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s3://data.kl3m.ai/documents/edgar/0001104659/0001104659-05-058090/4.json	text/markdown	Exhibit 4.19 ExecutionCopy MobiFon Holdings B.V. $225,000,000 12.50% Senior Notes due 2010 *Purchase Agreement* June 25, 2003 Goldman, Sachs &Co.,Lazard Frères & Co. LLCc/o Goldman, Sachs & Co.,**85 Broad StreetNew York, New York 10004 Ladies and Gentlemen: MobiFonHoldings B.V., a private company with limited liability under the laws of theNetherlands (the “Company”), proposes, subject to the terms and conditionsstated herein, to issue and sell to the Purchasers named in Schedule Ihereto (the “Purchasers”) an aggregate of $225,000,000 principal amount of theCompany’s 12.50% Senior Notes due 2010 (the “Securities”). # 1. The Company represents and warrants to, and agrees with, each of thePurchasers that: # ### (a) A preliminary offering circular, dated June 13, 2003 (the “PreliminaryOffering Circular”) and an*offering circular, dated June 25, 2003 (the “Offering Circular”),have been prepared in connection with the offering of the Securities. Any reference to the Preliminary OfferingCircular or the Offering Circular shall be deemed to refer to and include anyAdditional Issuer Information (as defined in Section 5(f)) furnished bythe Company prior to the completion of the distribution of the Securities. The Preliminary Offering Circular or the OfferingCircular and any amendments or supplements thereto did not and will not, as oftheir respective dates, contain an untrue statement of a material fact or omitto state a material fact necessary in order to make the statements therein, inthe light of the circumstances under which they were made, not misleading; provided, however, that this representation and warrantyshall not apply to any statements or omissions made in reliance upon and inconformity with information furnished in writing to the Company by a Purchaserthrough Goldman, Sachs & Co. expressly for use therein; ### ### (b) Neither the Company nor any of its subsidiaries has sustained since thedate of the latest audited financial statements included in the OfferingCircular any material loss or interference with its business from fire,explosion, flood or other calamity, whether or not covered by insurance, orfrom any labor dispute or court or ---- ### governmentalaction, order or decree, otherwise than as set forth or contemplated in theOffering Circular; and, since the respective dates as of which information isgiven in the Offering Circular, there has not been any change in the capitalstock or long-term debt of the Company or any of its subsidiaries or anymaterial adverse change, or any development involving a prospective materialadverse change, in or affecting the general affairs, management, financialposition, shareholder’s equity or results of operations of the Company and itssubsidiaries, in each case otherwise than as set forth or contemplated in theOffering Circular; ### ### (c) The Company and its subsidiaries have good and marketable title in feesimple to all real property and good and marketable title to all personalproperty owned by them, in each case free and clear of all liens, encumbrancesand defects except such as are described in the Offering Circular or such as donot materially affect the value of such property and do not interfere with theuse made and proposed to be made of such property by the Company and itssubsidiaries; and any real property and buildings held under lease by theCompany and its subsidiaries are held by them under valid, subsisting andenforceable leases with such exceptions as are not material and do notinterfere with the use made and proposed to be made of such property andbuildings by the Company and its subsidiaries; ### ### (d) The Companyhas been duly incorporated and is validly existing as a private company withlimited liability in good standing under the laws of the Netherlands, withpower and authority (corporate and other) to own its properties and conduct itsbusiness as described in the Offering Circular, and has been duly qualified asa foreign corporation for the transaction of business and is in good standingunder the laws of each other jurisdiction in which it owns or leases propertiesor conducts any business so as to require such qualification, or is subject tono material liability or disability by reason of the failure to be so qualifiedin any such jurisdiction; ### ### (e) MobiFon,S.A. (“MobiFon”) has been duly authorized and is validly existing as a jointstock company under the laws of Romania, with legal capacity to own itsproperties and conduct its business as described in the Offering Circular, andis not required to be duly qualified as a foreign corporation for thetransaction of business under the laws of any other jurisdiction; MobiFon doesnot have any subsidiaries; ### ### (f) The Company has an authorized capitalization as set forth in the OfferingCircular, and all of the issued shares of capital stock of the Company havebeen duly and validly authorized and issued and are fully paid andnon-assessable; and all of the issued shares of capital stock of eachsubsidiary of the Company have been duly and validly authorized and issued, arefully paid and non-assessable and (except for directors’ qualifying shares andexcept as otherwise set forth in the Offering Circular) are owned directly orindirectly by the Company, free and clear of all liens, encumbrances, equitiesor claims; ### ### (g) The Securities have been duly authorized and, when issued by the Companyand authenticated by the Trustee in accordance with the terms of the Indentureand delivered to the Purchasers against payment therefor in accordance with theterms of this Agreement, will have been duly executed, authenticated, issuedand delivered and will constitute valid and legally binding obligations of theCompany entitled to the benefits provided by the indenture to be dated as of June 27,2003 (the “Indenture”) between the Company and The Bank of Nova Scotia TrustCompany of 2 ---- ### New York, asTrustee (the “Trustee”), under which they are to be issued, the Indenture hasbeen duly authorized and, when executed and delivered by the Company and assumingdue authorization, execution, delivery and performance by the Trustee, theIndenture will constitute a valid and legally binding instrument, enforceableagainst the Company in accordance with its terms, subject to bankruptcy,insolvency, reorganization and other laws of general applicability relating toor affecting creditors’ rights and to general equity principles; and theSecurities and the Indenture will conform to the descriptions thereof in theOffering Circular and will be in substantially the form previously delivered toyou; ### ### (h) The exchangeand registration rights agreement to be dated as of June 27, 2003, amongthe Company and the Purchasers (the “Registration Rights Agreement”) has beenduly authorized by the Company, and when executed and delivered by the Companyand assuming due authorization, execution, delivery and performance by theother parties thereto, will constitute the valid and legally binding obligationof the Company, enforceable against the Company in accordance with its terms,subject to bankruptcy, insolvency, reorganization and other laws of generalapplicability relating to or affecting creditors’ rights and to general equityprinciples and the unenforceability under certain circumstances under law orcourt decisions of provisions providing for the indemnification of orcontribution to a party with respect to a liability where such indemnificationor contribution is contrary to public policy; ### ### (i) The ExchangeSecurities have been duly authorized for issuance by the Company, and whenissued and authenticated in accordance with the terms of the Indenture, will bethe valid and legally binding obligations of the Company, entitled to thebenefits provided by the Indenture, enforceable in accordance with their terms,subject to bankruptcy, insolvency, reorganization and other laws of generalapplicability relating to or affecting creditors’ rights and to general equityprinciples; ### ### (j) Thecollateral agreement and the depositary agreement, each to be dated as of June 27,2003, between the Company and the Trustee, in the case of the collateralagreement, and among the Company, the Trustee and the Trustee as depositaryagent, in the case of the depositary agreement (collectively, the “SecurityDocuments”), have each been duly authorized by the Company and when executedand delivered by the Company and assuming due authorization, execution,delivery and performance by the Trustee and the depositary agent, asapplicable, will constitute the valid and legally binding obligation of the Company,enforceable against the Company in accordance with their terms, subject tobankruptcy, insolvency, reorganization and other laws of general applicabilityrelating to or affecting creditors’ rights and to general equity principles; ### ### (k) None of the transactions contemplated by this Agreement (including,without limitation, the use of the proceeds from the sale of the Securities)will violate or result in a violation of Section 7 of the Exchange Act, orany regulation promulgated thereunder, including, without limitation,Regulations T, U, and X of the Board of Governors of the Federal ReserveSystem; ### ### (l) Prior to the date hereof, neither the Company nor any of its affiliateshas taken any action which is designed to or which has constituted or whichmight have been expected to cause or result in stabilization or manipulation ofthe price of any security of the Company in connection with the offering of theSecurities; 3 ---- ### (m) The issue and sale of the Securities and the compliance by the Companywith all of the provisions of the Securities, the Indenture, the RegistrationRights Agreement, the Security Documents and this Agreement (collectively, the “OperativeDocuments”) and the compliance by the Company with its obligations hereunderand thereunder will not conflict with or result in a breach or violation of anyof the terms or provisions of, or constitute a default under, any materialindenture, mortgage, deed of trust, loan agreement or other agreement orinstrument to which the Company or any of its subsidiaries is a party or bywhich the Company or any of its subsidiaries is bound or to which any of theproperty or assets of the Company or any of its subsidiaries is subject, norwill such action result in any violation of the provisions of the charter,bylaws or similar organizational documents of the Company or any statute or anyorder, rule or regulation of any court or governmental agency or bodyhaving jurisdiction over the Company or any of its subsidiaries or any of theirproperties; and no consent, approval, authorization, order, registration orqualification of or with any such court or governmental agency or body isrequired for the issue and sale of the Securities or the consummation by the Companyof the transactions contemplated by this Agreement, the Indenture, theRegistration Rights Agreement or the Security Documents, except for (i) thefiling of a registration statement by the Company with the United StatesSecurities and Exchange Commission (the “Commission”) pursuant to the UnitedStates Securities Act of 1933, as amended (the “Act”) pursuant to Section 5(l)hereof, (ii) the filings required for in connection with the ListingApplication for the Luxembourg Stock Exchange, (iii) the filing of thePreliminary Offering Circular and Offering Circular with the NetherlandsSecurities Board, (iv) the filing of UCC financing statements in pursuantto the Security Documents, and (v) such consents, approvals,authorizations, registrations or qualifications as may be required under statesecurities or Blue Sky laws in connection with the purchase and distribution ofthe Securities by the Purchasers; ### ### (n) Neither the Company nor any of its subsidiaries is in violation of itscharter, bylaws or similar organizational documents or in default in theperformance or observance of any material obligation, covenant or conditioncontained in any indenture, mortgage, deed of trust, loan agreement, lease orother agreement or instrument to which it is a party or by which it or any ofits properties may be bound; ### ### (o) The statements set forth in the Offering Circular under the caption “Descriptionof Notes,” insofar as they purport to constitute a summary of the terms of theSecurities, under the captions “Exchange Rate Data and Foreign ExchangeControls—Foreign Exchange Controls,” “Risk Factors—Risks Related to theNotes—Because judgments of U.S. courts are not directly enforceable in theNetherlands, you may find it more difficult to enforce your rights than if wewere a U.S. company,” “Risk Factors—Risks Related to the Notes—Insolvency lawsin the Netherlands could negatively affect your right to enforce the notes,” “RiskFactors—Risks Related to the Notes—Insolvency laws in Romania could have anegative effect on our ability to service and repay the notes,” “RiskFactors—Risks Relating to Our Business—We are subject to governmentalregulation and licensing requirements, which may increase our operating costsand may dictate where and how we operate,” “Management’s Discussion andAnalysis of Financial Condition and Results of Operations—RegulatoryEnvironment,” “Business—Spectrum and Network,” “Business—Regulation,” “Business—Roamingand Interconnect,” “Business—Legal Proceedings,” “Governance Structure andShareholder Arrangements,” “Description of Other Indebtedness,” “Certain Tax Considerations,” and “Plan of Distribution” (other than the third,fourth, fifth, sixth and seventh paragraphs 4 ---- ### thereunder)insofar as they purport to describe the provisions of the laws and documentsreferred to therein, are accurate and complete in all material respects; ### ### (p) Other than as set forth in the Offering Circular, there are no legal orgovernmental proceedings pending to which the Company or any of itssubsidiaries is a party or of which any property of the Company or any of itssubsidiaries is the subject which, if determined adversely to the Company orany of its subsidiaries, would individually or in the aggregate have a materialadverse effect on the current or future financial position, shareholder’sequity or results of operations of the Company and its subsidiaries; and, tothe best of the Company’s knowledge, no such proceedings are threatened orcontemplated by governmental authorities or threatened by others; ### ### (q) When the Securities are issued and delivered pursuant to thisAgreement, the Securities will not be ofthe same class (within the meaning of Rule 144A under the Act) assecurities which are listed on a national securities exchange registered under Section 6of the United States Securities(10) Exchange Act of 1934, as amended (the “ExchangeAct”) or quoted in a U.S. automated inter-dealer quotation system; ### ### (r) There is no “substantialU.S. market interest” as defined in Rule 902(j) of Regulation S in theCompany’s debt or equity securities; ### ### (s) Uponissuance of the Exchange Securities, the Company will be a “foreign privateissuer” (as such term is defined in the rules and regulations under theAct and the Exchange Act); ### ### (t) Application has been made to list theSecurities on the Luxembourg Stock Exchange and, in connection therewith, theCompany submitted to the Luxembourg Stock Exchange the Preliminary OfferingCircular and will submit the Offering Circular. The Preliminary Offering Circular complies in all material respects withthe requirements of the Luxembourg Stock Exchange. There is no requirement of the LuxembourgStock Exchange to deliver any document other than the Offering Circular(including the Listing Particulars) to prospective purchasers or purchasers ofthe Securities from the Purchasers in connection with the offer and sale by thePurchasers of the Securities. Suchapplication fulfils any legal requirements for the Notes to be listed on anexchange (including any requirement necessary to comply with exemption to Dutchbanking regulation set forth in The Ministerial Decree of 4 February 1993(as amended) for Exemption from Credit Supervision); ### ### (u) The Companyfiled the Preliminary Offering Circular with the Netherlands Authority for theFinancial Markets (Autoriteit FinanciëleMarkten or “AFM”) on June 16, 2003, and the Company will filethe Offering Circular with the AFM on or prior to June 30, 2003; ### ### (v) Neither the Company nor any of its subsidiaries is, and after givingeffect to the offering and sale of the Securities, will be an “investmentcompany”, as such term is defined in the United States Investment Company Actof 1940, as amended (the “Investment Company Act”); ### ### (w) Neither the Company, nor any person acting on its or their behalf (exceptfor the Purchasers, as to which the Company makes no representation) hasoffered or sold the Securities by means of any general solicitation or general advertisingwithin the 5 ---- ### meaning of Rule 502(c) underthe Act or, with respect to Securities sold outside the United States tonon-U.S. persons (as defined in Rule 902 under the Act), by means of anydirected selling efforts within the meaning of Rule 902 under theSecurities Act and the Company, any affiliate of the Company and any personacting on its or their behalf (exceptfor the Purchasers, as to which the Company makes no representation) hascomplied with and will implement the “offering restriction” within the meaningof such Rule 902; ### ### (x) Within thepreceding six months, neither the Company nor any other person acting on behalfof the Company has offered or sold to any person any Securities, or anysecurities of the same or a similar class as the Securities, other thanSecurities offered or sold to the Purchasers hereunder. The Company will take reasonable precautionsdesigned to insure that any offer or sale, direct or indirect, in the UnitedStates or to any U.S. person (as defined in Rule 902 under the Act) of anySecurities or any substantially similar security issued by the Company, withinsix months subsequent to the date on which the distribution of the Securitieshas been completed (as notified to the Company by Goldman, Sachs & Co.),is made under restrictions and other circumstances reasonably designed not toaffect the status of the offer and sale of the Securities in the United Statesand to U.S. persons contemplated by this Agreement as transactions exempt fromthe registration provisions of the Securities Act; ### ### (y) The Companyand its subsidiaries own, possess, are validly licensed under, or can acquireon reasonable terms, adequate patents, patent rights, licenses, inventions,copyrights, know-how (including trade secrets and other unpatented and/orunpatentable proprietary or confidential information, systems or procedures),trademarks, service marks, trade names or other intellectual property(collectively, “Intellectual Property”) necessary to carry on the business nowoperated by them, and except as set forth in the Offering Circular, neither theCompany nor any of its subsidiaries has received any notice or is otherwiseaware of any infringement of or conflict with asserted rights of others withrespect to any material Intellectual Property or of any facts or circumstanceswhich would render any material Intellectual Property invalid or inadequate toprotect the interest of the Company or any of its subsidiaries therein; ### ### (z) Thefinancial statements, including the notes thereto, included in the OfferingCircular present fairly the financial position of the Company and itsconsolidated subsidiaries as of the dates indicated and condition and resultsof operations for the periods specified, and said financial statements have beenprepared in conformity with generally accepted accounting principles applied ona consistent basis throughout the periods involved. The other financial information and dataincluded in the Offering Circular present fairly the information included thereinand have been prepared on a basis consistent with that of the financialstatements included in the Offering Circular and the books and records of therespective entities presented therein; ### ### (aa) No capital,stamp duty, stamp duty reserve or other documentary, issuance or transfer taxesor duties are payable by or on behalf of the Purchasers in the Netherlands, theUnited States, the European Union or any member state thereof, or, in eachcase, any political sub-division or taxing authority thereof or therein on (i) thecreation, issue or delivery by the Company of the Notes pursuant hereto or thesale thereof; (ii) the execution and delivery of the Operative Documents, (iii) thepledge of Debt Service Reserve Account (as defined in the Offering Circular), (iv) themaking of or 6 ---- ### payment under any intercompany loan oron-loan related to the proceeds from the sale of the Securities; or (v) theconsummation of the transactions contemplated by the Operative Documents; ### ### (bb) All materialtax returns that are required to be filed for which the Company or itssubsidiaries are or could become liable as a result of being part of a fiscalunity have been accurately prepared and timely filed, and all material taxes, assessments,governmental or other similar charges for which the Company or its subsidiariesare or could become liable as a result of being part of a fiscal unity havebeen paid or provided for, including without limitation, all sales and usetaxes and all employee, credit and third party withholding taxes, with respectto the periods covered by such tax returns (whether or not such amounts areshown as due on any tax return). Nodeficiency assessment with respect to a proposed adjustment of such taxes is pendingor, to the best of the Company’s knowledge, threatened. There is no material tax lien, whetherimposed by any federal, state, or other taxing authority, outstanding againstthe assets, properties or business of the Company or any of its subsidiaries; ### ### (cc) No labordisturbance by the employees of the Company or any of its subsidiaries existsor, to the best of the Company’s knowledge, is imminent; ### ### (dd) The Companyis, and immediately after the Time of Delivery will be, Solvent. As used herein, the term “Solvent” means,with respect to the Company on a particular date, that on such date (i) thefair market value of the assets of the Company is greater than the total amountof liabilities (including contingent liabilities) of the Company, (ii) thepresent fair saleable value of the assets of the Company is greater than theamount that will be required to pay the probable liabilities of the Company onits debts as they become absolute and matured, (iii) the Company is ableto realize upon its assets and pay its debts and other liabilities, includingcontingent obligations, as they mature, and (iv) the Company does not haveunreasonably small capital. Noproceedings have been commenced for purposes of, and no judgment has beenrendered for, the liquidation, bankruptcy or winding-up of the Company or anyof its subsidiaries; ### ### (ee) Except ineach case as set forth in the Offering Circular, the Company and itssubsidiaries possess such permits, licenses, approvals, consents, exemptions,franchises, and other authorizations (collectively, “Governmental Licenses”)issued by the appropriate national, state, local or foreign regulatory agenciesor bodies necessary to conduct the business now operated by them; the Companyand its subsidiaries are in compliance with the terms and conditions of allsuch Governmental Licenses and with the rules and regulations of theregulatory authorities and governing entities having jurisdiction with respectthereto; all of the Governmental Licenses are valid and in full force andeffect, and neither the Company nor any of its subsidiaries has received anynotice of, or is aware of, any proceedings relating to the revocation ormodification of any such Governmental Licenses; ### ### (ff) The Companyand its subsidiaries have insurance with financially sound and reputableinsurers covering their respective properties, operations, personnel andbusinesses, which insurance the Company believes to be appropriate and is in amounts andinsures against such losses or risks as are customary in the industry in whichthe Company and its subsidiaries operate, and all such insurance is in fullforce and effect. Neither the Company orany of its subsidiaries has received notice from any insurer or 7 ---- ### agent of such insurer that capitalimprovements or other expenditures are required or necessary to be made inorder to continue such insurance; ### ### (gg) Neither theCompany nor any of its subsidiaries nor any director, officer, employee or, toits knowledge, other person associated with or acting on behalf of the Companyor any of its subsidiaries has (i) used any corporate funds for anyunlawful contribution, gift, entertainment or other unlawful expense relatingto political activity, (ii) made any direct or indirect unlawful paymentto any foreign or domestic government official or employee from corporatefunds, (iii) caused the Company or any of its subsidiaries to be inviolation of any provision of the U.S. Foreign Corrupt Practices Act of 1977when such regulation becomes applicable to the Company or any of itssubsidiaries, or (iv) made any bribe, rebate, payoff, influence payment,kickback or other unlawful payment; ### ### (hh) The Companyhas the power to submit, and has or will have at the Time of Delivery, legally,validly, effectively and irrevocably submitted to the jurisdiction of any U.S.federal or state court in the Borough of Manhattan in The City of New York, NewYork, and have the power to designate, appoint and empower and have or willhave at the Closing Time legally, validly, effectively and irrevocablydesignated, appointed and empowered, an agent for service of process in anysuit or proceeding based on or arising under the Securities or the OperativeDocuments in any U.S. federal or state court in the Borough of Manhattan in TheCity of New York, as provided in the such Operative Documents; ### ### (ii) Thestatistical and market-related data included in the Offering Circular are basedon or derived from sources which the Company believes are reliable andaccurate; ### ### (jj) As of theTime of Delivery, the Company will own the collateral subject to the SecurityDocuments free and clear of all Liens except the Lien under the SecurityDocuments, and no financing statements in respect of any property or assets ofthe Company will be on file in favor of any person; ### ### (kk) Whenexecuted and delivered, the Security Documents will create valid andenforceable security interests in favor of the Trustee in all collateralsubject to the Security Documents, which security interests will secure therepayment of the Securities and the other obligations purported to be securedthereby; ### ### (ll) As of theTime of Delivery, the representations and warranties of the Company containedin the Security Documents will be true and correct in all material respects; ### ### (mm) As of the Time of Delivery, theSecurities will have been duly perfected as to all Collateral; ### ### (nn) As of theTime of Delivery, the Liens will not be subject in terms of priority to anyother Liens; ### ### (oo) Neither theCompany nor any of its affiliates does business with the government of Cuba orwith any person or affiliate located in Cuba within the meaning of Section 517.075,Florida Statutes; and 8 ---- ### (pp) Ernst & Young LLP, who have audited certain financialstatements of the Company and its subsidiaries, are independent publicaccountants (as such term is defined in the Act and the rules andregulations of the Commission thereunder). ### # 2. Subject tothe terms and conditions herein set forth, the Company agrees to issue and sellto each of the Purchasers, and each of the Purchasers agrees, severally and notjointly, to purchase from the Company, at a purchase price of 94.686% of the principal amount thereof,plus accrued interest, if any, from June 25,2003 to the Time of Delivery hereunder, the principal amount ofSecurities set forth opposite the name of such Purchaser in Schedule Ihereto. # # 3. Upon theauthorization by you of the release of the Securities, the Purchasers proposeto offer the Securities for sale upon the terms and conditions set forth inthis Agreement and the Offering Circular and each Purchaser hereby representsand warrants to, and agrees with the Company that: # ## (a) It willoffer and sell the Securities only to: (i) personswho it reasonably believes are “qualified institutional buyers” (“QIBs”) withinthe meaning of Rule 144A under the Act in transactions meeting therequirements of Rule 144A or, (ii) upon the terms and conditions setforth in Annex I to this Agreement; ## ## (b) It is anInstitutional Accredited Investor; and ## ## (c) It will notoffer or sell the Securities by any form of general solicitation or generaladvertising, including but not limited to the methods described in Rule 502(c) underthe Act. ## ## 4. (a) TheSecurities to be purchased by each Purchaser hereunder will be represented byone or more definitive global Securities in book-entry form which will bedeposited by or on behalf of the Company with The Depository Trust Company (“DTC”)or its designated custodian. The Companywill deliver the Securities to Goldman, Sachs & Co., for the accountof each Purchaser, against payment by or on behalf of such Purchaser of thepurchase price therefor by wire transfer, payable to the order of the Company inNew York Clearing House (next day) funds, by causing DTC to credit theSecurities to the account of Goldman, Sachs & Co. at DTC. The Company will cause the certificatesrepresenting the Securities to be made available to Goldman, Sachs &Co. for checking at least twenty-four hours prior to the Time of Delivery (asdefined below) at the office of DTC or its designated custodian (the “DesignatedOffice”). The time and date of suchdelivery and payment shall be 9:30 a.m., New York City time, on June 27,2003 or such other time and date as Goldman, Sachs & Co. and theCompany may agree upon in writing. Suchtime and date are herein called the “Time of Delivery.” ## ## (b) Thedocuments to be delivered at the Time of Delivery by or on behalf of theparties hereto pursuant to Section 7 hereof, including the cross-receiptfor the Securities and any additional documents requested by the Purchaserspursuant to Section 7(j)hereof, will be delivered at such time and date at the offices of Latham &Watkins LLP, 885 Third Avenue, New York, New York, 10022 (the “Closing Location”),and the Securities will be delivered at the Designated Office, all at the Timeof Delivery. A meeting will be held atthe Closing Location at 4:00 p.m., New York City time, on the New York BusinessDay next preceding the Time of Delivery, at which meeting the final drafts ofthe documents to be delivered pursuant to the preceding sentence will beavailable for review by the parties hereto. For the purposes of this Section 4, “New York Business Day” shallmean each Monday, Tuesday, Wednesday, Thursday 9 ---- ## and Friday which is nota day on which banking institutions in New York are generally authorized orobligated by law or executive order to close. ## # 5. The Companyagrees with each of the Purchasers: # ## (a) To preparethe Offering Circular in a form approved by you; to make no amendment or anysupplement to the Offering Circular which shall be disapproved by you, actingreasonably, promptly after reasonable notice thereof; and to furnish you withcopies thereof; ## ## (b) Promptlyfrom time to time to take such action as you may reasonably request to qualifythe Securities for offering and sale under the securities laws of suchjurisdictions as you may request and to comply with such laws so as to permitthe continuance of sales and dealings therein in such jurisdictions for as longas may be necessary to complete the distribution of the Securities, providedthat in connection therewith the Company shall not be required to qualify as aforeign corporation or to file a general consent to service of process in anyjurisdiction; ## ## (c) To furnishthe Purchasers with copies of the Offering Circular and each amendment orsupplement thereto with the independent accountants’ report(s) in the OfferingCircular, and any amendment or supplement containing amendments to thefinancial statements covered by such report(s), signed by the accountants, andadditional written and electronic copies thereof in such quantities as you mayfrom time to time reasonably request, and if, at any time prior to theexpiration of nine months after the date of the Offering Circular, any eventshall have occurred as a result of which the Offering Circular as then amendedor supplemented would include an untrue statement of a material fact or omit tostate any material fact necessary in order to make the statements therein, inthe light of the circumstances under which they were made when such OfferingCircular is delivered, not misleading, or, if for any other reason it shall benecessary or desirable during such same period to amend or supplement theOffering Circular, to notify you and upon your request to prepare and furnishwithout charge to each Purchaser and to any dealer in securities as manywritten and electronic copies as you may from time to time reasonably requestof an amended Offering Circular or a supplement to the Offering Circular whichwill correct such statement or omission or effect such compliance; ## ## (d) During theperiod beginning from the date hereof and continuing until the date six monthsafter the Time of Delivery, not to offer, sell, contract to sell or otherwisedispose of, except as provided hereunder any securities of the Company that aresubstantially similar to the Securities without the consent of Goldman, Sachs &Co. Inc.; ## ## (e) Not to be orbecome, at any time prior to the expiration of three years after the Time ofDelivery, an open-end investment company, unit investment trust, closed-endinvestment company or face-amount certificate company that is or is required tobe registered under Section 8 of the Investment Company Act; ## ## (f) At any timewhen the Company is not subject to Section 13 or 15(d) of theExchange Act, for the benefit of holders from time to time of Securities, tofurnish at its expense, upon request, to holders of Securities and prospectivepurchasers of securities information (the “Additional Issuer Information”)satisfying the requirements of subsection (d)(4)(i) of Rule 144Aunder the Act; 10 ---- ## (g) If requestedby you, to use its best efforts to cause such Designated Securities to beeligible for the PORTAL trading system of NASD, Inc.; ## ## (h) To use allcommercially reasonable efforts to (i) effect the listing of theSecurities on the Luxembourg Stock Exchange as soon as reasonably practicablebut in no case later than January 31, 2004, and (ii) maintain thelisting of the Securities on the Luxembourg Stock Exchange for so long as theSecurities are outstanding. Inconnection with the foregoing, the Company will, on or prior to the date onwhich the Securities are approved for listing on the Luxembourg Stock Exchange,submit to the Luxembourg Stock Exchange the Listing Particulars and eachdocument in final form as required by Article 6 and Appendix I of theLuxembourg Stock Exchange’s Rules regarding Admission to Official StockExchange Listing and Public Offer of Transferable Securities, as amended (the “Listing Rules”). If the Securities are approved for listing onthe Luxembourg Stock Exchange, the Company will publish the Listing Particulars(and, if appropriate, any supplemental Listing Particulars) as required by theListing Rules. The Company will comply withthe Listing Rules; and the Company will make available sufficient copies of theListing Particulars at the registered office of the Company and the otherlocations referred to in the Listing Particulars as required by the LuxembourgStock Exchange; ## ## (i) To furnishto the holders of the Securities an annual report and after the end of each ofthe first three quarters of each fiscal year (beginning with the fiscal quarterending after the date of the Offering Circular), to make available to its shareholders consolidated summaryfinancial information of the Company and its subsidiaries for such quarter asrequired by the Indenture; ## ## (j) To deliverto you (i) during a period of five years from the date of the OfferingCircular, as soon as they are available, copies of any reports and financialstatements furnished to or filed with the Commission or any securities exchangeon which the Securities, or any class of securities of the Company is listed;and (ii) for a period of three years from the date of the OfferingCircular, such additional information concerning the business and financialcondition of the Company as you may from time to time reasonably request (suchfinancial statements to be on a consolidated basis to the extent the accountsof the Company and its subsidiaries are consolidated in reports furnished toits shareholders generally or to the Commission); ## ## (k) During theperiod of two years after the Time of Delivery, the Company will not, and willnot permit any of its “affiliates” (as defined in Rule 144 under theSecurities Act) to, resell (except to the Company) any of the Securities whichconstitute “restricted securities” under Rule 144 that have beenreacquired by any of them; ## ## (l) To use thenet proceeds received by it from the sale of the Securities pursuant to thisAgreement in the manner specified in the Offering Circular under the caption “Useof Proceeds”; ## ## (m) To do andperform all things required to be done and performed under the OperativeDocuments prior to the Time of Delivery; and ## ## (n) To complywith its agreements in all agreements set forth in the representation lettersof the Company to DTC relating to the approval of the Notes by DTC for “bookentry” transfer. ## # 6. The Companycovenants and agrees with the several Purchasers that the Company will pay orcause to be paid the following: (i) the fees, disbursements and expensesof 11 ---- # the Company’s counseland accountants in connection with the issue of the Securities and all otherexpenses in connection with the preparation, printing and filing of theOffering Circular and any amendments and supplements thereto and the mailingand delivering of copies thereof to the Purchasers and dealers; (ii) thecost of printing or producing any Operative Document, the Blue Sky Memoranda, closingdocuments (including any compilations thereof) and any other documents inconnection with the offering, purchase, sale and delivery of the Securities; (iii) allexpenses and taxes (except income or capital gains or other taxes on the gainsmade by Purchasers as a result of their resales of the Securities) arising forthe account of a Purchaser as a result of the sale and delivery (whether to thePurchasers or by the Purchasers to the purchasers thereof) of the Securities ascontemplated herein, including in any such case, any Netherlands income,capital gains, withholding, transfer or other tax asserted against a Purchaserby reason of the purchase and sale of the Securities pursuant to thisAgreement, (iv) in connection with the qualification of the Securities foroffering and sale under state securities laws as provided in Section 5(b) hereof,including the reasonable fees and disbursements of counsel for the Purchasersin connection with such qualification and in connection with the Blue Skysurveys; (v) any fees charged by securities rating services for rating theSecurities; (vi) any costs incurred in connection with the admission ofthe Securities for trading on the Luxembourg Stock Exchange; (vii) fundingand foreign exchange costs, if any, in connection with the closing of theoffering; (viii) the cost of preparing the Securities; (ix) the feesand expenses of the Trustee and any agent of the Trustee and the fees anddisbursements of counsel for the Trustee in connection with the Indenture and theSecurities; and (x) all other costs and expenses incident to the performance ofits obligations hereunder which are not otherwise specifically provided for inthis Section. It is understood, however,that, except as provided in this Section, and Sections 8 and 11 hereof, thePurchasers will pay all of their own costs and expenses, including the fees oftheir counsel, transfer taxes on resale of any of the Securities by them, andany advertising expenses connected with any offers they may make. # # 7. The obligationsof the Purchasers hereunder shall be subject, in their discretion, to thecondition that all representations and warranties and other statements of theCompany herein are, at and as of the Time of Delivery, true and correct, thecondition that the Company shall have performed all of its obligationshereunder theretofore to be performed, and the following additional conditions: # ## (a) Latham & Watkins LLP, counsel for the Purchasers, shall havefurnished to you such opinion or opinions, dated the Time of Delivery, withrespect to such matters as you may reasonably request, and such counsel shallhave received such papers and information as they may reasonably request toenable them to pass upon such matters; ## ## (b) Loyens & Loeff, Dutch counsel for the Purchasers, shallhave furnished to you such opinion or opinions, dated the Time of Delivery,with respect to such matters as you may reasonably request, and such counselshall have received such papers and information as they may reasonably requestto enable them to pass upon such matters; ## ## (c) Buzescu & Co, Romanian counsel for the Purchasers,shall have furnished to you such opinion or opinions, dated the Time ofDelivery, with respect to such matters as you may reasonably request, and suchcounsel shall have received such papers and information as they may reasonablyrequest to enable them to pass upon such matters; ## ## (d) PillsburyWinthrop LLP, special U.S. counsel for the Company, shall have furnished to youtheir written opinion, dated the Time of Delivery, in form and substancesatisfactory to you, to the effect that: 12 ---- #### (i) When issuedby the Company against payment therefor in accordance with the terms of thisAgreement, and authenticated and delivered by the Trustee in accordance withthe terms of the Indenture, the Securities will constitute valid and legallybinding obligations of the Company entitled to the benefits provided by theIndenture and enforceable against the Company in accordance with their terms,subject to bankruptcy, insolvency, moratorium, reorganization, fraudulentconveyance and other laws of general applicability relating to or affectingcreditors’ rights, general equity principles and to the requirements ofreasonableness, good faith and fair dealing; #### #### (ii) Whenexecuted