope and warrants a change order. The Consortium and Owner positions are included in VSP_VSG_002399 and NND-13-0486, respectively. The Consortium to perform the FPOT and F3POT as part of the testing program in accordance with Article 11 of the EPC Agreement. 37 Timely access to vendor technical manuals. The Owner needs information turnover to develop the programs, processes and procedures to operate the plant. Furthermore, the Owner needs those documents produced and delivered in a timely fashion to facilitate the proper level of Owner review and acceptance. To date, the flow of engineering information not directly used to build the plant, i.e. placed in ShawDocs, has been insufficient. The EPC references in a number of locations that the Consortium will provide various documentation to the Owner prior to system turnover. Section A.2 states that “Documentation to be provided by the Contractor to the Owner as developed for the Facility as listed in Table. 2” and section 3.3.3 states “Contractor shall provide to Owner the necessary inputs, test procedures, technical manuals, and other Documentation related to forgoing tests.” The Owner interprets these statements to mean that as the documents are developed to a revision 0 product, they will be made available to the owner via ShawDocs or CAPA. As the documents are developed (revision 0), at no additional cost to Owner, Westinghouse to make those documents available for Owner review. For example, if the RCS system design is complete, those documents, to include vendor technical manuals, should all be available for owner review and acceptance, well before the system testing has begun. This process should begin immediately. 38 BEACON The WEC AP1000 reactor Standard Plant design contains a core power distribution measurement system designated as the Incore Instrumentation System (IIS). The AP1000 has been designed to use the BEACON system as part of its required control system. BEACON is an advanced core monitoring and support package. According to DCD Revision 16, this online core monitoring system provides the operator with the current allowable operating space, detailed current power distribution information, thermal margin assessment and operational recommendations to manage and maintain required thermal margins. It is understood that the AP1000 Standard Plant initial startup cannot occur without BEACON hardware and software and, as the AP1000 is designed, it cannot be operated without BEACON. In addition, per the Agreement, WEC is obligated to provide to Owner an AP1000 Standard Plant as described in DCD Revision 16. For the IIS, the system is to be supplied complete and inclusive of all equipment, components and commodities including any specialty handling tools and equipment as described in the DCD. WEC to provide BEACON-DMM hardware and software to support fuel load, startup testing and operations as part of the EPC Agreement and without additional charge to the Owner. --------------------------------------------------------------------------------      Confidential Trade Secret Information - Subject to Restricted Procedures                 39 Shield Building Door, Annex, Auxiliary Building, Aircraft Impact Assessment. The Consortium sent to Owner Notice of Change letters (VSP_VSG_003096 and VSP_VSG_003450) claiming that a new NRC Rule entitled “Consideration of Aircraft Impact for New Nuclear Power Reactors” (the AIA Rule) impacts other structures in the Nuclear Island. Specifically, the Consortium claims that it is required to make changes to the Annex and Auxiliary Buildings’ wall design, as well as Annex and Auxiliary and Shield Building doors to comply with the NRC Rule. The Consortium further claims that this scope of work is outside that of the EPC Agreement and warrants a change order. The Owner has taken exception to the Consortium claim in NND-15-0007 and NND-15-0323 based on the availability and knowledge of the draft AIA Rule prior to execution of the EPC Agreement and the comprehensive Agreement between the Consortium and the Owner executed on July 11, 2012 and resolving all issues associated with the AIA Rule impact. Consortium to implement the necessary design and construction changes to the Shield Building Door and Annex and Auxiliary Buildings impacted by the AIA Rule in accordance with the EPC Agreement and July 11, 2012 Agreement 40 Loss of Large Areas of the Plant due to Explosions or Fire Testing On March 27, 2009, the NRC amended 10 CFR Part 50 and 10 CFR Part 52 with new requirements to address loss of large areas (LOLAs) of the plant due to explosions or fires from a Beyond Design Basis Event. The NRC issued Interim Staff Guidance DCD/COL-ISG-016 to assist new applicants or holders of COLs to address the LOLA requirements. These requirements were not included in DCD Revision 16, which is the design basis for the Agreement (Reference 1). In Reference 2, Owner notified the NRC that changes would be made to a future revision of the V.C. Summer Units 2 & 3 COLA in accordance with 10 CFR 52.80(d) and 10 CFR 50.54(hh)(2) to address LOLA. Owner provided the NRC with a Mitigative Strategies Description (MSD), which described the preoperational testing required to provide a reasonable confirmation of adequate spent fuel pool spray coverage. These requirements were incorporated into Owner’s COL Section 2.D.(12).(e).8 as a license condition. The Consortium has offered to perform this work for SCE&G as a change order. Consortium to perform the testing and other work required to meet Owner’s LOLA obligations under the COL Section 2.D.(12).(e).8 as a license condition at no additional cost to Owner. 41 Pre-Service Testing Program Development, Pre-Service Test Conduct, ITP The Owner and Consortium have a difference of opinion on the Initial Test Program scope as related to the following items referenced in VSP_VSG_003669: 1. Pre-service testing, including baseline in-service testing 2. Initial core load and post core load vessel assembly 3. Any spent fuel pool spray flow and makeup testing required to support the Loss of Large Area (LOLA) Mitigation Strategy Document (reference item 40 on Commercial List) 4. Cooling Towers testing 5. Preoperational testing for: a. Storm Drains; b. Site-specific Seismic Monitoring System; c. Offsite AC Power Systems; d. Raw Water System; e. Sanitary Drain System; f. Fire Brigade Support Equipment; g. Portable Personnel Monitors and Radiation Survey Instruments; h. Physical Security Plan equipment implied in UFSAR Section 14.4.5; and, i. External/Offsite Communications The Consortiums position is that these items are not included in the EPC Agreement scope. The Owner’s position is that the items above are in the EPC Agreement ITP scope. Additional ITP expectations include the following: 1. All FPOT and F3POT testing and associated activities to include test specification and procedure development, material/equipment procurement, test planning, test scheduling, test performance, data analysis and generation of final test report. Reference item 36 on Commercial List. 2. All testing associated with “site specific” systems listed in EPC Agreement Exhibit A, Table 1. Activities to include test specification and procedure development, material and equipment procurement, test planning, test scheduling, test performance, data analysis and generation of test report. 3. ASME Pre-service Test Plan development and implementation as noted in the first section above based on the current revision of the ASME-OM document. 4. Steam Generator Moisture Carryover Test procedure development, material and equipment procurement, test planning, test scheduling, test performance, data analysis and generation of test report. Reference item 45 on Commercial List 5. Large Area Testing. Reference item 40 on Commercial List. Consortium to include all of these items in the ITP at no additional cost to Owner. 42 Procedure revisions from Technical Specification Upgrade (Owner, WEC 50/50) This issue deals with LAR 13-037 (Technical Specification Upgrade) and the Owner’s position that the technical specifications as written were not usable and would not allow the Owner to successfully operate the plants (reference NND-14-0479). Technical specification examples were given in NND-14-0479 relating to the Steam Generator Isolation Valves flow path, Reactor Coolant Pump minimum flow parameters and the Radioactive Effluent Control Program. Contractor to provide a proposal to APOG for the requested scope per letter dated October 7, 2015 from APOG with subject: APOG-2015-007 Request for Quote - Technical Specifications Upgrade Impacts. Scope will be performed in accordance with and under the terms of an APOG purchase order. In the event the work is not performed through APOG, Westinghouse to provide technical specifications that are technically accurate and easily understandable and Contractor to complete items #1-5 in VSP_VSG_002989. 43 Providing As-Built Drawings EPC Table 2-1 makes reference to As-Built and As-Designed separately from each other. Consortium members have verbally communicated that they interpret As-Built to be the As-Designed document combined with the associated change documentation. This is not consistent with SCE&G’s understanding of the term As-Built. WEC procedure APP-GW-GAP-615, Appendix F5 states - To pass release for the core load and turnover to the Owner, the design shall: The design input document shall have no open items or unincorporated changes; Design output documents shall be complete, numeric, and consistently relate to the design input document. A numeric revision, verified compliance document is required and shall demonstrate that the design output documents have met all design input requirements. Design output shall have considered and reconciled the impact from as built and as-tested conditions that may impact core load. NRC Inspection Manual, Inspection Procedure 65001, “Inspections of Inspections, Tests, Analyses and Acceptance Criteria (ITAAC) Related Work”, Attachment 65001.A, requires the following: 02.04 Review As-Built Deviations / Non-Conformances: a. Review a sample of documents that were used to identify differences between the as-designed and as-built SSCs to determine if: i. The difference, if not corrected to comply with the as-designed conditions, was properly documented and incorporated in the final as-built drawings. To preclude any discussion or confusion regarding what may or may not impact core load, at no additional cost to Owner, WEC to turn over to SCE&G all documents as described in EPC Table 2-1, in an as-built state, with all changes and dimensional discrepancies incorporated into the document. Owner understands the engineering backlog on change paper is growing and immediate actions are required to be able to deliver “clean paper”. Owner understands that additional changes may occur after Turnover and is prepared to address processes to handle these changes. 44 Operating Procedure Configuration Control (Owner to incorporate All post-Baseline 7 Design Changes) Westinghouse continues to make design changes to the Facility that effect standard operating procedures delivered to the Owner. Identification of the affected procedures is essential to ensure that the operating plant procedures are consistent with the plant design as required. At no additional cost to Owner, Westinghouse to identify the impact of all design changes on operating procedures and provide this information to Owner. 45 Steam Generator Moisture Carryover Test Refer to item 41 on Commercial List. Refer to item 41 on Commercial List. 47 Communication System and BIS Power Allocation For the Communication System issue, the initial Consortium design did not take into account the site layout of the plants sold to SCE&G. Designs were for a single unit and ended at the security fencing. The Consortium's initial position was that their responsibility for wireless and wired phones, paging system, radios and networking systems ends at the “fence line.” SCE&G contends that the Consortium is responsible to extend these systems to the site specific areas like RWS intake structure, CWS cooling towers, and OWS facility. For the BIS Power Allocation issue, power allocated for Communications is not sufficient for SCE&G needs (e.g. powering phones, cameras, etc.). Per design documents, 48.6kW total power was allocated for both BIS and EFS networks. EFS would be allocated 35kW with the remaining 13.6kW allocated for BIS. SCE&G determined that the BIS power use was 38.4kW versus the 13.6kW allotted in the design. For the Communication System issue, Consortium letter VSG_VSP_002475 dated October 9, 2013 established an acceptable DOR addressing the majority of the issues and site layout change order 26 resolved the remaining issues. For the BIS Power Allocation issue, Consortium to work with Owner to achieve adequate BIS power to support SCE&G communication needs at no additional cost to Owner. --------------------------------------------------------------------------------      Confidential Trade Secret Information - Subject to Restricted Procedures                 49 Site Security System Backup Power AP1000 Design Change Proposal APP-GW-GEE-2710 “Annex Building Security Features Update” identifies the back-up duration for the security system to be less than that identified in APP-GW-GLR-066 “AP1000 Safeguards Threat Assessment” and section 3.6.9 of NUREG-1793, “Final Safety Evaluation Report Related to Certification of the AP1000 Standard Design.” The Owner does not accept this reduction in back-up power reduction as referenced in NND-14-0689. Westinghouse to provide the required back-up power duration. The Owner is willing to consider the reduced back-up power duration contingent upon WEC’s integration of the Plant Security Systems (SES) for Units 2 and 3 (Reference NND-14-0689). 50 OWS Security Plan The Offsite Water System (OWS) Treatment Facility includes security and fencing plans that have been discussed with the Consortium and incorporated in the pricing for the latest draft Change Order 17 dated May 10, 2015. Correspondence relating to the OWS Security Plan includes VSP_VSG_001469, NND-11-0444, VSP_VSG_001605 and NND-12-0034. Incremental OWS security plan costs required to meet Owner corporate standards became a commercial issue, specifically the security and fencing requirements and the fire alarm system and fire detection system. Other OWS commercial issues included in the draft CO 17 are the numbering and tagging of equipment and coatings and pipe color requirements. It is noted that the primary OWS change reflected in the draft CO 17 is the addition of the reverse osmosis system to remove bromides from the water. The Owner and Consortium negotiated a “no EPC Agreement price increase” change order for CO 17 which included the OWS security and fencing plans as well as the other items referenced herein. The draft CO 17 also includes other commercial items agreed upon by the Owner and Consortium. That the Consortium complete the installation of the OWS security, fencing and other items above to the satisfaction of the Owner. CO 17 is addressed in Commercial List item #70. 55 PEB Design Change The Consortium and SCE&G could not initially come to agreement on the design requirements of the Plant Entry Building. This issue was resolved with the issue of change order 26. 57 Fire Alarm monitoring Due to the delay in the project schedule, the Owner is concerned about the increasing value of inventory in the onsite warehouses 20A, 20B and 57 in relation to the insurability of the warehouses and their content under the Owner’s Builder’s Risk Policy. Owner has elected to implement enhancements to the fire alarm monitoring for these warehouses, which includes monitoring of sprinkler system water flow switches in the three warehouses and interconnecting the new system to the existing yard fire alarm system. On October 7, 2015, the Consortium provided to the Owner a draft CO for Owner’s review and comment. The Consortium to install new local fire alarm control panels in Warehouses 20A and 57; the flow switches will be monitored locally at each of these 2 warehouses. A new main fire alarm panel will be installed in Warehouse 20B. This new main fire alarm panel will monitor the Warehouses 20A and 57. The new main fire alarm panel will be network connected to the existing Siemens fire alarm system using single mode fiber optic connections. Spare fibers which run between the buildings shall be assigned for this purpose. All alarms from the new warehouse fire detection system will be monitored by the existing system’s main fire alarm panel located in the main plant entry guard shack. Physical connection with the existing system’s network shall be made at the YFS fire pump house. The new fire detection system for the three warehouses will be designed as a Class B system; Class A monitoring is not required to satisfy the requirements of the authority having jurisdiction codes for these warehouses. 60 Laurens Piping Quality Issues CB&I Laurens issued a self-imposed Stop Ship on March 12 following a CB&I Power Audit (V2015-035), which included two Level 1 findings and three Level 2 findings. Most of the issues were repeat Findings from previous Audits/Surveillances performed by CB&I Power. CB&I Laurens issued a Stop Work Order (SWO) on all Safety Related (SR) ASME Section III piping on March 17. The issuance of this SWO was during the March NRC inspection which found many similar issues documented in the CB&I Audit (V2015-035). The major issues being addressed by the SWO are CGD and Qualification of Vendors, Internal and External Audit Programs, Document Control, and Corrective Action Program. During CB&I Power Surveillance 2015-172, which occurred in August 2015, the surveillance team discovered that issues with CGD and Qualification of Vendors had not been fully addressed by CB&I Laurens. This was also noted as an indicator that the corrective actions with the CAP had not been fully effective. July 2015, CB&I Site QC inspection of pipe spools not signed off by Laurens ANI resulted in an approximate reject rate of 65%. These were due to minimum wall violations, dimensional issues, and misfabrications. These results have raised questions on inspection methodologies between Summer, Laurens, Vogtle, and Source Inspection. An additional CBI Laurens self-imposed SWO was put in place on 10/09/15 regarding the incorrect VALVES being place in a pipe spool. The preliminary investigation determined that this does not affect Section III Safety Related pipe spools and has only effected a single spool. However, this investigation is only preliminary and a full Extent of Condition has not been performed. In addition to the Laurens SWO CBI Power has issued QRL restrictions for shipping of Laurens ASME SR spools unless they are released (after enhanced inspection) by the CB&I site QA Directors. Currently Pipe Spools have only been released in phases 1-3 of a 4 phase SWO. No spools will be released to phase 4 until completion of First Article Survey(FAS) by CB&I Power. Once all Spools are completed through Phase 4, the SWO will be lifted. 1. Completion of Corrective Actions associated with stop work /stop ship and lifting of restrictions. 2. Agreement on inspection methodologies between Vogtle, Summer, Laurens, and Source Inspection. 3. Completion of Enhanced Inspections on post SWO pipe spools performed by VC Summer QC. 4. Sustainable Improvements in programmatic systems reported from Audit/Surveillance results performed by CB&I Power. 