and issued by the Company and authenticated and delivered by theTrustee in accordance with the terms of the Indenture, in exchange for theSecurities in accordance with the terms of the Indenture, the RegistrationRights Agreement and the Exchange Offer, the Exchange Securities willconstitute valid and legally binding obligations of the Company entitled to thebenefits provided by the Indenture and enforceable against the Company inaccordance with their terms, subject to bankruptcy, insolvency, moratorium,reorganization, fraudulent conveyance and other laws of general applicabilityrelating to or affecting creditors’ rights, to general equity principles and tothe requirements of reasonableness, good faith and fair dealing; #### #### (iii) Assuming dueauthorization, execution and delivery thereof by the Trustee, the Indenture constitutes a valid andlegally binding instrument of the Company, enforceable against the Company inaccordance with its terms, subject to bankruptcy, insolvency, moratorium,reorganization, fraudulent conveyance and other laws of general applicabilityrelating to or affecting creditors’ rights, to general equity principles and tothe requirements of reasonableness, good faith and fair dealing; #### #### (iv) Assuming dueauthorization, execution and delivery thereof by the Purchasers, the Registration Rights Agreementconstitutes a valid and legally binding instrument, enforceable against theCompany in accordance with its terms, subject to bankruptcy, insolvency,moratorium, reorganization, fraudulent conveyance and other laws of generalapplicability relating to or affecting creditors’ rights, to general equityprinciples, the requirements of reasonableness, good faith and fair dealing andthe unenforceability under certain circumstances under law or court decisionsof provisions providing for the indemnification of or contribution to a partywith respect to a liability where such indemnification or contribution iscontrary to public policy; #### #### (v) Assuming dueauthorization, execution and delivery thereof by the Trustee and thedepositary, each of the Security Documents constitutes a valid and legallybinding instrument, enforceable against the Company in accordance with itsterms, subject to bankruptcy, insolvency, moratorium, reorganization fraudulentconveyance, Sections 9-602, 9-603, 9-401(b), 9-406 and 9-408 under the UniformCommercial Code in effect in the State of New York (the “NY UCC”) and otherlaws of general applicability relating to or affecting creditors’ rights, togeneral equity principles and to the requirements of reasonableness, good faithand fair dealing; #### #### (vi) The Securities, the Indenture, the Registration Rights Agreement and theSecurity Documents conform in all material respects to the descriptions thereofin the Offering Circular; #### #### (vii) Thestatements set forth in the Offering Circular under the caption “Description ofNotes,” insofar as they purport to constitute a summary of the terms of 13 ---- #### the Securities, and under the captions “GovernanceStructure and Shareholders Arrangements—MobiFon Governance Structure” and “GovernanceStructure and Shareholders Arrangements—MobiFon Contract of Association” (ineach case solely as to the Romanian GSM Cooperation Agreement and the VodofoneWaiver Letter dated 12 December 2000) and “Certain Tax Considerations—U.S.Federal Income Tax Considerations,” insofar as they purport to describe theprovisions of the laws and documents referred to therein, are accuratedescriptions in all material respects; #### #### (viii) The issueand sale of the Securities and the compliance by the Company with itsobligations under the Operative Documents will not conflict with or result in abreach or violation of any of the terms or provisions of, or constitute adefault under, any agreement or instrument identified on Annex III-A hereto andwill not conflict with or result in a violation of any federal or New Yorkstatute or any order, rule or regulation of any federal or New Yorkgovernmental agency or body having jurisdiction over the Company, MobiFon orany of their properties. The issue andsale of the Securities and the compliance by the Company with its obligationsunder the Operative Documents does not violate any order issued by a federal orNew York court having jurisdiction over the Company or MobiFon or any of theirproperties of which such counsel has knowledge; #### #### (ix) No consent,approval, authorization, order, registration or qualification of or with anyfederal or New York court or governmental agency or body is required for theissue and sale of the Securities or the consummation by the Company of thetransactions contemplated by the Operative Documents, except such consents,approvals, authorizations, registrations or qualifications as may be requiredunder state securities or Blue Sky laws in connection with the purchase anddistribution of the Securities by the Purchasers, the filing of a registrationstatement providing for the registration of the Exchange Securities under theAct and the related filings under the Trust Indenture Act, and filings andrecordings required in order to perfect or otherwise protect the securityinterests under the Security Documents; #### #### (x) Theexecution and delivery of each of the Security Documents creates in favor ofthe Trustee a valid lien on and a security interest in the Collateral (as suchterm is defined in the Security Documents), which security interest secures therepayment of the Securities. Assumingthe timely and proper filing of the financing statements on Form UCC-1reviewed by such counsel in the office of the Secretary of State for the Stateof New York, such security interests, in so much of the Collateral as consistsof (in each case as defined in the NY UCC) accounts (other than accountsdescribed in Section 9-102(a)(6)(b) of the NY UCC), generalintangibles, goods, chattel paper, negotiable documents and instruments, willbe perfected to the extent a security interest in the Collateral may beperfected by the filing of a financing statement under the NY UCC; #### #### (xi) Theprovisions of the Depositary Agreement are effective to perfect the securityinterest of the Trustee in the Debt Service Reserve Account; #### #### (xii) Assuming theaccuracy of the respective representations and warranties made by thePurchasers and the Company and their respective compliance with their covenantscontained in this Agreement, no registration of the Securities under the Act,and no qualification of an indenture under the United States Trust IndentureAct of 1939 14 ---- #### with respect thereto, is required for theoffer, sale and initial resale of the Securities by the Purchasers in themanner contemplated by this Agreement; #### #### (xiii) The Companyis not an “investment company,” as such term is defined in the InvestmentCompany Act; and #### #### (xiv) Althoughsuch counsel has made no independent verification or check of the informationcontained therein (except to the extent expressly sent forth in paragraph (vii) above),such counsel have no reason to believe that the Offering Circular and anyfurther amendments or supplements thereto made by the Company prior to the Timeof Delivery (other than the financial statements and financial data therein, asto which such counsel need express no opinion) contained as of its date orcontains as of the Time of Delivery an untrue statement of a material fact oromitted or omits, as the case may be, to state a material fact necessary tomake the statements therein, in the light of the circumstances under which theywere made, not misleading. #### Suchcounsel may state that its opinion is limited only to the effect on the subjecttransactions of the federal laws of the United States and the internal laws ofthe State of New York; ## (e) Stibbe P.C.,Dutch counsel for the Company, shall have furnished to you their writtenopinion, dated the Time of Delivery, in form and substance satisfactory to you,to the effect that: ## #### (i) The Companyhas been duly incorporated and is validly existing as a private company withlimited liability (besloten vennootschap metbeperkte aansprakelijkheid) under the laws of the Netherlands, withpower and authority to conduct its business as described in the OfferingCircular; #### #### (ii) The Companyhas been duly qualified as a corporation for the transaction of business and isin good standing under the laws of the Netherlands; #### #### (iii) Each of theIndenture, this Agreement, the Security Documents and the Registration RightsAgreement has been duly authorized, executed and delivered by the Company; #### #### (iv) TheSecurities have been duly authorized by all requisite corporate action on thepart of the Company and, when signed on behalf of the Company by any one memberof the managing board of the Company or by a person duly authorized to signpursuant to a valid power of attorney and authenticated in accordance with theIndenture, will have been duly executed by the Company; #### #### (v) The ExchangeSecurities have been duly authorized by all requisite corporate action on theparty of the Company; #### #### (vi) The Companyhas an authorized capitalization as set forth in the Offering Circular, and allof the issued shares of capital stock of the Company have been duly and validlyauthorized and issued and are fully paid and non-assessable; #### #### (vii) The issueand sale of the Securities and the compliance by the Company with all of theprovisions of the Operative Documents and the consummation of the 15 ---- #### transactions herein and thereincontemplated will not result in any violation of the provisions of the Articlesof Association of the Company and will not conflict with or result in aviolation of any Netherlands statute or regulation; #### #### (viii) No consent,approval, authorization, order, registration or qualification of or with anyDutch court or governmental agency or body is required for the issue and saleof the Securities or the consummation by the Company of the transactionscontemplated by the Operative Documents; #### #### (ix) Thestatements set forth in the Offering Circular under the captions “RiskFactors—Risks Relating to the Notes—Because judgments of U.S. courts are notdirectly enforceable in the Netherlands, you may find it more difficult toenforce your rights than if we were a U.S. company,” “Risk Factors—RisksRelating to the Notes—Insolvency laws in the Netherlands could negativelyaffect your right to enforce the notes” and “Risk Factors—Risks Relating to theNotes—We may be liable for corporate income tax of ClearWave’s consolidatedgroup,” insofar as they purport to describe the provisions of the laws of theNetherlands referred to therein, are accurate and fair; #### #### (x) The choiceof New York law as the law governing the Operative Documents and the Securitiesis valid and binding under the laws of the Netherlands; #### #### (xi) There isnothing in the laws of the Netherlands which would prevent the OperativeDocuments or, when issued, the Securities from constituting legal, valid andbinding obligations of the Company enforceable in accordance with theirrespective terms; #### #### (xii) No approval,authorization or other action by, or filing with, any governmental authority ofthe Netherlands is required in connection with the execution by the Company ofthe Operative Documents, the offering, execution and issue of the Securities,the performance by the Company of its obligations under the Operative Documentsor the Securities, except that there are notification requirements to the DutchCentral Bank on payments made to and by the Company respectively from and topersons outside of the Netherlands and on the maintenance by the Issuer of bankaccounts abroad, pursuant to the Act on Foreign Financial Relations 1994 (Wet financiele beirekkingen buitenland 1994)and regulations promulgated thereunder. Failure to observe these requirements does not, however, render theOperative Documents or the Securities void, nor does it affect the legality,validity and enforceability of the Operative Documents and the Securities; #### #### (xiii) In order toensure the legality, validity, enforceability or admissibility in evidence ofthe Operative Documents or the Securities it is not necessary that any of thembe filed or recorded with any public office in the Netherlands; #### #### (xiv) The Companyis not entitled to any immunity from any legal proceedings in the Netherlandsto enforce the Operative Documents or the Securities or any liability orobligation of the Company arising thereunder; #### #### (xv) Thesubmission by the Company to the jurisdiction of the courts of U.S. federal andNew York State with regard to the Operative Document and the Securities, isvalid and binding upon the Company under the laws of the Netherlands, provided 16 ---- #### however that such consent does notpreclude that claims for provisional measures be brought before the presidentof a competent court in the Netherlands; #### #### (xvi) Thedesignation by the Company of Corporation Service Company as agent to receiveservice of process in the United States on behalf of the Company is valid andbinding under the laws of the Netherlands; and #### #### (xvii) The section setout in the Offering Circular regarding the offering of the Securities, underthe heading “Certain Tax Considerations—Certain Netherlands Tax Considerations”is a fair and accurate summary for the persons mentioned therein, subject tothe assumptions, limitations and qualifications mentioned in the OfferingCircular to the extent that section aims to provide a summarizeddescription of certain Netherlands tax consequences of the purchase, ownershipand disposition of the Securities. NoNetherlands stamp duty or other similar Netherlands taxes will be payable inthe Netherlands in respect of the creation, subscription, offering and issue ofthe Securities or the sale thereof on the date hereof to eligible purchasers. #### Suchcounsel may state that its opinion is limited only to the effect on the subjecttransactions of the laws of the Netherlands; ## (f) Moore,Vartires & Associates SCPA, Romanian counsel for the Company, shallhave furnished to you their written opinion, dated the Time of Delivery, inform and substance satisfactory to you, to the effect that: ## #### (i) MobiFon hasbeen duly organized and is validly existing as a joint stock company under thelaws of Romania, with legal capacity to conduct its business as described inthe Offering Circular; #### #### (ii) All of theissued shares of capital stock of MobiFon have been duly and validly authorizedand issued and are fully paid, and none of the outstanding shares of MobiFonwas issued in violation of the pre-emptive or other similar rights of anyshareholder of MobiFon arising under MobiFon’s contract of association. 109,665,055 shares of MobiFon are owned ofrecord by the Company, and to such counsel’s knowledge based solely upon itsreview of MobiFon’s shareholders register and publicly available documents onfile at the Bucharest Trade Registry, such shares are not subject to anyusufruct or similar rights in favor of others. Except as stated in the Offering Circular, to such counsel’s knowledgethe shares of MobiFon owned by the Company are not subject to any adverseclaims, limitations on voting rights, options or other encumbrances; #### #### (iii) Except asstated in the Offering Circular, MobiFon possesses such Governmental Licensesissued by the appropriate national or local regulatory agencies or bodiesnecessary to conduct the business now operated by MobiFon as described in theOffering Circular; MobiFon is in compliance in all material respects with theterms and conditions of all such Governmental Licenses and with applicableRomanian laws and regulations; and all of such Governmental Licenses are validand in full force and effect; #### #### (iv) Other thanas set forth in the Offering Circular, to such counsel’s knowledge there are nolegal or governmental proceedings pending or threatened to which MobiFon is aparty or of which any property or Governmental License of MobiFon 17 ---- #### is the subject which, if determinedadversely to MobiFon, would individually or in the aggregate have a materialadverse effect on the current or future consolidated financial position, shareholder’s equity or results ofoperations of MobiFon; #### #### (v) The issueand sale of the Securities as described in the Offering Circular is not subjectto Romanian law, and the issue and sale of the Securities as described in theOffering Circular and the compliance by the Company with all of its obligationsunder the Operative Documents does not violate the provisions of theorganizational documents of MobiFon and will not conflict with or result in abreach or violation of any of the terms or provisions of, or constitute adefault under, any indenture, mortgage, deed of trust, loan agreement or otheragreement or instrument identified on Annex III-B hereto or any Romanianstatute or any order, rule or regulation of any governmental agency orbody of Romania having jurisdiction over the Company or MobiFon or any of theirproperties. The issuance and sale of theSecurities as described in the Offering Circular and the compliance by theCompany with all of its obligations under the Operative Documents does notviolate any order issued by a Romanian court having jurisdiction over theCompany or MobiFon or any of their properties of which such counsel hasknowledge; #### #### (vi) No consent,approval, authorization, order, registration or qualification of or with anyRomanian court or governmental agency or body is required for the issue andsale of the Securities or the consummation by the Company of the transactionscontemplated by the Operative Documents; #### #### (vii) MobiFon’sbusiness as described in the Offering Circular does not violate itsorganizational documents. To suchcounsel’s knowledge, MobiFon is not otherwise in violation of itsorganizational documents or in default in the performance or observance of anymaterial obligation, covenant or condition contained in any agreement orinstrument identified on Annex III-B hereto; and #### #### (viii) Thestatements set forth in the Offering Circular under the captions “RiskFactors—Risks Relating to the Notes—Insolvency laws in Romania could have anegative effect on our ability to service and repay the notes,” “RiskFactors—Risks Relating to Our Business—We are subject to governmentalregulation and licensing requirements, which may increase our operating costsand may dictate where and how we operate,” “Governance Structure andShareholders Arrangements—MobiFon Governance Structure” (except with respect tothe Romanian GSM Cooperation Agreement), “Governance Structure and ShareholderArrangements—EBRD Share Retention Arrangement” (limited only to the securityinterest over MobiFon shares), “Governance Structure and ShareholdersArrangements—MobiFon Contract of Association,” (except with respect to theVodafone Waiver Letter dated 12 December 2000), “Business—Regulation,” “Business—LegalProceedings” and “Description of Other Indebtedness—MobiFon Working CapitalFacilities” (limited only to the working capital facility with ABN AMRO(Romania) S.A.), insofar as they purport to describe the provisions of the lawsand documents referred to therein, are accurate descriptions of the relevant provisionsin all material respects; #### Suchcounsel may state that its opinion is limited only to the effect on the subjecttransactions of the laws of Romania; 18 ---- ## (g) Altheimer &Gray, specialEnglish counsel for the Company, shall have furnished to you their writtenopinion, dated the Time of Delivery, in form and substance satisfactory to you,to the effect that: ## #### (i) The issue and sale of the Securities asdescribed in the Offering Circular and the compliance by theCompany with all of itsobligations under the Operative Documents will not conflict withor result in a breach or violation of any of the terms or provisions of, orconstitute a default under, any agreement or instrument identified on Annex III-C hereto; #### #### (ii) To such counsel’s knowledge, MobiFon isnot in default in the performance or observance of any materialobligation, covenant or condition contained in any agreement or instrument identified on Annex III-C hereto;and #### #### (iii) Thestatements set forth in the Offering Circular under the captions“Governance Structureand Shareholder Arrangements—Other Arrangements,” “Governance Structure andShareholder Arrangements—EBRD Share Retention Arrangement” (except with respectto the security interest over MobiFon shares), “Description of OtherIndebtedness—MobiFon Senior Credit Facility” and “Description of OtherIndebtedness—MobiFon Working Capital Facilities” (limited to the workingcapital facility with Citibank S.A.), insofar as they purport to describe theprovisions of the documents referred to therein, are accurate descriptions of the relevantprovisions in all material respects; #### Suchcounsel may state that its opinion is limited only to the effect on the subjecttransactions of the laws of England and Wales; ## (h) On the dateof the Offering Circular prior to the execution of this Agreement and also atthe Time of Delivery, Ernst & Young LLP shall have furnished to you aletter or letters, dated the respective dates of delivery thereof, in form andsubstance satisfactory to you, to the effect set forth in Annex II hereto; ## ## (i) As of thedate hereof and the Time of Delivery, (i) neither the Company nor any ofits subsidiaries shall have sustained since the date of the latest auditedfinancial statements included in the Offering Circular any loss or interferencewith its business from fire, explosion, flood or other calamity, whether or notcovered by insurance, or from any labor dispute or court or governmentalaction, order or decree, otherwise than as set forth or contemplated in theOffering Circular, and (ii) since the respective dates as of whichinformation is given in the Offering Circular there shall not have been anychange in the capital stock or long-term debt of the Company or any of itssubsidiaries or any change, or any development involving a prospective change,in or affecting the general affairs, management, financial position,shareholder’s equity or results of operations of the Company and itssubsidiaries, otherwise than as set forth or contemplated in the OfferingCircular, the effect of which, in any such case described in clause (i) or(ii), is in the judgment of the Purchasers so material and adverse as to makeit impracticable or inadvisable to proceed with the public offering or thedelivery of the Securities on the terms and in the manner contemplated in thisAgreement and in the Offering Circular; ## ## (j) On the datehereof through the Time of Delivery (i) no downgrading shall have occurredin the rating accorded the Company’s debt securities by any “nationallyrecognized statistical rating organization”, as that term is defined by theCommission for purposes of Rule 19 ---- ## 436(g)(2) under theAct, and (ii) no such organization shall have publicly announced that ithas under surveillance or review, with possible negative implications, itsrating of any of the Company’s debt securities; ## ## (k) On or afterthe date hereof there shall not have occurred any of the following: (i) asuspension or material limitation in trading in securities generally on the NewYork Stock Exchange or on NASDAQ;**(ii) asuspension or material limitation in trading in Telesystem InternationalWireless Inc.’s securities on the Toronto Stock Exchange; (iii) a generalmoratorium on commercial banking activities declared by either Federal or NewYork State authorities or a material disruption in commercial banking orsecurities settlement or clearance services in the United States; (iv) achange or development involving a prospective change in Dutch taxationaffecting the Company, the Securities or the transfer thereof or the impositionof new exchange controls by the United States or the Netherlands, (v) theoutbreak or escalation of hostilities involving the United States, theNetherlands or Romania or the declaration by the United States, the Netherlandsor Romania of a national emergency or war; or (vi) the occurrence of anyother calamity or crisis or any change in financial, political or economicconditions in the United States, the Netherlands, Romania or elsewhere, if theeffect of any such event specified in clause (iv) or (v) in thejudgment of the Purchasers makes it impracticable or inadvisable to proceedwith the public offering or the delivery of the Securities on the terms and inthe manner contemplated in the Offering Circular; ## ## (l) TheSecurities have been designated for trading on PORTAL if requested by thePurchasers; ## ## (m) The OfferingCircular shall have been filed with the Luxembourg Stock Exchange; ## ## (n) The Trusteeshall have received (with a copy for the Purchasers) on the Time of Delivery: ## (i) appropriately completed copies, which have been duly authorized for filingby the appropriate Person, of Uniform Commercial Code financing statementsnaming the Company as a debtor and the Trustee as the secured party, or othersimilar instruments or documents to be filed under the UCC in all jurisdictionsas may be necessary or, in the reasonable opinion of the Trustee and itscounsel, desirable to perfect the security interests of the Trustee pursuant tothe Security Documents (collectively, the “Filing Statements”); and (ii) such other approvals, opinions, or documents as the Trustee may reasonablyrequest in form and substance reasonably satisfactory to the Trustee; ## (o) The Trusteeshall have received evidence satisfactory to the Trustee that the Trustee shallhave “control” (within the meaning of Section 9-104 of the UCC) over theDebt Service Reserve Account; and ## ## (p) The Companyshall have furnished or caused to be furnished to you at the Time of Deliverycustomary certificates of officers of the Company satisfactory to you as to theaccuracy of the representations and warranties of the Company herein at and asof such Time of Delivery, as to the performance by the Company of all of itsobligations hereunder to be performed at or prior to such Time of Delivery, asto the matters set forth in subsections (i) and (j) of this Section andas to such other matters as you may reasonably request. 20 ---- ## 8. (a) The Companywill indemnify and hold harmless each Purchaser against any losses, claims, damagesor liabilities, joint or several, to which such Purchaser may become subject,under the Act or otherwise, insofar as such losses, claims, damages orliabilities (or actions in respect thereof) arise out of or are based upon anuntrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Circular orthe Offering Circular, or any amendment or supplement thereto, or arise out ofor are based upon the omission or alleged omission to state therein a materialfact necessary to make the statements therein, in the light of circumstancesunder which they were made, not misleading, and will reimburse each Purchaserfor any legal or other expenses reasonably incurred by such Purchaser inconnection with investigating or defending any such action or claim as suchexpenses are incurred; provided, however,that the Company shall not be liable in any such case to the extent that anysuch loss, claim, damage or liability arises out of or is based upon an untruestatement or alleged untrue statement or omission or alleged omission made in the Preliminary Offering Circular orthe Offering Circular or any such amendment or supplement in reliance upon andin conformity with written information furnished to the Company by any Purchaserthrough Goldman, Sachs & Co. expressly for use therein. ## ## (b) EachPurchaser will indemnify and hold harmless the Company against any losses,claims, damages or liabilities to which the Company may become subject, underthe Act or otherwise, insofar as such losses, claims, damages or liabilities(or actions in respect thereof) arise out of or are based upon an untruestatement or alleged untrue statement of a material fact contained in the Preliminary Offering Circular orthe Offering Circular, or any amendment or supplement thereto, or arise out ofor are based upon the omission or alleged omission to state therein a materialfact or necessary to make the statements therein, in the light of circumstancesunder which they were made, not misleading, in each case to the extent, butonly to the extent, that such untrue statement or alleged untrue statement oromission or alleged omission was made in the Preliminary Offering Circular or the Offering Circular or anysuch amendment or supplement in reliance upon and in conformity with writteninformation furnished to the Company by such Purchaser through Goldman, Sachs &Co. expressly for use therein; and will reimburse the Company for any legal orother expenses reasonably incurred by the Company in connection withinvestigating or defending any such action or claim as such expenses areincurred. ## ## (c) Promptlyafter receipt by an indemnified party under subsection (a) or (b) aboveof notice of the commencement of any action, such indemnified party shall, if aclaim in respect thereof is to be made against the indemnifying party undersuch subsection, notify the indemnifying party in writing of the commencementthereof; but the omission so to notify the indemnifying party shall not relieveit from any liability which it may have to any indemnified party otherwise thanunder such subsection. In case any suchaction shall be brought against any indemnified party and it shall notify theindemnifying party of the commencement thereof, the indemnifying party shall beentitled to participate therein and, to the extent that it shall wish, jointlywith any other indemnifying party similarly notified, to assume the defensethereof, with counsel satisfactory to such indemnified party (who shall not,except with the consent of the indemnified party, be counsel to theindemnifying party), and, after notice from the indemnifying party to suchindemnified party of its election so to assume the defense thereof, theindemnifying party shall not be liable to such indemnified party under such subsection forany legal expenses of other counsel or any other expenses, in each casesubsequently incurred by such indemnified party, in connection with the defensethereof other than reasonable costs of investigation. No indemnifying party shall, without thewritten consent of the indemnified party, effect the settlement or compromiseof, or consent to the entry of any judgment with respect to, any pending orthreatened action or claim in respect of which indemnification or contribution 21 ---- ## may be sought hereunder(whether or not the indemnified party is an actual or potential party to suchaction or claim) unless such settlement, compromise or judgment (i) includesan unconditional release of the indemnified party from all liability arisingout of such action or claim and (ii) does not include a statement as to,or an admission of, fault, culpability or a failure to act, by or on behalf ofany indemnified party. ## ## (d) If theindemnification provided for in this Section 8 is unavailable to orinsufficient to hold harmless an indemnified party under subsection (a) or(b) above in respect of any losses, claims, damages or liabilities (oractions in respect thereof) referred to therein, then each indemnifying partyshall contribute to the amount paid or payable by such indemnified party as aresult of such losses, claims, damages or liabilities (or actions in respectthereof) in such proportion as is appropriate to reflect the relative benefitsreceived by the Company on the one hand and the Purchasers on the other fromthe offering of the Securities. If,however, the allocation provided by the immediately preceding sentence is notpermitted by applicable law or if the indemnified party failed to give thenotice required under subsection (c) above, then each indemnifyingparty shall contribute to such amount paid or payable by such indemnified partyin such proportion as is appropriate to reflect not only such relative benefitsbut also the relative fault of the Company on the one hand and the Purchaserson the other in connection with the statements or omissions which resulted insuch losses, claims, damages or liabilities (or actions in respect thereof), aswell as any other relevant equitable considerations. The relative benefits received by the Companyon the one hand and the Purchasers on the other shall be deemed to be in thesame proportion as the total net proceeds from the offering (before deductingexpenses) received by the Company bear to the total underwriting discounts andcommissions received by the Purchasers, in each case as set forth in theOffering Circular. The relative faultshall be determined by reference to, among other things, whether the untrue oralleged untrue statement of a material fact or the omission or alleged omissionto state a material fact relates to information supplied by the Company on theone hand or the Purchasers on the other and the parties’ relative intent,knowledge, access to information and opportunity to correct or prevent suchstatement or omission. The Company andthe Purchasers agree that it would not be just and equitable if contributionpursuant to this subsection (d) were determined by pro rataallocation (even if the Purchasers were treated as one entity for such purpose)or by any other method of allocation which does not take account of theequitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnifiedparty as a result of the losses, claims, damages or liabilities (or actions inrespect thereof) referred to above in this subsection (d) shall bedeemed to include any legal or other expenses reasonably incurred by suchindemnified party in connection with investigating or defending any such actionor claim. Notwithstanding the provisionsof this subsection (d), no Purchaser shall be required to contribute anyamount in excess of the amount by which the total price at which the Securities*underwritten by it and distributed to investors wereoffered to investors exceeds the amount of any damages which such Purchaser hasotherwise been required to pay by reason of such untrue or alleged untruestatement or omission or alleged omission. The Purchasers’ obligations in this subsection (d) tocontribute are several in proportion to their respective underwritingobligations and not joint. ## ## (e) Theobligations of the Company under this Section 8 shall be in addition toany liability which the Company may otherwise have and shall extend, upon thesame terms and conditions, to each person, if any, who controls any Purchaserwithin the meaning of the Act; and the obligations of the Purchasers under thisSection 8 shall be in addition to any liability which the respectivePurchasers may otherwise have and shall extend, upon the same terms andconditions, to each officer and director of the Company and to each person, ifany, who controls the Company within the meaning of the Act. 22 ---- ## 9. (a) If anyPurchaser shall default in its obligation to purchase the Securities which ithas agreed to purchase hereunder, you may in your discretion arrange for you oranother party or other parties to purchase such Securitiesonthe terms contained herein. If withinthirty-six hours after such default by any Purchaser you do not arrange for thepurchase of such Securities, then the Company shall be entitled to a furtherperiod of thirty-six hours within which to procure another party or otherparties satisfactory to you to purchase such Securities on such terms. In the event that, within the respectiveprescribed periods, you notify the Company that you have so arranged for thepurchase of such Securities, or the Company notifies you that it has so arrangedfor the purchase of such Securities, you or the Company shall have the right topostpone the Time of Delivery for a period of not more than seven days, inorder to effect whatever changes may thereby be made necessary in the OfferingCircular, or in any other documents or arrangements, and the Company agrees toprepare promptly any amendments to the Offering Circular which in yourreasonable opinion may thereby be made necessary. The term “Purchaser” as used in thisAgreement shall include any person substituted under this Section with likeeffect as if such person had originally been a party to this Agreement withrespect to such Securities. ## ## (b) If, aftergiving effect to any arrangements for the purchase of the Securities of adefaulting Purchaser or Purchasers by you and the Company as provided in subsection (a) above,the aggregate principal amount of such Securities which remains unpurchaseddoes not exceed one-eleventh of the aggregate principal amount of all theSecurities, then the Company shall have the right to require each non-defaultingPurchaser to purchase the principal amount of Securities which such Purchaseragreed to purchase hereunder and, in addition, to require each non-defaultingPurchaser to purchase its pro rata share (based on the principal amount ofSecurities which such Purchaser agreed to purchase hereunder) of the Securitiesof such defaulting Purchaser or Purchasers for which sucharrangements have not been made; but nothing herein shall relieve a defaultingPurchaser from liability for its default. ## ## (c) If, aftergiving effect to any arrangements for the purchase of the Securities of adefaulting Purchaser or Purchasers by you and the Company as provided in subsection (a) above,the aggregate principal amount of Securities which remains unpurchased exceedsone-eleventh of the aggregate principal amount of all the Securities, or if theCompany shall not exercise the right described in subsection (b) aboveto require non-defaulting Purchasers to purchase Securities of a defaultingPurchaser or Purchasers, then this Agreement shall thereupon terminate, withoutliability on the part of any non-defaulting Purchaser or the Company, exceptfor the expenses to be borne by the Company and the Purchasers as provided in Section 6hereof and the indemnity and contribution agreements in Section 8 hereof;but nothing herein shall relieve a defaulting Purchaser from liability for itsdefault. ## # 10. Therespective indemnities, agreements, representations, warranties and otherstatements of the Company and the several Purchasers, as set forth in thisAgreement or made by or on behalf of them, respectively, pursuant to thisAgreement, shall remain in full force and effect, regardless of anyinvestigation (or any statement as to the results thereof) made by or on behalfof any Purchaser or any controlling person of any Purchaser, or the Company, orany officer or director or controlling person of the Company, and shall survivedelivery of and payment for the Securities. # # 11. If thisAgreement shall be terminated pursuant to Section 9 hereof, the Companyshall not then be under any liability to any Purchaser except as provided inSections 6 and 8 hereof; but, if for any other reason, the Securitiesare not delivered by or on behalf of the Company asprovided herein, the Company will reimburse the Purchasers through you for all 23 ---- # out-of-pocket expensesapproved in writing by you, including fees and disbursements of counsel,reasonably incurred by the Purchasers in making preparations for the purchase,sale and delivery of the Securities, but the Company shall then be under nofurther liability to any Purchaser except as provided in Sections 6 and 8hereof. # # 12. In alldealings hereunder, you shall act on behalf of each of the Purchasers, and theparties hereto shall be entitled to act and rely upon any statement, request,notice or agreement on behalf of any Purchaser made or given by you jointly or by Goldman, Sachs & Co.on behalf of you as the representatives. # Allstatements, requests, notices and agreements hereunder shall be in writing, andif to the Purchasers shall be delivered or sent by mail, telex or facsimiletransmission to you in care of Goldman,Sachs & Co.,*85 BroadStreet, New York, New York 10004, Attention: Registration Department; and if tothe Company shall be delivered or sent by mail, telex or facsimile transmissionto the address of the Company set forth in the Offering Circular,Attention: Secretary; provided, however, that any notice to a Purchaser pursuantto Section 8(c) hereof shall be delivered or sent by mail, telex orfacsimile transmission to such Purchaser at its address set forth in itsPurchasers’ Questionnaire, or telex constituting such Questionnaire, whichaddress will be supplied to the Company by you upon request. Any such statements, requests, notices oragreements shall take effect upon receipt thereof. # 13. ThisAgreement shall be binding upon, and inure solely to the benefit of, thePurchasers, the Company and, to the extent provided in Sections 8 and 10hereof, the officers and directors of the Company and each person who controlsthe Company or any Purchaser, and their respective heirs, executors,administrators, successors and assigns, and no other person shall acquire orhave any right under or by virtue of this Agreement. No purchaser of any of the Securities fromany Purchaser shall be deemed a successor or assign by reason merely of suchpurchase. # # 14. Time shallbe of the essence of this Agreement. # # 15. This Agreement shall be governed by and construed in accordance with thelaws of the State of New York.* # # 16. The Companyhereby submits to the non-exclusive jurisdiction of the Federal and statecourts in the Borough of Manhattan in The City of New York in any suit orproceeding arising out of or relating to this Agreement or the transactionscontemplated hereby. The Companyirrevocably appoints CT Corporation System, as its authorized agent in theBorough of Manhattan in The City of New York upon which process may be servedin any such suit or proceeding, and agrees that service of process upon suchagent, and written notice of said service to the Company, by the person servingthe same to the address provided in Section 12, shall be deemed in everyrespect effective service of process upon the Company in any such suit orproceeding. The Company further agreesto take any and all action as may be necessary to maintain such designation andappointment of such agent in full force and effect for the period of sevenyears from the date of this agreement. # # 17. In respectof any judgment or order given or made for any amount due hereunder that isexpressed and paid in a currency (the “judgment currency”) other than U.S.dollars, the Company will indemnify each Purchaser against any loss incurred bysuch Purchaser as a result of any variation between (i) the rate 24 ---- # of exchange at which theU.S. dollar amount is converted into the judgment currency for the purpose ofsuch judgment or order and (ii) the rate of exchange at which a Purchaseis able to purchase U.S. dollars with the amount of the judgment currencyactually received by such Purchaser, providedthat such Purchaser shall have made reasonable efforts to mitigate any suchexchange losses. The foregoing indemnityshall constitute a separate and independent obligation of the Company and shallcontinue in full force and effect notwithstanding any such judgment or order asaforesaid. The term “rate of exchange”shall include any premiums and costs of exchange payable in connection with thepurchase of or conversion into U.S. dollars. # # 18. ThisAgreement may be executed by any one or more of the parties hereto in anynumber of counterparts, each of which shall be deemed to be an original, butall such respective counterparts shall together constitute one and the sameinstrument. # # 19. The Companyis authorized, subject to applicable law, to disclose any and all aspects ofthis potential transaction that are necessary to support any U.S. federalincome tax benefits expected to be claimed with respect to such transaction,and all materials of any kind (including tax opinions and other tax analyses)related to those benefits, without the Purchasers imposing any limitation ofany kind. 25 ---- Ifthe foregoing is in accordance with your understanding, please sign and returnto us counterparts hereof, and upon the acceptance hereof by you, on behalf ofeach of the Purchasers, this letter and such acceptance hereof shall constitutea binding agreement between each of the Purchasers and the Company. It is understood that your acceptance of thisletter on behalf of each of the Purchasers is pursuant to the authority setforth in a form of Agreement among Purchasers, the form of which shall besubmitted to the Company for examination upon request, but without warranty onyour part as to the authority of the signers thereof. \| \| Very truly yours, \| \|---------------------------------------\|------------------------------------------\| \| \| \| \| \| MobiFon Holdings B.V. \| \| \| \| \| \| By: ClearWave N.V., its Management Board \| \| \| \| \| \| \| \| \| By: \| \| \| \| \| \| Name: \| \| \| \| Title: \| \| \| \| \| Accepted as of the date hereof: \| \| \| \| \| \| Goldman, Sachs & Co. \| \| \| Lazard Frères & Co. LLC \| \| \| \| \| \| By: \| \| \| \| \| \| (Goldman, Sachs & Co.) \| \| \| 26 ---- SCHEDULE I \| Purchaser \| \| Principal Amount of Securities to be Purchased \| \| \|----------------------------------------\|------------\|--------------------------------------------------------\|-------------\| \| Goldman, Sachs & Co \| \| $ \| 150,000,000 \| \| \| Lazard Frères & Co. LLC \| \| 75,000,000 \| \| \| \| \| \| \| \| Total \| \| $ \| 225,000,000 \| \| ---- ANNEX I (1) The Securities have not been and will not beregistered under the Act and may not be offered or sold within the UnitedStates or to, or for the account or benefit of, U.S. persons except inaccordance with Regulation S under the Act or pursuant to an exemption from theregistration requirements of the Act. Each Purchaser represents that it has offered and sold the Securities,and will offer and sell the Securities (i) as part of their distributionat any time and (ii) otherwise until 40 days after the later of thecommencement of the offering and the Time of Delivery, only in accordance with Rule 903of Regulation S, Rule 144A or pursuant to Paragraph 2 of this Annex Iunder the Act. Accordingly, eachPurchaser agrees that neither it, its affiliates nor any persons acting on itsor their behalf has engaged or will engage in any directed selling efforts withrespect to the Securities, and it and they have complied and will comply withthe offering restrictions requirement of Regulation S. Each Purchaser agrees that, at or prior toconfirmation of sale of Securities (other than a sale pursuant to Rule 144A)or pursuant to Paragraph 2 of this Annex I, it will have sent to eachdistributor, dealer or person receiving a selling concession, fee or otherremuneration that purchases Securities from it during the restricted period aconfirmation or notice to substantially the following effect: “The Securities covered hereby have not beenregistered under the U.S. Securities Act of 1933 (the “Securities Act”) and maynot be offered and sold within the United States or to, or for the account orbenefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwiseuntil 40 days after the later of the commencement of the offering and theclosing date, except in either case in accordance with Regulation S (or Rule 144Aif available) under the Securities Act. Terms used above have the meaning givento them by Regulation S.” Terms used in this paragraph have the meanings given to them byRegulation S. Each Purchaser further agrees that it has notentered and will not enter into any contractual arrangement with respect to thedistribution or delivery of the Securities, except with its affiliates or withthe prior written consent of the Company. (2) Notwithstanding the foregoing, Securities inregistered form may be offered, sold and delivered by the Purchasers in theUnited States and to U.S. persons pursuant to Section 3 of this Agreementwithout delivery of the written statement required by paragraph (1) above. (3) Each Purchaser further represents and agreesthat (i) it has not offered or sold and, prior to the expiry of a periodof six months from the closing date, will not offer or sell any notes topersons in the United Kingdom except to persons whose ordinary activitiesinvolve them in acquiring, holding, managing or disposing of investments (asprincipal or agent) for the purposes of their businesses or otherwise incircumstances which have not resulted and will not result in an offer to thepublic in the United Kingdom within the meaning of the Public Offers ofSecurities Regulations 1995; (ii) it has only communicated or caused to becommunicated and will only communicate or cause to be communicated anyinvitation or inducement to engage in investment activity (within the meaningof section 21 of the Financial Services and Markets Act 2000 (‘‘FSMA’’))received by it in connection with the issue or sale of any notes incircumstances in which section 21(1) of the FSMA does not apply tothe issuer; and (iii) it has complied and will comply with all applicableprovisions of the FSMA with respect to anything done by it in relation to thenotes in, from or otherwise involving the United Kingdom. I-1 ---- (4) Each Purchaser agrees that it will not offer,sell or deliver any of the Securities in any jurisdiction outside the UnitedStates except under circumstances that will result in compliance with theapplicable laws thereof, and that it will take at its own expense whateveraction is required to permit its purchase and resale of the Securities in suchjurisdictions. Each Purchaserunderstands that no action has been taken to permit a public offering in anyjurisdiction outside the United States where action would be required for suchpurpose. Each Purchaser agrees not tocause any advertisement of the Securities to be published in any newspaper orperiodical or posted in any public place and not to issue any circular relatingto the Securities, except in any such case with Goldman, Sachs & Co.’sexpress written consent and then only at its own risk and expense. I-2 ---- ANNEX II Pursuantto Section 7(h) of the Purchase Agreement, the accountants shallfurnish letters to the Purchasers to the effect that: [Draftcomfort letter of E&Y attached hereto.] II-1 ---- ANNEX III-A MaterialAgreements Referred to in Section 7(d)(viii) RomaniaGSM Cooperation Agreement, dated as of November 29, 1996, betweenTelesystem International Wireless Corporation N.V. and AirTouch Europe B.V. LetterAgreement, dated as of December 12, 2000, between VodaFone Europe B.V. andClearWave N.V., TIW Holding (Cyprus) Limited, Telesystem International WirelessCorporation N.V. and Telesystem International Wireless Inc. III-A-1 ---- ANNEX III-B MaterialAgreements Referred to in Sections 7(f)(v) and (vii) SecurityAgreement Over Shares, dated as of August 27, 2002, among MobiFon S.A.,Vodafone Europe B.V., ClearWave Holdings B.V., Deraso Holding BV, DargateLimited, Devaynes Holdings Limited, Upson Enterprises Limited, CommercialCapital Emerging Markets Limited, European Bank for Reconstruction andDevelopment, Export Development Canada and Nordic Investment Bank. SecurityAgreement Over Movables, dated as of August 27, 2002, among MobiFon S.A.,European Bank for Reconstruction and Development, Export Development Canada andNordic Investment Bank. SecurityAgreement Over Accounts, dated as August 27, 2002, among MobiFon S.A., ABNAmro Bank (Romania) SA, Citibank Romania SA, Raiffeisen Bank SA, Banc Post SA,Banca Comerciala “Ion Tiriac” S.A., Banca Comerciala Romana S.A., Banca RomanaPentru Dezvoltare-Group Societe Generale, HVB Bank Romania SA, European Bankfor Reconstruction and Development, Export Development Canada and NordicInvestment Bank. Assignmentof Receivables, dated as of August 27, 2002, among MobiFon S.A., EuropeanBank for Reconstruction and Development, Export Development Canada and NordicInvestment Bank. Certificateof General Authorization no. 782/December 24, 2002 issued by the NationalRegulatory Authority for Communications (“ANRC”). NumberingLicense no. 1.1, dated February 14, 2003 and issued by the ANRC. RomaniaGSM Principal License no. 1104 for MobiFon S.A., dated November 29, 1996,as amended and restated. RomaniaNational P-MP License no. 2537/SI/22.12.2000 for MobiFon S.A. RomaniaLocal P-MP Licenses nos. 2549/SI/22.12.2000, 2539/SI/22.12.2000,2548/SI/22.12.2000, 2547/SI/22.12.2000, 2546/SI/22.12.2000, 2545/SI/22.12.2000,2544/SI/22.12.2000, 2543/SI/22.12.2000, 2542/SI/22.12.2000, 2541/SI/22.12.2000,2540/SI/22.12.2000. CreditAgreement, dated as of February 19, 1999, between MobiFon S.A. and ABNAMRO Bank (Romania) S.A., as amended. III-B-1 ---- ANNEX III-C MaterialAgreements Referred to in Sections 7(g)(i) and (ii) LoanAgreement, dated as of August 27, 2002, between MobiFon S.A. and EuropeanBank for Reconstruction and Development. LoanAgreement, dated as of August 27, 2002, between MobiFon S.A. and ExportDevelopment Canada. LoanAgreement, dated as of August 27, 2002, between MobiFon S.A. and NordicInvestment Bank. InsuranceAssignment, dated as of August 27, 2002, among MobiFon S.A., European Bankfor Reconstruction and Development, Export Development Canada and NordicInvestment Bank. ShareRetention and Subordination Deed, dated as of August 27, 2002, amongMobiFon S.A., Telesystem International Wireless Inc., Telesystem InternationalWireless Corporation N.V., Vodafone Europe B.V., ClearWave N.V., ClearWaveHoldings B.V., Vodafone Technical Services, Export Development Canada, NordicInvestment Bank and European Bank for Reconstruction and Development. WorkingCapital Facility Agreement, dated as of March 25, 1999, between CitibankRomania S.A., as working capital lender, and MobiFon S.A., as borrower. Deedof Undertaking, dated as of March 19, 2003, among EEIF Melville B.V.,ClearWave Holdings B.V., ClearWave N.V., Telesystem International Wireless CorporationN.V. and Telesystem International Wireless Inc. SupplementalAgreement, dated as of , 2000, amongTelesytem International Wireless Corporation N.V., ClearWave N.V. and theInvestors named therein. ExitDeed, dated as of March 19, 2003, among Telesystem International WirelessInc., Telesystem International Wireless Corporation N.V., ClearWave N.V.,ClearWave Holdings B.V. and EEIF Melville B.V. Amendedand Restated Exit Agreement, date as of ,2001, among Telesystem International Wireless Corporation N.V., ClearWave N.V.,ROMSGSM Holdings Limited and the Investors named therein. III-C-1 ----
s3://data.kl3m.ai/documents/edgar/0001583648/0001583648-18-000022/2.json	text/markdown	CONFIDENTIAL TREATMENT REQUESTED Confidential [*] Exhibit 10.15 LICENSE AND COLLABORATION AGREEMENT BETWEEN LES LABORATOIRES SERVIER INSTITUT DE RECHERCHES INTERNATIONALES SERVIER AND PIERIS PHARMACEUTICALS, INC. PIERIS PHARMACEUTICALS GMBH Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential License and Collaboration Agreement This License and Collaboration Agreement is entered into as of January 4, 2017 (the “ Effective Date ”) by and between Les Laboratoires Servier, a corporation incorporated under the laws of France having offices and principal place of business at 50 Rue Carnot, 92284 Suresnes Cedex, France and Institut de Recherches Internationales Servier, a company duly organized and existing under the laws of France having offices and principal place of business at 50 Rue Carnot, 92284 Suresnes Cedex, France (individually and collectively, “ Servier ”), and Pieris Pharmaceuticals, Inc., a Nevada corporation having offices and principal place of business at 255 State Street, 9th floor, Boston, MA 02109 and Pieris Pharmaceuticals GmbH, a company organized and existing under the laws of Germany having offices and principal place of business at Lise-Meitner-str. 30, 85354 Freising, Germany (individually and collectively, “ Pieris ”). Servier and Pieris are individually referred to herein as a “ Party ” and collectively, as the “ Parties ”. RECITALS WHEREAS , Pieris and its Affiliates own or control the proprietary, lipocalin-derived Anticalin® technology and have developed other products and technologies that can be used to develop bispecific products, and own or control certain patents, proprietary technology, know-how and information relating to such products or technologies; WHEREAS , Servier and its Affiliates also own or control certain products or technologies that can be used to develop bispecific products and possess expertise in developing, manufacturing and commercializing pharmaceutical products; WHEREAS , Servier wishes to obtain a license to, and Pieris wishes to license to Servier, certain patents and know-how, in order for Servier to research, Develop, Manufacture and Commercialize the Lead Product (capitalized terms as defined below) in accordance with this Agreement (“ Lead Product Project ”); and WHEREAS , the Parties desire to each grant to the other, and the other Party wishes to obtain, a license to certain of such granting Party’s patents and know-how in order to collaboratively generate, evaluate, research, Develop, Manufacture and Commercialize certain novel Collaboration Products (as defined below) in accordance with this Agreement and the Platform Agreement. NOW, THEREFORE , in consideration of the promises and mutual covenants herein below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 2 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential ARTICLE 1 DEFINITIONS Defined Terms . The following capitalized terms or derivatives thereof (verbs, nouns, singular, plural), when used in this Agreement, shall have the following meanings: 1.1 “ Access Notice ” has the meaning set forth in Section 2.6.2 . 1.2 “ Accounting Standards ” means the International Financial Reporting Standards, the US Generally Accepted Accounting Principles, and any other internationally recognized accounting standards that may be adopted by a Party. 1.1 “ Acquired Competing Product ” has the meaning set forth in Section 6.2.2. 1.2 “ Acquisition Transaction ” has the meaning set forth in Section 6.2.2. 1.3 “ Acquiree ” has the meaning set forth in Section 6.2.2. 1.4 “ Acquiror ” has the meaning set forth in Section 6.2.2. 1.1 “ Additional Collaboration Effective Date ” means the date that is agreed upon by the Parties in good faith following the date of exercise of the Servier Collaboration Option by Servier pursuant to Section 3.1.1.(c) but no later than within one (1) month following the date of exercise of the Servier Collaboration Option. 1.2 “ Additional Collaboration Products ” has the meaning set forth in Section 3.1.1.(d) . 1.3 “ Additional Research Collaboration ” has the meaning set forth in Section 3.1.1.(c) . 1.4 “ Additional Research Collaboration Development Funds ” has the meaning set forth in Section 3.1.6.(a)(i). 1.5 “ Additional Research Collaboration Initial Term ” has the meaning set forth in Section 3.1.1.(c) . 1.6 “ Additional Research Collaboration Renewal Term ” has the meaning set forth in Section 3.1.1.(c) . 1.7 “ Additional Research Collaboration Term ” means the Additional Research Collaboration Initial Term together with all Additional Research Collaboration Renewal Terms, if any. 1.8 “ Additional Study Data ” has the meaning set forth in Section 2.3.4.(a) . 1.9 “ ADPIC Treaty ” has the meaning set forth in Section 8.1 . 1.10 “ Affiliate ” means with respect to a Party, any person or entity, which directly or indirectly controls, is controlled by, or is under common control with such Party. Solely as used in this definition, the term “control” means (a) the ownership, directly or indirectly, beneficially or legally, of at least fifty percent (50%) of the outstanding voting securities or capital stock (or such lesser percentage which is the maximum allowed to be owned by a person or entity in a particular jurisdiction) of such Party or other person or entity, as applicable, 3 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential or such other comparable ownership interest with respect to any person or entity that is not a corporation; or (b) the power, direct or indirect, whether through ownership of voting securities or partnership or other ownership interests, by contract or otherwise of more than fifty percent (50%), to direct the management and policies of a Party or such other person or entity, as applicable. Notwithstanding the foregoing, “Affiliate” shall not include entities engaged in generics or biosimilar business to the extent they do not use or access Data, Know-How or other intellectual property licensed hereunder to conduct their generics or biosimilar business; such entities shall be considered Third Parties for purposes of this Agreement. 1.11 “ Agreed Percentage ” means, with respect to the Lead Product or any CoDev Collaboration Product, [] for Pieris and [] for Servier. 1.12 “ Agreement ” means this License and Collaboration Agreement together with the recitals and all exhibits, schedules and attachments hereto, which shall form an integral part of this Agreement. 1.13 “ Alliance Manager ” has the meaning set forth in Section 2.2.8 . 1.14 “ Anticalin ” or “ Anticalin protein ” means, whether in nucleic acid or protein form, (a) any lipocalin mutein isolated from the Anticalin Libraries, or (b) any lipocalin mutein that, in each case, has been derived (either physically, intellectually or by reverse engineering, in one (1) or more steps) from any lipocalin mutein referred to in Section (a) of this definition, in each case, which binds and recognizes a specific target. For the sake of this Section, mutein shall mean a protein arising as a result of a mutation or a recombinant DNA procedure. 1.15 “ Anticalin Affinity Maturation ” means the process of engineering for an Anticalin protein to enhance its developability profile, such as increasing binding activities and specificity by introducing, e.g., one or more amino acid mutations. 1.16 “ Anticalin Building Block ” means an Anticalin protein used in a Product. 1.17 “ Anticalin Characterization ” means the assessment of [] and/or the evaluation of [] of Anticalin proteins and/or fusion proteins that include one or more Anticalin proteins. 1.18 “ Anticalin Expression ” means the heterologous expression of an Anticalin protein in a host cell. 1.19 “ Anticalin Fusion Technology ” means the process of fusing one or more Anticalin proteins to an immunoglobulin or fragment thereof to create bispecific, [] fusion proteins. 1.20 “ Anticalin Libraries ” means any phage display library based on (a) [] (Uniprot [] or (b) [] (Uniprot P31025). 1.21 “ Anticalin Selection ” means the process of screening an Anticalin Library with a defined target through the process of phage display, within a solution, and physically separating the target, containing binding Anticalin proteins, from the solution containing non-binding Anticalin proteins. 4 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 1.22 “ Antibody ” means any monoclonal or polyclonal antibody, whether multiple or single chain, recombinant or naturally occurring, whole or fragment, and any variants, derivatives or constructs thereof, including but not limited to, antigen binding portions including Fab, Fab’, F(ab’)2, Fv, dAb and CDR fragments, single chain antibodies (scFv), chimeric antibodies, diabodies and polypeptides (including any humanized versions thereof) that contain at least a portion of an immunoglobulin that is sufficient to bind selectively to a specific antigen or also named target. For the avoidance of doubt, an Antibody Building Block is an Antibody. 1.23 “ Antibody Building Block ” means an Antibody used in a Product. 1.24 “ Arbitration ” has the meaning set forth in Section 13.3.1 . 1.25 “ Arbitration Request ” has the meaning set forth in Section 13.3.1 . 1.26 “ Audited Party ” has the meaning set forth in Section 4.4.1 . 1.27 “ Auditing Party ” has the meaning set forth in Section 4.4.1 . 1.28 “ Authorized Recipients ” has the meaning set forth in Section 8.2 . 1.29 “ Beneficiary ” has the meaning set forth in Section 2.1.5.(a) . 1.30 “ Biological License Application ” or “ BLA ” means a Biological License Application in the United States as described in Section 351(a) of the United States Public Health Service Act (PHS Act), or an abbreviated Biological License Application as described in Section 351(k) of the PHS Act. 1.31 “ Biosimilar ” means, with respect to a given Product in a given country of the Servier Territory, any biological product on the market in such country that is approved (a) by the applicable Competent Authority in such country under the biosimilarity standard set forth in the United States under 42 U.S.C. §§ 262(i)(2) and (k), or any similar standard under its foreign equivalent applicable Law, on a country-by-country basis where such Product is marketed, provided that such applicable Law exists; and (b) in reliance in whole or in part, on a prior Marketing Approval (or on any safety or efficacy data submitted in support of such prior Marketing Approval) of such Product. For countries or jurisdictions where no explicit biosimilar regulations exist, Biosimilar includes products which have been deemed to be a Biosimilar or otherwise deemed interchangeable by a Competent Authority in another country or jurisdiction. Any product or component thereof (including any Product or component thereof) licensed, marketed, sold, manufactured, or produced by or on behalf of a Party, its Affiliates or Sublicensees (to the extent such Sublicensee commercializes a Biosimilar in reliance on or access to the Data, Patents and Know-How licensed under this Agreement) will not constitute a Biosimilar. 1.32 “ Bispecific Product ” means a biologic entity which is the result of the fusion of different Building Blocks and which recognizes two (2) different targets. For clarity, a Bispecific Product can contain one (1) or more Antibody Building Block(s) and one (1) or more Anticalin Building Block(s) but can also be made of more than one (1) Anticalin Building Block(s), provided that the resulting Bispecific Product recognizes two (2) different targets. 5 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 1.33 “ Building Block ” means, individually, each of the Antibodies and each of the Anticalin proteins used in a Product. A Building Block can be either an Antibody Building Block or an Anticalin Building Block. 1.34 “ Building Block IP ” means the Intellectual Property Rights and Know-How Covering only each Building Block individually, but excludes the Product Specific IP, the Pieris Platform IP and the Pieris Platform Improvement IP. 1.35 “ Business Day ” means a day that is not a Saturday, Sunday or a day on which banking institutions in Paris, France or Munich, Germany, are authorized by applicable Law to remain closed. 1.36 “ Calendar Quarter ” means each three (3) consecutive calendar months ending on each March 31, June 30, September 30 and December 31. 1.37 “ Calendar Year ” means any period of time commencing on January 1 and ending on the next December 31. 1.38 “ CDR ” means complementarity determining region based on the IMGT (ImMunoGeneTics) method. 1.39 “ Change of Control ” means with respect to a Party, (a) completion of a merger, reorganization, amalgamation, arrangement, share exchange, consolidation, tender or exchange offer, private purchase, business combination, recapitalization or other transaction involving such Party as a result of which either (1) the stockholders of such Party immediately preceding such transaction hold less than 50% of the outstanding shares, or less than 50% of the outstanding voting power, respectively, of the ultimate company or entity resulting from such transaction immediately after consummation thereof (including a company or entity which as a result of such transaction owns the then-outstanding securities of such Party or all or substantially all of such Party’s assets, including such Party’s assets related to the Products, either directly or through one or more subsidiaries), or (2) any single Third Party person or group (within the meaning of the U.S. Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect, referred to as a “Group”) holds 50% or more of the outstanding shares or voting power of the ultimate company or entity resulting from such transaction immediately after the consummation thereof (including a company or entity which as a result of such transaction owns the then-outstanding securities of such Party or all or substantially all of such Party’s assets either directly or through one or more subsidiaries); or (b) the direct or indirect acquisition (including by means of a tender offer or an exchange offer) by any Third Party person or Group of beneficial ownership (within the meaning of the U.S. Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect), or the right to acquire beneficial ownership, or formation of any Third Party Group which beneficially owns or has the right to acquire beneficial ownership, of 50% or more of either the outstanding voting power or the then outstanding shares of such Party, in each case on a fully-diluted basis. For the avoidance of doubt, a transaction solely to change the domicile of a Party shall not constitute a Change of Control as long as there is no change of direct or indirect shareholding. 6 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 1.40 “ Claim ” means any charge, complaint, action, suit, proceeding, hearing, investigation, claim or demand, including without limitation any investigation by a Government Authority. 1.41 “ Claim Notice ” has the meaning set forth in Section 11.3.1 . 1.42 “ Clinical Development Costs ” means, unless otherwise provided in writing between the Parties, costs incurred in connection with Clinical Studies, whether such Clinical Studies are conducted by Servier or by Pieris, and determined in accordance with a cost per patient methodology using study drivers defined by both Parties or alternative methodologies agreed by the Parties. These costs per patient exclude CMC, translational activities and transversal activities (finance, human resources, project and alliance management). 1.43 “ Clinical Studies ” means research studies in humans that are (a) conducted in accordance with international ethical and scientific quality standards for designing, conducting, recording and reporting research studies involving investigational medicinal products for human use and that involve the participation of human subjects, which standards are established through Laws, and (b) designed to generate clinical data and results regarding a biological molecule in support of Marketing Approval, including any translational research studies. Clinical Studies include, but are not limited to, Phase 1 Clinical Study(ies), any Phase 2 (2a and/or 2b) Clinical Study(ies), or any Pivotal Clinical Study(ies). 1.44 “ CMC Costs ” means all Out-of-Pocket Cost incurred by Pieris for manufacturing the Lead Product pursuant to Section 2.4.2.(a) (or Collaboration Product as applicable) as well as reasonable FTE Costs for managing the CMOs (with no premium or markup) in accordance with the applicable Joint Development Plan or Collaboration Plan and Joint Development Budget or Collaboration Budget. 1.45 “ CMOs ” has the meaning set forth in Section 2.4.2.(a) . 1.46 “ CMO Supply Agreement ” has the meaning set forth in Section 2.4.2.(b)(i)2 . 1.47 “ Co-Chair ” has the meaning set forth in Section 2.2.5.(b) . 1.48 “ CoDev Collaboration Product ” has the meaning set forth in Section 3.1.4.(a) . 1.49 “ CoDev Collaboration Product Royalties ” has the meaning set forth in Section 3.6.4.(b) . 1.50 “ Collaboration Budget ” has the meaning set forth in Section 3.1.6.(a)(i) . 1.51 “ Collaboration Effective Date ” means the Initial Collaboration Effective Date or Additional Collaboration Effective Date, as applicable. 1.52 “ Collaboration Plan ” has the meaning set forth in Section 3.1.2.(a) . 1.53 “ Collaboration Products ” means the Initial Collaboration Products and the Additional Collaboration Products. 1.54 “ Collaboration Renewal Development Funds ” has the meaning set forth in Section 3.1.6.(a)(i) . 7 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 1.55 “ Collaboration Renewal Term ” means the Initial Research Collaboration Renewal Term or the Additional Research Collaboration Renewal Term, as applicable. 1.56 “ Collaboration Term ” means the Initial Research Collaboration Term together with any Additional Research Collaboration Term, as applicable. 1.57 “ Combination Product ” has the meaning set forth in Section 1.152 . 1.58 “ Commercialization ” means any and all activities of obtaining pricing and reimbursement strategy, marketing, promoting, distributing, importing, exporting, offering for sale, having sold, selling or conducting any other commercial exploitation activities relating to a Product. For clarity, “Commercialize” has a correlative meaning. 1.59 “ Commercially Reasonable Efforts ” means such level of effort and expenditure of resources required to carry out such obligation in a sustained manner consistent with the efforts and resources of a typical pharmaceutical company of a similar size and with similar resources as Servier or Pieris together with their respective Affiliates, as applicable, typically devotes at the same stage of development or commercialization, as applicable, for its own internally developed pharmaceutical products in a similar area with similar market potential, at a similar stage of their product life without regard to any payments owed under this Agreement. For clarity, the Parties understand that such product potential may change from time to time, based upon changing scientific, business and marketing and return on investment considerations. 1.60 “ Committee ” has the meaning set forth in Section 2.2.5.(a) . 1.61 “ Compassionate Use ” means the use of a Product as an investigational drug (prior to Marketing Approval) in accordance with applicable Law outside of a Clinical Study to treat a patient with a serious or life-threatening disease or condition who has no comparable or satisfactory alternative treatment options. 1.1 “ Competent Authority ” means any regulatory agency, department, bureau, commission, council or other governmental entity of (a) any country, territory, national, federal, state, provincial, county, city or other political subdivision government, including the FDA, or (b) any supranational body (including the EMA), in any applicable jurisdiction in the world, involved in the granting of Regulatory Approval. 1.2 “ Competing Product ” means any bispecific protein (or to the extent [] is included in the collaboration hereunder, []) that binds to and modulates the same therapeutically relevant targets (both in terms of identity as well as number, i.e. a bispecific protein binding and modulating the same two targets (and to the extent []is included in the collaboration hereunder, [] and []) as the Lead Product or a Collaboration Product, but excluding products using modalities other than bispecific proteins, such as (without limitation) CAR-T cells, antisense RNA, small molecules, or gene therapy. For purposes of this Agreement, the term “therapeutically relevant” means that the modulation of a given target is reasonably believed to be responsible, in whole or in part, for a specific aspect of the safety or efficacy of such product and would not, for example, include [] solely to [] or [], such as [] For avoidance of doubt, no Product shall be a “Competing Product” with respect to any other Product. Further, for avoidance of doubt, if the Parties are developing 8 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential a bispecific Product, [] does not constitute a Competing Product with respect to such Product so long as []. 1.3 “ Competing Infringement ” has the meaning set forth in Section 7.5.2 . 1.4 “ Concerned Party ” has the meaning set forth in Section 6.2.2 . 1.5 “ Confidential Information ” means any and all Know-How, information and Data of a confidential nature, whether financial, business, legal, technical or non-technical, whether in oral, written, electronic or other form, including information and data related to a Product, a Party, or any concepts, discoveries, inventions, data, designs or formulae in relation to this Agreement, that is disclosed, supplied or otherwise made available by or on behalf of one Party or any of its Affiliates or Sublicensees (“ Disclosing Party ”) to the other Party or any of its Affiliates or Sublicensees (“ Receiving Party ”) in connection with this Agreement. All Confidential Information disclosed by a Party pursuant to the Confidential Agreement between the Parties dated [] (the “ Prior CDA ”) shall be deemed to be Confidential Information of such Party pursuant to this Agreement (with the mutual understanding and agreement that any use and disclosure thereof that is authorized under, and consistent with, ARTICLE 8 shall not be restricted by, or be deemed a violation of, such Prior CDA). 1.6 “ Consideration Period ” has the meaning set forth in Section 3.1.4 . 1.7 “ Control ”, “ Controlled ” or “ Controlling ” means, with respect to a subject item (including any Intellectual Property Right, Know-How, Data, Regulatory Approvals or Regulatory Materials) (“ Subject Item ”), the possession (whether arising by ownership, pursuant to a license or sublicense or otherwise, other than pursuant to this Agreement) by a Party of the ability of such Party or its Affiliate to grant a license, sublicense or access to the other Party with respect to such Subject Item, as provided in this Agreement, without violating the terms of any agreement or other arrangement with any Third Party (and subject to Section 4.1.2 and Section 4.1.3 ), in existence as of the time such Party or its Affiliates would first be required hereunder to grant the other Party such license, sublicense or access. Notwithstanding anything to the contrary hereunder, the Pieris Platform IP and Pieris Platform Improvement IP will not be deemed to be “Controlled” by Pieris or its Affiliates for purposes of this Agreement. 1.8 “ Copyrights ” means all copyrights, and all right, title and interests in all copyrights, copyright registrations and applications for copyright registration, certificates of copyright and copyrighted rights and interests throughout the world, and all right, title and interest in related applications and registrations throughout the world. 1.9 “ Cover ”, “ Covered ” or “ Covering ” means, with respect to the applicable invention, discovery, process or product (including a Product), as appropriate, (a) a Patent Right, that, in the absence of a (sub)license under, or ownership of, such Patent Right, the Development, Manufacture or Commercialization of such invention, discovery, process or product (including making, using, offering for sale, selling or importing thereof), as appropriate, with respect to a given country, would infringe a Valid Claim of such Patent Right (or, in the case of a Patent Right that has not yet issued, would infringe any then-pending Valid Claim in such Patent Right if it were to issue with such claim), or (b) any Know-How, that, 9 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential in the absence of a (sub)license under, or ownership of, such Know-How, the Development, Manufacture or Commercialization (including making, using, offering for sale, selling or importing thereof) of such invention, discovery, process or product incorporates, embodies or otherwise makes use of such Know-How. 1.10 “ Damages ” has the meaning set forth in Section 11.1 . 1.11 “ Data ” means any and all non-aggregated and aggregated research, pharmacology, pre-clinical, clinical, commercial, marketing, process development, manufacturing and other data or information, including investigator brochures and reports (both preliminary and final), statistical analyses, expert opinions and reports, and safety data, in each case generated from, or related to, Clinical Studies or non-clinical studies, research or testing specifically related or directed to a Product. For the avoidance of doubt, Data shall be deemed Confidential Information of the Disclosing Party for the purposes of the Agreement subject to ARTICLE 8 of this Agreement. 1.12 “ Declined Option Collaboration Product ” has the meaning set forth in Section 3.1.4.(b)(ii) . 1.13 “ Defending Party ” has the meaning set forth in Section 7.5.3.(a) . 1.14 “ Development ” means with respect to a Product, all research and all pre-clinical, non-clinical and clinical research and development activities performed to obtain and maintain the Marketing Approval for the relevant Product, including without limitation: test method development and stability testing, assay development, Translational Research, toxicology, pharmacology, formulation, quality assurance, quality development, statistical analysis, CMC process development and scale-up, pharmacokinetic studies, data collection and management, Clinical Studies (including research to design Clinical Studies and specifically excluding activities directed to obtaining pricing and reimbursement approvals), regulatory affairs (including submission of Data or other materials to a Competent Authority to obtain, maintain and/or expand Marketing Approval of a Product), project management, drug safety surveillance activities related to Clinical Studies, validation of methods and tests. For clarity, “Develop” and “Developing” have a correlative meaning. 1.15 “ Development Data ” has the meaning set forth in Section 2.3.4.(a) . 1.16 “ Disclosing Party ” has the meaning set forth in Section 1.72 . 1.17 “ Dispute ” has the meaning set forth in Section 13.3.1 . 1.18 “ Divest ” or “ Divestiture ” has the meaning set forth in Section 6.2.2.(f)(i) . 1.19 “ DMF ” means a drug master file and all equivalents, and related proprietary dossiers, in any country or jurisdiction for a Product submitted or to be submitted by a Party to Competent Authorities. 1.20 “ DOCP Election Notice ” has the meaning set forth in Section 3.1.4.(b)(ii) . 1.21 “ Drop Date ” has the meaning set forth in Section 5.2.1.(b). 1.22 “ Dropped Product ” has the meaning set forth in Section 5.2.1 . 10 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 1.23 “ Dropped Product Notice ” has the meaning set forth in Section 5.2.1.(a) . 1.24 “ Dropped Product Notice Period ” has the meaning set forth in Section 5.2.1.(a) . 1.25 “ Dropping Party ” has the meaning set forth in Section 5.2.1.(b) . 1.26 “ Effective Date ” has the meaning set forth in the preamble. 1.27 “ EMA ” means the European Medicines Agency or any successor agency thereto. 1.28 [] means []. 1.29 “ EUR ” or “ € ” means Euros. 1.30 “ European Union ” or “ EU ” means the member states of the European Union as of the Effective Date (including for the avoidance of doubt, the United Kingdom), and such other countries as may become part of the European Union after the Effective Date. For clarity, to the extent the United Kingdom and/or any other member state of the European Union would not anymore be a member of the European Union after the Effective Date, it shall still be included in this definition of EU for the purposes of this Agreement. 1.31 “ Executive Officer ” means the Chief Executive Officer of Pieris and the Vice President of Research and Development or the Vice President of Business Development & Licensing of Servier, or their duly authorized respective designees with equivalent decision-making authority with respect to matters under this Agreement. 1.32 “ Existing Pieris Patent Rights ” has the meaning set forth in Section 10.2.1.(c) . 1.33 “ Existing Servier Patent Rights ” has the meaning set forth in Section 10.3.1.(b) . 1.34 “ FDA ” means the United States Food and Drug Administration or any successor entity thereto. 1.35 “ Field ” means, (a) with regard to the Lead Product, any therapeutic, palliative, prophylactic and diagnostic use in oncology and (b) with regard to a CoDev Collaboration Product and any Servier WW Collaboration Product, any therapeutic, palliative, prophylactic and diagnostic use for any human disease. 1.36 “ Filing Party ” has the meaning set forth in Section 2.1.5.(a) . 1.37 “ First Commercial Sale ” means the first sale to a Third Party of a Product by or under the authority of Servier or its Affiliates or Sublicensees, in a country after receipt of the applicable Marketing Approval, as desirable in such country, from the Competent Authorities in that country. For the avoidance of doubt, Compassionate Use shall not be considered a First Commercial Sale. 1.38 “ FTC ” has the meaning set forth in Section 10.4.4 . 1.39 “ FTE ” means full-time equivalent person-year of work performing activities hereunder. For clarity, indirect personnel (including support functions such as legal or business development) shall not constitute FTEs. 11 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 1.40 “ FTE Costs ” for a given period means the product of (a) the total FTEs (proportionately, on a per-FTE basis) dedicated by a Party or its Affiliates in the particular period to the direct performance of the activities allocated to such Party hereunder and (b) the FTE Rate. 1.41 “ FTE Rate ” means, unless otherwise agreed between the Parties, a rate per FTE equal to [] per annum (which may be prorated on a daily or hourly basis as necessary). The FTE Rate is “fully burdened” and will cover employee salaries, benefits, travel, and such facilities and equipment and other materials and services including ordinary laboratory and manufacturing consumables procured from distributors of relevant products as they may use. 1.42 “ Global Branding Strategy ” has the meaning set forth in Section 2.5.2 . 