67 Common Q/Ovation MTS Owner needs to have an Ovation MTS so Owner can train its technicians and engineers on Ovation equipment in the Ovation Maintenance and Ovation Core Team training areas. The Ovation MTS provides an offline environment with a representative sample of system hardware representing the Distributed Control and Information System (DCIS). In the plant, the Ovation platform is used for the Plant Control System, the Data Display and Processing System, and portions of the Operator Interface of the Operations and Control Centers System (collectively DCIS). Owner provided a revised scope of work to Westinghouse on September 9, 2015 and requested an updated cost proposal. [Note: Common Q MTS CO was in August 2015] Westinghouse to provide the Ovation MTS, to include the hardware, software, documentation and support, as described in the revised scope of work, which was emailed to Westinghouse on September 9, 2015. 69 Path forward to execute CO16 CO#17 provides clarification information for CO#16. If CO #17 is to be executed, the 2 COs need to be executed together. However, the project schedule upon which CO#16 was based no longer reconciles with the current working schedule. 1. Reach agreement with Consortium on execution of CO #16 and/or CO #17 2. If CO #16 is executed, determine whether schedule language in CO #16 should be modified 3. If schedule language needs to be modified, reach agreement with Consortium on updated language 4. Reach agreement with Consortium on whether Exhibit F schedules should be included in the CO, specific to CO #16. Consortium has proposed not including Exhibit F tables, since the information would be stale at the time of CO execution; instead the impacts of CO #16 to the Exhibit F milestones would be incorporated into an EPC Amendment. 5. Execute alone or simultaneously with CO #17 70 Path forward to execute CO17 CO#17 provides clarification information for CO#16; If CO #17 is to be executed, the 2 COs need to be executed together. However, the project schedule upon which CO#16 was based no longer reconciles with the current working schedule 1. Reach agreement with Consortium on execution of CO #16 and/or CO #17 2. If CO #17 executed, reach agreement with Consortium on whether Exhibit F schedules should be included in the CO, specific to CO #17 (Tables F.1.6 (f-h)). Consortium has proposed not including Exhibit F tables, since the information would be stale at the time of CO execution; instead the impacts of CO #17 to the Exhibit F milestones would be incorporated into an EPC Amendment. 3. Owner to transmit agreed-to de-escalation process since it is not included in CO as Owner requested. 4. If executed, execute simultaneously with CO #16 13 -------------------------------------------------------------------------------- 77 TEDV DAQ Funding Purchase agreement between Westinghouse, Southern and SCE&G is to provide the data acquisition system and capability to support thermal expansion and dynamic evaluation of plant components during testing. Westinghouse to deliver TEDV DAQ in accordance with purchase agreement. 96 Offsite Storage and Lay down – Leases, Equipment, and FNM Per Diem (area 14, Blythewood, Metro) During Phase I of the EPC Agreement scope of work, the Owner paid the Contractor to develop the requirements for all temporary facilities on the Site, to include warehouses and equipment and material laydown areas. The Contractor developed the requirements, was given unlimited access to the Site and was in control of the Target Price budget for construction of the appropriate facilities. The Contractor now estimates significantly more warehouse facilities and laydown area space than it originally planned. The Owner contends that this additional warehouse and laydown area space is attributed to either inadequate planning on the part of the Contractor or structural module delay. The facilities and laydown area in question at this point are the Blythewood warehouse facility, Metro warehouse facility and laydown area 18. The Blythewood warehouse is being utilized and the lease payments invoiced to the Owner have been disputed. The Metro facility renovation is essentially complete and ready to receive equipment and material. The Contractor will begin invoicing the Owner for the lease and other expenses. The Area 14 laydown area construction has been out for bids by the Contractor who has been having discussions with the Owner on the invoicing process. The Contractor claims entitlement to a change order for these warehouse facilities and laydown area expenses since they are located off-site. The Owner disagrees and is willing to treat these facilities as target scope work under the EPC Agreement with no justification for a change order. Also, the Owner’s position is that CO 8 applies which transferred target dollars to fixed/firm dollars for items such as construction equipment and field non-manual living expenses. The Contractor invoice the Owner for the Blythewood and Metro warehouses and Area 15 laydown area construction under the Target Price category per the EPC Agreement, applying the CO 8 cost categories to the invoicing. The total costs for these facilities and laydown area will remain in dispute per the EPC Agreement due to the structural module delay with resolution dependent upon senior executive negotiations. 97 Warranty impact due to delay and specific warranty claims; and extending warranties based on actual completion dates The warranty requirements are specified in Article 14 of the EPC Agreement. Specifically, a 24 month warranty period for Equipment begins upon the actual Substantial Completion Dates for Units 2 and 3. The presently approved Guaranteed Substantial Completion Dates for Units 2 and 3 are March 15, 2017 and May 15, 2018, respectively. The Owner’s position is that the 24 month warranty period and other warranty provisions in the EPC Agreement should be effective upon the actual Substantial Completion dates due to the structural module delay impact on the Project Schedule. Also, there are specific warranty claims that the Consortium is responsible for resolving. For example, the Units 2 and 3 Switchyard has experienced component failures, specifically related to capacitors, as noted in Owner correspondence NND-14-0335, NND-14-0337, NND-14-0514 and NND-14-0627. Other components also sustained damages, but were replaced by the Consortium with extended warranties (reference VSP_VSG_002978). The Consortium has been working with the Owner and capacitor manufacturer (ABB/Maxwell) to perform analyses and testing to determine root cause. In the meantime, capacitors have been removed from the Switchyard, which is presently operating at partial capacity due to these capacitor issues. 1. Consortium extends 24 month warranty provision and other warranty provisions of Article 14 of the EPC Agreement to be effective upon the actual Substantial Completion Dates for Units 2 and 3. 2. Consortium resolves all outstanding warranty claims, to include the Switchyard capacitor failure claim, to the Owner’s satisfaction. This will include component extended warranties as applicable. 98 Cyber-Security The Owner’s position is that the Consortium is committed in the EPC Agreement to provide a cyber security program for VCS Units 2 and 3 that complies with APP-GW- GLR-104, “AP1000 Cyber Security Implementation,” dated May 2007 (also referred to as TR-104). TR-104 is a requirement included in the AP1000 Design Control Document (DCD) Revision 16 which is referenced in the EPC Agreement. The Owner acknowledges that the NRC issued Regulatory Guide (RG) 5.71, “Cyber Security programs for Nuclear Facilities,” subsequent to the execution of the EPC Agreement and that there is a level of incremental scope of work which has not been satisfactorily resolved to the satisfaction of the Owner. The Owner and Consortium agreed to a Phase I Cyber Security CO (#14), which was executed on March 14, 2012 The Owner and Consortium have attempted to negotiate a Phase 2 Cyber Security CO but have been unsuccessful to date. A significant impasse dealt with the Consortium’s refusal to accept project schedule risk and mandate to Owner a release of the Guaranteed Substantial Completion date for Unit 2. A Phase 2 Cyber Security technical scope of work has been agreed upon and is included in the latest draft Cyber Security CO dated February 19, 2015 (VSP_VSG_003270). This technical scope is entitled “Technical Description for Consortium for AP1000 Consortium Cyber Security Scope of Supply.” The Owner and Consortium have discussed scopes of work beyond Phase 2, although no Technical Description for Phase 3 has been defined. For example, in a previous draft Cyber Security CO dated February 28, 2013, Phase 3 scope topics were addressed to include potential warehouse modifications to handle storage and handling of Critical Digital Assets (CDA’s), the training of site personnel to deal with CDA’s and site installation and Field Change Notices associated with hardware and software modification. The Owner and Consortium have also had discussions that Phase 3 work would involve dealing with suppliers of equipment for potential smart equipment upgrades. The Owner is concerned that the negotiations on cyber security have been unnecessarily delayed as evidenced by timelines maintained by the Owner and the Consortium’s decision to hold up work on cyber security and demobilize personnel earlier this year. It is noted that the Owner had authorized dollars for the Consortium to perform cyber security work during the negotiations and had requested that the Consortium continue with the interim funding provided by the Owner. Subject to Paragraph 4 of the October 2105 Amendment, Consortium to provide a cyber security program in accordance with RG 5.71 and accept schedule risk to meet Guaranteed Substantial Completion Dates agreed to between Owner and Consortium. All phases of the Cyber Security Program are included in this scope, which also includes the Phase 2 technical scope referenced in the draft CO dated February 19, 2015. -------------------------------------------------------------------------------- Disputed and Returned Payments Exhibit B As of August 21, 2015 WEC Claim       Regulatory Delay