1.43 “ Global Commercialization Strategy ” has the meaning set forth in Section 2.5.1 . 1.44 “ GLP Tox Study ” means, with respect to a Product, a study conducted in a species using applicable regulatory good laboratory practices for the purposes of assessing the safety and the onset, severity, and duration of toxic effects and their dose dependency with the goal of establishing a profile required for an IND/IMPD. For the avoidance of doubt, preliminary toxicology studies are not regarded as a GLP Tox Study. 1.45 “ Government Authority ” means any applicable government authority, court, tribunal, arbitrator, agency, department, legislative body, commission or other government instrumentality of (a) any country, territory, nation, state, province, county, city or other political subdivision thereof or (b) any supranational body, including any Competent Authority. 1.46 “ Health Authority Communication ” means any communication from any Competent Authority that concerns significant issues, including any of the following: key product quality attributes (e.g., purity), safety findings affecting the platform (e.g., serious adverse events, emerging safety signals), clinical or non-clinical findings affecting patient safety, or lack of efficacy. 1.47 “ HSR ” has the meaning set forth in Section 10.4.4 . 1.48 “ IND/IMPD ” means (a) an Investigational New Drug Application as defined in the FD&C Act and applicable regulations promulgated thereunder by the FDA, (b) the Investigational Medicinal Product Dossier in the European Territory, or (c) the equivalent application to the applicable Competent Authority in any other regulatory jurisdiction, and any amendments to the foregoing (a), (b) or (c), in each case, the filing of which is necessary to initiate or conduct clinical testing of an investigational drug or biological product in humans in such jurisdiction. 1.49 “ IND/IMPD Submission ” means the filing of an IND/IMPD. 1.50 “ Indemnified Party ” has the meaning set forth in Section 11.3.1 . 1.51 “ Indemnifying Party ” has the meaning set forth in Section 11.3.1 . 1.52 “ Indication ” means a distinct type of disease or medical condition in humans to which a Product is directed and eventually approved. To distinguish one Indication from 12 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential another Indication, the two Indications have to be (a) listed in two different blocks of the ICD-10 (chapter II, Neoplasms, version 2016) (as a way of example, any neoplasm under C15 is in a different block from any neoplasm under block C16, whereas C15.0 and C15.1 belong to the same block) and (b) developed under one or more separate Clinical Studies. Notwithstanding the foregoing, [] and [] shall be deemed to be two distinct Indications and [] shall be considered as one Indication. 1.53 “ Infringement Action ” has the meaning set forth in Section 7.5.4.(a) . 1.54 “ Initial Collaboration Effective Date ” means the Effective Date. 1.55 “ Initial Collaboration Products ” has the meaning set forth in Section 3.1.1.(b) . 1.56 “ Initial Research Collaboration ” has the meaning set forth in Section 3.1.1 . 1.57 “ Initial Research Collaboration Term ” means that period of time commencing upon the Effective Date and continuing for three (3) years thereafter. 1.58 “ Initial Research Collaboration Renewal Term ” has the meaning set forth in Section 3.1.1.(a) . 1.59 “ Insolvent Party ” has the meaning set forth in Section 12.3.5. 1.60 “ Intellectual Property Rights ” means, collectively, Patent Rights, Copyrights, Trademarks, designs, domain names, moral rights and all other intellectual property and proprietary rights. 1.61 “ Joint Development Budget ” has the meaning set forth in Section 2.3.2.(a) . 1.62 “Joint Development Committee ” or “ JDC ” has the meaning set forth in Section 2.2.3 . 1.63 “ Joint Development Plan ” has the meaning set forth in Section 2.3.1.(a) . 1.64 “ Joint Executive Committee ” or “ JEC ” has the meaning set forth in Section 2.2.1 . 1.65 “ Joint IP ” means collectively, Joint Know-How and Joint Patents, including all Intellectual Property Rights therein. 1.66 “ Joint Intellectual Property Committee ” or “ JIPC ” has the meaning set forth in Section 2.2.4 . 1.67 “ Joint Know-How ” means all Product Specific Know-How or other Know How Controlled by either Party created, invented or generated by employees, agents, or independent contractors of a Party or both Parties or its/their Affiliates (or a Third Party acting on any of their behalf) in the course of performing activities under the Joint Development Plan or the Collaboration Plan pursuant to this Agreement but excluding any Know-How specifically related to (a) any Servier Building Block or (b) any Pieris Building Block, which shall be solely owned by the applicable Party, regardless of whether such Know-How would otherwise meet the definition of “Joint Know-How” hereunder. For avoidance of doubt, Joint Know-How also specifically excludes Know-How within the Pieris Platform IP or the Pieris Platform Improvement IP or related to the Pieris Platform Technology. 13 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 1.68 “ Joint Patent ” means all Product Specific Patents or other Patents Controlled by either Party that claim an invention created, invented or generated by employees, agents, or independent contractors of a Party or both Parties or its/their Affiliates (or a Third Party acting on any of their behalf) in the course of performing activities under the Joint Development Plan or a Collaboration Plan pursuant to this Agreement but excluding any Patent that claims any Pieris Platform IP, Pieris Platform Improvement IP, Servier Building Block or any Pieris Building Block, regardless of whether such Patent would otherwise meet the definition of a Joint Patent hereunder. Notwithstanding the foregoing, the Product Specific Patents related to the Lead Product filed during or prior to January 2017 shall be solely owned by Pieris, and shall not constitute Joint Patents hereunder. 1.69 “ Joint Research Committee ” or “ JRC ” has the meaning set forth in Section 3.3.1 . 1.70 “ Joint Steering Committee ” or “ JSC ” has the meaning set forth in Section 2.2.2 . 1.71 “ Know-How ” means any and all ideas, concepts, designs, technical information, techniques, Data, database rights, discoveries, inventions, practices, methods, procedures, processes, methods, algorithm, knowledge, skill, experience, test data and any other information or technology, whether in written, electronic, graphic or any other form, including pharmaceutical, chemical, biological and biochemical compositions, formulations, assays, APIs, molecules, samples, cell lines, journals and laboratory notebooks. 1.72 “ Law ” means any applicable national, supranational, federal, state, local or foreign law, statute, ordinance, principle of common law, or any rule, regulation, standard, judgment, order, writ, injunction, decree, arbitration award, agency requirement, license or permit of any applicable Government Authority, including any rules, regulations, guidelines, directives or other requirements of applicable Government Authorities, including good clinical practices, good laboratory practices and good manufacturing practices, as well as all anti-bribery or anti-corruption laws, as applicable. 1.73 “ Lead Product ” means a Bispecific Product directed against PD-1 and []. The Lead Product contains at least [] Anticalin Building Blocks directed against [] and a PD-1 Antibody Building Block, as will be agreed between the Parties. The Lead Product may also be referred to as “ PRS-332 ”. 1.74 “ Lead Product Drug Candidate Nomination ” or “ Lead Product DCN ” means the provision by Pieris of Required Data as set forth in Section 2.6.2 and achievement of the criteria set forth in Exhibit 1.141 . 1.75 “ Lead Product Project ” has the meaning set forth in the recitals. 1.76 “ Lead Product Royalties ” has the meaning set forth in Section 2.6.6 . 1.77 “ Lead Product Upfront Fee ” has the meaning set forth in Section 2.6.1 . 1.78 “ Licensor ” has the meaning set forth in Section 5.1.3.(a) . 14 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 1.79 “ MAA ” means a Marketing Authorization Application, in relation to any Product, filed or to be filed with the EMA (or equivalent national agency), for authorization to place a medicinal product on the market in the European Union (or any other territory). 1.80 “ Major Market Country” means []. 1.81 “ Manufacture ” means, with respect to a Product, all activities related to the manufacture of the Products, including, but not limited to, manufacturing supplies for Development or Commercialization, packaging, in-process and finished product testing, release of product or any component or ingredient thereof, quality assurance and quality control activities related to manufacturing and release of product, ongoing stability tests, storage, shipment, import and export as needed, improvement of production, improvement of manufacturing processes, and regulatory activities related to any of the foregoing. For clarity, “Manufacturing” has a correlative meaning. 1.82 “ Marketing Approval ” means all approvals, licenses, registrations or authorizations of the Competent Authorities in a country, necessary for the commercial marketing and sale of the Product in such country, including the approval of a MAA or a BLA. 1.83 “ Material Adverse Effect ” has the meaning set forth in Section 2.2.6.(d) . 1.84 “ Medical Journals ” has the meaning set forth in Section 9.2.1. 1.85 “ Net Sales ” means, in the case of sales by or for the benefit of Servier, its Affiliates, and its Sublicensees (in each case, “ Seller ”) in the Territory to a Third Party, the gross amount of monies invoiced by Seller with respect to the Products, less the following deductions (“ Permitted Deductions ”): (a) trade, cash, promotional and quantity discounts to the extent actually given; (b) taxes on sales (such as excise, sales or use taxes or value added tax), but excluding any taxes on Seller’s income; (c) customary freight, insurance, packing costs and other transportation charges added to the sales price that are incurred in delivering the Product; (d) amounts repaid or credits taken by reason of rejections, defects or returns or because of retroactive price reductions, or due to recalls or applicable Laws requiring rebates; (e) free good, rebates taken by or distribution fees paid to distributors, and charge-backs; (f) customs duties actually paid by Seller on import into the country of sale to the extent invoiced and not otherwise reimbursed; (g) rebates and/or discounts on sales of Products given to health insurance and other types of payers in any given country of the Servier Territory due to specific agreement (“claw-back” type of agreements) with respect to the Products; 15 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential (h) the actual amount of any write-offs for bad debt in accordance with the standard practices of Seller for writing off uncollectible amounts consistently applied; provided with respect to such write-off that an amount subsequently recovered or reversed with respect to such write-off will be treated as Net Sales in the quarter in which it is recovered or reversed; and (i) any other specifically identifiable amounts included in gross amounts invoiced for the Products, to the extent such amounts are customary deductions from net sales calculations in accordance with IFRS as consistently applied by Servier, its Affiliates, and its Sublicensees for reporting their respective net sales. For the avoidance of doubt, if a single item falls into more than one of the categories set forth in clauses (a)-(i) above, such item may not be deducted more than once. “ Net Sales ” shall not include any consideration received with respect to a sale, use or other disposition of any Product in a country for purposes of conducting Clinical Studies in the course of Development of the Product in accordance with this Agreement or as samples (reasonable in number) or for Compassionate Use, in each case provided that Seller does not receive consideration of monetary value for such Products. Notwithstanding the foregoing, the amounts invoiced by Servier, its Affiliates, or their Sublicensees for the sale of Product among Servier, its Affiliates or their respective Sublicensees for resale shall not be included in the computation of Net Sales hereunder (except where such Affiliates or Sublicensees are the end users) and Net Sales shall be the gross invoice or contract price charged to the Third Party customer for that Product in an arms’ length transaction, less the Permitted Deductions. Net Sales calculations shall be determined in accordance with Accounting Standards consistently applied throughout the organization and across all products of the entity whose sales of Products are giving rise to Net Sales. In the case of any sale or other transfer for value, such as barter or counter-trade, of a Product, or part thereof, other than in an arm’s length transaction exclusively for cash, Net Sales shall be calculated as above on the value of the non-cash consideration received or the fair market price (if higher) of such Product in the country of sale or transfer, as determined in accordance with Accounting Standards consistently applied (as contemplated above). In the case where a Product is sold as part of a Combination Product in a country in the Territory, Net Sales for the Product included in such Combination Product in such country shall be calculated as follows: (i) if the Product is sold separately in such country and the other active ingredient or ingredients in the Combination Product are sold separately in such country, Net Sales for the Product shall be calculated by multiplying actual Net Sales of such Combination Product in such country by the fraction A/(A+B), where A is the invoice price of the Product when sold separately in such country and B is the total invoice price of the other active ingredient or ingredients in the Combination Product when sold separately in such country; (ii) if the Product is sold separately in such country but the other active ingredient or ingredients in the Combination Product are not sold separately in such country, Net Sales for the Product shall be calculated by multiplying actual Net Sales of such Combination Product in such country by the fraction A/D, where A is the invoice price of the Product when sold separately in such country and D is the invoice price of the Combination Product in such country; 16 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential (iii) if the Product is not sold separately in such country but the other active ingredient or ingredients in the Combinations Product are sold separately in such country, Net Sales for the Product shall be calculated by multiplying actual Net Sales of such Combination Product by the fraction 1 – (B/D), where B is the invoice price of the other active ingredient or ingredients in the Combination Product when sold separately in such country and D is the invoice price of the Combination Product in such country; or (iv) if neither the Product nor the other active ingredient or ingredients in the Combination Product are sold separately in such country, the Parties shall determine Net Sales for the Product in such Combination Product by mutual agreement based on the relative contribution of the Product and each other active ingredient to the Combination Product, and shall take into account in good faith any applicable allocations and calculations that may have been made for the same period in other countries. For purposes of this Section 1.152 , “ Combination Product ” means a product that includes at least one active ingredient other than a Product, when a single sale or reimbursement price is set for such Combination Product. 1.86 “ Non-Clinical Development ” shall mean non-clinical activities conducted in relation to a Product which has obtained an IND/IMPD. 1.87 “ Non-Clinical Development Costs ” shall mean the Out-of-Pocket Costs, as well as FTE Costs, associated with Non-Clinical Development activities. 1.88 “ Non-Proposing Party ” has the meaning set forth in Section 2.3.3. 1.89 “ Non-Sublicensing Party ” has the meaning set forth in Section 5.1.3.(b)(i) . 1.90 “ Objection Period ” has the meaning set forth in Section 2.3.3.(b) . 1.91 “ Opt-In Notice ” has the meaning set forth in Section 3.1.4 . 1.92 “ Out-of-Pocket Costs ” means all direct project expenses paid or payable to Third Parties after the Effective Date, which are specifically identifiable and incurred for services or materials provided by them directly in their performance of the Development or Manufacture of the Products in the Servier Territory or Pieris Territory, as applicable; such expenses to have been recorded as income statement items in accordance with Accounting Standards and for the avoidance of doubt, not including pre-paid amounts (until expensed in accordance with Accounting Standards). Notwithstanding the foregoing, Out-of-Pocket Costs do not include Clinical Development Costs. For clarity, Out-of-Pocket Costs do not include capital expenditures (unless mutually agreed by the Parties), travel expenses or items intended to be covered under the definition of FTE Costs. 1.93 “ Partnering Agreement ” means with respect to any Product, an agreement with a Third Party to license or sublicense, transfer, assign or sell (in each case, including an option to do so) all or part of its rights and obligations to Develop and to Commercialize such Product. 1.94 “ Party ” or “ Parties ” has the meaning set forth in the preamble. 1.95 “ Party Supply Agreement ” has the meaning set forth in Section 2.4.2.(b)(i)1 . 17 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 1.96 “ Patent Right ” or “ Patent ” means any and all patent rights and all right, title and interest in all patent applications and patents that issue from them, all letters patent or equivalent rights and applications in each case to the extent the same has not been held, by a court of competent jurisdiction, to be invalid or unenforceable in a decision from which no appeal can be taken or from which no appeal was taken within the time permitted for appeal. Patent Rights include any extension, registration, confirmation, reissue, continuation, supplementary protection certificate, divisional, continuation-in-part, re-examination or renewal thereof or foreign counterparts of any of the foregoing. 1.97 “ Payee Party ” has the meaning set forth in Section 4.3.3 . 1.98 “ Payor Party ” has the meaning set forth in Section 4.3.3 . 1.99 “ PCC ” or “ Pre-Clinical Candidate ” means preclinical candidate nomination, which is deemed to be achieved as soon as the success criteria set forth in Exhibits 3.1.2(a)1-7 are achieved. 1.100 “ Permitted Deductions ” has the meaning set forth in Section 1.152 . 1.101 “ Pharmacovigilance Agreement ” has the meaning set forth in Section 2.3.7.(f) . 1.102 “ Phase 1 Clinical Study ” means a clinical study of a product in human subjects which provides for the first introduction into humans of a product, conducted in healthy volunteers or patients to obtain information on product safety, tolerability, pharmacological activity or pharmacokinetics, as described in 21 C.F.R. § 312.21(a) (or the non-United States equivalent thereof). 1.103 “ Phase 1 Clinical Study Expansion Cohort ” means the expansion of a Phase 1 Clinical Study to include additional patient(s) following the selection of a dose during the dose escalation part of the Phase 1 Clinical Study (such as a maximum tolerated dose). 1.104 “ Phase 2 (2a and/or 2b) Clinical Study ”, “ Phase 2a Clinical Study ” or “ Phase 2b Clinical Study ” means a clinical study of a product that is prospectively designed to establish the safety, dose ranging and efficacy of a product as further defined in 21 C.F.R. § 312.21(b) (or the non-United States equivalent thereof). 1.105 “ Pieris ” has the meaning set forth in the preamble. 1.106 “ Pieris Background Agreements ” means []. 1.107 “ Pieris Building Block ” means any Anticalin Building Block and any Antibody Building Block Controlled by Pieris. 1.108 “ Pieris Building Block IP ” means all Intellectual Property Rights and Know-How Covering any and all Anticalin Building Blocks and Antibody Building Blocks Controlled by Pieris. 1.109 “ Pieris Co-Development Option ” has the meaning set forth in Section 3.1.4. 18 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 1.110 “ Pieris Designated CoDev Collaboration Products ” means, (a) with respect to the Initial Research Collaboration, the two (2) Collaboration Products set forth in Part 1 of Schedule 1.177 , and (b) with respect to the Additional Research Collaboration (as applicable), the one (1) Collaboration Product to be mutually agreed by the Parties in accordance with Section 3.1.1.(c) and set forth in Part 2 of Schedule 1.177 . 1.111 “ Pieris Indemnitees ” has the meaning set forth in Section 11.2 . 1.112 “ Pieris IP ” means any and all Pieris Patent Rights and the Pieris Know-How, including any Intellectual Property Rights therein, but excludes the Pieris Platform IP and Pieris Platform Improvement IP. For the avoidance of doubt, Pieris IP shall include Pieris Building Block IP and any Product Specific IP that is Controlled by Pieris as of the Effective Date and thereafter during the Term and Pieris’ interest in the Joint IP. 1.113 “ Pieris Know-How ” means all Know-How that is Controlled by Pieris as of the Effective Date and thereafter during the Term other than pursuant to the licenses granted by Servier under this Agreement and is (a) used in connection with or otherwise Covers the Development, Manufacture, or Commercialization of the Products or (b) reasonably necessary for the Development, Manufacture, or Commercialization of a Product, but excludes the Pieris Platform IP and Pieris Platform Improvement IP. Pieris Know-How shall include Pieris’ interest in Joint Know-How. 1.114 “ Pieris Partner ” has the meaning set forth in Section 5.1.1.(a) . 1.115 “ Pieris Patent Rights ” means any Patent Rights that are Controlled by Pieris as of the Effective Date and thereafter during the Term, and that Cover or are necessary for the Development, Manufacture or Commercialization of the Products pursuant to the terms of this Agreement, but excludes the Pieris Platform IP and Pieris Platform Improvement IP. Pieris Patent Rights shall include Pieris’ interest in Joint Patents. The Pieris Patent Rights existing as of the Effective Date are set forth in Schedule 1.182 . 1.116 “ Pieris Platform Improvement IP ” means any and all Know-How created, invented or generated by or on behalf of employees, agents, or independent contractors of either Party or their Affiliates (whether alone or jointly) in the course of performing activities pursuant to this Agreement that constitutes an improvement, modification or enhancement to, or derivative of, the Pieris Platform IP, including all Intellectual Property Rights therein. 1.117 “ Pieris Platform IP ” means (a) the Know-How Controlled by Pieris that is necessary or useful for the practice of the Pieris Platform Technology, and (b) those Patents Rights Controlled by Pieris directed to the Pieris Platform Technology as set forth in Schedule 1.184 . 1.118 “ Pieris Platform Technology ” means Anticalin Libraries, Anticalin Selection, Anticalin Expression, Anticalin Characterization, Anticalin Fusion Technology, and Anticalin Affinity Maturation methods, all to the extent Controlled by Pieris. 1.119 “ Pieris ROFN Notice ” has the meaning set forth in Section 5.1.1.(b) . 1.120 “ Pieris ROFN Product ” has the meaning set forth in Section 5.1.1.(a) . 19 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 1.121 “ Pieris ROFN Product Amendment ” has the meaning set forth in Section 5.1.1.(b) . 1.122 “ Pieris Territory ” means, with respect to the Lead Product and any CoDev Collaboration Product, the United States of America. 1.123 “ Pieris Territory Commercialization Plan ” has the meaning set forth in Section 2.5.1.(b) . 1.124 “ Pieris’ Contribution ” has the meaning set forth in Section 4.1.3.(a) . 1.125 “ Pivotal Clinical Study ” means a clinical study of a product that is designed to generate statistically significant evidence of the efficacy of a product for a particular Indication or use (as well as additional safety information) and that is intended to form the primary scientific support for filing a BLA to obtain Marketing Approval to market the product, (or any MAA for the non-United States equivalent thereof). 1.126 “ Platform Agreement ” means that certain non-exclusive license agreement to the Pieris Platform Technology entered into between Servier and Pieris on the date hereof. The Platform Agreement is set forth on Exhibit 1.193 to this Agreement. 1.127 “ Prior CDA ” has the meaning set forth in Section 1.72 . 1.128 “ Product ” means the Lead Product and any Collaboration Product, including CoDev Collaboration Product and Servier WW Collaboration Product, as applicable. 1.129 “ Product Specific IP ” means all Product Specific Patents and Product Specific Know-How, including all Intellectual Property Rights therein. 1.130 “ Product Specific Know-How ” means all Know-How that is Controlled by either Party or both Parties as of the Effective Date and thereafter during the Term and (a) that is used in connection with or otherwise Covers the Development, Manufacture, or Commercialization of a Product or (b) is reasonably necessary or useful for the Development, Manufacture, or Commercialization of a Product but excludes the Know-How specifically related to Building Block IP and Pieris Platform IP and Pieris Platform Improvement IP. 1.131 “ Product Specific Patents ” means any Patent Rights Controlled by either Party or both Parties as of the Effective Date and thereafter during the Term, that Cover the Development, Manufacture or Commercialization of any Product, but exclude the Building Block IP and Pieris Platform IP and Pieris Platform Improvement IP. 1.132 “ Product Trademarks ” has the meaning set forth in Section 7.6.1. 1.133 “ Promotional Materials ” has the meaning set forth in Section 2.5.2 . 1.134 “ Proposed Study(ies) ” has the meaning set forth in Section 2.3.3 . 1.135 “ Proposing Party ” has the meaning set forth in Section 2.3.3 . 1.136 “ PRS-332 ” has the meaning set forth in Section 1.140 . 1.137 “ Raw Data ” has the meaning set forth in Section 2.1.5.(d) . 20 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 1.138 “ Receiving Party ” has the meaning set forth in Section 1.72 . 1.139 “ Reconciliation Report ” has the meaning set forth in Section 4.2.2.(b) . 1.140 “ Regulatory Approval ” means any and all approvals, licenses, registrations or authorizations by a Competent Authority necessary for the Development activities (including any IND/IMPD approval), Manufacturing activities or Commercialization activities (including, where applicable, Marketing Approval, pricing, labeling and reimbursement determinations or approvals). 1.141 “ Regulatory Exclusivity ” means any exclusive marketing rights or data exclusivity rights conferred by any applicable Competent Authority, other than an issued and unexpired Patent, including any regulatory data protection exclusivity (including, where applicable, pediatric exclusivity and/or orphan drug exclusivity) and/or any other exclusivity afforded by restrictions which prevent the granting by a Competent Authority of regulatory approval to market a Biosimilar. 1.142 “ Regulatory Materials ” means regulatory applications, submissions, dossiers, notifications, registrations, case report forms, trial master file, DMF, common technical documents, question and answers with Competent Authorities, Marketing Approvals or other filings or communications made to or with, or other approvals granted by, a Competent Authority that are necessary or reasonably desirable in order to Develop, Manufacture or Commercialize a Product in a particular country or regulatory jurisdiction. 1.143 “ Required Data ” has the meaning set forth in Section 2.6.2 . 1.144 “ Research Collaboration ” means the Initial Research Collaboration or Additional Research Collaboration, as applicable. 1.145 “ Responsible Party ” has the meaning set forth in Section 7.5.5 . 1.146 “ Royalties ” means, collectively, the Lead Product Royalties, the Servier WW Collaboration Product Royalties and the CoDev Collaboration Product Royalties. 1.147 “ Royalty Bearing Net Sales ” means on a country-by-country and Product-by-Product basis, the Net Sales generated during the Royalty Term for such Product in such country. 1.148 “ Royalty Term ” means, on a country-by-country basis and a Product-by-Product basis, the period commencing on the First Commercial Sale of the Product in a country and ending with respect to such Product in such country on the later of (a) ten (10) years thereafter in such country; (b) last to expire Regulatory Exclusivity relating to such Product; or (c) expiration of the last to expire Valid Claim of any Patent Right within the Pieris IP and Joint IP in each case, Covering such Product in such country []. 1.149 “ Rules ” has the meaning set forth in Section 13.3.1 . 1.150 “ Scientific Meeting ” has the meaning set forth in Section 9.2.2 . 1.151 “ Scientific Paper ” has the meaning set forth in Section 9.2.1 . 1.152 “ SEC ” has the meaning set forth in Section 8.6.2 . 21 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 1.153 “ Seller ” has the meaning set forth in Section 1.152 . 1.154 “ Sensitive Information ” has the meaning set forth in Section 6.2.2.(f)(ii). 1.155 “ Servier ” has the meaning set forth in the preamble. 1.156 “ Servier Background Contract ” means that [] 1.157 “ Servier Building Block ” means any Antibody Building Block Controlled by Servier. 1.158 “ Servier Building Block IP ” means all Intellectual Property Rights and Know-How Covering any and all Antibody Building Blocks Controlled by Servier. 1.159 “ Servier Collaboration Option ” has the meaning set forth in Section 3.1.1.(c). 1.160 “ Servier Collaboration Option Fee ” has the meaning set forth in Section 3.6.1.(b). 1.161 “ Servier Collaboration Option Period ” has the meaning set forth in Section 3.1.1.(c). 1.162 “ Servier Indemnitees ” has the meaning set forth in Section 11.1 . 1.163 “ Servier IP ” means any and all Servier Patent Rights and Servier Know-How, including any Intellectual Property Rights therein. For the avoidance of doubt, Servier IP shall include Servier Building Block IP and any Product Specific IP that is Controlled by Servier as of the Effective Date and thereafter during the Term and Servier’s interest in the Joint IP. 1.164 “ Servier Know-How ” means all Know-How that is developed or Controlled by Servier as of the Effective Date and thereafter during the Term other than pursuant to the licenses granted by Pieris under this Agreement and is used in connection with or otherwise Covers the Development, Manufacture, or Commercialization of the Products. Servier Know-How shall include Servier’s interest in Joint Know-How. 1.165 “ Servier Opt-In Notice ” has the meaning set forth in Section 3.1.1.(c). 1.166 “ Servier Partner ” has the meaning set forth in Section 5.1.2.(a) . 1.167 “ Servier Patent Rights ” means any Patent Rights that are Controlled by Servier as of the Effective Date and thereafter during the Term, and that Cover or are necessary for the Development, Manufacture or Commercialization of the Products (including its composition, formulation, combination, product by process, or method of use, manufacture, preparation or administration) pursuant to the terms of this Agreement. Servier Patent Rights shall include Servier’s interest in Joint Patents that meet the above requirements. The Servier Patent Rights existing as of the Effective Date are set forth in Schedule 1.234 . 1.168 “ Servier ROFN Notice ” has the meaning set forth in Section 5.1.2.(b) . 1.169 “ Servier ROFN Product ” has the meaning set forth in Section 5.1.2.(a) . 22 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 1.170 “ Servier ROFN Product Agreement ” has the meaning set forth in Section 5.1.2.(b) . 1.171 “ Servier Territory ” means (a) with respect to the Lead Product and any CoDev Collaboration Product, the entire world except for the United States and (b) with respect to a Servier WW Collaboration Product, the entire world. 1.172 “ Servier Territory Commercialization Plan ” has the meaning set forth in Section 2.5.1.(a) . 1.173 “ Servier WW Collaboration Product ” has the meaning set forth in Section 3.1.4.(b)(i) . 1.174 “ Servier WW Collaboration Product Royalties ” has the meaning set forth in Section 3.6.4.(a) . 1.175 “ Servier’s Contribution ” has the meaning set forth in Section 4.1.3.(a) . 1.176 “ Shared Costs ” means: (a) all Out-of-Pocket Costs (on a pass-through basis with no mark-up) for pre-clinical Development (including research) activities, (b) all Translational Research Costs, (c) all Clinical Development Costs, (d) Non-Clinical Development Costs, and (e) CMC Costs, and, in each case as such costs are incurred by the Parties or their Affiliates after the Effective Date in accordance with a Collaboration Plan and the corresponding Collaboration Budget, or the Joint Development Plan and the Joint Development Budget, as applicable. Shared Costs shall not include costs incurred by a Party in the performance of any Territory Specific Work or Unsponsored Work. 1.177 “ Shared Cost Report ” has the meaning set forth in Section 4.2.2.(a) 1.178 “ Start ” means, with respect to a given (a) Clinical Study, the first dosing of the first research subject with a Product in such Clinical Study, and (b) GLP Tox Study, the start date of the in-life phase of such GLP Tox Study. 1.179 “ Subject Item ” has the meaning set forth in Section 1.74 . 1.180 “ Sublicensee ” means a Third Party which is a licensee or sublicensee of the Pieris IP or the rights granted to Servier or Pieris, as applicable, under this Agreement, in accordance with the terms and conditions of this Agreement. For sake of clarity, Sublicensees do not include (a) wholesalers, distributors or similar entities performing similar functions, even if such Third Party is granted a limited right to promote and resell a Product sold to it and (b) Affiliates of the Party that has been granted the license (i.e., Servier or Pieris, as applicable). 1.181 “ Sublicensing Party ” has the meaning set forth in Section 5.1.3.(b)(i) . 1.182 “ Term ” has the meaning set forth in Section 12.1 . 1.183 “ Territory ” means either the Servier Territory or the Pieris Territory, as applicable given the context of the use of the term. 1.184 “ Territory Specific Work ” means any Clinical Study or non-clinical study that is required only by Competent Authorities in any given jurisdiction (or group of 23 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential jurisdictions) in order to obtain or maintain Regulatory Approval for the Product in such jurisdiction, and not by Competent Authorities in other jurisdictions (or group of jurisdictions). 1.185 “ Third Party ” means any person or entity other than Pieris, Servier and their respective Affiliates. 1.186 “ Third Party Claim ” has the meaning set forth in Section 11.1 . 1.187 “ Third Party IP Claim ” has the meaning set forth in Section 7.5.1 . 1.188 “ Third Party License ” has the meaning set forth in Section 4.1.2.(a) . 1.189 “[]” has the meaning set forth in Section 5.1.2.(c) . 1.190 “ Trademarks ” means all trademarks, service marks, trade names, rights in trade dress, logos, symbols, brand names and all trademark rights and interests throughout the world, and all right, title and interest in related applications and registrations throughout the world under common law, state law, federal law or laws of foreign countries. 1.191 “ Transferring Party ” has the meaning set forth in Section 3.2.5.(a) . 1.192 “ Translational Research ” means all laboratory and clinical investigation performed before and during the clinical testing of a product aimed at defining patients that will benefit from treatment with the product (i.e. proof-of-concept preclinical studies; identification and validation of selection biomarkers) and the determination of biomarkers that will help follow the response to the treatment (identification and validation of response biomarkers). 1.193 “ Translational Research Costs ” shall mean the Out-of-Pocket Costs, as well as FTE Costs, associated with Translational Research. 1.194 “ Unsponsored Work ” has the meaning set forth in Section 2.3.3.(b) . 1.195 “ Valid Claim ” means (a) a claim of an issued and unexpired Patent Right, which claim has not been revoked or held invalid or unenforceable by a court or other government agency of competent jurisdiction by a determination or has not been held or admitted to be invalid or unenforceable through re-examination or disclaimer, reissue, opposition procedure, nullity suit or otherwise by a determination or (b) a claim of a pending Patent Right application that has not been abandoned, finally rejected or expired without the possibility of appeal or refiling; provided, however, that Valid Claim will exclude any such pending claim in an application that has not been granted within [] years following the earliest priority filing date for such application. For purposes of the definition of Valid Claim, “determination” means a determination with respect to a Patent Right that would prevent a Party from enforcing or continuing to enforce such Patent Right. To the extent that any Patent Right is issued, restored or otherwise deemed valid and enforceable, then it once again shall be considered a Valid Claim as from the date of such issuance, restoration or determination. 1.196 “ Withholding Taxes ” has the meaning set forth in Section 4.3.3 . 1.197 “ Working Group ” has the meaning set forth in Section 2.2.7 . ARTICLE 2 LEAD PRODUCT PROJECT 24 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Section 2.1 Licenses . 2.1.1 License Grants to Servier . 2.1.1.(a) Development License . Subject to the terms and conditions set forth herein, Pieris hereby grants to Servier a co-exclusive (with Pieris), sublicensable (subject to Section 2.1.3 below), personal and non-transferable (except as set forth in Section 13.5 ), right and license under the Pieris IP (i) to Develop and have Developed (subject to Section 2.3.6 ), the Lead Product in the Field anywhere in the Pieris Territory and the Servier Territory, including to perform Servier’s obligations under the Joint Development Plan and to undertake Territory Specific Work and Unsponsored Work as permitted herein, and (ii) (a) to Manufacture, have Manufactured (subject to Section 2.3.6 ), the Lead Product anywhere in the Pieris Territory and the Servier Territory, and (b) to import the Lead Product into the Servier Territory and the Pieris Territory, in each case (clause (a) and (b)), solely for such Development; provided that with respect to any Pieris Building Block IP within the Pieris IP, the foregoing license under this Section 2.1.1.(a) shall be non-exclusive. 2.1.1.(b) Commercialization License . Subject to the terms and conditions set forth herein during the Term, Pieris hereby grants to Servier a royalty-bearing, sublicensable (subject to Section 2.1.3 below), personal and non-transferable (except as set forth in Section 13.5 ), right and license under the Pieris IP (i) to Commercialize the Lead Product in the Field solely in the Servier Territory, the license granted in this clause (i) to be exclusive (even as to Pieris), and (ii) (a) to Manufacture, have Manufactured (subject to Section 2.3.6 ), the Lead Product anywhere in the Pieris Territory and the Servier Territory, and (b) to import the Lead Product into the Servier Territory, in each case (clause (a) and (b)), solely for such Commercialization, the license granted in this clause (ii) to be a co-exclusive (with Pieris); provided that with respect to any Pieris Building Block IP within the Pieris IP, the foregoing license under this Section 2.1.1.(b) shall be non-exclusive. 2.1.1 License Grants to Pieris . 2.1.1.(a) Development License . Subject to the terms and conditions set forth herein, Servier hereby grants to Pieris a co-exclusive (with Servier), sublicensable (subject to Section 2.1.3 below), personal and non-transferable (except as set forth in Section 13.5 ), right and license under the Servier IP (i) to Develop and have Developed (subject to Section 2.3.6 ), the Lead Product in the Field anywhere in the Pieris Territory and the Servier Territory, including to perform Pieris’ obligations under the Joint Development Plan and to undertake Territory Specific Work and Unsponsored Work as permitted herein, and (ii) (a) to Manufacture, have Manufactured (subject to Section 2.3.6 ), the Lead Product anywhere in the Pieris Territory and the Servier Territory, and (b) to import the Lead Product into the Servier Territory and the Pieris Territory, in each case (clause (a) and (b)), solely for such Development; provided that with respect to any Servier 25 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Building Block IP within the Servier IP, the foregoing license under this Section 2.1.2.(a) shall be non-exclusive. 2.1.1.(b) Commercialization License . Subject to the terms and conditions set forth herein during the Term, Servier hereby grants to Pieris a royalty-free, sublicensable (subject to Section 2.1.3 below), personal and non-transferable (except as set forth in Section 13.5 ), right and license under the Servier IP (i) to Commercialize the Lead Product in the Field solely in the Pieris Territory, the license granted in this clause (i) to be exclusive (even as to Servier), and (ii) (a) to Manufacture, have Manufactured (subject to Section 2.3.6 ), the Lead Product anywhere in the Pieris Territory and the Servier Territory, and (b) to import the Lead Product into the Pieris Territory, in each case (clause (a) and (b)), solely for such Commercialization, the license granted in this clause (ii) to be co-exclusive (with Servier); provided that with respect to any Servier Building Block IP within the Servier IP, the foregoing license under this Section 2.1.2.(b) shall be non-exclusive. 2.1.2 Sublicense . Servier or Pieris may sublicense (through multiple tiers) all or part of the rights and licenses granted to them under this Section 2.1 to an Affiliate or to a Third Party solely in accordance with the terms set forth in Section 5.1.2 and Section 5.1.3 . 2.1.3 Know-How Transfer . 2.1.3.(a) Initial Transfer . Within thirty (30) days of the Effective Date, Pieris shall make available to Servier the Pieris Know-How related to the Lead Product that has not been previously made available to Servier, including the items listed in Exhibit 2.1.4.