Claim   $ 83,518,046       Payment Entitlement in Dispute       Capped Esc due to Structural Module Delay   $ 6,275,414   Cyber Security   $ 374,613   Target Invoice Returns (storage, tents, firm price)   $ 13,289,433   Target Invoice Withholding (10%) Due to Delay and       Performance Inefficiencies   $ 7,657,127   Interest Expense on Returned Invoices   $ 2,133,198   Total   $ 29,729,785       No Dispute, Payments Pending CO Execution   $ 5,565,845   HW Escalation Calculation   $ 5,565,845   Total           Timing of Payment in Dispute       Progress Payments   $ 99,066,205   Milestones Not Complete   $ 11,124,299   Total   $ 110,190,504 -------------------------------------------------------------------------------- EXHIBIT C Items Not Resolved or Released under October 2015 Amendment Description Reference Data Turnover and documentation required   Containment Debris Margin Increase NND-11-0166; VSP_VSG_001218 Auxiliary Boiler design capability   Electromagnetic Capability (EMC) with Protection & Safety Monitoring System (PMS) -   American Society of Mechanical Engineers(ASME) Boiler and Pressure Vessel Code Section VIII pressure vessel over pressure protection NND-15-0460; VSP_VSG_003682 Site Layout changes, Phase 3, due to security regulatory changes   Onsite automation/I&C Support to Owner during post initial core load   Onsite switchyard preoperational test   Plant Security System (SES) testing   Plant Security System (SES) Unit 2&3 Computer Integration   --------------------------------------------------------------------------------      Confidential Trade Secret Information - Subject to Restricted Procedures                 AGREEMENT AMENDMENT TO THE ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT BETWEEN SOUTH CAROLINA ELECTRIC & GAS COMPANY, FOR ITSELF AND AS AGENT FOR THE SOUTH CAROLINA PUBLIC SERVICE AUTHORITY AND A CONSORTIUM CONSISTING OF WESTINGHOUSE ELECTRIC COMPANY LLC AND STONE & WEBSTER, INC., FOR AP1000® NUCLEAR POWER PLANTS THIS AMENDMENT to the Engineering, Procurement and Construction Agreement dated May 23, 2008 (“EPC Agreement”) for the AP1000 Power Plants at the Virgil C. Summer Nuclear Generating Station (“Project”) by and between South Carolina Electric & Gas Company, for itself and as agent for the South Carolina Public Service Authority (“Owner”) and a consortium consisting of Westinghouse Electric Company LLC (“Westinghouse”) and CB&I Stone & Webster, Inc. (“S&W”), (collectively “Contractor”) is executed on behalf of Westinghouse, shall be executed on behalf S&W upon the consummation of the Transaction (as defined in the October 2015 Amendment) and shall become effective upon execution by Owner and approval of the Public Service Commission of South Carolina, so long as execution occurs by the 1st day of November 2016, unless such approval is waived by the Owner or the date is waived by the Contractor (“Option Amendment”). If execution does not occur by November 1, 2016, this Option Amendment shall be null and void in all respects. Owner and Contractor may be referred to individually as a “Party” or collectively as the “Parties.” In consideration of the mutual promises herein and other good and valuable consideration, the receipt and sufficiency of which the Parties acknowledge, the Parties, intending to be legally bound, stipulate and agree as follows: 1.Except as provided in paragraph 2, all remaining Work under the EPC Agreement as of the Effective Time (defined in the October 2015 Amendment referenced below) shall be converted to a Fixed Price in exchange for the remaining Contract Price being adjusted to $6.082 billion in current U.S. Dollars. The remaining Contract Price adjustment represents the cost to complete the Project beyond what has been paid through June 30, 2015. Payments made after June 30, 2015 will be credited against the $6.082 billion amount. 2.The following Time and Material Work is not included in the Fixed Price described in paragraph 1: sales tax, performance bond and insurance premiums, import duties, Mandatory Spare Parts and Extended Equipment Warranty costs (other than the costs associated with the warranty extensions provided for in paragraph 7 of the October 2015 Amendment, because those warranty extensions are at no cost to Owner). This Work will be billed under the existing terms of the EPC Agreement. 3.The categories of Target Price and Firm Price are eliminated. 4.The capitalized terms in this Amendment, except for those defined in this Amendment, shall have the meanings given to them in the EPC Agreement. 5.All provisions of the EPC Agreement not modified, expressly or by necessary implication, remain in full force and effect. 1 --------------------------------------------------------------------------------      Confidential Trade Secret Information - Subject to Restricted Procedures                 IN WITNESS WHEREOF, the Parties have duly executed this Amendment as of the date first above written. SOUTH CAROLINA ELECTRIC & GAS COMPANY, for itself and as agent for South Carolina Public Service Authority By:   Name:   Title:   WESTINGHOUSE ELECTRIC COMPANY LLC By: /s/Danny Roderick Name: Danny Roderick Title: President & Chief Executive Officer STONE & WEBSTER, INC. By:   Name:   Title:   2 -------------------------------------------------------------------------------- Dispute Review Board Agreement THIS DISPUTE REVIEW BOARD AGREEMENT (“DRB Agreement”) concerning the Engineering, Procurement and Construction Agreement dated May 23, 2008 (“EPC Agreement”) for the AP1000 Power Plants at the Virgil C Summer Nuclear Generating Station (“Project”) is effective the ___ day of ______________ 2015, by and between South Carolina Electric & Gas Company, for itself and as agent for the South Carolina Public Service Authority (“Owner”) and a consortium consisting of Westinghouse Electric Company LLC and Stone & Webster, Inc., (collectively “Contractor”). Owner and Contractor may be referred to individually as a “Party” and collectively as the “Parties.”      WHEREAS, the Parties wish to establish a Dispute Resolution Board (“DRB”) for addressing all Claims, as defined in the EPC Agreement, and other disputes that may arise out of or relate to the Project and provisionally resolving such claims. NOW, THEREFORE, in consideration of the recital, the mutual promises herein and other good and valuable consideration, the receipt and sufficiency of which the Parties acknowledge, the Parties, intending to be legally bound, stipulate and agree as follows: 1.Owner and Contractor agree to the establishment of a DRB in accordance with this DRB Agreement to assist in timely, impartial resolution of Claims and other disputes. All Claims and other disputes arising out of or relating to the EPC Agreement shall be governed by this DRB Agreement, until Substantial Completion of both Units. 2.For Claims and other disputes under $5 million, determinations of the DRB shall be binding on the Parties. 3.For Claims and other disputes of $5 million or higher, determinations of the DRB shall be treated as binding on the Parties on an interim basis until Substantial Completion of both Units. Upon Substantial Completion of both Units, either Party may proceed de novo with dispute resolution in accordance with Article 27 of the EPC Agreement. Determinations of the DRB will not be admissible in any de novo proceedings pursuant to Article 27 of the EPC Agreement. 4.For Claims and other disputes of $5 million or higher, Owner and Contractor shall submit their written acceptance or rejection of the DRB’s report concurrently to the other Party and to the DRB within fourteen (14) days of receipt of the report. Failure by either Party to accept or reject within the specified period shall be deemed acceptance of the report by that Party. If both Parties accept the report, then it shall be final, without qualification. If one or both Parties reject the report, they shall nonetheless treat the report as binding until thirty (30) days after Substantial Completion of both Units, at which point the report will have no force or effect. 5.The process outlined in this DRB Agreement shall be the exclusive dispute resolution process for all Claims and other disputes under the EPC Agreement and shall be in lieu of the process set forth in Articles 27.3 and 27.4 of the EPC Agreement, until Substantial Completion of both Units. Thereafter, for Claims or other disputes covered by Paragraph 3 of this DRB Agreement, the Parties may proceed as stated in Paragraph 3. 1 -------------------------------------------------------------------------------- 6.Within thirty (30) days of the execution of the November 2015 Amendment, each Party shall submit to the other Party for approval the names of its nominees for membership on the DRB. The Parties shall mutually agree on the three members of the DRB. Once constituted, the DRB members shall designate one of them as Chair of the DRB. The DRB shall serve until Substantial Completion of both Units. 7.Members of the DRB shall be experienced in the interpretation of contract documents, the resolution of construction disputes, and with complex power plant projects. At least one of the DRB members must be a licensed attorney. To assist the Parties in the review and approval process, nominated members shall provide the following, in addition to the nominee’s full name and contact information, to both Parties: A. Resume showing construction experience qualifying the person as a DRB member. B. Resume showing past DRB participation, if any. This resume will each DRB assignment separately, and state the name and location of the project, dates of DRB service, name of owner, name of contractor, contract value, nominating party if applicable, names of the other DRB members, and the number of disputes heard. C. All three members of the DRB are to be neutral and must affirm their neutrality, under oath, once the DRB is fully constituted and before the DRB takes any action. D. Disclosure statement describing past, present, and anticipated relationships or financial ties, including indirect relationships through the nominee’s full-time employer, if any, to the Project, and with the Parties and with all other entities directly and indirectly involved in the EPC Contract. Entities indirectly involved include Fluor, designers, architects, engineers, or other professional service firms or consultants, joint-venture partners, subcontractors of any tier, and suppliers on the Project. The disclosure statement will also disclose close professional or personal relationships with key members of the Parties and these entities. E. Neutrality and disclosure is a continuing obligation of all DRB members throughout the life of the EPC Contract. F. Each member of the DRB shall execute non-disclosure agreements as required by the Parties. G. No DRB member shall be allowed to act as an arbitrator or appear as a witness in any subsequent arbitration or litigation related to or arising out of the EPC Agreement. 8.Once fully constituted, the DRB will visit the project site and meet with representatives of the Parties at periodic intervals and as requested by the Parties. Any discussion and field observation shall be attended by personnel of the Owner and Contractor. 9.Owner and Contractor shall enter into good-faith negotiations to settle a dispute before referring such dispute to the DRB. These good-faith negotiations shall be involve full and timely disclosure of each Party’s position to the other Party, including the exchange, where applicable, of pertinent supporting records, analyses, expert reports, and similar documentation, and shall proceed without delay following the inception of the dispute. Such good-faith negotiations may involve the solicitation and rendering of a DRB advisory opinion as described herein. 2 -------------------------------------------------------------------------------- 10.Either Owner or Contractor may refer a dispute to the DRB. The dispute referral shall be made in writing to the DRB Chair with a copy concurrently provided to the other DRB members and the other Party. 11.The dispute referral shall concisely define the nature and specifics of the dispute that are to be considered by the DRB and the scope of the determination requested. The DRB Chair shall confer with the Parties to establish a due date for delivering pre-hearing submittals, and a date, time, and location for convening the DRB hearing. Hearings shall be convened, at a location mutually agreed by the Parties. Absent such agreement by the Parties, the DRB shall determine the location of the hearings. 12.The procedures governing the hearings shall be established by agreement of the Parties. Absent such agreement, the DRB shall establish such hearing procedures. 13.The DRB’s determination of a dispute will be formalized in a written report with format as determined by the DRB and signed by all DRB members. The report shall consist of a concise description of the dispute, short statements of each Party’s position, findings as to the facts of the dispute, discussion and rationale for the determination, and the determination. The report shall be submitted concurrently to the Parties, no later than thirty (30) days after completion of the hearing as agreed by all Parties. 14.Owner and Contractor shall each bear their respective costs and attorney’s fees. Owner and Contractor shall equally bear the cost of the DRB’s services. IN WITNESS WHEREOF, the Parties have duly executed this DRB Agreement as of the date first above written. SOUTH CAROLINA ELECTRIC & GAS COMPANY, for itself and as agent for South Carolina Public Service Authority By:   Name:   Title:   WESTINGHOUSE ELECTRIC COMPANY LLC By:   Name:   Title:   STONE & WEBSTER, INC. By:   Name:   Title:   3 -------------------------------------------------------------------------------- EXHIBIT F CONSENT OF GUARANTOR This Consent is made by TOSHIBA CORPORATION (“Guarantor”), a corporation duly organized and existing under the laws of Japan and the indirect parent of Westinghouse Electric Company LLC (“Westinghouse”). WHEREAS, Westinghouse and Stone & Webster, Inc. (“Stone & Webster”, and collectively with Westinghouse, the “Contractor”) and South Carolina Electric & Gas Company, for itself and as agent for the South Carolina Public Service Authority (collectively, the “Counterparty”) are parties to the Engineering, Procurement and Construction Agreement between the Contractor and the Counterparty, dated as of May 23, 2008 (the “Agreement”); and WHEREAS, in connection with the Agreement, Guarantor executed and delivered to Counterparty a guaranty of the payment obligations of Westinghouse under the terms of the Agreement (the “Guaranty”); and WHEREAS, the Agreement is being amended by an Amendment dated October 27, 2015 (the “October 2015 Amendment”); and WHEREAS, Guarantor, as indirect parent of Westinghouse, shall receive benefit from the transaction contemplated by the Agreement as previously amended and as amended by the October 2015 Amendment and has agreed to give this Consent to provide assurance for Westinghouse’s payment obligations in connection with the Agreement as so amended; and WHEREAS, Guarantor acknowledges the execution and delivery of this Consent is required by the terms of the October 2015 Amendment. NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the adequacy, receipt and sufficiency of which are hereby acknowledged, Guarantor hereby agrees as follows: 1.Guarantor acknowledges the terms of the October 2015 Amendment. 2.The definition of Guaranteed Obligations in the Guaranty includes all payment obligations of Westinghouse under the terms of the Agreement, as previously amended and as amended by the October 2015 Amendment. 3.Guarantor hereby reaffirms the Guaranty and agrees that, except as provided herein, the Guaranty shall remain unchanged and in full force and effect. Each and every term, covenant and condition of the Guaranty is hereby incorporated herein such that the Guaranty and this Consent shall be read and construed as one instrument. 4.The validity, construction, and performance of this Consent of Guarantor shall be governed by and interpreted in accordance with the laws of the State of New York, without -------------------------------------------------------------------------------- giving effect to the principles thereof relating to conflicts of laws except Section 5-1401 of the New York General Obligations Law. IN WITNESS WHEREOF, Guarantor has caused this Consent to be executed in its corporate name by its duly authorized representative. TOSHIBA CORPORATION By: /s/Shigenori Shiga                       Name: Shigenori Shiga     Title: Representative Executive Officer     Date: October 27, 2015     Acknowledged and Agreed by Counterparty as of this 27 day of October, 2015, by: /s/Kevin B. Marsh                  Name: Kevin B. Marsh     Title: CEO, SCANA Corp     2 -------------------------------------------------------------------------------- MUTUAL RELEASE This Mutual Release (“Mutual Release”) is executed this 27th day of October, 2015, by South Carolina Electric & Gas Company, a South Carolina corporation having a place of business in Cayce, South Carolina, South Carolina Public Service Authority, a body corporate and politic created by the laws of the State of South Carolina (collectively, “Owners”) and Chicago Bridge & Iron Company N.V. (“CB&I”), a corporation organized under the laws of the Netherlands. RECITALS WHEREAS, Owners and a consortium consisting of Westinghouse Electric Company LLC (“Westinghouse”) and CB&I Stone & Webster, Inc. (“S&W”) (collectively, the “Contractor”) entered into an Engineering, Procurement and Construction Agreement with an effective date of May 23, 2008 (as amended or supplemented, the “EPC Agreement”) pursuant to which the Contractor agreed to assist Owners in the licensing of and to design, engineer, procure, construct and test two AP1000 Nuclear Power Plants and related facilities, structures and improvements known as Units 2 and 3 located at the V.C. Summer station in Jenkinsville, South Carolina, and owned by Owners (the “Project”); WHEREAS, pursuant to the EPC Agreement, S&W furnished to Owners a Corporate Guarantee dated and effective as of May 23, 2008 and issued and executed by S&W’s then-ultimate holding corporation, The Shaw Group, Inc. (“Shaw Group”) (as amended or supplemented, the “S&W Parent Guarantee”); WHEREAS, thereafter, in connection with the acquisition by CB&I of Shaw Group, CB&I executed and furnished to Owners a Corporate Guarantee dated April 29, 2013 (the “CB&I Guarantee”), which replaced the S&W Parent Guarantee; WHEREAS, Contractor has submitted various notices of Change and Change Dispute Notices pursuant to the EPC Agreement that remain unresolved and various commercial issues, Change Disputes and Claims (as defined in the EPC Agreement) are pending under the EPC Agreement (collectively, “EPC Claims”); WHEREAS, simultaneously with the execution and delivery of this Mutual Release, Owners and Westinghouse are entering into a binding Settlement and Release Agreement (the “Settlement Agreement”), with respect to, among other things, the EPC Claims; WHEREAS, Westinghouse, S&W, an affiliate of Westinghouse (“Purchaser”), and CB&I are entering into a Purchase Agreement pursuant to which, among other things, Purchaser will purchase all of the outstanding capital stock of S&W; and WHEREAS, effective upon the Effective Time (as defined in Paragraph 3), Owners and CB&I agree to release one another from any and all past, current and future duties, obligations, claims and liabilities arising out of or related to the EPC Claims, the EPC Agreement, the Project, the S&W Parent Guarantee and the CB&I Guarantee. 