(a) . 2.1.3.(b) Ongoing Transfer . Subject to Section 3.3.4 , when applicable, on a continuing basis throughout the Term, (i) Pieris shall promptly make available to Servier all additional Pieris Know-How related to the Lead Product which comes into existence from time to time, including all information listed in Exhibit 2.1.4.(b) and all Data generated under the Joint Development Plan, Territory Specific Work or under any Unsponsored Work in accordance with Section 2.3.3 , and all Know-How within the Joint IP which comes into existence from time to time (other than the Know-How related to Manufacturing, which is covered by Section 3.4 ) and (ii) Servier shall promptly make available to Pieris all Servier Know-How related to the Lead Product which comes into existence from time to time, including all Data generated under to the Joint Development Plan, Territory Specific Work or under any Unsponsored Work in accordance with Section 2.3.3 , and all Know-How within Joint IP which comes into existence from time to time (other than the Know-How related to Manufacturing, which is covered by Section 3.4 ). Any such documents, reports and data intended to be submitted to Competent Authorities shall be made available in a form and format acceptable by Competent Authorities in the United States or European Union, e.g., in eCTD-ready format. 26 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 2.1.4 Rights of Reference; Use of Data . 2.1.4.(a) Subject to Section 2.3.4 , when applicable, each Party (the “ Beneficiary ”) shall have the right to cross-reference, file or incorporate by reference in its respective Territory any Regulatory Materials (and any Data contained therein) filed by the other Party, its Affiliates or Sublicensees (the “ Filing Party ”) for the Lead Product, for use by the Beneficiary (and its Affiliates and Sublicensees) solely to Develop, Manufacture and Commercialize the Lead Product in accordance with this Agreement. The Filing Party shall, on written request by the Beneficiary, provide to the Beneficiary, and to any specified Competent Authority, a letter, in the form reasonably required by the Beneficiary, acknowledging that the Beneficiary (and its Affiliates and Sublicensees) has the above rights with respect to any such Regulatory Materials. 2.1.4.(b) The Filing Party will provide, and cause its Affiliates and Sublicensees to provide, reasonable cooperation to the Beneficiary to effect the foregoing rights (including permitting the Beneficiary (and its Affiliates’ and Sublicensees’) and/or any relevant Competent Authority to inspect any such Regulatory Materials upon reasonable notice). 2.1.4.(c) In the event that the Regulatory Materials to be cross-referenced, filed or incorporated by reference include any DMF of a Third Party manufacturer, such rights of cross-reference, filing or incorporation by reference shall be subject to such obligations and restrictions as the Filing Party may have to such Third Party manufacturer with respect to the use or disclosure of its DMF. 2.1.4.(d) The Beneficiary shall have the right to request primary source data (“ Raw Data ”) for any Data intended for submission by the Beneficiary (or its Affiliates and Sublicensees) to the Competent Authorities or to request that the Filing Party make such Raw Data available for inspection by any applicable Competent Authorities, such right to be exercised in good faith but at the Beneficiary’s (or its Affiliates’ and Sublicensees’) sole discretion. The Filing Party agrees to conduct appropriate quality control and verification procedures and such other processes as may be required to confirm that the Data accurately describes the experimental methods and results of any study. Such quality control and verification procedures shall include verification against Raw Data to ensure that supporting statements and conclusions embodied in any documents submitted by the Beneficiary (and its Affiliates and Sublicensees) to the Competent Authorities are accurately represented. The Filing Party will ensure that quality control and verification procedures are conducted by individuals and entities with the appropriate technical expertise and experience, and that quality control and verification procedures are documented appropriately in compliance with the industry standard SOP’s and all applicable laws and regulations. 2.1.4.(e) Disclaimer . Other than as expressly set forth in this Agreement, any Data disclosed or materials (other than pursuant to a Supply Agreement) provided by a Party to the other Party under this Agreement is provided on an “as is” basis, without any warranty (express or implied) of any kind, and the disclosing 27 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Party expressly disclaims all such warranties to the maximum extent permitted under applicable Law. The Beneficiary on behalf of itself and its Affiliates and Sublicensees accepts all risk and liability in relation to the use of the Data or materials received from the Filing Party under this Agreement. For avoidance of doubt, this Section 2.1.5.(e) does not limit either Party’s rights with respect to the other Party’s breach of this Agreement. Section 2.2 Governance; Committees. 2.2.1 Joint Executive Committee . Within thirty (30) days after the Effective Date, the Parties shall establish a joint executive committee (the “ Joint Executive Committee ” or “ JEC ”). The JEC membership and procedures are further described in Section 2.2.5 . 2.2.1.(a) The JEC shall in particular, in accordance with the decision-making principles set forth in Section 2.2.5 , manage the overall alliance and resolve any disputed matter of the JSC. 2.2.1.(b) Unless otherwise agreed upon between the Parties, the JEC shall be comprised of an equal number of representatives from each of Servier and Pieris, which, unless otherwise agreed upon between the Parties, shall be two (2) members of each Party. 2.2.1.(c) The JEC will meet at least once per Calendar Year (or more if agreed upon), with the Co-Chairs (as defined below) attending in person. 2.2.2 Joint Steering Committee . Within thirty (30) days after the Effective Date, the Parties shall establish a joint steering committee (the “ Joint Steering Committee ” or “ JSC ”). 2.2.2.(a) The JSC will assume a general role of leadership in the collaboration, to oversee and guide the implementation of the strategic objectives of the project and will be responsible for: (i) reviewing and approving the Joint Development Plan and Joint Development Budget and any annual or interim updates and proposed amendments thereto; (ii) attempting to resolve issues presented to it in accordance with Section 2.2.5 ; (iii) establishing, as appropriate, any additional sub-committees and Working Groups; and (iv) making such determinations as are expressly delegated to it under the terms of this Agreement. 2.2.2.(b) Unless otherwise agreed upon between the Parties, the JSC shall be comprised of an equal number of representatives from each of Servier and Pieris, which unless otherwise agreed upon between the Parties, shall be comprised of three (3) members of each Party. 28 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 2.2.2.(c) The JSC will meet two (2) to three (3) times each Calendar Year (or more if agreed upon), with the Co-Chairs attending in person at least once per Calendar Year. 2.2.3 Joint Development Committee . Within thirty (30) days after the Effective Date, the Parties shall establish a joint development committee (the “ Joint Development Committee ” or “ JDC ”). 2.2.3.(a) The JDC will be responsible for: (i) Initiating, implementing and overseeing the conduct of the Joint Development Plan; (ii) preparing updates and proposed amendments Joint Development Plan and Joint Development Budget to be submitted to the JSC; (iii) reviewing any proposed Territory Specific Work, Unsponsored Work, and proposed Additional Studies; (iv) coordinating the activities of the Parties under this Agreement, including facilitating communications between the Parties with respect to the Development and Manufacture of the Lead Product; (v) providing a forum for discussion of the Development and Manufacture of the Lead Product; (vi) providing a forum for discussion of the Development and regulatory strategies for the Lead Product; (vii) coordinating the sharing of data under Section 3.3.4 ; and (viii) making such determinations as are expressly delegated to it under the terms of this Agreement. 2.2.3.(b) Unless otherwise agreed upon between the Parties, the JDC shall be comprised of an equal number of representatives from each of Servier and Pieris, which unless otherwise agreed upon between the Parties, shall be comprised of between three (3) and five (5) members of each Party. The JDC will put in place a mixed core team in order to work efficiently. 2.2.3.(c) The JDC will meet at least once each Calendar Quarter (or more if agreed upon), with the Co-Chairs attending in person at least twice per Calendar Year. 2.2.4 Joint Intellectual Property Committee . Within thirty (30) days after the Effective Date, the Parties shall establish a joint intellectual property committee (the “ Joint Intellectual Property Committee ” or “ JIPC ”). 2.2.4.(a) The JIPC will be responsible for: (i) overseeing all intellectual property related issues arising under this Agreement, including strategies for prosecution and maintenance of all 29 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Pieris IP, Servier IP, and Joint IP with the exception of Pieris Platform IP and Pieris Platform Improvement IP; (ii) preparing reports and guidance related to such intellectual property issues to be submitted to the JSC; and (iii) making such determinations as are expressly delegated to it under the terms of this Agreement. 2.2.4.(b) Unless otherwise agreed upon between the Parties, the JIPC shall be comprised of one (1) or two (2) members of each Party. All JIPC representatives will have appropriate expertise, seniority, decision-making authority and ongoing familiarity with the subject matter of this Agreement and each Party’s representatives collectively will have relevant expertise in intellectual property portfolio management and licensing matters. 2.2.4.(c) The JIPC will meet at least twice each Calendar Year (or more if agreed upon), with the Co-Chairs attending in person at least twice per Calendar Year. 2.2.5 General Rules. 2.2.5.(a) Committee Membership . Each of the Joint Executive Committee, Joint Steering Committee, Joint Research Committee, Joint Development Committee and Joint Intellectual Property Committee (each, a “ Committee ”) will have solely the roles and responsibilities assigned to it in this Section 2.2 and as otherwise expressly set forth in this Agreement. Either Party may replace its respective Committee representatives at any time with prior written notice to the other Party. In the event a Committee member from either Party is unable to attend or participate in a Committee meeting, the Party who designated such representative may designate a substitute representative for the meeting in its sole discretion. The Alliance Managers (as defined below) appointed by Servier and Pieris are ex-officio members of each of the Committees. For avoidance of doubt, the Alliance Manager may also be a member of one or more Committees and either Party may include the same individual on one or more Committees. 2.2.5.(b) Co-Chairs . Each Party shall appoint one of its members in each Committee to co-chair such Committee’s meetings (each, a “ Co-Chair ”). The Co-Chairs shall (a) ensure the orderly conduct of the Committee’s meetings, (b) attend each Committee meeting (either in-person, by videoconference or telephonically, unless otherwise expressly provided herein), and (c) prepare and issue written minutes of each meeting within thirty (30) days thereafter accurately reflecting the discussions and decisions of such meeting. Unless otherwise agreed, the Committee shall have at least one (1) representative with relevant decision-making authority from each Party such that the Committee is able to effectuate all of its decisions within the scope of its responsibilities. In the event the Co-Chair from either Party is unable to attend or participate in a Committee meeting, 30 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential the Party who designated such Co-Chair may designate a substitute Co-Chair for the meeting in its sole discretion 2.2.5.(c) Committee Meetings. All Committee meetings may be conducted by telephone, video-conference or in person as determined by the Co-Chairs in consultation with the Alliance Managers. Each Party shall bear its own personnel and travel costs and expenses relating to Committee meetings. With the consent of the Parties (not to be withheld unreasonably), other employee representatives of the Parties may attend any Committee meeting as non-voting observers. Either Party may also call a special meeting of a Committee (by videoconference or teleconference) by at least five (5) Business Days prior written notice to the other Party in the event such Party reasonably believes that a significant matter must be addressed prior to the next regularly scheduled meeting, and no later than five (5) Business Days prior to the special meeting, such Party shall provide the Committee with materials reasonably adequate to enable an informed decision. 2.2.6 Decision Making . 2.2.6.(a) Other than as set forth herein, in order to make any decision required of it hereunder with respect to any approval, a Committee must have present (in person, by videoconference or telephonically) at least the Co-Chair of each Party (or his/her designee for such meeting). The Parties will endeavor to make decisions where required with respect to any approval of a Committee by consensus of the Co-Chairs. If a dispute or failure to agree arises which cannot be resolved at the JRC, JDC or the JIPC, the Co-Chairs of either Party may cause such dispute or failure to agree to be referred to the Joint Steering Committee for resolution. 2.2.6.(b) If any such dispute or failure to agree arises which cannot be resolved within the Joint Steering Committee, the Co-Chairs of either Party may cause such dispute or failure to agree to be referred to JEC. The JEC shall attempt in good faith to resolve such dispute or failure to agree by unanimous consent (with the Co-Chairs having each one vote). If the JEC cannot resolve such dispute or failure to agree within thirty (30) days of the matter being referred to it, such matter shall be resolved as follows: (i) each Party shall have final decision-making authority for the Lead Product Development matters related to its respective Territory, provided that such decision is not reasonably expected to have a Material Adverse Effect on the Development, Manufacture or Commercialization of the Lead Product in the other Party’s Territory; and (ii) any revision of the Joint Development Plan and Joint Development Budget shall be a mutual consent decision. For avoidance of doubt, neither Party shall be committed to make any expenditures that are not agreed to by such Party in a Joint Development Budget and neither Party shall be committed to expend funds in excess of that agreed to in a Joint Development Budget without its consent subject to Section 4.2.2.(d) . 31 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 2.2.6.(c) Each Party shall be responsible and shall have full decision-making authority for the Commercialization of the Lead Product in its respective Territory, provided that such decision is not reasonably expected to have a Material Adverse Effect on the Development, Manufacture or Commercialization of the Lead Product in the other Party’s respective Territory. 2.2.6.(d) For the purposes of this Agreement, “ Material Adverse Effect ” shall mean any materially adverse impact on the value of the Lead Product, including but not limited to restriction on the Lead Product’s label or adverse impact to the safety or efficacy of the Lead Product. 2.2.6.(e) Disputes that cannot be resolved by the JEC shall be addressed as provided in Section 13.3 . 2.2.7 Working Groups . From time to time, a Committee may establish and delegate duties to sub-committees or teams (each, a “ Working Group ”) to oversee particular projects or activities within their respective authority. Each Working Group and its activities shall be subject to the oversight, review and approval of, and shall report to, the Committee that established such Working Group. In no event shall the authority of any Working Group exceed that specified for the Committee under which such Working Group is established, as set forth in this Section 2.2 . 2.2.8 Alliance Managers . Within thirty (30) days following the Effective Date, each Party shall appoint an individual to act as alliance manager for such Party (each, an “ Alliance Manager ”). Each Alliance Manager shall be a representative of the applicable Party on the Co-Chair. The Alliance Managers shall coordinate all contacts between the Parties regarding the activities contemplated by this Agreement, facilitate all such activities hereunder, be responsible for progressing the alliance activities, otherwise facilitating communication and be the first line of dispute resolution. The Alliance Managers shall have the right to attend all Committee meetings and shall be responsible for assisting the Co-Chair in performing its oversight responsibilities. The name and contact information for each Party’s Alliance Manager, as well as any replacement(s) chosen by such Party, in its sole discretion, from time to time shall be provided to the other Party. Each Party shall provide its Alliance Manager with sufficient resources for the Alliance Manager to perform his or her role under this Agreement. 2.2.9 Scope of Governance . Notwithstanding the creation of the Committees, each Party shall retain the rights, powers and discretion granted to it hereunder, and no Committee shall be delegated or vested with rights, powers or discretion unless such delegation or vesting is expressly provided herein, or the Parties expressly so agree in writing. No Committee shall have the power to amend or modify this Agreement, and no decision of any Committee shall be in contravention of any terms and conditions of this Agreement. The Alliance Managers shall not have any rights, powers or discretion except as expressly granted to the Alliance Managers hereunder and in no event shall the Alliance Managers have any right or power to modify or amend this Agreement. It is understood and agreed that issues to be formally decided by any of the Committees are only those specific issues that are expressly provided in this Agreement to be decided by such Committee. 32 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Section 2.3 Development. 2.3.1 Generally . 2.3.1.(a) Joint Development Plan . Beginning on the Effective Date, the Parties shall jointly Develop the Lead Product in accordance with the pre-clinical and clinical development plan attached to this Agreement as Exhibit 2.3.1.(a) , as may be supplemented and amended from time to time by the Joint Steering Committee, as described in Section 2.2.2.(a) (“ Joint Development Plan ”). The Joint Development Plan shall set forth the research and Development activities to be conducted by the Parties in order to achieve Marketing Approval from [] for the Lead Product and will describe the scope, the budget and the activities to be performed by both Parties, among other items. The Parties acknowledge and agree that the initial Joint Development Plan attached as Exhibit 2.3.1.(a) as of the Effective Date will set forth those Development activities to be conducted by the Parties through first-in-man trial and reasonably in advance of (but at least [] prior to) the expected completion of such Development activities under the initial Joint Development Plan, the Parties (through the JSC as contemplated in this Agreement) shall update and amend such initial Joint Development Plan to comply with the requirements of the immediately preceding sentence. 2.3.1.(b) Responsibility . Subject to the activities allocated to each Party under the Joint Development Plan, Pieris shall be solely responsible for obtaining Regulatory Approvals for the Lead Product in the Pieris Territory and for Development activities to be undertaken in connection therewith, and Servier shall be solely responsible for obtaining Regulatory Approvals for the Lead Product in the Servier Territory and for Development activities to be undertaken in connection therewith. Notwithstanding the foregoing, the Parties agree that to the extent appropriate, Clinical Studies under the Joint Development Plan will be conducted globally with one sponsor per study and unless otherwise mutually agreed by the Parties in writing, on a Clinical Study-by-Clinical Study basis (i) Pieris shall be the sponsor for each Clinical Study conducted in the Pieris Territory under the Joint Development Plan other than as part of a global Clinical Study and (ii) Servier shall be the sponsor for (A) each Clinical Study conducted in the Servier Territory, and (B) each global Clinical Study conducted in both Servier Territory and Pieris Territory under the Joint Development Plan, provided, that notwithstanding the foregoing (i) and (ii), following any Change of Control of Pieris, the JDC shall determine which Party shall be the sponsor for each global Clinical Study conducted in the Territory under the Joint Development Plan depending on each Party’s resources and expertise, and with the intent that each Party be the global sponsor of an equal number of global Clinical Studies. Each Party shall be solely responsible for its own Territory Specific Work and any Unsponsored Work. 2.3.1.(c) Database . Before commencement of each Clinical Study pursuant to the Joint Development Plan, the Parties shall use the applicable regulatory database format in order to fulfill both FDA and EMA requirements. 33 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 2.3.2 Development Funding . 2.3.2.(a) Joint Development Plan . Starting on the Effective Date, each Party shall be responsible for its Agreed Percentage of the Shared Costs for the Lead Product, as set forth in the budget associated with the then current Joint Development Plan (“ Joint Development Budget ”) as included in Exhibit 2.3.1.(a) . Each Party shall be responsible for any other costs such Party incurs in connection with the Development of the Lead Product. 2.3.2.(b) Territory Specific Work and any Unsponsored Work . Each Party shall be solely responsible for costs it incurs in the performance of any Territory Specific Work and any Unsponsored Work. 2.3.3 Additional Studies . If a Party (including through its Affiliates or Sublicensees) wishes to conduct one or more additional Clinical Studies, Non-Clinical Development or Translational Research activities for the Lead Product in the Field which Data could be used in the other Party’s respective Territory (beyond what is then included in the Joint Development Plan or any Territory Specific Work) in the Field for Development of the Lead Product, such Party (the “ Proposing Party ”) shall notify the other Party (the “ Non-Proposing Party ”) of such proposed studies (the “ Proposed Study(ies) ”) and provide the Non-Proposing Party with any supporting Data or publications supporting any such proposal. In such event, the JDC shall consider such proposal and evaluate the supporting Data and information in good faith. 2.3.3.(a) If the Parties both wish to collaborate in the conduct of such Proposed Study(ies), the Proposing Party shall prepare an amendment to the Joint Development Plan and Development Budget to include the Proposed Study(ies) for review and approval by the JSC. 2.3.3.(b) If, after consideration in good faith by the JDC and the JSC, as applicable, the Parties do not, within [], mutually agree to include the Proposed Study(ies) in the Joint Development Plan, the Proposing Party may elect to conduct such rejected Proposed Study(ies) (such study(ies), in such event, “ Unsponsored Work ”). The Non-Proposing Party may, within [] following the failure of the JDC to mutually agreed to include the Proposed Study(ies) in the Joint Development Plan (the “ Objection Period ”), provide reasonable written objection to such Unsponsored Work on the basis of likely potential Material Adverse Effect upon the procurement or maintenance of Regulatory Approval or Commercialization of the Lead Product in the Non-Proposing Party’s respective Territory. If the Non-Proposing Party makes such an objection, the Proposing Party shall not be permitted to proceed with such Unsponsored Work unless the Proposing Party can establish that such Unsponsored Work is Territory Specific Work, required to achieve Regulatory Approval in [] or in []. If the Proposing Party is able to establish that such Unsponsored Work is required for such a Regulatory Approval, then the Proposing Party shall be permitted to undertake such Unsponsored Work at its sole expense. The Proposing Party shall deliver to the JSC regular updates on such Unsponsored Work, and promptly 34 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential following completion of the Unsponsored Work, a top-line summary of all Data resulting from such Unsponsored Work. 2.3.3.(c) Clinical Studies in the Other Party’s Territory . In the event that, in furtherance of its Development activities for the Lead Product in its respective Territory and in accordance with its rights under this Agreement, a Party believes it needs to conduct Clinical Studies which include one or more sites in the other Party’s Territory, then the requesting Party shall provide written notice to the JDC of the proposed trial design (including the most current protocol draft), study size (estimated number of patients), the list of proposed countries involved in the study and the purpose of and need for such study. The proposing Party shall not proceed with such Clinical Study without the other Party’s consent through the JSC, which shall not be unreasonably withheld or delayed. 2.3.4 Ownership and Use Rights of Development Data; Additional Study Data . 2.3.4.(a) Development Data . The Parties shall jointly own any Data arising out of each Party’s performance of its activities under the Joint Development Plan (“ Development Data ”) and, subject to ARTICLE 8 and ARTICLE 9 , each Party shall be free to use and exploit such Development Data for the purposes of exercising its rights and fulfilling its obligations under this Agreement. For the avoidance of doubt, Development Data shall not include any Data resulting from any Territory Specific Work or Unsponsored Work (collectively, “ Additional Study Data ”). 2.3.4.(b) Additional Study Data . All Additional Study Data shall be solely owned by the Party that performed the Territory Specific Work or Unsponsored Work that produced such Data, subject to the rights and licenses, if any, granted to the other Party herein. Each Party shall have access to and the right to use at no cost to such Party all Data resulting from Unsponsored Work and Territory Specific Work conducted by or on behalf of the other Party, its Affiliates and its Sublicensees, solely as necessary to comply with safety reporting or other similar regulatory requirements in its respective Territory, but not, for example, for Marketing Approval or pricing approval. If the Non-Proposing Party wishes to obtain access to and have the right to use the other Party’s Additional Study Data for any other reason (including obtaining Marketing Approval or pricing approval), it may do so by notice in writing to the Proposing Party at any time, provided that upon the exercise of such right, the Non-Proposing Party shall reimburse the Proposing Party for the cost it would have otherwise paid if it had agreed to co-fund such Unsponsored Work plus a premium of []. For clarification purposes only, if Servier were the Non-Proposing Party in the scenario described in the directly preceding sentence, Servier will reimburse Pieris for [] of Pieris’ costs that would have been Shared Costs if it had been conducted under a Joint Development Plan) incurred in obtaining such Additional Study Data, and if Pieris were the Non-Proposing Party in the scenario described in the directly preceding sentence, Pieris will reimburse Servier for [] of Servier’s costs that would have been Shared Costs if it had been conducted under 35 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential a Joint Development Plan and are incurred in obtaining such Additional Study Data. 2.3.5 Reporting; Development Records . Each Party shall provide to the other written reports regarding the progress and results of their activities under the Joint Development Plan through the JDC. Each Party shall (and shall cause its Affiliates, Sublicensees, subcontractors and consultants to) maintain complete and accurate records (in the form of technical notebooks and/or electronic files where appropriate) of all work conducted by it or on its behalf (including by its Affiliates, Sublicensees, subcontractors and consultants) under the Joint Development Plan. Such records, including any electronic files where such Data may also be contained, shall fully and properly reflect all work done and results achieved in sufficient detail and in a good scientific manner appropriate for patent and regulatory purposes. Each Party shall have the right to review and receive a copy of such records (including a copy of the databases) maintained by the other Party (including its Affiliates, Sublicensees, subcontractors and consultants) at reasonable times, but no more than twice in any one Calendar Year, and to obtain access to source documents to the extent needed for patent or regulatory purposes or for other legal proceedings. The Parties may agree to set up an electronic data room, SharePoint or a relevant database in order to manage the exchange of information of all on-going activities in a secure manner. 2.3.6 Subcontractors . Each Party will have the right to use its Affiliates or Third Parties to perform the Development, Manufacturing and Commercialization activities for the benefit of such Party under this Agreement; provided that: (a) such Party remains responsible for the work allocated to such Party hereunder (including under the Joint Development Plan), and payment to, such subcontractors as it selects to the same extent it would if it had done such work itself; and (b) such Party will enter into a binding written agreement with such Affiliate and each such Third Party, prior to commencing such activities, which agreement includes the following terms (i) the subcontractors undertake in writing obligations of confidentiality and non-use regarding Confidential Information that are substantially the same as those undertaken by the Parties pursuant to ARTICLE 8 , and (ii) such Party Controls all intellectual property developed by the subcontractors in the course of performing any such work and owns all such intellectual property that is specifically related to, or otherwise necessary for Development, Manufacture or Commercialization of, the Product, which includes, prior to commencing any such activities, having such subcontractor execute an agreement licensing or assigning, as applicable, any inventions and related Intellectual Property Rights to the Party by whom they are employed or for whom they are providing services (or its designated Affiliate). Notwithstanding the foregoing in this Section 2.3.6 , where the Third Party is an academic or academic institution, the Parties shall consider in good faith to agree to waive clause (ii); for all other Third Parties, the Parties must mutually consent to waive or limit clause (ii), such consent not to be unreasonably withheld. 2.3.7 Regulatory Matters . 2.3.7.(a) Ownership . Pieris will own all INDs, BLAs and related regulatory documentation submitted to any Competent Authority in the Pieris Territory with 36 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential respect to the Lead Product. Servier will own all IND/IMPDs, MAA and related regulatory documentation submitted to any Competent Authority in the Servier Territory with respect to the Lead Product as well as any drug master files maintained by or on behalf of Servier anywhere in the world with respect to the Lead Product. 2.3.7.(b) Responsibility . Each will be solely responsible for all regulatory matters relating to Products in its Territory, including (i) overseeing, monitoring and coordinating all regulatory actions, communications and filings with, and submissions to, each Competent Authority; (ii) interfacing, corresponding and meeting with each Competent Authority; (iii) seeking and maintaining all regulatory filings; and (iv) maintaining and submitting all records required to be maintained or required to be submitted to any Competent Authority. 2.3.7.(c) Communications . (i) Within [] after receipt of any Health Authority Communication from a Competent Authority in its Territory with respect to the Lead Product, the recipient Party will provide the other Party, through its Alliance Manager, with a brief written description of the principal issues raised in such Health Authority Communication and, upon such other Party’s request, the recipient Party will also provide complete copies of such correspondence within a reasonable period of time following such request. The recipient Party will allow such other Party a reasonable opportunity to review and comment on any proposed response to such Health Authority Communications in advance of the transmission of such response, and will reasonably consider all comments timely provided in connection therewith. (ii) Within [] after receipt of any Health Authority Communications from a Competent Authority in its Territory related to a Clinical Study hold or potential Clinical Study hold for safety reasons or for a potential withdrawal from the market for a safety issue or a report of a serious safety finding by a Competent Authority, the recipient Party will provide the other Party, through its Alliance Manager, with a brief written description of the principal issues raised in such Health Authority Communication. 2.3.7.(d) Meetings . Each Party shall provide the other Party with reasonable advance notice of all formal meetings and teleconferences with the FDA with respect to Pieris and the EMA with respect to Servier pertaining to the Lead Product, or with as much advance notice as practicable under the circumstances. The notifying Party shall use reasonable efforts, to the extent reasonably practicable, to permit the other Party to have, at such other Party’s expense, mutually acceptable representatives attend as observers, such formal meetings and teleconferences with FDA or EMA pertaining to such Product provided, however, that such notifying Party shall not be obligated to change or re-schedule 37 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential any such meeting in order to accommodate the schedule of the other Party’s representatives. 2.3.7.(e) Submissions . With respect to the Lead Product, each Party will allow the other Party a reasonable opportunity to review and comment on all filings and other submissions to the FDA and the EMA, as applicable, related to such Product in advance of submission of any such filings, and such first Party will reasonably consider all comments timely provided by such other Party in connection therewith. 2.3.7.(f) Pharmacovigilance Agreement/Safety Data Exchange Agreement . After the Effective Date, the Parties shall mutually agree on a reasonably practicable date to enter into an agreement setting forth the worldwide pharmacovigilance procedures for the Parties with respect to the Lead Product (the “ Pharmacovigilance Agreement ”). The Pharmacovigilance Agreement shall be executed before the initiation of the first Clinical Study conducted by either of the Parties for a Product that requires the other Party to report pharmacovigilance data generated by such Clinical Study to the Competent Authorities. When executed, the Pharmacovigilance Agreement shall remain a stand-alone document, independent from this Agreement to enable amendment thereto as required independently of this Agreement. 2.3.7.(g) Specifications . The Pharmacovigilance Agreement shall be in accordance with, and enable both Parties to fulfill, all local, national and regional regulatory reporting obligations under applicable Laws. Section 2.4 Manufacturing. 2.4.1 Generally . The Joint Development Plan shall include details regarding Manufacture of the supply of Lead Product until Marketing Approval of the Lead Product. 2.4.2 Responsibility; Technology Transfer . 2.4.2.(a) Immediate Needs for Development Purposes . Pieris shall use Commercially Reasonable Efforts to cause its Third Party contract manufacturers (the “ CMOs ”), subject to a satisfactory audit by Servier, to Manufacture and supply to Servier all of its clinical supply requirements for the Lead Product for clinical use and Development activities (including CMC activities) until the Parties agree on a manufacturing plan in accordance with Section 2.4.2.(b) . Until such time, the CMC Costs shall be included as part of Shared Costs and shall be split among the Parties in accordance with its Agreed Percentage. Pieris shall use Commercially Reasonable Efforts to cause its CMOs to enter into three-way quality agreements for Manufacturing and supply of the Lead Product with Servier. 2.4.2.(b) Manufacture for Later Clinical Development and Commercialization . 38 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential (i) On a Product-by-Product basis, the Parties shall discuss in good faith and mutually agree (taking into account the guiding principles of cost, quality and speed of manufacture) on which Party will be responsible for the supply of such Product for the conduct of any Clinical Study prior to commercial scale manufacturing, and such Party’s manufacturing and supply activities shall be set forth in the applicable Joint Development Plan; provided that Pieris is hereby designated as the Party responsible for the supply of Lead Product for the conduct of the Phase 1 Clinical Study. In addition, the Development Plan shall include the Parties’ strategy for commercial scale manufacturing. 1. If the applicable Development Plan allocates responsibility to a Party to itself Manufacture a Product, then within [] of a written request of the other Party, the Parties will negotiate in good faith and enter into a supply agreement (and any other necessary ancillary agreements including a quality technical agreement) for clinical or commercial supply of such Product (each, a “ Party Supply Agreement ”) which will be on commercially reasonable terms customary to Third Party contract manufacturing organization supply agreements and shall include key performance indicators (including criteria regarding manufacturing capacity, quantity, timeliness of delivery, quality and cost that are consistent with prevailing industry standards for Third Party contract manufacturing agreements). Any Product supplied for clinical purposes prior to commercial scale manufacturing under a Party Supply Agreement will be supplied at a price no greater than the Product’s fully burdened cost of goods, and any Product supplied on a commercial scale under a Party Supply Agreement will be supplied at a commercially reasonable price mutually agreed by the Parties in good faith (not to exceed [] 2. If the applicable Development Plan provides for the Parties to obtain Manufacturing services from a Third Party CMO, then the Parties shall use good faith efforts to enter into supply agreements with the same Third Party CMOs as primary and secondary suppliers of the relevant Product (each such agreement, a (“ CMO Supply Agreement ”). Such agreements may be separately established by each Party but the Parties will use good faith efforts to coordinate the activities under this Section 2.4.2.(b) and to take advantage of any volume discounts or economies of scale. If the Parties do not so elect, then each Party agrees that, in its CMO Supply Agreement, such Party shall not include any limitations on such Third Party’s ability to supply the other Party with such Product, and upon the request of the other Party, such Party shall facilitate initial business discussions between the other Party and such Third Party CMO. Any CMO Supply Agreement 39 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential shall (a) be consistent with the terms included in this Agreement, including with regard to confidentiality, (b) shall assign to the contracting Party such Third Party’s entire right, title and interest in, or provide a perpetual, fully-paid, worldwide, fully sublicensable (through multiple tiers) exclusive (other than with respect to such Third Party’s background technology and improvements thereof) license under and to, any Know-How or Patent Rights made, developed or invented by such Third Party related to the Manufacture of such Products, and (c) shall be subject to review by the other Party prior to execution. 3. At Servier’s request, the applicable Development Plan shall include a technology transfer of manufacturing process(es) owned or Controlled by Pieris, and in Pieris’ or its CMOs’ possession for the Lead Product to Servier or its Third Party subcontractor. At Servier’s request, Pieris shall include in any contract with a CMO for Manufacture of the Lead Product provisions requiring the CMO to conduct such technology transfer as set forth in the Development Plan, including by providing copies or samples of relevant documentation, materials and other embodiments of the relevant Know-How, and by making available its qualified technical personnel on a reasonable basis to consult with Servier with respect to such Know-How. Servier shall reimburse Pieris’ reasonable costs in connection with any technology transfer under this Section 2.4.2.(b) . Upon the conclusion of such technology transfer (with no further shared coordination of supply of the Lead Product), each Party shall be solely responsible for and have sole control of, in each case by itself or through one or more CMOs, the Manufacture and supply of the Lead Product for further Development (other than under the Joint Development Plan) or Commercialization in the Party’s respective Territory, at such Party’s sole cost and expense. Section 2.5 Commercialization. 