1 -------------------------------------------------------------------------------- NOW, THEREFORE, in consideration of the recitals and the mutual promises, covenants and agreements contained in the Settlement Agreement and herein, and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, Owners and CB&I mutually, release one another as follows. RELEASE 1.    Effective upon the Effective Time, Owners, for themselves and their respective officers, agents, directors, partners, managing members, stockholders, owners, employees, attorneys, advisors, representatives, insurers, sureties, predecessors, successors, assigns, parents, subsidiaries and affiliated entities, heirs, executors and administrators (collectively, the “Owner Releasing Parties”) and each of them, hereby unconditionally and irrevocably fully release, forever discharge and covenant not to sue, except for the Excepted Party as defined in Paragraph 2 hereof, CB&I and its past, present, and future officers, agents, directors, partners, managing members, stockholders, owners, employees, attorneys, advisors, representatives, insurers, sureties, predecessors, successors, assigns, parents, subsidiaries, and affiliated entities, heirs, executors and administrators (collectively, the “CB&I Released Parties”), and each of them, from any and all manner of actions, controversies, suits, matters, liens, rights, liabilities, losses, debts, dues, damages, claims, guarantees, warranties, judgments, bonds, executions, obligations, accounts, fines, regulatory penalties (whether civil or criminal), costs and expenses (including attorneys’ fees) and demands (collectively, “Claims/Obligations”) of every nature, kind and description whatsoever in law or in equity, whether known or unknown, or whether suspected or unsuspected, or whether matured or un-matured, whether liquidated or unliquidated, under any theory, including joint and several liability, which Owners had, now have, or hereafter can, shall or may have against CB&I or any of the other CB&I Released Parties arising out of any manner or event relating to, or otherwise in connection with or concerning, the EPC Claims, the EPC Agreement, the Project, the S&W Parent Guarantee and the CB&I Guarantee. 2.        This Mutual Release is not in favor, and does not inure to the benefit, of S&W (being referred to herein as the “Excepted Party”) and it being understood and acknowledged that any release in favor of S&W is solely as set forth in the Settlement Agreement. Except for the Excepted Party as defined in Paragraph 1 hereof, effective upon the Effective Time, CB&I, for itself and its respective officers, agents, directors, partners, managing members, stockholders, owners, employees, attorneys, advisors, representatives, insurers, sureties, predecessors, successors, assigns, parents, subsidiaries and affiliated entities (but only to the extent any such subsidiary or affiliated entity is a subsidiary or affiliated entity after the Effective Time), heirs, executors and administrators (collectively, the “CB&I Releasing Parties”) and each of them, hereby unconditionally and irrevocably fully release, forever discharge and covenant not to sue, Owners and their past, present, and future officers, agents, directors, partners, managing members, stockholders, owners, employees, attorneys, advisors, representatives, insurers, sureties, predecessors, successors, assigns, parents, subsidiaries, and affiliated entities, heirs, executors and administrators (collectively, the “Owners Released Parties”), and each of them, from any and all manner of actions, controversies, suits, matters, liens, rights, liabilities, losses, debts, dues, damages, claims, guarantees, warranties, judgments, bonds, executions, obligations, accounts, fines, regulatory penalties (whether civil or criminal), costs and expenses (including 2 -------------------------------------------------------------------------------- attorneys’ fees) and demands (collectively, “Claims/Obligations”) of every nature, kind and description whatsoever in law or in equity, whether known or unknown, or whether suspected or unsuspected, or whether matured or un-matured, whether liquidated or unliquidated, under any theory, including joint and several liability, which CB&I had, now have, or hereafter can, shall or may have against Owners or any of the other Owners Released Parties arising out of any manner or event relating to, or otherwise in connection with or concerning, the EPC Claims, the EPC Agreement, the Project, the S&W Parent Guarantee and the CB&I Guarantee. 3.    This Mutual Release does not release any rights of S&W, the Excepted Party, it being understood and acknowledged that any release by S&W is solely as set forth in the Settlement Agreement. 4.        Westinghouse and Owners have agreed that the Settlement Agreement will automatically become effective upon the closing of the purchase by Westinghouse or an affiliate of Westinghouse of all of the outstanding capital stock of S&W (such time of closing, the “Effective Time”). 5.    This Mutual Release and the application and interpretation thereof shall be governed exclusively by the laws of the State of New York without regard to conflicts of laws principles. 6.    This Mutual Release shall be fully binding upon each Owner, CB&I and their respective legal representatives, successors and assigns. 7.    The releases contemplated by Section 1 and 2 are intended to be as broad as permitted by law, provided that nothing in Section 1 or 2 shall apply to any action by any releasee to enforce the rights and obligations imposed by this Mutual Release. Without limiting the foregoing, for the avoidance of doubt, the releases contemplated by Section 1 and 2 are intended to, and do, extinguish suspected, unmatured, unliquidated and unknown Claims/Obligations even if, confirmation, maturation or knowledge of those Claims/Obligations on the date hereof would have affected the decision to enter into this Mutual Release. The release of suspected, unmatured, unliquidated or unknown Claims/Obligations was separately bargained for and was a key element of this Mutual Release, relied upon by each party in entering this Mutual Release. The Owner Releasing Parties and the CB&I Releasing Parties shall be deemed to have, and by execution of this Mutual Release shall have, expressly waived and relinquished, to the fullest extent permitted by law, any rights or benefits they may have under state law, federal law, foreign law or common law that may have the effect of limiting the release set forth in Section 1, including any rights or benefits conferred by Section 1542 of the California Civil Code or any provision similar, comparable or equivalent to Section 1542 or successor provision to Section 1542 of the California Civil Code, which provides that: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. 3 -------------------------------------------------------------------------------- 8.        Each of the persons executing this Mutual Release on behalf of its respective principals warrants that he or she is legally entitled to enter into this Mutual Release and release the CB&I Released Parties and the Owner Released Parties from every claim and liability, whether potential or actual, herein referred to, and that he or she has the authority to bind his or her respective principals and has full authority to enter into this Mutual Release. 9.    Owners and CB&I acknowledge and represent that they have each relied solely upon facts obtained from their own independent investigations in executing this Mutual Release and that they each have not relied upon any statements or representations of any nature from the parties to the Settlement Agreement or any other individuals or entities, or such other parties’, individuals’ or entities’ attorneys or representatives. Each Owner and CB&I represent that they have had sufficient opportunity to consult their own legal counsel with regard to the negotiation and preparation, as well as the scope and effect, of this Mutual Release. 10.    Owners and CB&I agree to execute any further documents necessary and take such other actions as to effectuate this Mutual Release. 11.        This Mutual Release may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, Owners and CB&I execute this Release by their duly authorized representatives. South Carolina Electric & Gas Company         for itself and as agent for the South Carolina Public Service Authority By /s/Kevin B. Marsh          Title Chairman & CEO                 Date October 27, 2015                       Chicago Bridge & Iron Company N.V.          By /s/Richard E. Chandler, Jr. Title EVP, Chief Legal Officer & Secretary Date October 27, 2015     4 -------------------------------------------------------------------------------- MUTUAL RELEASE This Mutual Release is entered into this 27th day of October, 2015, and becomes effective as described herein, by and among Westinghouse Electric Company LLC, a Delaware limited liability company having a place of business in Cranberry, Pennsylvania (“Westinghouse”), CB&I Stone & Webster, Inc., a Louisiana corporation with a place of business in Charlotte, North Carolina (“S&W”), and South Carolina Electric & Gas Company (“SCE&G”), for itself and as agent for the South Carolina Public Service Authority, a body corporate and politic created by the laws of South Carolina (“Santee Cooper”) (collectively “Owners”). Westinghouse, S&W and Owners may be referred to individually as “Party” or collectively as “Parties.” RECITALS WHEREAS, Owners and a consortium consisting of Westinghouse and S&W (collectively “Contractor”) entered into an Engineering, Procurement and Construction Agreement on May 23, 2008 (“EPC Agreement”) pursuant to which Contractor agreed to design and construct two new nuclear electrical generating units known as V.C. Summer Units 2 and 3 (the “Units”) located at the V.C. Summer Nuclear Generating Station in Jenkinsville, South Carolina (the “Project”); WHEREAS, Contractor has submitted various notices of Change and Change Dispute Notices pursuant to the EPC Agreement that remain unresolved and various commercial issues, Change Disputes and Claims (as defined in the EPC Agreement) are pending under the EPC Agreement (collectively, “EPC Claims”); WHEREAS, Owners and Westinghouse are entering into a binding Amendment Agreement (“October 2015 Amendment”) with respect to, among other things, the EPC Claims; WHEREAS, a Westinghouse affiliate, Chicago Bridge & Iron Company N.V. (“CB&I”), and S&W are entering into a Stock Purchase Agreement pursuant to which, among other things, Westinghouse or an affiliate of Westinghouse will purchase all of the outstanding capital stock of S&W (the “SPA”); WHEREAS, upon the execution the SPA, Westinghouse shall execute this Mutual Release on its own behalf, and upon the consummation of the SPA (the “Effective Time”) shall cause S&W to execute this Mutual Release on behalf of S&W; and WHEREAS, upon execution of this Mutual Release by Westinghouse and S&W, this Mutual Release shall become effective as of the Effective Time, and in the event the SPA is not consummated, this Mutual Release shall not become effective and shall be null and void in all respects. 1 -------------------------------------------------------------------------------- NOW, THEREFORE, in consideration of the recitals and the mutual promises, covenants and agreements contained in the October 2015 Amendment and herein, and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, Owners, Westinghouse and S&W hereby provide mutual releases as follows. RELEASE 1.     Except as otherwise provided in the October 2015 Amendment (including Exhibit C to the October 2015 Amendment), upon the Effective Time, Owners, for themselves and their respective officers, agents, directors, partners, managing members, stockholders, owners, employees, attorneys, advisors, representatives, insurers, sureties, predecessors, successors, assigns, parents, subsidiaries and affiliated corporations, heirs, executors and administrators and each of them, hereby unconditionally and irrevocably fully release, forever discharge and covenant not to sue Westinghouse, S&W and their past, present, and future officers, agents, directors, partners, managing members, stockholders, owners, employees, attorneys, advisors, representatives, insurers, sureties, predecessors, successors, assigns, parents, subsidiaries, and affiliated corporations, and each of them, from any and all manner of actions, controversies, suits, liens, losses, debts, dues, damages, claims, attorney fees, guarantees, warranties, judgments, bonds, executions and demands of every nature, kind and description whatsoever in law or in equity, whether known or unknown, or whether suspected or unsuspected, or whether matured or unmatured, whether liquidated or unliquidated, under any theory, including joint and several liability, which Owners had, now have, or hereafter can, shall or may have against Westinghouse and/or S&W for any events or circumstances occurring as of the Effective Time and arising out of any manner or event relating to, or otherwise in connection with or concerning, the EPC Claims, the EPC Agreement and the Project. 2.Except as otherwise provided in the October 2015 Amendment (including Exhibit C to the October 2015 Amendment), upon the Effective Time, Westinghouse and S&W, for themselves and their respective officers, agents, directors, partners, managing members, stockholders, owners, employees, attorneys, advisors, representatives, insurers, sureties, predecessors, successors, assigns, parents, subsidiaries and affiliated corporations, heirs, executors and administrators and each of them, hereby unconditionally and irrevocably fully release, forever discharge and covenant not to sue Owners and their past, present, and future officers, agents, directors, partners, managing members, stockholders, owners, employees, attorneys, advisors, representatives, insurers, sureties, predecessors, successors, assigns, parents, subsidiaries, and affiliated corporations, and each of them, from any and all manner of actions, controversies, suits, liens, losses, debts, dues, damages, claims, attorney fees, guarantees, warranties, judgments, bonds, executions and demands of every nature, kind and description whatsoever in law or in equity, whether known or unknown, or whether suspected or unsuspected, or whether matured or unmatured, whether liquidated or unliquidated, under any theory, including joint and several liability, which Westinghouse and/or S&W had, now have, or hereafter can, shall or may have against Owners for any events or circumstances occurring as of the Effective Time and arising out of any manner or event relating to, or otherwise in connection with or concerning, the EPC Claims, the EPC Agreement and the Project. 2 -------------------------------------------------------------------------------- 3.    This Mutual Release and the application and interpretation thereof shall be governed exclusively by the laws of the State of New York without regard to conflicts of laws principles. 4.    This Mutual Release shall be fully binding upon Owners, Westinghouse and S&W and their respective legal representatives, successors and assigns. 5.    Each of the persons executing this Mutual Release on behalf of their respective principals warrants that he or she is legally entitled to enter into this Mutual Release and release every claim and liability, whether potential or actual, herein referred to, and that he or she has the authority to bind his or her respective principals and has full authority to enter into this Mutual Release. 6.    Owners, Westinghouse and S&W acknowledge and represent that each has had sufficient opportunity to consult its own legal counsel with regard to the negotiation and preparation, as well as the scope and effect, of this Mutual Release. 7.    Owners, Westinghouse and S&W agree to execute any further documents necessary and take such other actions as to effectuate this Mutual Release. 8.    This Mutual Release may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the Parties execute this Mutual Release by their duly authorized representatives.          Westinghouse Electric Company LLC   CB&I Stone & Webster, Inc. By /s/Danny Roderick   By   Title President & Chief Executive Officer   Title   Date October 27, 2015   Date   South Carolina Electric & Gas Company         for itself and as agent for the South Carolina Public Service Authority By /s/Kevin B. Marsh Title Chairman & CEO Date October 27, 2015 3

This appeal from the Liquor Control Commission of the State of Connecticut was by this Court referred to Honorable Leonard J. Nickerson, State Referee, to find the facts and the same report to this Court. From the Finding of Facts filed by the State Referee it appears that the applicant, Mary Franzese, duly filed her application for a restaurant permit to sell alcoholic liquors under the provisions of the Liquor Control Act and that the application was rejected by the Liquor Control Commission because of unsuitability of the person. Such unsuitability is based upon two grounds: (a) because of domestic responsibilities conflicting with those upon a permitee, (b) by reason of the reputation of the husband of the applicant as a prospective employee in the business. It appears that Louis Franzese, husband of the applicant, conducted a restaurant at the same place at which the applicant proposes to conduct a restaurant. He became in default in the payment of a balance due on fixtures in such restaurant under a conditional bill of sale held by the Leon Store Fixture *Page 92 Company and the conditional vendor took possession of the property and resold the same to one Edward W. Shea, who employed Louis Franzese in such restaurant. Shea has been unable to make payments upon the unpaid balance due the conditional vendor, payment of which he assumed, and the applicant is to assume such obligation. The applicant intends to continue the employment of her husband Louis Franzese in the business. Louis Franzese has been convicted of violating the law relative to the sale of liquor on four occasions from February, 1921 to April, 1927, though none of such convictions were for violation in or connected with the premises where the permit is now sought. The State Referee finds that the applicant is a suitable person unless the reputation of her husband, Louis Franzese, as a prospective employee renders her unsuitable. The statute provides that: "No person who has served a sentence for a conviction of a violation of any federal or state law concerning the manufacture or sale of alcoholic liquor prior or subsequent to July 1st, 1933, or who has more than once paid a fine or penalty for any such violation in settlement of any prosecution against him, or has forfeited his bond to appear in court to answer charges for any violation, shall be deemed a suitable person to be granted a permit within the meaning of this section." Louis Franzese is not eligible upon the facts of this case to receive a permit such as is here desired. The law further provides that: "No permit shall be granted . . . . to any female who is a member of a household of any person to whom a permit has been refused or by whom a permit has been forfeited." It is true that no permit has been refused to or forfeited by Louis Franzese. It seems to the Court, however, to be obvious that this application is simply an attempt to evade the law by securing the granting of an application to the wife of one who is not eligible to be the permittee of such an application. Certainly the spirit of the law is clearly indicated when a female who is a member of a household of any person to whom a permit has been refused or by whom a permit has been forfeited cannot receive a permit. Certainly one who is a member of a household of Louis Franzese, who, by conviction of a violation of the law has placed himself *Page 93 in a position of being unable to make application for a permit, is in a situation practically the same as if she were a member of a household of one to whom a permit had been refused or by whom a permit had forfeited. I am of the opinion that under the law for reasons above stated the applicant is an unsuitable person, as found by the Liquor Control Commission. Since I find it necessary to reach this conclusion upon the facts above stated, it is not necessary to rule upon other reasons for which the application was rejected by the Liquor Control Commission. The appeal from the Liquor Control Commission is dismissed and the temporary injunction dissolved.