2.5.1 Generally . The key Commercialization principles for the Lead Product will be set forth in a written summary of the global Commercialization strategy for such Product (each, a “ Global Commercialization Strategy ”). The JSC shall prepare the initial draft of such Global Commercialization Strategy for the Lead Product within [] after initiation of the first Pivotal Clinical Study for such Product, and then annually thereafter. Amendments to any Global Commercialization Strategy will become effective following review and approval by the JSC. 2.5.1.(a) Servier Territory Commercialization Plan . No less than [] in advance of the reasonably expected First Commercial Sale in the Servier Territory with respect to the Lead Product, and on an annual basis thereafter, Servier shall prepare and deliver to the JSC for review a written plan that summarizes the 40 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Commercialization activities to be undertaken with respect to such Product in the Servier Territory in the next Calendar Year and, to the extent commercially reasonable and Servier has reasonable visibility at the time, Servier’s intended plans and high-level anticipated timelines to obtain further Regulatory Approvals and Commercialize such Product in countries in the Servier Territory in which Servier is not then Commercializing such Product (the “ Servier Territory Commercialization Plan ”). Each Servier Territory Commercialization Plan shall be consistent with the most recent Global Commercialization Strategy approved by the JSC. The Servier Territory Commercialization Plan for the Lead Product shall subsequently be updated and modified by Servier, from time to time at its discretion and no less frequently than once per Calendar Year, based upon, among other things, Servier’s Commercialization activities with respect to such Product in the Servier Territory, a copy of which updated plan will be provided to the JSC for such Product. Notwithstanding the foregoing, in the event of any disagreement between the Parties regarding the Servier Territory Commercialization Plan for a Product, the Servier representatives on the JSC for such Product shall have final decision-making authority over the preparation and updating of such Servier Territory Commercialization Plan, provided that such decisions do not materially adversely affect the Commercialization of such Product in the Pieris Territory. 2.5.1.(b) Pieris Territory Commercialization Plan . No less than [] in advance of the reasonably expected First Commercial Sale in the Pieris Territory with respect to the Lead Product, and on an annual basis thereafter, Pieris shall prepare and deliver to the JSC for such Product for review a written plan that summarizes the Commercialization activities to be undertaken with respect to such Product in the Pieris Territory in the next Calendar Year and, to the extent commercially reasonable and Pieris has reasonable visibility at the time, Pieris’ intended plans and high-level anticipated timelines to obtain further Regulatory Approvals and Commercialize such Product in the Pieris Territory (the “ Pieris Territory Commercialization Plan ”). The Pieris Territory Commercialization Plan shall be consistent with the most recent Global Commercialization Strategy approved by the JSC. The Pieris Territory Commercialization Plan for the Lead Product shall subsequently be updated and modified by Pieris, from time to time at its discretion and no less frequently than once per Calendar Year, based upon, among other things, Pieris’ Commercialization activities with respect to such Product in the Pieris Territory, a copy of which updated plan will be provided to the JSC for such Product. Notwithstanding the foregoing, in the event of any disagreement between the Parties regarding the Pieris Territory Commercialization Plan for a Product, the Pieris representatives on the JSC for such Product shall have final decision-making authority over the preparation and updating of such Pieris Territory Commercialization Plan, provided that such decisions do not materially adversely affect the Commercialization of such Product in the Servier Territory. 2.5.2 Global Branding . The JSC shall, from time to time during the Term, develop (and thereafter modify and update) a high-level global branding strategy (including global 41 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential positioning and promotional messages) for each Product for use throughout the world (the “ Global Branding Strategy ”), which shall be consistent with the applicable Global Commercialization Strategy. Each Party shall be responsible for the creation, production and regulatory filings of written sales, promotion and advertising materials for the Products for use in such Party’s respective Territory, which such materials shall be compliant with applicable Law and the Global Branding Strategy (“ Promotional Materials ”). Upon one Party’s request, the other Party shall provide copies of representatives samples of its final, approved Promotional Materials with respect to []. 2.5.3 Reporting Obligations . Each Party shall report to the JSC in writing, by no later than each March 31 following the first Regulatory Approval of such Product in the Field in such Party’s Territory (for the period ending December 31 of the prior Calendar Year), summarizing in reasonable detail such Party’s Commercialization activities for such Product in such Party’s Territory performed to date (or updating such report for activities performed since the last such report was given hereunder, as applicable). 2.5.4 Warehousing and Distribution . Each Party (or its Sublicensees) shall be responsible for booking sales in its Territory. Each Party may warehouse Products both inside and outside of such Party’s Territory, provided that any sales with respect to such Products are booked in such Party’s Territory. If a Party receives any orders for any Product in the other Party’s Territory, it shall refer such orders to the other Party, to the extent it is not prohibited from doing so under applicable Law. Moreover, each Party and its Affiliates shall be solely responsible for handling all returns of any Product sold in its Territory, as well as all aspects of Product order processing, invoicing and collection, distribution, inventory and receivables of Products sold in its Territory. 2.5.5 Recalls, Market Withdrawals or Corrective Actions . In the event that any Competent Authority issues or requests a recall or takes a similar action in connection with a Product in a Territory, or in the event either Party determines that an event, incident or circumstance has occurred that may result in the need for a recall or market withdrawal of a Product in its Territory, the Party notified of such recall or similar action, or the Party that desires such recall or similar action, shall, within twenty-four (24) hours of such request, order or determination, notify the other Party’s Alliance Manager and JSC members by telephone or e-mail. Each Party, in consultation with the other Party, shall decide whether to conduct a recall of a Product in its own Territory and the manner in which any such recall shall be conducted (except in the case of a government mandated recall, when such Party may act without such advance notice but shall notify the other Party as soon as possible). Except as may otherwise be agreed to by the Parties, each Party shall bear the expense of any such recall in its own Territory. Each Party will make available all of its pertinent records that may be reasonably requested by the other Party in order to effect a recall of a Product in the other Party’s Territory. The Parties’ rights and obligations under this Section 2.5.5 shall be subject to the terms of any Party Supply Agreement(s). In the event of a conflict between the provisions of any such Party Supply Agreement and this Section 2.5.5 , the provisions of such Party Supply Agreement shall govern. 2.5.6 Ex-Territory Sales; Export Monitoring . 42 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 2.5.6.(a) Ex-Territory Sales . Subject to applicable Law, neither Party (nor any of its Affiliates or Sublicensees) shall engage in any advertising or promotional activities relating to any Product directed primarily to customers or other buyers or users of such Product located outside its Territory or accept orders for Products from or sell Products into such other Party’s Territory for its own account, and if a Party receives any order for any Product in the other Party’s Territory, it shall refer such orders to the other Party. 2.5.6.(b) Export Monitoring . Each Party and its Affiliates will use Commercially Reasonable Efforts to monitor and prevent exports of Products from its own Territory for Commercialization in the other Party’s Territory using methods permitted under applicable Law that are commonly used in the industry for such purpose (if any), and shall promptly inform the other Party of any such exports of Products from its Territory, and any actions taken to prevent such exports. Each Party agrees to take reasonable actions requested in writing by the other Party that are consistent with Law to prevent exports of Products from its Territory for Commercialization in the other Party’s Territory. Section 2.6 Payments and Milestones. 2.6.1 Upfront Fee . In partial consideration for the rights granted under this Agreement regarding the Lead Product, Servier shall pay Pieris a one-time, non-refundable and non-creditable lump sum payment of [] (the “ Lead Product Upfront Fee ”) [] following receipt of the corresponding invoice from Pieris after the Effective Date. 2.6.2 Achievement Adjustment . In the event that the Lead Product achieves Lead Product DCN by the dates specified in the table below, the corresponding adjustment to the Lead Product Upfront Fee specified in the table below shall be made by Servier within [] following receipt of the corresponding invoice from Pieris after such date of achievement of Lead Product DCN . Date of Achievement of Lead Product DCNPayment Amount[][][][][][][][] Pieris shall generate all data required for the Lead Product DCN (the “ Required Data ”) as set forth in Exhibit 1.141 . Pieris shall notify Servier when all Required Data are accessible to Servier through an electronic data room and whether the Lead Product DCN criteria as set forth in Exhibit 1.141 are met (the “ Access Notice ”). Servier has [] to confirm in writing the completeness of the Required Data or request the missing information, in which case, the Access Notice shall not be deemed valid, Pieris shall provide the missing information and the procedure of the foregoing sentence will apply again. 43 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Upon Servier’s confirmation that the Required Data is complete, (a) if the success criteria are met, the date of the Lead Product DCN shall be the date of receipt by Servier of the Access Notice and (b) if the success criteria are not met, the Parties will have [] to decide whether or not they wish to continue the Development of the Lead Product, in which case, upon Servier’s decision to continue the Development of the Lead Product, the date of the Lead Product DCN shall be the date of receipt by Servier of the Access Notice. 2.6.3 Development and Regulatory Milestones . In partial consideration for the rights granted under this Agreement regarding the Lead Product, in each case upon initial achievement of the applicable milestone by or on behalf of Servier or Servier’s Affiliates or Sublicensees for the Lead Product, Servier will pay Pieris the one-time, non-refundable and non-creditable lump sum payments set forth below. Development EventPayment Amount1stIndication2ndIndication3rdIndication4thIndication5thIndication and beyondStart of GLP Tox Studies[][][][][]Start of Phase 1 Clinical Study[]Start of Phase 2a Clinical Study or Phase 1 Clinical Study Expansion Cohorts[]Start of Pivotal Clinical Study[]MAA filing with the EMA[]MAA filing in Japan[]Marketing Approval (centralized procedure)in Europe[][][][]Marketing Approval in Japan[][][][]Additional Marketing Approval in Servier Territory for the first and the second countries out of the following: [][][][][]Maximum Total[][][][][] Notwithstanding the above, with respect to each Marketing Approval (centralized procedure) in Europe milestone, if the approval is granted but conditional upon the completion of an additional 44 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Clinical Study, in lieu of paying the amount corresponding to such approval, Servier will pay [] of such amount upon issuance of the conditional approval and [] of such amount upon issuance of the confirmatory approval. 2.6.4 Skipped Development and Regulatory Milestones . If any of the above development and regulatory milestones are skipped (i.e. a later milestone payment is payable before an earlier milestone payment within the same jurisdiction if applicable), or if Regulatory Approval is achieved in any jurisdiction with respect to the Lead Product without all of the preceding milestone payments applicable to such Product having been achieved in such jurisdiction if applicable, then the skipped milestone(s) will be deemed to have been achieved upon the achievement of the subsequent milestone or upon Regulatory Approval, as applicable. If the MAA in Europe is filed through another procedure than the centralized procedure, the Parties will discuss in good faith the opportunity to adjust the milestones. 2.6.5 Sales Milestones . As partial consideration for the rights granted hereunder regarding the Lead Product, Servier shall make the non-refundable, non-creditable, one-time sales milestone payments to Pieris based upon the first achievement of the following Calendar Year cumulative Royalty Bearing Net Sales of the Lead Product in the Servier Territory as set forth below. Annual Calendar Year - Royalty Bearing Net Sales ThresholdPayment[][][][][][]Maximum Total[] 2.6.6 Royalties . As partial consideration for the rights granted hereunder regarding the Lead Product, during the Royalty Term Servier shall pay Pieris royalties equal to the following percentages of Royalty Bearing Net Sales of the Lead Product over a Calendar Year in the Servier Territory, subject to adjustment as set forth in Section 4.1 (“ Lead Product Royalties ”): Annual Calendar Year Royalty Bearing Net SalesRoyalty Rates owed by Servier[][][][][][][][] ARTICLE 3 RESEARCH COLLABORATION Section 3.1 Scope. 3.1.1 Generally . 3.1.1.(a) During the Initial Research Collaboration Term, the Parties shall jointly collaborate to generate, evaluate and Develop the Initial Collaboration 45 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Products (the “ Initial Research Collaboration ”). The Parties may mutually agree to extend the Initial Research Collaboration Term for up to two (2) one-year terms consecutively applied (each, an “ Initial Research Collaboration Renewal Term ”). 3.1.1.(b) The Initial Research Collaboration shall encompass four (4) Bispecific Products (the “ Initial Collaboration Products ”). A list of the initial Collaboration Products is included in Schedule 3.1.1.(b) ; this list may be modified and will be completed by the Parties during the course of the Research Collaboration, in each case by mutual written agreement of the Parties. 3.1.1.(c) Additional Research Collaboration . Servier shall have an option (exercisable in Servier’s sole discretion) to jointly collaborate with Pieris to generate, evaluate and Develop the Additional Collaboration Products under this Agreement (the “ Additional Research Collaboration ” and such option, the “ Servier Collaboration Option ”). In order to exercise the Servier Collaboration Option under this Section 3.1.1.(c) , Servier shall provide Pieris written notice stating its desire to opt-in with respect to the Additional Research Collaboration (such notice, the “ Servier Opt-In Notice ”) no later than the end of the Initial Research Collaboration Term (the “ Servier Collaboration Option Period ”). In the event that Servier delivers such Servier Opt-In Notice to Pieris prior to the end of the Servier Collaboration Option Period, then the Parties shall, within [] thereof, negotiate in good faith to mutually agree upon the applicable Additional Collaboration Products to be included under such Additional Research Collaboration along with the duration (start and completion) of such Additional Research Collaboration (the “ Additional Research Collaboration Initial Term ”). Within [] of such agreement, Servier shall pay to Pieris the Servier Collaboration Option Fee in accordance with Section 3.6.1.(b) . The Parties may mutually agree to extend the Additional Research Collaboration Term for up to two (2) one-year terms consecutively applied (each, an “ Additional Research Collaboration Renewal Term ”). 3.1.1.(d) The Additional Research Collaboration shall encompass up to three (3) Bispecific Products or [], such Bispecific Products [] to be mutually agreed by the Parties in accordance with Section 3.1.1.(c) , one (1) of which shall be designated by both Parties as a Pieris Designated CoDev Collaboration Product (the “ Additional Collaboration Products ”). 3.1.2 Collaboration Plan . 3.1.2.(a) The Parties shall establish a research pre-clinical and clinical development plan for each Collaboration Product, as may be supplemented and amended from time to time by the Joint Steering Committee, as described in Section 2.2.2.(a) (each, a “ Collaboration Plan ”). The initial Collaboration Plan for the Initial Collaboration Products shall be attached hereto as Exhibit 3.1.2.(a).1 , Exhibit 3.1.2.(a).2 , Exhibit 3.1.2.(a).3 and Exhibit 3.1.2.(a).4 . Subject to Servier’s exercise of the Servier Collaboration Option in accordance with Section 3.1.1.(c) , the Parties shall within ninety (90) days of the exercise of the Servier 46 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Collaboration Option, prepare an initial Collaboration Plan for the three (3) Additional Collaboration Products, each of which shall be attached hereto as Exhibit 3.1.2.(a).5 , Exhibit 3.1.2.(a).6 and Exhibit 3.1.2.(a).7 . Each Collaboration Plan shall set forth the research and Development activities to be conducted regarding the Collaboration Products by the Parties up to PCC and the terms of, and activities therein, shall at all times be designed to be in compliance with all applicable Laws and in accordance with professional and ethical standards customary in the biopharmaceutical industry. In the event that, during the Collaboration Term, the Parties mutually agree to drop a Collaboration Product (in accordance with Section 5.2.1 ) and replace such product with a new Bispecific Product, the Collaboration Plan shall be updated to reflect the new Bispecific Product and research and Development activities related thereto. 3.1.2.(b) With respect to a Collaboration Product that constitutes a Pieris Designated CoDev Collaboration Product, (i) [] prior to the anticipated PCC date, the Parties shall in good faith prepare an update to the Collaboration Plan which sets forth the proposed Development activities to be conducted by the Parties (along with a corresponding updated Collaboration Budget) up to a Phase 2a Clinical Study, for such Pieris Designated CoDev Collaboration Product, and (ii) upon such Pieris Designated CoDev Collaboration Product becoming a CoDev Collaboration Product in accordance with Section 3.1.4.(a) , the Collaboration Plan for such Product will be replaced by an updated Collaboration Plan that shall set forth the research and Development activities to be conducted by the Parties in order to achieve Marketing Approval from [] for such CoDev Collaboration Product, and the provisions of Section 2.3 , Section 2.4 and Section 2.5 shall apply to such Product mutatis mutandis except that the Parties shall agree upon responsibility for Manufacturing such Product for the Phase 1 Study and it shall not automatically be the responsibility of Pieris. 3.1.3 Collaboration Obligations. 3.1.3.(a) Each Party shall conduct the activities assigned to such Party under each Collaboration Plan in accordance with the timelines set forth therein. 3.1.3.(b) The provisions of Section 2.3.4.(a) (Ownership and Use Rights of Collaboration Data), Section 2.3.5 (Reporting; Development Records) and Section 2.3.6 (Subcontractors) shall apply mutatis mutandis to the activities of the Parties pursuant to a Collaboration Plan. 3.1.4 Co-Development Option . On a Pieris Designated CoDev Collaboration Product-by-Pieris Designated CoDev Collaboration Product basis, within [] after the written acknowledgement by the Parties that PCC has been achieved (the “ Consideration Period ”), Pieris shall have (and Servier hereby grants to Pieris as of the Effective Date) the exclusive option (exercisable in Pieris’ sole discretion) to opt into global co-Development and Commercialization of each such Pieris Designated CoDev Collaboration Product(s) (each a “ Pieris Co-Development Option ”). The Parties shall use Commercially Reasonable Efforts to agree as to the updated Collaboration Plan and associated Collaboration Budget contemplated by Section 3.1.2.(b) for such Pieris 47 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Designated CoDev Collaboration Product [] prior to the anticipated achievement of PCC. In order to exercise its option under this Section 3.1.4 , Pieris shall provide Servier written notice stating its desire to opt-in with respect to the applicable Pieris Designated CoDev Collaboration Product (such notice, the “ Opt-In Notice ”) within the Consideration Period. 3.1.4.(a) CoDev Collaboration Products . Upon receipt of the Opt-In Notice by Servier, the Pieris Designated CoDev Collaboration Product(s) identified in such Opt-In Notice shall automatically be deemed to be a co-development product (each, a “ CoDev Collaboration Product ” and collectively, the “ CoDev Collaboration Products ”). 3.1.4.(b) Servier WW Collaboration Products . (i) Pieris Designated CoDev Collaboration Products shall automatically be deemed Servier WW Collaboration Products after expiration of the Consideration Period unless Pieris exercises its Pieris Co-Development Option for such Pieris Designated CoDev Collaboration Product within the Consideration Period (each such Pieris Designated CoDev Collaboration Products for which such option was not exercised, and any other Collaboration Product that does not constitute a CoDev Collaboration Product, each, a “ Servier WW Collaboration Product ” and collectively, the “ Servier WW Collaboration Products ”). (ii) In the event that Pieris fails to exercise the Pieris Co-Development Option for one or more Pieris Designated CoDev Collaboration Products within the Consideration Period (each a “ Declined Option Collaboration Product ”) and Servier wishes to continue the Development and Commercialization of such Declined Option Collaboration Product as a Servier WW Collaboration Product, Servier will reimburse Pieris for [] of Pieris’ Agreed Percentage of the costs incurred in the Development of such Declined Option Collaboration Product under the applicable Collaboration Plan. Servier shall notify Pieris of its election to continue Development and Commercialization of such Declined Option Collaboration Product (a “ DOCP Election Notice ”) within [] of the end of the respective Consideration Period. In the event that Servier does not provide Pieris the DOCP Election Notice within [] of the end of the respective Consideration Period or affirmative elects not to continue Development and Commercialization of such Declined Option Collaboration Product, such Declined Option Collaboration Product shall constitute a Dropped Product by Servier for purposes of Section 5.2.1 effective as of the end of [] period or as of the date that notice is given to Pieris. (iii) If following PCC, any Collaboration Product becomes a Servier WW Collaboration Product, Servier will be solely responsible for all pre-clinical and clinical Development, Manufacture and worldwide Commercialization of such Servier WW Collaboration Product. 48 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 3.1.5 Reallocation of CoDev Collaboration Products and Servier WW Collaboration Products . Notwithstanding Section 3.1.4 , if all of the CoDev Collaboration Products or all of the Servier WW Collaboration Products fail to reach PCC, then one Collaboration Product shall be reallocated as follows: 3.1.5.(a) In the event that no Servier WW Collaboration Products have reached PCC by the time the second CoDev Collaboration Product has reached [] in the Pieris Territory, at Servier’s written election, unless otherwise agreed by the Parties, such second CoDev Collaboration Product to reach [] shall automatically be converted to a Servier WW Collaboration Product. Servier shall reimburse Pieris for its share of the Shared Costs paid during the time that such Collaboration Product was a CoDev Collaboration Product. 3.1.5.(b) In the event that no CoDev Collaboration Products have reached PCC by the time the second Servier WW Collaboration Product has reached [] in the Servier Territory, at Pieris’ written election, unless otherwise agreed by the Parties, such second Servier WW Collaboration Product to reach [] shall automatically be converted to a CoDev Collaboration Product. Pieris shall reimburse Servier for its share of the Shared Costs paid during the time that such Product was a Servier WW Collaboration Product. 3.1.6 Research Funding . 3.1.6.(a) Servier WW Collaboration Products . (i) Up to PCC, Servier shall be responsible for all Out-of-Pocket Costs associated with the Development and Manufacture of such Collaboration Product (other than a Pieris Designated CoDev Collaboration Product) starting from the applicable Collaboration Effective Date as outlined in the collaboration budget associated with the current Collaboration Plan for such Collaboration Product (each a “ Collaboration Budget ”). The initial Collaboration Budgets for the corresponding initial Collaboration Plans are attached to this Agreement as Exhibits 3.1.2(a)1–4 (with the Collaboration Budgets for the Additional Collaboration Products attached as Exhibits 3.1.2(a)5–7 within ninety (90) days of the exercise of the Servier Collaboration Option). Each Party shall be responsible for [], including [], associated with the Development and Manufacture of the Servier WW Collaboration Products, provided that (a) during the Additional Research Collaboration Term (as applicable), Servier shall pay Pieris for its [] a [] of [] (the “ Additional Research Collaboration Development Funds ”), and such Additional Research Collaboration Development Funds shall be payable to Pieris [], with the [] of [] due upon the Additional Collaboration Effective Date and [] of [], following receipt of invoice from Pieris for the same, and (b) following PCC, in the event that Servier requests and Pieris agrees to perform activities for Development or Manufacture of a Servier WW Collaboration Product then Servier shall reimburse Pieris for []. To the extent that there is a Collaboration Renewal Term, the Parties shall 49 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential discuss in good faith an additional lump sum to be paid to Pieris (the “ Collaboration Renewal Development Funds ”) with respect to such Collaboration Renewal Term. The Parties acknowledge and agree that the Collaboration Renewal Development Funds amount is not intended as a limitation on Pieris’ obligation to conduct its activities under the Collaboration Plan or otherwise pursuant to this Agreement. (ii) Following PCC for a given Collaboration Product that constitutes a Servier WW Collaboration Product, Servier shall be responsible for all costs associated with the Development, Manufacture and Commercialization of such Servier WW Collaboration Products. 3.1.6.(b) CoDev Collaboration Products . (i) Up to PCC for each Pieris Designated CoDev Collaboration Product, each Party shall be responsible for its Agreed Percentage of the Shared Costs in accordance with the Collaboration Budget associated with such Pieris Designated CoDev Collaboration Product. (ii) Following PCC for a given Collaboration Product, which becomes a CoDev Collaboration Product, the provisions of Section 2.3.2 shall apply mutatis mutandis with respect to such CoDev Collaboration Product. (iii) For the avoidance of doubt, subject to Section 3.1.6.(b)(i) and Section 3.1.6.(b)(ii), and except as otherwise expressly contemplated by this Agreement, each Party shall be responsible for [], associated with the Development and Manufacture of the CoDev Collaboration Products. Section 3.2 Licenses. 3.2.1 Research License. 3.2.1.(a) License Grant to Servier . Subject to the terms and conditions set forth herein, on a Collaboration Product-by-Collaboration Product basis, during the applicable Collaboration Term but only up to PCC and any Consideration Period for the applicable Collaboration Product, Pieris hereby grants to Servier a co-exclusive (with Pieris), sublicensable (subject to Section 3.2.4 below), personal and non-transferable (except as set forth in Section 13.5 ), right and license under the Pieris IP solely to perform Servier’s obligations under the applicable Collaboration Plan in accordance with this Agreement anywhere in the Pieris Territory and the Servier Territory solely with respect to the Development of such Collaboration Product in the Field; provided that with respect to any Pieris Building Block IP within the Pieris IP, the foregoing license under this Section 3.2.1.(a) shall be non-exclusive. 3.2.1.(b) License Grant to Pieris . Subject to the terms and conditions set forth herein, on a Collaboration Product-by-Collaboration Product basis, during the applicable Collaboration Term but only up to PCC and any Consideration Period for the applicable Collaboration Product, Servier hereby grants to Pieris 50 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential a co-exclusive (with Servier), sublicensable (subject to Section 3.2.4 below), personal and non-transferable (except as set forth in Section 13.5 ), right and license under the Servier IP solely to perform Pieris’ obligations under each Collaboration Plan in accordance with this Agreement anywhere in the Pieris Territory and the Servier Territory solely with respect to the Development of such Collaboration Product in the Field; provided that with respect to any Servier Building Block IP within the Servier IP, the foregoing license under this Section 3.2.1.(b) shall be non-exclusive. 3.2.2 Servier WW Collaboration Products . With respect to each Servier WW Collaboration Product, subject to the terms and conditions of this Agreement, Pieris hereby grants to Servier: 3.2.2.(a) Development License . During the Term following PCC, an exclusive (even as to Pieris) sublicensable (subject to Section 3.2.4 below), personal and non-transferable (except as set forth in Section 13.5 ), right and license under the Pieris IP to (a) Develop, have Developed (subject to Section 2.3.6 ) and use such Servier WW Collaboration Product in the Field worldwide, and (b) Manufacture and have Manufactured (subject to Section 2.3.6 ) the Servier WW Collaboration Product worldwide for the purposes of such Development. The foregoing license shall be exercisable by Servier after PCC for such Servier WW Collaboration Product; provided that with respect to any Pieris Building Block IP within the Pieris IP, the foregoing license under this Section 3.2.2.(a) shall be non-exclusive. 3.2.2.(b) Commercialization License . During the Term following PCC, an exclusive (even as to Pieris), royalty-bearing, sublicensable (subject to Section 3.2.4 below), personal and non-transferable (except as set forth in Section 13.5 ), right and license under the Pieris IP to (a) Commercialize the Servier WW Collaboration Product in the Field worldwide and (b) to Manufacture and have Manufactured (subject to Section 2.3.6 ) the Servier WW Collaboration Product worldwide for the purposes of such Commercialization; provided that with respect to any Pieris Building Block IP within the Pieris IP, the foregoing license under this Section 3.2.2.(b) shall be non-exclusive. 3.2.3 CoDev Collaboration Products . 3.2.3.(a) License Grants to Servier . (i) Development License . Subject to the terms and conditions set forth herein, Pieris hereby grants to Servier during the Term following PCC for a given CoDev Collaboration Product, a co-exclusive (with Pieris), sublicensable (subject to Section 3.2.4 below), personal and non-transferable (except as set forth in Section 13.5 ), right and license under the Pieris IP (1) to Develop and have Developed (subject to Section 3.1.4 and Section 2.3.6 ), and use the CoDev Collaboration Product in the Field anywhere in the Pieris Territory and the Servier Territory, including to perform Servier’s obligations under each Collaboration Plan and to 51 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential undertake Territory Specific Work and Unsponsored Work as permitted herein, and (2) (A) to Manufacture and have Manufactured (subject to Section 3.4 and Section 2.3.6 ), the CoDev Collaboration Product in the Field anywhere in the Pieris Territory and the Servier Territory, and (B) to import, have imported, export and have exported the CoDev Collaboration Product into the Servier Territory and the Pieris Territory, in each case (clause (A) and (B)), solely for such Development; provided that with respect to any Pieris Building Block IP within the Pieris IP, the foregoing license under this Section 3.2.3.(a)(i) shall be non-exclusive. (ii) Commercialization License . Subject to the terms and conditions set forth herein during the Term following PCC for a given CoDev Collaboration Product, Pieris hereby grants to Servier a royalty-bearing, sublicensable (subject to Section 3.2.4 below), personal and non-transferable (except as set forth in Section 13.5 ), right and license under the Pieris IP (1) to Commercialize each CoDev Collaboration Product in the Field solely in the Servier Territory, the license granted in this clause (1) to be exclusive (even as to Pieris), and (2) (A) to Manufacture and have Manufactured (subject to Section 3.4 and Section 2.3.6 ), the CoDev Collaboration Product in the Field anywhere in the Pieris Territory and the Servier Territory, and (B) to import, have imported, export and have exported the CoDev Collaboration Product into the Servier Territory, in each case (clause (B) and (B)), solely for such Commercialization, the license granted in this clause (2) to be a co-exclusive (with Pieris); provided that with respect to any Pieris Building Block IP within the Pieris IP, the foregoing license under this Section 3.2.3.(a)(ii) shall be non-exclusive. 3.2.3.(b) License Grants to Pieris . (i) Development License . Subject to the terms and conditions set forth herein, during the Term following PCC for a given CoDev Collaboration Product, Servier hereby grants to Pieris a co-exclusive (with Servier), sublicensable (subject to Section 3.2.4 ), personal and non-transferable (except as set forth in Section 13.5 ), right and license under the Servier IP (1) to Develop and have Developed (subject to Section 3.1.4 and Section 2.3.6 ), and use the CoDev Collaboration Product in the Field anywhere in the Pieris Territory and the Servier Territory, including to perform Pieris’ obligations under the Collaboration Plan and to undertake Territory Specific Work and Unsponsored Work as permitted herein, and (2) (a) to Manufacture and have Manufactured (subject to Section 3.4 and Section 2.3.6 ), the CoDev Collaboration Product in the Field anywhere in the Pieris Territory and the Servier Territory, and (b) to import, have imported, export and have exported the CoDev Collaboration Product into the Servier Territory and the Pieris Territory, in each case (clause (a) and (b)), solely for such Development; provided that with respect to any 52 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Servier Building Block IP within the Servier IP, the foregoing license under this Section 3.2.3.(b)(i) shall be non-exclusive. (ii) Commercialization License . Subject to the terms and conditions set forth herein during the Term following PCC for a given CoDev Collaboration Product, Servier hereby grants to Pieris a royalty-free, sublicensable (subject to Section 3.2.4 ), personal and non-transferable (except as set forth in Section 13.5 ), right and license under the Servier IP (1) to Commercialize the CoDev Collaboration Product in the Field solely in the Pieris Territory, the license granted in this clause (1) to be exclusive (even as to Servier), and (2) (a) to Manufacture and have Manufactured (subject to Section 3.4 and Section 2.3.6 ), the CoDev Collaboration Product anywhere in the Pieris Territory and the Servier Territory, and (b) to import, have imported, export and have exported the CoDev Collaboration Product into the Pieris Territory, in each case (clause (a) and (b)), solely for such Commercialization, the license granted in this clause (2) to be a co-exclusive (with Servier); provided that with respect to any Servier Building Block IP within the Servier IP, the foregoing license under this Section 3.2.3.(b)(ii) shall be non-exclusive. 3.2.4 Sublicense . Servier or Pieris may sublicense (through multiple tiers) all or part of the rights and licenses granted to them under this Section 3.2 to an Affiliate or to a Third Party solely in accordance with the terms set forth in Section 5.1.2 and Section 5.1.3 . 3.2.5 Know-How Transfer . 3.2.5.(a) Initial Transfer . Within thirty (30) days following the Effective Date or any other schedule agreed upon by the Parties, each Party (the “ Transferring Party ”) shall make available to the other Party the Transferring Party’s respective Know-How related to the Collaboration Products that has not been previously made available to such other Party, including the items listed in Exhibit 3.2.5.(a) . 3.2.5.(b) Ongoing Transfer . Subject to Section 3.3.4 , when applicable, on a continuing basis throughout the Collaboration Term, the Transferring Party shall promptly make available to the other Party all additional of the Transferring Party’s respective Know-How related to the Collaboration Products which comes into existence from time to time, including all information listed in Exhibit 2.1.4.(b) and all Data generated under the Collaboration Plan or Territory Specific Work or under any Unsponsored Work in accordance with Section 3.1.3 and all Know-How within the Joint IP which comes into existence from time to time (other than the Know-How related to Manufacturing, which is covered by Section 3.4 ). Any such documents, reports and data intended to be submitted to Competent Authorities shall be made available in a form and format acceptable by Competent Authorities, e.g., in eCTD-ready format. 53 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 3.2.6 Rights of Reference; Use of Data . The provisions of Section 2.1.5 shall apply mutatis mutandis to the Regulatory Materials and Data in relation to CoDev Collaboration Products. Section 3.3 Governance. 3.3.1 Generally . The governance structure set forth in Section 2.2 shall apply mutatis mutandis to the Collaboration Products (other than Servier WW Collaboration Products following PCC) and the Collaboration Plan, provided that, until PCC, the JDC shall be replaced by a joint research committee (the “ Joint Research Committee ” or “ JRC ”) with the following responsibilities: (i) Initiating, implementing and overseeing the conduct of any Collaboration Plan; (ii) preparing updates and proposed amendments to the Collaboration Plan and Collaboration Budget to be submitted to the JSC; (iii) reviewing, resolving and approving any matters or disputes related to the Development of any Product prior to PCC; (iv) establishing a core research and development team to ensure work under the Joint Collaboration Plan is executed efficiently; (i) coordinating the sharing of data under Section 3.3.4 ; and (ii) making such determinations as are expressly delegated to it under the terms of this Agreement. 3.3.2 Servier WW Collaboration Products . The governance structure set forth in Section 2.2 shall not apply to Servier WW Collaboration Products following PCC. Instead, in addition to the data sharing requirements of Section 3.2.5.(b) , Servier shall update Pieris as to the status of the Development and Commercialization of the Servier WW Collaboration Products through a written annual report no later than forty-five (45) days following the end of every Calendar Year outlining Servier’s efforts in connection with Development relating to the Servier WW Collaboration Products and giving Pieris notice of material events related to the Development of the Servier WW Collaboration Products, including general timelines with regard to anticipated milestones and communications intended to be achieved within [] following such report. Such reports shall include information on [] that (a) have been [] or (b) are intended to be []. At [] request, not more than [] per [], [] shall consider [] answering [] with respect to Servier WW Collaboration Products, provided that [] shall not be required to do so. 3.3.3 Regulatory . ‎ Section 2.3.7(c) with respect to Health Authority Communications shall apply mutatis mutandis to the Servier WW Collaboration Products. 3.3.4 Ongoing Information Sharing . Promptly following the Effective Date, the Parties will establish a secure electronic data exchange system through which the Parties shall, subject to any then current obligations or restrictions the sharing Party may have to a 54 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Third Party, share on an on-going and regular basis during the Collaboration Term with each other relevant data and information with regard to the Building Blocks used in any Product which could be relevant for the Development of such Product. After the termination of the Collaboration Term, such information shall be limited to any Health Authority Communication with regard to the Building Blocks used in any Product that is being Developed, Manufactured or Commercialized which could be relevant for the Development of such Product. Section 3.4 Manufacturing. 3.4.1 Generally. 3.4.1.(a) The Collaboration Plan shall include each Parties responsibilities and activities regarding the Manufacture and supply of the Collaboration Products until PCC. 3.4.1.(b) Following PCC, the principles set forth in Section 2.4 shall apply mutatis mutandis to CoDev Collaboration Products. Servier shall be solely responsible for the Manufacturing of Servier WW Collaboration Products. Section 3.5 Commercialization . 3.5.1 Servier WW Collaboration Products . Servier shall be solely responsible for and have sole control over all aspects of the Commercialization of the Servier WW Collaboration Products in every country of the world, including planning and implementation, distribution, booking of sales, pricing, reimbursement and costs. 