The plaintiffs, J. W. Moore and others, and the defendants, W. H. Jordan and others, were heirs at law of Samuel E. Westray, who died domiciled in the county of Nash on 15 February, 1894. He was at the time of his death seized and possessed of lands lying in Edgecombe and Nash Counties. William S. Battle, one of the heirs at law of S.E. Westray, was indebted to various parties who had obtained judgments *Page 63 against him and had caused the same to be docketed in said counties. The said judgment creditors were made parties to the (87) proceeding for the sale of the lands and consented thereto. Sales were made by commissioners appointed by the court, and upon the coming in of the report the sales were duly confirmed. From the sales of lands lying in the county of Nash the share of the said William S. Battle was $970, from which the sum of $209.31 was alloted on account of his homestead, leaving a net balance of $760.69 to be applied to the judgments docketed and in force in the said county of Nash and against the said William S. Battle. The amounts and dates of docketing of the judgments are set out in the decree rendered herein by the following judgments against the defendant W. S. Battle and others, docketed in the Superior Court of Nash County, to-wit: 1. In favor of E. B. Lewis for the sum of $2,000, with eight per cent interest from 1 January, 1882, less payment of $200 of date 1 December, 1884, and docketed 30 August, 1884. 2. In favor of P. C. Cameron, administrator, for the sum of $3,000, with eight per cent interest. The Clerk decreed as follows: "That the judgments aforesaid docketed in the county of Nash prior to the death of S.E. Westray on 15 February, 1894, when the interest of W. S. Battle in the real estate of the said Westray lying in said county was acquired, stand on the same footing and the liens of the same attach at one and the same time; and that the fund arising from the sale of the said lands lying in the county of Nash and remaining in the hands of the Clerk of this Court, after paying the said sum of $209.31 toward the homestead of the said W. S. Battle and its proportional part of the cost hereof as hereinafter provided, (88) shall be disbursed and paid pro rata upon the judgments aforesaid docketed in the Superior Court of Nash County in favor of E. B. Lewis, P. C. Cameron, adm'r, and P. C. Cameron. "That the funds hereafter arising from the sale of W. S. Battle's interest in said lands lying in the county of Nash are to be disbursed and paid upon the aforesaid judgments docketed in said county prior to the death of the said Westray, in the same manner and proportion as is herein provided." The defendant E. B. Lewis appealed from the decree of the Clerk of the Superior Court providing that the funds arising from the sale of the Nash County lands should be disbursed and paid pro rata upon the judgments docketed and in force in Nash County in favor of E. B. Lewis and P. C. Cameron, administrator, and P. C. Cameron. Upon the hearing of the defendant E. B. Lewis' appeal by James D. *Page 64 McIver, Judge, riding the Second Judicial District, the judgment of the Clerk, declaring the judgments docketed in the county of Nash prior to the death of Samuel E. Westray on 15 February, 1894, when the interest of William S. Battle in the real estate of the said Westray lying in said county was acquired, stand on the same footing and the liens of the same attach at one and the same time, was affirmed. The defendant E. B. Lewis appealed from the said judgment. We are now confronted for the first time with the question whether previously docketed judgments take by their priorities, according to the dates when docketed, the after-acquired lands (89) of the judgment debtor, or whether they take pro rata the after-acquired lands cast by decent on the judgment debtor. The defendant Lewis contends that, as was the case under our former system, the lien when it attaches relates back to the day when the judgment was docketed. This is denied by the other defendants. It is conceded that the liens of the several judgments on after-acquired lands attacheo instanti and at the moment when the title vests in the judgment debtor, also that the lien of each judgment attaches at the time it is docketed on all lands then owned by the debtor. It will be observed that those liens arise from the docketing, and priorities accordingly are established, and not by any principle of relation. Neither the court nor counsel have been able to find any decided case on this question in any of the States, except one in Oregon, which will be referred to later. We are therefore to construe our statute, The Code, sec. 435, according to its meaning and on general principles of reasoning. At common law no judgment proprio vigore was a lien upon land. Under our former system, when an execution issued and was levied upon land, the lien thereby acquired related to the teste of the execution, not by reason of any self-executing force in the fi. fa. or the judgment proper, but by force of a statute (West. 2) which was enacted expressly to give the lien created by the levy a relation to the teste of the writ. The relation was not given upon any idea of rewarding the diligent creditor, but to take from the debtor the power to transfer his property to others and thus deprive the creditor of the fruit of his recovery. This reason does not now exist under our system, because the docketed judgment fixes the lien, and the debtor cannot escape it, and if he sells thereafter the purchaser takes subject to the statutory lien of our Code, and the principle of relation is not necessary to protect the creditor. (90)Cessante ratione cessat ipsa lex. Whilst this question was not *Page 65 presented in Sawyer v. Sawyer, 93 N.C. 321, this Court remarked: "This statutory legislation (The Code, sec. 435) must therefore, to no inconsiderable extent, dispense with many rules before in force, and especially that of relation of the execution to its teste, as unnecessary and inapplicable to the new procedure and practice." We must, then, look to the act itself for its true intent. The Code nowhere directly or indirectly enacts the doctrine of relation except in section 433, which declares that all judgments rendered in the Superior Court and docketed within ten days after the term "shall be held and deemed to have been rendered and docketed on the first day of said term." So the Legislature did advert to the doctrine of relation, but failed to declare that it should prevail, except in said section 433, and its silence in all other sections affords a fair inference that it did not intend that it should prevail in section 435.Expressio unius exclusio alterius. Assuming that the Legislature had power to give the lien a retroactive effect, as was done by Westminster 2, yet it has not done so, and it would be some strain on the legal mind to say that a docketed judgment, even in effect, was a lien upon land during a period when the judgment debtor had no land. A lien cannot antedate its origin without statutory aid. There seems to be no reason why priority should be allowed when the title to the land and the several liens occur at the same moment. There is no equitable ground on which to place it, because one judgment debt in the eye of the law is as just as any other, and there is no natural justice in the proposition. The Court, in Creighton v. Leeds, 9 Or. 215, under a similar statute and in a like case, held that the first docketed judgment had priority over the other judgments on after-acquired lands, and this is the only case yet found. The reasoning in that case is not (91) satisfactory. It is put, first on the ground that such is the meaning of the statute; secondly, that the debtor has an inchoate interest in his future acquisitions, on which the judgment acts and is a lien, and likens it to the inchoate interest of a married woman in the future-acquired lands of her husband during coverture. We fail to see any similarity. The proposition loses sight of the true reason why dower was allowed in such lands. It is true that the marriage contract is the initial point of her rights, but the reason is the "sustenance of the wife and the nurture and education of the younger children," and it was extended to future-acquired lands in order to prevent the husband from defeating the object of the rule, which has no application to The Code, section 435, as to judgments docketed before the estate falls in. The authorities quoted in the Oregon case do not support the conclusion, *Page 66 and are cited only to call attention to some supposed analogies under the former system. The contention in Kollock v. Jackson, 5 Ga. 153, was not between judgment creditors, but between a judgment and a factor's lien for goods and advances made to raise a crop, which factor's lien arose subsequent to the rendition of the judgment, and it was held that the judgment had preference because of their act of Assembly of 1799, which declared that "all property of the party against whom a verdict shall be entered shall be bound from the signing of the first judgment." This decision does not fit the present question. Our conclusion is that the proceeds of the land should be applied to the judgments pro rata. Affirmed.