3.5.2 CoDev Collaboration Products . The provisions of Section 2.5 shall apply mutatis mutandis to the Commercialization of the CoDev Collaboration Products. Subject to the terms of this Agreement, (a) Servier shall be solely responsible for and have sole control of all aspects of the Commercialization of the CoDev Collaboration Products in the Servier Territory, including planning and implementation, distribution, booking of sales, pricing, reimbursement and costs and (b) Pieris shall be solely responsible for and have sole control of all aspects of the Commercialization of the CoDev Collaboration Products in the Pieris Territory, including planning and implementation, distribution, booking of sales, pricing, reimbursement and costs. Section 3.6 Payments and Royalties. 3.6.1 Technology Access Fee . 3.6.1.(a) In partial consideration for the rights granted under this Agreement regarding the Collaboration Products under the Initial Research Collaboration, Servier shall pay Pieris a one-time, non-refundable and non-creditable lump sum payment of [] following receipt of the corresponding invoice from Pieris after the Effective Date. 3.6.1.(b) In partial consideration for the rights granted under this Agreement regarding the Servier Collaboration Option and the Additional Collaboration Products under the Additional Research Collaboration, Servier shall pay Pieris a 55 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential one-time, non-refundable and non-creditable lump sum payment of [] (the “ Servier Collaboration Option Fee ”) concurrently with Servier’s delivery of the Servier Opt-In Notice to Pieris (pursuant to Section 3.1.1.(c) ). 3.6.2 Development and Regulatory Milestones . 3.6.2.(a) Servier WW Collaboration Products . In partial consideration for the rights granted under this Agreement regarding the Servier WW Collaboration Products, in each case upon initial achievement of the applicable milestone by or on behalf of Servier or its Sublicensees for each Servier WW Collaboration Product, Servier will pay Pieris the corresponding one-time, non-refundable and non-creditable lump sum payment set forth below. Development EventPayment Amount1stIndication2ndIndication3rdIndicationIn vivo PoC or PCC[][][]Start of GLP Tox Studies[]Start of Phase 1 Clinical Study[][][]Start of Phase 2a Clinical Study or Phase 1 Clinical Study Expansion Cohorts[][][]Start of Pivotal Clinical Study[][][][]filing[][][][][] filing [][][][][] filing [][][][]Marketing Approval [][][][]Marketing Approval [][][][]Marketing Approval [][][][]Maximum Total[][][] Notwithstanding the above, with respect to each Marketing Approval (centralized procedure) in Europe and Marketing Approval in the United States milestone, if any such approval is granted but conditional upon the completion of an additional Clinical Study in the applicable country, in lieu of paying the amount corresponding to such approval, Servier shall pay [] of such amount upon issuance of the conditional approval and [] of such amount upon issuance of the confirmatory approval. 56 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 3.6.2.(b) CoDev Collaboration Products . In partial consideration for the rights granted under this Agreement regarding the CoDev Collaboration Products, in each case upon initial achievement of the applicable milestone by or on behalf of Servier or Servier’s respective Affiliates or Sublicensees for each CoDev Collaboration Product, Servier will pay Pieris the corresponding one-time, non-refundable and non-creditable lump sum payment set forth below. Development EventPayment Amount1stIndication2ndIndicationIn vivo PoC or PCC[][]Start of GLP Tox Studies[][]Start of Phase 1 Clinical Study[][]Start of Phase 2a Clinical Study or Phase 1 Clinical Study Expansion Cohorts[][]Start of Pivotal Clinical Study[][][] filing [][][][] filing [][][][] filing [][][][][][]Marketing Approval [][][]Marketing Approval [][][]Maximum Total[][] Notwithstanding the above, with respect to each Marketing Approval (centralized procedure) in Europe milestone, if the approval is granted but conditional upon the completion of an additional Clinical Study, in lieu of paying the amount corresponding to such approval, Servier will pay [] of such amount upon issuance of the conditional approval and [] of such amount upon issuance of the confirmatory approval. 3.6.2.(c) Skipped Development and Regulatory Milestones . If any of the above development and regulatory milestones are skipped (i.e. a later milestone payment is payable before an earlier milestone payment in the same jurisdiction, if applicable), or if Regulatory Approval is achieved in any jurisdiction with respect to a Servier WW Collaboration Product (under Section 3.6.2.(a) ) or CoDev Collaboration Product (under Section 3.6.2.(b) without all of the preceding milestone payments applicable to such Product in such jurisdiction, if applicable, having been achieved, then the skipped milestone(s) will be deemed to have been achieved upon the achievement of the subsequent milestone or upon Regulatory Approval, as applicable. If the MAA in Europe is filed through another procedure than the centralized procedure, the Parties will discuss in good faith the opportunity to adjust the milestones. 3.6.3 Sales Milestones . As partial consideration for the rights granted hereunder regarding the Servier WW Collaboration Products, Servier shall make the non-refundable, non-creditable, one-time sales milestone payments to Pieris based upon achievement of 57 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential the following worldwide annual Calendar Year cumulative Royalty Bearing Net Sales for each Servier WW Collaboration Product. Annual Calendar Year - Royalty Bearing Net Sales ThresholdPayment[][][][][][]Maximum Total[] For clarity, one or more of the above sales milestones may be achieved during the same Calendar Year. 3.6.4 Royalties . 3.6.4.(a) Servier WW Collaboration Products . As partial consideration for the rights granted hereunder regarding the Servier WW Collaboration Products, during the Royalty Term Servier shall pay Pieris royalties equal to the following percentages of Royalty Bearing Net Sales of the each of the Servier WW Collaboration Products in a Calendar Year in the Servier Territory, subject to adjustment as set forth in Section 4.1 (“ Servier WW Collaboration Product Royalties ”): Annual Calendar Year Royalty Bearing Net SalesRoyalty Rates owed by Servier[][][][][][][][][][] 3.6.4.(b) CoDev Collaboration Products . As partial consideration for the rights granted hereunder regarding the CoDev Collaboration Products, during the Royalty Term Servier shall pay Pieris royalties equal to the following percentages of Royalty Bearing Net Sales of each of the CoDev Collaboration Products in a Calendar Year in the Servier Territory, subject to adjustment as set forth in Section 4.1 (“ CoDev Collaboration Product Royalties ”): Annual Calendar Year Royalty Bearing Net SalesRoyalty Rates owed by Servier[][][][][][][][] 58 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential ARTICLE 4 ROYALTY ADJUSTMENT; PAYMENT TERMS; RECONCILIATION Section 4.1 Royalty Adjustments . 4.1.1 Biosimilar Drug Competition . Notwithstanding the foregoing, subject to Section 4.1.2.(d) , if in any Calendar Quarter total sales of any Biosimilar(s) of a Product in any country reaches more than [] in [] of the [] [] of the applicable Product and the Biosimilar(s) in such country, then (a) the Royalties payable to Pieris for such Product in such country shall be reduced by [] of the amount otherwise payable hereunder and (b) beginning [] years from the First Commercial Sale of the Product in such country and thereafter, no further Royalties shall be due for such Product in such country. Notwithstanding the foregoing, in the event of Biosimilar sales that are later enjoined by a court or otherwise halted (such as on the basis of patent or regulatory exclusivity), then subsequent royalties shall be restored to the level otherwise contemplated under this Agreement. 4.1.2 Third Party Licenses . 4.1.2.(a) If it is reasonably necessary for Servier (including as evidenced by an opinion of internationally recognized outside counsel) to license one or more Patent Rights from one or more Third Parties in order to Develop, Manufacture (other than manufacturing processes), Commercialize or use the drug substance of any Product (due to, for example, the polypeptide sequence or targets of such Product but excluding, for example, formulation Patents or Manufacturing process Patents), whether directly or through any Affiliate or Sublicensee, in the Servier Territory, then Servier may negotiate and obtain a license under such Patent Right(s) (each such Third Party license referred to herein as a “ Third Party License ”). Without prejudice to the provisions of Section 11.2 and Section 12.2 , if any payments are due to a Third Party pursuant to a Third Party License or in the context of proceedings brought by any Third Party alleging that one or more Patent Rights of such Third Party is infringed by the Development, Manufacture (other than manufacturing processes), Commercialization or use of the drug substance of any Product in the Field under this Agreement, then subject to Section 4.1.2.(d) , Servier may deduct [] of such payment(s) from the Royalties associated to such Product otherwise payable under Section 2.6.6 and Section 3.6.4 but in no event shall Royalties be reduced by greater than [] under this Section 4.1.2.(a) . 4.1.2.(b) Notwithstanding the foregoing, to the extent (i) a Thirty Party License or (ii) a license with any other Third Party contracted to provide cell line generation services for the production of a Product, is required in order for Pieris and Servier to Develop, Manufacture, Commercialize or use the Lead Product or a CoDev Product in the Pieris Territory and in the Servier Territory, then Pieris and Servier shall jointly negotiate such license and each shall be responsible for its Agreed Percentage of all upfront fees, maintenance fees and milestone payments (as applicable) and each Party shall be responsible for royalties in its Territory that are required thereunder. Notwithstanding the foregoing, all payments (including upfronts, maintenance, milestones or other payments) or 59 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential royalties owed to [] or any other Third Party contracted to provide cell line generation services for the production of a Servier WW Collaboration Product shall be borne solely by Servier. Servier shall not have the right to reduce the Royalties associated with such Product in the event the Parties obtain a Third Party License or license with [] or other Third Party contracted to provide cell line generation services, under this Section 4.1.2.(b) . 4.1.2.(c) For avoidance of doubt, Sections 4.1.2.(a) and 4.1.2.(b) do not limit either Party’s right to obtain any Third Party License as it may deem necessary or useful. 4.1.2.(d) Maximum Deduction . Notwithstanding anything to the contrary herein, under no circumstances shall the combined effect of all reductions to the Royalties permitted under Sections 4.1.1 and 4.1.2.(a) , on a country-by-country and Product-by-Product basis, reduce the effective Royalties payable by Servier to Pieris under this Agreement for any [] below [] of the Royalties that would otherwise be payable pursuant to Section 2.6.6 and Section 3.6.4 , as applicable, for such Product in such country. 4.1.3 Building Block Contributions. 4.1.3.(a) The Parties agree that Pieris is responsible for contributing the Building Blocks that target PD-1 and [] solely for the Lead Product and the Building Blocks that Target [], as well as all Anticalin Building Blocks solely for the Collaboration Products (“ Pieris’ Contribution ”). The Parties further agree that Servier is responsible for contributing the Building Blocks that target [] and [] solely for the Collaboration Products (“ Servier’s Contribution ”). 4.1.3.(b) [] shall be [] for all [] or [] and [] with respect to the particular [] for the corresponding Product, in each case as identified in (and in accordance with) the first sentence of Section 4.1.3.(a) above. [] shall be [] for [] or [] and [] with respect to the particular [] for the corresponding Product, in each case as identified in (and in accordance with) the second sentence of Section 4.1.3.(a) above. 4.1.3.(c) For avoidance of doubt and by way of example: (i) if Servier’s Building Block that Targets [] is used in [], then [] shall [] for all [] to [] in connection with the Development and Commercialization of the Lead Product that contains such Building Block; (ii) if Pieris’ Building Block that Targets [] is used in [], then [] shall [] for all [] to [] in connection with the Development and Commercialization of such Collaboration Product that contains such Building Block; or (iii) if [] a [] with a [] to [] for one or more [], then [] shall [] for all [] to such [] in connection with the Development and Commercialization of such Collaboration Product that contains such Building Block. For further avoidance of doubt, this Section 4.1.3 is only intended to address initial responsibility of the Parties to contribute the particular Building Blocks for the corresponding Products as outlined in Sections 4.1.3.(a) and 4.1.3.(b) above and does not relate to, and is 60 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential not intended to address, Third Party licenses or any other licenses necessary or useful in connection with the Development, Manufacture or Commercialization of the Products. Section 4.2 Reports; Reconciliation. 4.2.1 Sales Payment Reports and Royalty Payments . After the First Commercial Sale by the Seller of a Product requiring the payments due to Pieris pursuant to Section 2.6.5 , Section 2.6.6 , Section 3.6.3 or Section 3.6.4 and ending, on a Product-by-Product basis, following the last to expire Royalty Term with respect to such Product, Servier shall send to Pieris within [] after the end of each Calendar Quarter (a) a written report which shall state, for the previous Calendar Quarter, on a country-by-country and Product-by-Product basis, the description of each Product sold, the corresponding amount of gross sales of Products, an itemized calculation of Net Sales showing deductions provided for in the definition of Net Sales and the calculation of any milestones fees and Royalties due, including any reductions made in accordance with this Agreement, as well as the exchange rate for such country, and (b) payment (in Euros) of all royalty payments due to Pieris hereunder for such Calendar Quarter. 4.2.2 Shared Cost Reconciliation . 4.2.2.(a) Within [] after the end of each Calendar Quarter, each Party will provide the other Party with a detailed, itemized accounting of Shared Costs actually incurred by such Party in its performance of the Joint Development Plan or the Collaboration Plan, as applicable, during such Calendar Quarter (the “ Shared Cost Report ”). 4.2.2.(b) With respect to each Calendar Quarter, no later than the later of (i) [] following the end of such Calendar Quarter and (ii) [] following Pieris’ receipt of the Shared Cost Report, the Parties shall calculate the reconciliation amount to be paid by each Party (the “ Reconciliation Report ”). 4.2.2.(c) Within [] after the Parties’ agreement as to the Reconciliation Report by Pieris, as applicable, the Party having paid more than its Agreed Percentage of the actual Shared Costs (on a cumulative basis) shall deliver to the other Party an invoice for such excess amount. 4.2.2.(d) Overruns . Each Party will promptly notify the other Party upon becoming aware that the anticipated Shared Costs for a given Product to be incurred by such Party for a given Calendar Quarter will be in excess of the applicable Development Budget or Collaboration Budget for that Calendar Quarter for such Product. Unless otherwise agreed by the Parties in writing in advance through the Committees, Shared Costs reported by a Party in a Shared Cost Report in excess of [] of the amounts budgeted on a Product-by-Product basis to be incurred by or on behalf of such Party for its activities for such Product in such Calendar Quarter in the then-current applicable Development Budget or Collaboration Budget, respectively, shall be borne by the Party that incurred such costs. 61 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Section 4.3 Payment Terms . 4.3.1 Generally . All payments made by a Payor Party pursuant to Section 2.6 and Section 3.6 shall be made in immediately available funds by wire transfer to such bank and account the Payee Party as may be designated from time to time by Payor Party. Except as otherwise set forth herein, all other payments due under this Agreement will be paid within [] following receipt of an invoice requesting such payment. All invoices provided to the Payor Party hereunder should include Payee Party’s bank details, the contact name for issue resolution and will be marked for the attention of the Alliance Manager. 4.3.2 Late Payments . Interest shall accrue on any late payment of fees owed to the Payee Party not made on the date such payment is due, at an annual interest rate equal to the lesser of (a) the Euribor one month with respect to payments in Euros plus [] or (b) the highest rate permissible by Law, with such interest accruing from the date the payment was originally due to Payee Party. 4.3.3 Taxes and Withholding . All payments under this Agreement shall be made without any deduction or withholding for or on account of any tax, except as set forth in this Section 4.3.3 . The Parties agree to cooperate with one another and use reasonable efforts to minimize under applicable Law obligations for any and all income or other taxes required by applicable Law to be withheld or deducted from any of the royalty and other payments made by or on behalf of a Party hereunder (“ Withholding Taxes ”). The applicable paying Party under this Agreement (the “ Payor Party ”) shall, if required by applicable Law, deduct from any amounts that it is required to pay to the recipient Party hereunder (the “ Payee Party ”) an amount equal to such Withholding Taxes. Such Withholding Taxes shall be paid to the proper taxing authority for the Payee Party’s account and, if available, evidence of such payment shall be secured and sent to Payee Party within [] of such payment. The Payor Party shall, at the Payee Party’s sole cost and expense, as mutually agreed by the Parties, do all such lawful acts and things and sign all such lawful deeds and documents as the Payee Party may reasonably request to enable the Payor Party to avail itself of any applicable legal provision or any double taxation treaties with the goal of paying the sums due to the Payee Party hereunder without deducting any Withholding Taxes. 4.3.4 Conversions . With respect to amounts required to be converted into another currency for calculation of the Net Sales amount, the milestones and the Royalty payments, such amount shall be converted using a rate of exchange which corresponds to the average quarterly rate published by the European Central Bank as used by Payor Party for conversion between the relative currencies for its reporting period in its books and records that are maintained in accordance with Accounting Standards, as applicable, for its external reporting. Section 4.4 Record and Audit. 4.4.1 Generally . Each Party shall keep complete, true and accurate books of account and records for the purpose of determining the amounts payable under this Agreement. Such books and records shall be kept at the principal place of business of each Party, as 62 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential the case may be, for at least [] years (or such longer period as required by applicable Law) following the end of the Calendar Year to which they pertain. Each Party (the “ Audited Party ”) shall make such account and records available, on reasonable notice sent by the other Party (the “ Auditing Party ”), for inspection during normal business hours, with not less than [] advance written notice, by an independent certified public accounting firm nominated by such and reasonably acceptable for the Audited Party, for the purpose of verifying the accuracy of any statement or report given by the Audited Party and to verify the accuracy of the payments due hereunder for any Calendar Year. Such auditor shall advise the Parties simultaneously promptly upon its completion of its audit whether or not the payments due hereunder have been accurately recorded, calculated and reported, and, if not, then the amount of such discrepancy. A Party’s financial records with respect to a given period of time shall only be subject to one (1) audit per Calendar Year except in the case of willful misconduct or fraud. The Auditing Party’s right to perform an audit pertaining to any Calendar Year shall expire [] years after the end of such Calendar Year. The auditor shall be required to keep confidential all information learned during any such inspection, and to disclose to the Auditing Party only such details as may be necessary to report the accuracy of the Audited Party’s statement or report. The Auditing Party shall be responsible for the auditor’s costs, unless the auditor certifies that there was a variation or error of underpayment or overpayment exceeding [] of the amount stated for any period covered by the inspection, then all reasonable costs relating to the inspection for such period. If such accounting firm correctly identifies a discrepancy made during such period, any unpaid amounts or overpaid amounts that are discovered shall be paid/refunded promptly but in any event within forty-five (45) days of the date of delivery of such accounting firm’s written report so correctly concluding, or as otherwise agreed upon by the Parties. ARTICLE 5 RIGHT OF FIRST NEGOTIATION; DROPPED PRODUCTS Section 5.1 Right of First Negotiation . 5.1.1 Servier Right of First Negotiation . 5.1.1.(a) Subject to the obligations set forth in this Section 5.1.1 , following, in each case, the applicable PCC for such Product, Pieris may enter into a Partnering Agreement for the Lead Product or a CoDev Collaboration Product (each, a “ Pieris ROFN Product ”) in the Pieris Territory to a Third Party (the “ Pieris Partner ”). 5.1.1.(b) In the event that Pieris desires to enter into a Partnering Agreement with regard to a Pieris ROFN Product in accordance with this Section 5.1.1 or receives a written offer from a Third Party to enter into negotiations for a Partnering Agreement, Pieris shall, in each case, provide Servier written notice prior to commencing such processes or responding to such offer, as applicable (“ Pieris ROFN Notice ”). The Pieris ROFN Notice shall identify the Product and rights (including geographical territories) that Pieris wishes to offer to a Third Party. If, within [] following receipt of the Pieris ROFN Notice, Servier notifies Pieris of its interest to license such Pieris ROFN Product, Pieris and Servier shall enter into good faith negotiations on an exclusive basis for [] of 63 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential [] to attempt to negotiate the financial terms for acquisition of such rights and, if the Parties are able to reach mutual agreement on such terms with such [] period, shall further negotiate in good faith for a period of [] an amendment to this Agreement to incorporate such Pieris ROFN Product (“ Pieris ROFN Product Amendment ”). If (a) Servier does not provide such written notice within [] or (b) the Parties fail to reach agreement on the financial terms within the subsequent [] or (c) the Parties fail execute a Pieris ROFN Product Agreement for such Pieris ROFN Product within [] following mutual agreement on the financial and key terms, then Pieris shall be free to enter into a Partnering Agreement with a Third Party on terms that, in the sole but reasonable discretion of Pieris, are no more favorable (when taken as a whole) to such Third Party than those offered to Servier and otherwise shall have no further obligation to Servier. Notwithstanding the foregoing, nothing in this Section 5.1.1 shall in any way restrict, limit or prohibit or be deemed to restrict, limit or prohibit Pieris from soliciting, negotiating, facilitating, executing or undergoing a Change of Control. 5.1.2 Pieris Right of First Negotiation. 5.1.2.(a) Subject to the obligations set forth in this Section 5.1.2 , following, in each case, the applicable PCC for such Product and prior to a Change of Control of Pieris contemplated by Section 5.1.2.(c) below, Servier may enter into a Partnering Agreement with regard to the [] (each a “ Servier ROFN Product ”) in [] with a Third Party (the “ Servier Partner ”). For the avoidance of doubt, Servier shall be free to enter into a Partnering Agreement outside of [] with any Third Party, subject to the other terms of this Agreement including the obligations set forth in Section 5.1.2.(c) and Section 5.1.3. 5.1.2.(b) In the event that Servier desires to enter into a Partnering Agreement with regard to a Servier ROFN Product in accordance with this Section 5.1.2 or receives a written offer from a Third Party to enter into negotiations for a Partnering Agreement, Servier shall, in each case, provide Pieris written notice prior to commencing such processes or responding to such offer, as applicable (“ Servier ROFN Notice ”). The Servier ROFN Notice shall identify the Servier ROFN Product and rights (including geographical territories) that Servier wishes to offer to a Third Party. If, within [] following receipt of the Servier ROFN Notice, Pieris notifies Servier of its interest to license such Servier ROFN Product, Pieris and Servier shall enter into good faith negotiations on an exclusive basis for a period of [] to attempt to negotiate the financial terms for acquisition of such rights and, if the Parties are able to reach mutual agreement on such terms with such [] period, shall further negotiate in good faith for a period of [] an agreement (“ Servier ROFN Product Agreement ”). If (a) Pieris does not provide such written notice within [] or (b) the Parties fail to reach agreement on the financial terms within the subsequent [] period or (c) the Parties fail execute a Servier ROFN Product Agreement for such Servier ROFN Product within [] following mutual agreement on the financial and key terms, then Servier shall be free to enter into a Partnering Agreement with a Third Party on terms that, in the sole but reasonable discretion of Servier, are no more favorable 64 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential (when taken as a whole) to such Third Party than those offered to Servier and otherwise shall have no further obligation to Pieris. Notwithstanding the foregoing, nothing in this Section 5.1.2 shall in any way restrict, limit or prohibit or be deemed to restrict, limit or prohibit Servier from soliciting, negotiating, facilitating, executing or undergoing a Change of Control. 5.1.2.(c) Effect of Change of Control . For the avoidance of doubt, in the event that Pieris undergoes a Change of Control where the [] is a [], then Pieris’ right as set forth in this Section 5.1.2 shall immediately cease and Servier shall have the right to sell, transfer or sublicense its rights under this Agreement to Third Parties, subject to the terms of this Agreement including the obligations set forth in Section 5.1.3 . For purposes of this Agreement, the term “[]” shall mean a [] in the [] as established by [] in the [] prior to the Change of Control. 5.1.3 Partnering Agreement Obligations & Sublicense Survival . 5.1.3.(a) Servier’s and Pieris’ right to enter into a Partnering Agreement shall be conditioned upon, such Party’s obligation to promptly inform the other of the Partnering Agreement and shall ensure that the Partnering Agreement is consistent with and fully implements the relevant provisions of this Agreement and each Party’s rights under this Agreement. Each Sublicensee shall be obligated to fulfill the funding and governance obligations of the sublicensing Party set forth in this Agreement. Each Partnering Agreement shall protect the original licensing Party’s (“ Licensor ”) rights and interests in such Party’s intellectual property to at least the same extent as this Agreement, including without limitation containing provisions for the benefit of the Licensor substantially similar in language and scope to the license provisions set forth in Section 2.1 and Section 3.2 , as applicable, the ownership provisions in Section 7.1 , as applicable, the confidentiality provisions set forth in ARTICLE 8 , as applicable, and the publication provisions set forth in ARTICLE 9 , as applicable, of this Agreement. The Party entering the Partnering Agreement agrees to cause or otherwise ensure that each Servier Partner or Pieris Partner, as applicable, comply with the terms and conditions of the Partnering Agreement, and shall be fully responsible and liable for any act or omission of such Servier Partner or Pieris Partner and any such act or omission shall be and shall be deemed to be an act or omission of the Party entering the Partnering Agreement. 5.1.3.(b) Sublicense Survival. (i) With respect to any (sub)license agreement(s) entered into with a Sublicensee by either Party (the “ Sublicensing Party ”) in effect as of the date at which termination or expiration of this Agreement becomes effective and the Sublicensee’s rights under such Sublicense, to the extent that the Sublicensee is in good standing with respect to the Sublicense and was not itself the cause of the termination of this Agreement, the other Party (the “ Non-Sublicensing Party ”) will negotiate in good faith a direct license with the Sublicensee under the following terms and conditions 65 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential (provided that such Sublicensee does not, within thirty (30) days following the termination or expiration of this Agreement, provide written notice to the Non-Sublicensing Party of Sublicensee’s election to terminate the Sublicense): (1) the Parties shall negotiate such direct license in good faith in order to execute a direct license within sixty (60) days of the termination or expiration of this Agreement, (2) such direct license shall have the same scope, payment and financial terms and non-financial terms as this Agreement, and (3) such direct license to the Sublicensee by the Non-Sublicensing Party shall not place any additional obligations (including but not limited to representations, warranties, or liabilities) on the Non-Sublicensing Party beyond its obligations under this Agreement without the prior written consent of the Non-Sublicensing Party. (ii) In the event that a Sublicense is terminated or rejected by or on behalf of the Sublicensing Party under the applicable provisions of any bankruptcy laws, then the Non-Sublicensing Party hereby grants to Sublicensee a direct license in accordance with the following terms and conditions (provided that such Sublicensee does not, within thirty (30) days following the termination or rejection of the Sublicense, provide written notice to the Non-Sublicensing Party of Sublicensee’s election to terminate the Sublicense): (1) the Parties shall negotiate the terms of such direct license in good faith in order to execute that license within sixty (60) days of the termination or rejection of the Sublicense, (2) such direct license shall have the same scope, payment and financial terms and non-financial terms as this Agreement, and (3) such direct license to the Sublicensee by the Non-Sublicensing Party shall not place any additional obligations (including but not limited to representations, warranties, or liabilities) on the Non-Sublicensing Party beyond its obligations under this Agreement without the prior written consent of the Non-Sublicensing Party. Section 5.2 Dropped Products . 5.2.1 Generally . Each Party has the right to elect to cease its Development or Commercialization (including Manufacture thereof for purposes of such Development or Commercialization, as applicable) of a Product to the extent permitted under this Section 5.2 (such Product, a “ Dropped Product ”), and the following terms and conditions shall apply, provided that (a) Servier shall not drop the Lead Product during the [] and (b) Pieris shall not drop the Lead Product prior to PCC, provided that nothing in the foregoing (a) or (b) shall restrict or otherwise limit a Party from exercising its termination rights pursuant to Section 12.2 . 5.2.1.(a) Notice . The Party that is dropping the Product (in accordance with this Section 5.2 ) (the “ Dropping Party ”) shall provide the other Party written notice of such intention along with the date thereof (“ Dropped Product Notice ”) no less than [] prior to ceasing any such activity (“ Dropped Product Notice Period ”, the last day of the Dropped Product Notice Period becoming the “ Drop 66 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Date ”). During the Dropped Product Notice Period, and without limiting the other requirements of this Section 5.2 (including Section 12.3.1.(e) ), the Party that is dropping the Product shall continue to fulfill all its obligations under this Agreement with respect to such Product. 5.2.1.(b) Effect of Dropped Product by Single Party . In addition to the specific effects set forth in Section 5.2.1.(c) , in the event Servier drops a Product in accordance with Section 5.2.1.(a) , the provisions of Section 12.3.1 shall apply, effective upon the Drop Date. 5.2.1.(c) Specific Effects Following a Dropped Product . (i) Servier Dropped Product . 1. In the event Servier drops a Product pursuant to this Section 5.2.1 and the Drop Date for such Dropped Product occurs prior to the completion of the first Phase 1 Clinical Study Expansion Cohort or Phase 2a Clinical Study, in consideration of the rights set forth in Section 12.3.1 , Pieris shall pay Servier a percentage of Pieris’, its Affiliates’ and Sublicensees’ (as such term is applied mutatis mutandis to Pieris) net sales (calculated as the Net Sales applied mutatis mutandis ) for such Dropped Product equal to: (x) if such Dropped Product was the Lead Product or a CoDev Collaboration Product, [] and (y) if such Dropped Product was a Servier WW Collaboration Product, [] For purposes of this Section 5.2.1.(c) , “completion” means database lock. 2. In the event Servier drops a Product pursuant to this Section 5.2.1 and the Drop Date for such Dropped Product occurs after the completion of the first Phase 1 Clinical Study Expansion Cohort or Phase 2a Clinical Study, in consideration of the rights set forth in Section 12.3.1 , Pieris shall pay Servier a percentage of Pieris’, its Affiliates’ and Sublicensees’ (as such term is applied mutatis mutandis to Pieris) net sales (calculated as the Net Sales applied mutatis mutandis ) for such Dropped Product equal to: (x) if such Dropped Product was the Lead Product or a CoDev Collaboration Product, [] and (y) if such Dropped Product was a Servier WW Collaboration Product, []. 3. In the event Servier drops a Product at any time pursuant to this Section 5.2.1 , effective as of the Drop Date for such Dropped Product, Servier and its Affiliates shall be released from their non-compete undertaking pursuant to Section 6.2 with respect to such Dropped Product. (ii) Pieris Dropped Product . In the event Pieris drops a Product at any time pursuant to this Section 5.2.1.(c), effective as of the Drop Date for such Dropped Product: 67 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 1. The Servier Territory for such Dropped Product shall be extended to include all countries in the world and the Net Sales of the Dropped Product shall be computed on a worldwide basis; 2. All licenses and sublicenses granted by Pieris to Servier hereunder with respect to such Dropped Product shall become exclusive (even as to Pieris), provided that with respect to any Pieris Building Block IP within the Pieris IP, the foregoing license shall remain non-exclusive; 3. All licenses and sublicenses granted by Servier to Pieris hereunder with respect to such Dropped Product shall terminate; 4. If such Dropped Product is a CoDev Collaboration Product, then the Royalties payable to Pieris under Section 3.6.4.(a) shall apply on a worldwide basis, provided that the royalty rates set forth in Section 3.6.4.(a) shall be increased by (A) [] if the Drop Date for such Dropped Product occurs prior to [], or (B) [] if the Drop Date for such Dropped Product occurs after the [] for such Product; 5. If such Dropped Product is a CoDev Collaboration Product, the development and sales milestones under Sections 3.6.2.(a) and 3.6.3 as applicable to a Servier WW Collaboration Product shall apply with respect to such Dropped Product; 6. If such Dropped Product is the Lead Product, the payment terms in Exhibit 5.2.1.(c) (ii) shall apply; 7. For the avoidance of doubt, if such Dropped Product is the Lead Product or a CoDev Collaboration Product, it shall be treated as a Servier WW Collaboration Product except as otherwise set forth herein including that Servier’s diligence obligations under Section 6.1 will continue to apply with respect to the Servier Territory outside of the United States but shall not apply to the United States; 8. The provisions of Sections 12.3.1(b), (c), and (e )– (j) shall apply mutatis mutandis as of the applicable Drop Date, with any reference in these Sections to (a) the effective date of termination being replaced by the Drop Date, and (b) a terminated Product being replaced by the Dropped Product; and 9. Pieris’ and its Affiliates’ non-compete undertaking pursuant to Section 6.2 with respect to such Dropped Product shall remain in force. 5.2.1.(d) Effect of Product Dropped by Both Parties . In the event both Parties mutually agree to drop a Product in accordance with Section 5.2.1.(a) , the 68 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential terms of Section 12.3.2 shall apply as of the date for which the Parties mutually agree to drop the Product. ARTICLE 6 DILIGENCE; EXCLUSIVITY Section 6.1 Diligence Obligation. 6.1.1 Generally . Pieris and Servier shall use Commercially Reasonable Efforts to perform their respective activities contemplated by this Agreement, as may be agreed upon in any subsequent written agreements with respect to the subject matter hereof, including but not limited to any activities under the then-current Joint Development Plan, Collaboration Plan and any other plans or tasks approved by a Committee. 6.1.1.(a) Servier . Servier shall use Commercially Reasonable Efforts to Develop and Commercialize each Product in the Field in the Servier Territory. In particular, Servier shall use Commercially Reasonable Efforts to Commercialize each Product in [] 6.1.1.(b) Pieris . Pieris shall use Commercially Reasonable Efforts to Develop and Commercialize each of the Lead Product and the CoDev Collaboration Products in the Field in the Pieris Territory. Section 6.2 Non-Compete . 6.2.1 Non-Compete . 6.2.1.(a) During the Term, each Party and its Affiliates covenants not to Develop, Manufacture or Commercialize, itself or with its Affiliate or any Third Party, any Competing Product anywhere in the world except as expressly permitted under this Agreement. 6.2.1.(b) If Pieris or Servier (whether alone or with a Third Party) wish to Develop, Manufacture or Commercialize a product, which product is not a Product or a Competing Product, and if such product binds to and modulates all of the same therapeutically relevant targets (as further described in Section 1.69 ) as a Product, but such product also [] and [], then such Party will be permitted to so Develop, Manufacture or Commercialize such product; provided that such Party notifies the JSC in advance of commencing such activity and otherwise complies with the terms and conditions of this Agreement, including without limitation, the requirements of ARTICLE 8 and Section 10.4 . The Parties may, each in their respective sole discretion, agree to include such product under the Research Collaboration or this Agreement as a Pieris Designated CoDev Collaboration Product for all purposes under this Agreement at terms, including up-front financial terms, to be mutually agreed by the Parties in good faith. 6.2.1 Effect of Acquisition . Notwithstanding Section ‎6.2.1 , each Party acknowledges that the other Party (the “ Concerned Party ”) may be acquired or merge with a Third Party or acquire a Third Party during the Term of this Agreement (such transaction, an “ Acquisition Transaction ”, and such Third Party, the “ Acquiror ” or “ Acquiree ”). In such event, if the Acquiror or Acquiree (or a Third Party that is an Affiliate of such 69 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Acquiror or Acquiree prior to and following the date of such Acquisition Transaction) was Developing, Manufacturing or Commercializing one or more Competing Product(s) prior to the closing of such Acquisition Transaction (each an “ Acquired Competing Product ”), subject to the Concerned Party’s compliance with this Section 6.2.2 , such Concerned Party shall be deemed not to be in breach of Section ‎6.2.1 : 6.2.1.(a) if and to the extent permitted by Section 5.2.1 , it drops the Product corresponding to the Acquired Competing Product in accordance with Section 5.2.1 within [] after the closing of the Acquisition Transaction; 6.2.1.(b) if it Divests to a Third Party or permanently discontinues the Development and Commercialization of the Acquired Competing Product within [] after the closing of the Acquisition Transaction; 6.2.1.(c) if it contributes the Acquired Competing Product to the collaboration between the Parties on terms and conditions to be negotiated in good faith and that are mutually acceptable to the Parties, each in its respective sole discretion, with such agreement, if any, to be reflected in an amendment to this Agreement or a separate agreement to be entered into by and between the Parties within [] after the closing of the Acquisition Transaction; or 6.2.1.(d) if it requires that, the Acquiror (or Acquiree) and its Affiliates existing as of the date of the Acquisition Transaction (excluding the Concerned Party and its Affiliates) continue to Develop (including Manufacture thereof solely for such Development purposes) such Acquired Competing Product without the participation or use of assets (including employees) owned or employed by the Concerned Party prior to the Acquisition Transaction, provided that, in the event the Concerned Party elects to proceed in accordance with this Section 6.2.2.(d) , no later than [] following the completion of [] or [] for [], and in any event and under all circumstances prior to any Commercialization of such Acquired Competing Product anywhere in the world, the Concerned Party shall elect, and shall complete, one of the options set forth in the foregoing Sections 6.2.2.(a), 6.2.2.(b), and 6.2.2.(c) above with respect either to the Competing Acquired Product (i.e., if the Concerned Party elects Section 6.2.2.(b) or 6.2.2.(c) ) or the Product corresponding thereto (i.e., if the Concerned Party elects Section 6.2.2.(a) ), as applicable. For clarity, any Commercialization of the Acquired Competing Product anywhere in the world (except as expressly contemplated by Section 6.2.2) shall be deemed a breach of this Section 6.2 by the Concerned Party. For avoidance of doubt, Divestiture of the Acquired Competing Product in accordance with Section 6.2.2.(b) shall not constitute Commercialization of the Acquired Competing Product for purposes of this Section 6.2.2.(d) . In the event that the Concerned Party drops the Product corresponding to the Acquired Competing Product in accordance with Section 6.2.2.(a) as contemplated by this Section 6.2.2.(d) , the Concerned Party shall require that, subject to Section 6.2.2.(f) , the Acquiror (or Acquiree) and its Affiliates existing as of the date of the Acquisition Transaction (excluding the Concerned Party and its Affiliates) continue to Develop and Commercialize 70 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential (including Manufacture thereof for such purposes) such Acquired Competing Product without the participation or use of assets (including employees) owned or employed by the Concerned Party prior to the Acquisition Transaction. For avoidance of doubt, if Pieris is the Concerned Party and drops or has dropped the Product corresponding to the Acquired Competing Product, then Pieris’ non-compete obligations referenced in Section 5.2.1.(c) shall not apply to such Product. 6.2.1.(e) Notwithstanding the foregoing, if a Party is acquired by an Acquiror having a Competing Product (i) of the Lead Product or a CoDev Product that such Party has entirely out-licensed to a Third Party or (ii) if such Party is Pieris, of a Servier WW Collaboration Product, such Acquiror or Acquiree or its Affiliates prior to the Acquisition Transaction may in lieu of (a) to (d) above, elect to continue to Develop and Commercialize (including Manufacture thereof for such purposes) such Acquired Competing Product without the participation or use of assets (including employees) owned or employed by the Acquiror or Acquiree prior to the Acquisition Transaction or resulting from this Agreement. 6.2.1.(f) For purposes of this Section 6.2.2 : (i) The term “ Divest ” or “ Divestiture ” means, with respect to an Acquired Competing Product, the sale, exclusive (even with respect to a Party and its Affiliates) license, or other delegation, assignment or transfer by a Party or its Affiliates of all of their respective Development and Commercialization rights or obligations with respect to such compound or product to a Third Party without the retention or reservation of any commercialization interest or participation rights (other than solely an economic interest or the right to enforce customary terms and conditions contained in the relevant agreements effectuating such Divestiture, including rights of access and review in connection therewith). (ii) With respect to Sections 6.2.2.(a) through 6.2.2.(e) , the acquired or acquiring Party and its Affiliates (including the Acquiror or Acquiree and their respective Affiliates) will adopt reasonable procedures (which include appropriate administrative, physical and technical safeguards, including underlying operating system and network security controls and other firewalls) to prevent the disclosure of (1) all Confidential Information of the other Party, (2) all Pieris IP, Servier IP and Joint IP, and (3) all other information (including Know-How) with respect to the Development, Manufacture or Commercialization of Products (including any Joint Development Plans and Collaboration Plans), including any structures of any such item and any Data generated in connection with activities hereunder (collectively, the “ Sensitive Information ”) beyond such acquired or acquiring Party’s and its Affiliates’ and Sublicensees’ or subcontractors’ employees, agents or independent contractors who actively work under this Agreement or any Party Supply Agreement and who do not work on any Acquired Competing Program, which procedures 71 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential will include reasonable restrictions on the scope of any Sensitive Information required to be provided by the other Party. For clarity, the foregoing will not apply to any Sensitive Information that is not treated as Confidential Information hereunder. Pending the election of Sections 6.2.2.(a) to 6.2.2.(d), or as long as Section 6.2.2.(e) applies, the Non-Concerned Party shall be released from its governance and reporting obligations to the Concerned Party with respect to the Development and Commercialization of the Product (other than pursuant to Section 4.2.1 ). ARTICLE 7 INTELLECTUAL PROPERTY; OWNERSHIP AND ENFORCEMENT Section 7.1 Ownership; Joint IP. 7.1.1 Background IP . As between the Parties, all Know-How and Intellectual Property Rights Controlled by a Party prior to the Effective Date or developed separate and apart from this Agreement, shall be deemed owned by the Party Controlling such Know-How and Intellectual Property Rights. 7.1.2 Building Block IP; Pieris Platform Improvement IP . 7.1.2.(a) Building Blocks . A Party’s Building Blocks, together with the corresponding Building Block IP (including improvements) for such Building Block in-licensed by a Party or generated solely by employees, agents, or independent contractors of either Party or its Affiliates in the course of performing activities under this Agreement, shall be solely owned by the Party which initially contributed or in-licensed such Building Block, subject to any rights and licenses granted herein. For clarity, the foregoing ownership shall be afforded regardless of whether such Building Block would otherwise constitute Joint IP under this Agreement. 7.1.2.(b) Pieris Platform Improvement IP . Pieris Platform Improvement IP shall be solely owned by Pieris. Servier, for itself and on behalf of its Affiliates, hereby assigns (and to the extent such assignment can only be made in the future hereby agrees to assign), to Pieris all its right, title and interest in and to any Pieris Platform Improvement IP. Servier will cooperate, and will cause its and its Affiliates’ respective employees, agents and contractors to cooperate, with Pieris to effectuate and perfect the foregoing ownership, including by promptly executing and recording assignments and other documents consistent with such ownership. For clarity, no right is granted to Servier under this Agreement with respect to the Pieris Platform Improvement IP. 7.1.3 Foreground IP . Except for Joint IP and as set forth in Section 7.1.2, any invention conceived and reduced to practice, or Know-How generated, solely by employees, agents, or independent contractors of a Party or its Affiliates in the course of performing activities under this Agreement, together with all Intellectual Property Rights therein, shall be owned by such Party. All Joint IP shall be owned jointly by the Parties and each Party shall have an equal and undivided right therein. 72 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 7.1.4 Right to Exploit Joint IP . Subject to and except as otherwise provided in this Agreement including with respect to the licenses granted to Servier under Section 2.1.1.(a) , Section 3.2.2 and Section 3.2.3.(a) and the licenses granted to Pieris under Section 2.1.2 and Section 3.2.3.(b) with respect to the Products, the non-compete obligation in Section 6.2 , and the allocation of ownership of certain rights under Section 7.1.2 , each Party shall have the right to freely sell, assign, license, encumber and otherwise exploit Joint IP without consent of or notice or accounting to the other Party. Section 7.2 Patent Prosecution . 7.2.1 General . Except as otherwise set forth in this Section 7.2 , each Party will have the sole responsibility, at such Party’s sole discretion and sole expense, to prepare, file, prosecute and maintain, in such Party’s name, all Patent Rights owned or Controlled by such Party, including without limitation, that Pieris shall have such rights with respect to all Patent Rights within the Pieris Platform IP and Pieris Platform Improvement IP. Notwithstanding the foregoing, Pieris shall inform Servier of any material impairment of the Pieris Platform IP in Europe. 7.2.2 Lead Product. Pieris shall be responsible for the filing, prosecution and maintenance of the Product Specific Patents Covering the Lead Product throughout the world. All costs and expenses of filing, prosecuting and maintaining such Patent Rights shall be shared in accordance with the Agreed Percentage until national stage, and then, each Party shall bear the costs of prosecuting and maintaining such Patent Rights in its respective Territory. Pieris shall provide Servier with the opportunity to review and comment on any and all such filing and prosecution efforts regarding such Patent Rights. Servier shall provide Pieris reasonable assistance in such efforts; provided that Pieris shall have final control over such filing and prosecution efforts for such Patents after reasonably considering Servier’s comments in good faith, provided that Pieris shall follow Servier’s instruction with respect to the opt-out procedure of the Unitary Patent System. In case of disagreement regarding the filing, maintenance or prosecution of such Patents, the issue will be discussed in the JIPC and may be escalated to the JSC and JEC in the event of continued disagreement. If Pieris determines to abandon or not maintain any such Patent Rights, Pieris shall provide Servier with prior written notice of such determination at least [] before any loss of rights would occur with respect to such Patent Rights in any applicable patent office or patent granting authority and Servier shall have the right to assume the right to prosecute and maintain such Patent Rights at its sole discretion and expense. 7.2.3 Collaboration Product Patents. 7.2.3.(a) Pieris Designated CoDev Collaboration Products and CoDev Collaboration Products . Pieris and Servier shall collaborate to prepare the patent application(s) for the Product Specific Patents Covering the Pieris Designated CoDev Collaboration Products or the CoDev Collaboration Products subject to both Parties’ review and approval. Servier shall be responsible for the filing of any priority and subsequent PCT applications and, upon national entry, Servier shall be responsible for the filing, maintenance of such Patents in its Territory and Pieris shall be responsible for the filing, maintenance of such Patents in its 73 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Territory. All costs and expenses of filing, prosecuting and maintaining such Patent Rights shall be shared in accordance with the Agreed Percentage until national stage, and then, each Party shall bear the costs of prosecuting and maintaining such Patent Rights in its respective Territory. Each Party shall provide the other Party with the opportunity to review and comment on any and all such prosecution efforts regarding such Patent Rights, and each Party shall provide the other Party reasonable assistance in such efforts; provided that each Party shall have final control over such prosecution efforts after reasonably considering the other Party’s comments in its Territory. If a Party determines to abandon or not maintain any such Patent Rights in its Territory, this Party shall provide the other Party with prior written notice of such determination at least [] before any loss of rights would occur with respect to such Patent Rights in any applicable patent office or patent granting authority and the other Party shall have the right to assume the right to prosecute and maintain such Patent Rights at its sole discretion and expense. 7.2.3.(b) Servier WW Collaboration Products . Pieris and Servier shall collaborate to prepare the patent application for the Product Specific Patents Covering Servier WW Collaboration Products subject to both Parties’ review and approval (provided that in the event of a disagreement, Servier shall decide except for (i) any sections of an application that contains any Pieris Confidential Information and (ii) for the first Patent filing and the PCT filing). Servier shall be responsible for the filing, prosecution and maintenance of the Patent Rights Covering the Servier WW Collaboration Products throughout the world. All costs and expenses of filing, prosecuting and maintaining such Patent Rights shall be borne by Servier. Servier shall provide Pieris with the opportunity to review and comment on any and all such prosecution efforts regarding such Patent Rights, and Pieris shall provide Servier reasonable assistance in such efforts; provided that Servier shall have final control over such prosecution efforts after reasonably considering Pieris’ comments. If Servier determines to abandon or not maintain any such Patent Rights, Servier shall provide Pieris with prior written notice of such determination at least [] before any loss of rights would occur with respect to such Patent Rights in any applicable patent office or patent granting authority and Pieris shall have the right to assume the right to prosecute and maintain such Patent Rights at its sole discretion and expense. 7.2.4 Other Joint Patents . To the extent any Joint Patent is not a Product Specific Patent, or if any Joint Patent or Product Specific Patent Covers more than one Product, then the Parties shall discuss in good faith the sharing of responsibilities and costs in connection with the filing, prosecution and maintenance of such IP. In the absence of agreement, Section 7.2.3.(a) shall apply mutatis mutandis to any such Patents. 7.2.5 Building Block Patents. Each Party will have the sole responsibility, at such Party’s sole discretion and sole expense, to prepare, file, prosecute, maintain or abandon, in such Party’s name, all Patent Rights within such Party’s Building Block IP. Each Party will, through the JIPC, consult with the other Party regarding its strategy for the prosecution and maintenance of all such Patent Rights, and shall consider in good faith 74 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential the other Party’s comments regarding the same. Each Party will provide the other copies of all substantive filings and documents related to the prosecution and maintenance of such Patents Rights. Each Party will provide the other sufficient opportunity to review and comment on any prosecution and maintenance activity regarding such Patent Rights. For the avoidance of doubt, each Party shall furnish to the other Party its anticipated filing dates for any such Patents Rights as are relevant to a Product in a timely matter to reasonably enable coordination between the Parties regarding the same. The controlling Party will consider in good faith timely comments from the non-controlling Party thereon. 7.2.6 Each Party will use Commercially Reasonable Efforts to make available to the other its authorized attorneys, agents or representatives, or such of its employees as are reasonably necessary to assist the other Party in exercising its rights described under this Section 7.2. Each Party will sign, or will use Commercially Reasonable Efforts to have signed, all legal documents as are reasonably necessary to prosecute and maintain Patents in accordance with this Section 7.2 . Each Party shall provide the other Party all reasonable assistance and cooperation in the Patent prosecution efforts described above in this Section 7.2 , including providing any necessary powers of attorney, oaths, declarations, assignments, and executing any other required documents or instruments for such prosecution. 7.2.7 Notwithstanding this ARTICLE 7 , Servier shall not take any action in the prosecution of the Product Specific Patents or Joint Patents pursuant to this Agreement that would have a material adverse impact on any Patent Rights within the Pieris Building Block IP, the Pieris Platform IP, or the Pieris Platform Improvement IP, and Pieris shall not take any action in the prosecution of the Product Specific Patents or Joint Patents pursuant to this Agreement that would have a material adverse impact on any Patent Rights within the Servier Building Block IP. Section 7.1 Common Interest Disclosures . With regard to any information or opinions disclosed pursuant to this Agreement by one Party to each other regarding intellectual property and/or technology owned by Third Parties, the Parties agree that they have a common legal interest in determining whether, and to what extent, Third Party intellectual property rights may affect the conduct of the Joint Development Plan, Collaboration Plan, or Development of any Product, and have a further common legal interest in defending against any actual or prospective Third Party claims based on allegations of misuse or infringement of intellectual property rights relating to the conduct of the Joint Development Plan, Collaboration Plan, or Development of any Product. Accordingly, the Parties agree that all such information and materials obtained by Pieris and Servier from each other will be used solely for purposes of the Parties’ common legal interests with respect to the conduct of the Agreement. All information and materials will be treated as protected by the attorney-client privilege, the work product privilege, and any other privilege or immunity that may otherwise be applicable. By sharing any such information and materials, neither Party intends to waive or limit any privilege or immunity that may apply to the shared information and materials. Neither Party shall have the authority to waive any privilege or immunity on behalf of the other Party without such other Party’s prior written consent, nor shall the waiver of privilege or immunity resulting from the conduct of one Party be deemed to apply against any other Party. 75 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Section 7.2 Patent Term Extensions. 7.2.1 Servier will have the sole right but not the obligation to apply for and obtain any patent term extension, supplementary protection certificates or similar extension of rights, for any Product Specific Patents Covering the Collaboration Products in the Servier Territory. For the Lead Product, Pieris agrees to execute any authorization or instruments, make any filings, or take such further actions as may be requested by Servier to implement and obtain any patent term extension, supplementary protection certificates or similar extension of rights, for any Product Specific Patents Covering the Lead Product in the Servier Territory, at Servier’s expense. Servier will have the sole right but not the obligation to apply for and obtain any patent term extension, supplementary protection certificates or similar extension of rights, using any Servier Building Block IP. At Servier’s request, Pieris shall reasonably consider applying for such an extension with respect to any Pieris Building Block IP, Pieris Platform IP or Pieris Platform Improvement IP. 7.2.2 Pieris will have the sole right but not the obligation to apply for and obtain any patent term extension, supplementary protection certificates or similar extension of rights, for any Product Specific Patents Covering the Lead Product and Covering the Collaboration Products in the Pieris Territory. Pieris will have the sole right but not the obligation to apply for and obtain any patent term extension, supplementary protection certificates or similar extension of rights, using any Pieris Building Block IP, Pieris Platform IP or Pieris Platform Improvement IP. At Pieris’ request, Servier shall reasonably consider applying for such an extension with respect to any Servier Building Block IP. Section 7.3 Intellectual Property Litigation. 7.3.1 Third Party IP Claims . For the purposes of this Section 7.5 , “ Third Party IP Claim ” shall mean, with regard to any given Patent Right or Product: 7.3.1.(a) any suspected or threatened infringement of any such Patent Right by a Third Party in the Field (including any “patent certification” filed in the United States under 21 U.S.C. §355(b)(2) or 21 U.S.C. §355(j)(2) or similar provisions in other jurisdictions or of any declaratory judgment, or similar action alleging the invalidity, unenforceability or non-infringement of any such Patent Rights or any administrative challenge to any such Patent Rights under Chapters 31 and 32 of Title 35, USC or similar provisions in other jurisdictions alleging the unpatentability of any Intellectual Property); 7.3.1.(b) any claim by a Third Party that the exercise of the rights granted hereunder under the Patent Rights infringes any Intellectual Property Rights (excluding Trademarks) of a Third Party in the Field; 7.3.1.(c) any claim by a Third Party of alleged patent infringement with respect to the Development, Manufacture or Commercialization of any Product in the Field; 7.3.1.(d) any suspected or actual misappropriation of the Know-How required to be transferred to a Party as set forth in this Agreement in the Field. 76 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 7.3.2 Cooperation . Each Party will promptly notify the other Party in writing of any Third Party IP Claim and of any known or suspected infringement or unauthorized use or misappropriation by a Third Party of any Pieris Patent Rights or Servier Patent Rights in the Field (such suspected infringement or unauthorized use or misappropriation, “ Competing Infringement ”) of which such Party becomes aware. The notifying Party will provide the other Party with all evidence available to it supporting its belief that there is Competing Infringement. 7.3.3 Defense . 7.3.3.(a) Each Party shall be responsible for any claim by a Third Party that its activities related to this Agreement, including the Development, Manufacture or Commercialization of a Product, infringe any Patent Rights of a Third Party in its Territory, such as a claim under Sections 7.5.1.(b) or 7.5.1.(c) (such Party, the “ Defending Party ”). The Defending Party shall be responsible for legal fees and any monetary damages levied in connection with any such action. 7.3.3.(b) As between the Parties, the Party controlling the prosecution and maintenance of any Patent under Section 7.2 will have the right (but not the obligation), at its sole discretion and expense, to defend against a declaratory judgment action or other action challenging any such Patent. If the Party controlling such prosecution and maintenance of Patents under Section 7.2 does not confirm it will defend such Patent under this Section 7.5.3.(b) within [] (or such shorter period of time as is required under the applicable Law in the United States or any other country in the Territory to not waive any statutory rights), or elects not to continue any such defense (in which case it will promptly provide notice thereof to the other Party), then the other Party will have the right (but not the obligation), at its sole discretion, to defend any such Patent. 7.3.3.(c) For avoidance of a doubt, the Defending Party or the Party defending an action under Section 7.5.3.(b) shall have the right to obtain assistance from the other Party as set forth in Section 7.5.5. 7.3.4 Enforcement . 7.3.4.(a) Servier shall have the sole and exclusive right, but not the obligation, to take any reasonable measures it deems appropriate with respect to any Competitive Infringement in the Servier Territory of any Servier Patent Rights, Servier Know-How, Joint Patent, Joint Know-How, or Product Specific Patents. Such measures may include (a) initiating or prosecuting an infringement, misappropriation or other appropriate suit or action (each an “ Infringement Action ”) in the Servier Territory, or (b) granting adequate rights and licenses to any Third Party necessary to render continued Competitive Infringement in the Servier Territory non-infringing. Pieris will consider in good faith any request from Servier to initiate an Infringement Action in the Servier Territory against any Third Party with respect to such Competitive Infringement of any Pieris Building Block Patent Rights or Patent Rights within the Pieris Platform IP or Pieris Platform Improvement IP; provided, however, that Pieris shall not be 77 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential required to initiate any such Infringement Action or permit Servier to initiate any such Infringement Action with respect to any Pieris Building Block Patent Rights or Patent Rights within the Pieris Platform IP or Pieris Platform Improvement IP. Notwithstanding the foregoing, if Servier does not inform Pieris that it intends to either initiate such an Infringement Action or grant adequate rights and licenses to such Third Party within [] after Servier’s receipt of a notice of infringement (or sooner if any deadlines require action prior to such [], then Pieris will have the second right, but not the obligation, to initiate such Infringement Action, but solely with respect to any Joint Patent, Joint Know-How, Product Specific Patents, or Patent Rights within the Pieris IP, Pieris Platform IP or Pieris Platform Improvement IP. 7.3.4.(b) Pieris shall have the sole and exclusive right, but not the obligation, to take any reasonable measures it deems appropriate with respect to any Competitive Infringement in the Pieris Territory of any Pieris Patent Rights, Pieris Know-How, Joint Patent, Joint Know-How, or Product Specific Patents. Such measures may include (a) initiating or prosecuting an Infringement Action in the Pieris Territory, or (b) granting adequate rights and licenses to any Third Party necessary to render continued Competitive Infringement in the Pieris Territory non-infringing. Servier will consider in good faith any request from Pieris to initiate an Infringement Action in the Pieris Territory against any Third Party with respect to such Competitive Infringement of any Servier Building Block Patent Rights; provided, however, that Servier shall not be required to initiate any such Infringement Action or permit Pieris to initiate any such Infringement Action with respect to any Servier Building Block Patent Rights. In the event that Pieris does not wish to initiate or discontinues such an Infringement Action, Servier shall not have the right to initial such Infringement Action. 7.3.5 Cooperation and Settlement . During the pendency of such action with respect to any Third Party IP Claim, at the other Party’s request, the Party responsible for defending or enforcing any such action (the “ Responsible Party ”) shall provide the other Party with all information reasonably requested regarding the status of such action (subject to the other Party entering into a common interest agreement if requested by the Responsible Party, and without disclosing any information that would compromise attorney-client privilege or similar privileges). All materials provided by the Responsible Party to the other Party shall be treated as the Responsible Party’s Confidential Information. In any action or defense initiated by the Responsible Party, the other Party shall be entitled to, and if legally required shall, join the action so long as the Responsible Party retains at all times the sole right to direct and control the action (including the choice of its own counsel). The other Party is entitled to be independently represented by counsel of its choice, at its expense. When either Party is bringing or defending an action with respect to any Third Party IP Claim, then (a) upon request by the Responsible Party, the other Party will assist in the defense against or enforcement of such action at the other Party’s costs, including if required or desirable to bring, maintain or prove damages in such action, furnishing a power of attorney, furnishing documents and information, cooperating in discovery, providing access to witnesses (including inventors) and executing all 78 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential necessary documents as such Party may request, and (b) neither Party shall settle, consent to judgment or otherwise voluntarily dispose of the suit or action without the prior written consent of the other Party, which consent shall not be unreasonably delayed, conditioned, or withheld if such settlement, consent to judgment or other voluntary disposition does not impose any liability on the other Party (other than liability that is fully satisfied by the settling Party on behalf of the other Party) and does not impose any restrictions on the other Party. 7.3.6 Allocation of Proceeds . The proceeds recovered by a Party from any enforcement action described in Section 7.5.4 (including any licensing revenues) shall be first allocated to the reimbursement of the reasonable attorneys’ fees and out-of-pocket costs incurred by the Party who exercises its enforcement rights with respect to the Third Party IP Claims under this Section 7.5.6 and then to cover such costs and expenses of the other Party, provided that if such other Party has not elected to join the action but has been required to do so by the enforcing Party, the enforcing Party shall pay the reasonable out-of-pocket costs of the other Party. If such recovery is insufficient to cover all such costs and expenses of both Parties, it shall be shared between the Parties, with the Party who exercises its enforcement rights under this Section 7.5.6 and recovers damages retaining [] and the other Party retaining [] of such funds. If such recovery exceeds the amount required to cover all such costs and expenses of both Parties, the excess proceeds shall be split and with the enforcing Party retaining [] of such excess proceeds and the non-enforcing Party receiving the remaining [] of such excess proceeds. Notwithstanding the foregoing, with respect to CoDev Collaboration Products or the Lead Product, where Pieris is the enforcing Party with respect to any action in the United States, Pieris shall retain all remaining funds resulting from such action. Section 7.4 Trademarks. 7.4.1 Product Trademarks . Each Party shall select one or more product trademarks (including backup trademarks) for the Products for use by such Party in its Respective Territory (including backup trademarks) (the “ Product Trademarks ”) in line with the agreed upon Global Branding Strategy. Each Party (or its local Affiliates, as appropriate) shall own and retain all rights to Product Trademarks, together with all goodwill associated therewith, worldwide, and all e-brands, trade dress, service marks, domain names, designs and copyrights for the Product in its respective Territory. 7.4.2 Responsibility . 7.4.2.(a) Servier shall be responsible for filing, registering, maintaining and defending Product Trademarks in the Servier Territory at Servier’s expense and in its own name. Subject to any Global Branding Strategy, Servier may, at its own discretion, select for the Product Trademark which was already filed or registered in Servier’s portfolio. Servier shall have the right to affix any logo or trade name of its choice on the Product in the Servier Territory. 7.4.2.(b) Pieris shall be responsible for filing, registering, maintaining and defending Product Trademarks in the Pieris Territory at Pieris’ expense and in its own name. Subject to any Global Branding Strategy, Pieris may, at its own 79 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential discretion, select for the Product Trademark which was already filed or registered in Pieris’ portfolio. Pieris shall have the right to affix any logo or trade name of its choice on the Product in the Pieris Territory. 7.4.2.(c) If the Parties agree that Pieris will use in its Territory Product Trademarks selected by Servier for the Lead Product or any the CoDev Products, Servier shall file and maintain such Product Trademarks in Pieris Territory in consultation with Pieris (including, as appropriate, through the JIPC), at Pieris’ costs, and shall grant to Pieris an exclusive license with the right to sublicense, to the Product Trademarks in connection with the Development, Manufacturing and Commercialization of the Lead Product or the CoDev Products in the Pieris Territory, as applicable. 7.4.3 Domain Names . The Parties may also separately select domain names including or close to a Product Trademark owned by such Party. Such Party shall be responsible for filing and registering such domain names at such Party’s expense and in its own name. 7.4.4 Ownership; Rights . Subject to the remainder of this Section 7.6 , neither Party shall have any interest, title or right in any of the Trademarks used by a Party or other trade dress, logos, trade names and designs. Neither Party shall directly or indirectly seek through judicial or administrative process, to invalidate, oppose or challenge the validity, enforceability or scope of any Trademarks or other trade dress, logos, trade names and designs used by the other Party in connection with any Products. During the Term of this Agreement and thereafter, the Parties undertake not to take any actions and not to assist in any such actions to acquire any property rights in and to the Trademarks, trade dress, logos, trade names, and designs used in connection with the Products by the other Party, in particular not to register nor attempt to register in its name any trademark, trade name, trade or designs, identical or similar to the Trademarks, trade dress, logos, trade names, and designs used in connection with the Products by the other Party. Each Party shall not register nor use directly or indirectly any domain name including a name identical to or similar to the Trademarks or trade names used by the other Party in connection with any Product. 7.4.5 Approval Right. Any and all use by each Party of the Trademarks or and any trade dress, logos, trade names, and designs used in connection with the Products by the other Party shall be subject to the other Party’s prior express written approval. 7.4.6 Monitoring . Each Party shall maintain vigilance and shall promptly notify the other Party of any infringements or possible infringements of the Trademarks, trade dress, logos, trade names, and designs used in connection with the Products of which it becomes aware. 7.4.7 Use of Name . The Party in charge of a Clinical Study shall ensure that its name can be freely used and register it. The other Party shall be allowed to make reference to this Clinical Study and to use its registered name for the promotion and the commercialization of the Lead Product or the CoDev Collaboration Product in its Territory. Servier may use the Anticalin® trademark or name in connection with Clinical 80 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Studies and Development activities for the Products (but not in connection with Commercialization). ARTICLE 8 CONFIDENTIAL INFORMATION Section 8.1 Confidentiality. Except to the extent expressly authorized by this Agreement or agreed in writing by the Parties, during the Term and for a period of five (5) years after its termination or expiration, the Parties agree that the Receiving Party shall: (a) keep the Disclosing Party’s Confidential Information confidential; (b) not disclose, or permit the disclosure of, the Disclosing Party’s Confidential Information; and (c) not use, or permit to be used, the Disclosing Party’s Confidential Information for any purpose other than as expressly permitted under the terms of this Agreement; provided that the foregoing obligations will apply to any Confidential Information that constitutes a trade secret pursuant to Chapter I, Article 2 of EU Directive 2016/943 or Article 39 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (“ ADPIC Treaty ”) and has been identified or reasonably understood to be such by the disclosing Party for so long as such Confidential Information is afforded trade secret protection pursuant to Chapter I, Article 2 EU Directive 2016/943 or Article 39 of the ADPIC Treaty. Section 8.2 Authorized Disclosure. The Receiving Party shall only be entitled to disclose, on a need to know basis for the purpose of the performance of the Agreement, Confidential Information of the Disclosing Party to its directors, employees, Affiliates, consultants, advisors, Sublicensees, inventors or successors in interest (in the event of a merger, acquisition or Change of Control of the Receiving Party) (or potential Sublicensees, inventors or successors in interest solely to the extent necessary for the evaluation of a potential sublicense or investment or merger, acquisition or Change of Control), or Third Party subcontractors (collectively the “ Authorized Recipients ”); provided that such Authorized Recipients are bound by confidentiality and restricted use obligations or professional standards of confidentiality with respect to such Confidential Information that are at least as stringent as those set forth in this Agreement. The Receiving Party will use diligent efforts to cause its Authorized Recipients to comply with such confidentiality and restricted use obligations. The Receiving Party shall be responsible towards the Disclosing Party for any breach by its Authorized Recipients any such confidentiality and restricted use obligations. Section 8.3 Disclosure to Third Parties. 8.3.1 Right to Disclose . Notwithstanding the foregoing provisions of Section 8.1 , each Party may disclose Confidential Information of the Disclosing Party to the extent (and only to the extent) such disclosure is reasonably necessary: 8.3.1.(a) to Competent Authorities (a) to the extent desirable to obtain or maintain Regulatory Approvals for any Product within the Party’s respective Territory, and (b) in order to respond to inquiries, requests or investigations relating to Products or this Agreement; 8.3.1.(b) in connection with filing or prosecuting Patent Rights or trademark rights, in each case relating to Products, as permitted by this Agreement; 8.3.1.(c) in connection with prosecuting or defending litigation as permitted by this Agreement; 81 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 8.3.1.(d) to the counterparty of the Pieris Background Agreements, or the Servier Background Contract to which such Receiving Party is the contracting Party in order to comply therewith; 8.3.1.(e) subject to the provisions of ARTICLE 9 , in connection with or included in scientific presentations and publications relating to Products, including abstracts, posters, journal articles and the like, and posting results of and other information about Clinical Studies to clincialtrials.gov or similar websites; and 8.3.1.(f) to the extent necessary in order to enforce its rights under this Agreement. If a Party deems it reasonably necessary to disclose Confidential Information belonging to the other Party pursuant to this Section 8.3 , then the former Party shall, if available, use commercially reasonable effort to obtain a protective order, confidential treatment or other similar measures narrowing the scope of such use and public or other disclosure of such Confidential Information and otherwise take such measures to ensure confidential treatment of such information as is reasonably required. For clarification, any such limited disclosure shall not cause any such information to cease to be Confidential Information. Section 8.4 Excluded Information. 8.4.1 Excluded Information . Notwithstanding Section 8.1 , the Confidential Information of the Disclosing Party shall not include information or materials that: 8.4.1.(a) at the time of disclosure to, or acquisition by, the Receiving Party or its Affiliates is generally available to the public, or after the time of disclosure or acquisition is generally available to the public through no wrongful act or omission of the Receiving Party or its Authorized Recipients in breach of this Agreement; 8.4.1.(b) was in the lawful possession and at the free disposal (not subject to a duty of confidentiality or restricted use obligations) of the Receiving Party prior to disclosure by the Disclosing Party, as evidenced by written records then in the possession of the Receiving Party; 8.4.1.(c) is rightfully made available to the Receiving Party by Third Parties not bound by confidentiality or restricted use obligations; or 8.4.1.(d) is independently discovered or developed by the Receiving Party without access to or use of the Confidential Information of the Disclosing Party, as evidenced by written records then in the possession of the Receiving Party. Section 8.5 Legally Required Disclosures. Receiving Party may disclose Disclosing Party’s Confidential Information of the Disclosing Party that is disclosed by the Receiving Party in order to comply with the requirements of applicable Law (and only to the extent so required), provided that the Receiving Party shall to the extent possible give reasonable advance written notice of such disclosure to the Disclosing Party and will cooperate with the Disclosing Party in protecting against any such disclosure and/or obtaining a protective order, confidential treatment 82 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential or other similar measures narrowing the scope of such use and public or other disclosure of such Confidential Information and otherwise taking such measures to ensure confidential treatment of such information as is reasonably required. Any such compelled disclosure will be to the minimum extent permissible as required by applicable Law. For clarification, any such limited disclosure shall not cause any such information to cease to be Confidential Information. Section 8.6 Terms of this Agreement . 8.6.1 The Parties agree that the terms of this Agreement will be treated as Confidential Information of both Parties, and thus may be disclosed only as permitted by Section 8.3 (other than 8.3.1.(e) ) and Section 8.5 . Each Party will also be permitted to disclose the terms of this Agreement (including the exhibits hereto), in each case under appropriate confidentiality provisions, on a need to know basis, to a Party’s (and its Affiliates’) existing investors and to any bona fide potential or future permitted acquirer or assignee, investment banker, investor, licensee, Sublicensee, collaborator or lender with whom a Party (or its Affiliates) has entered into good faith negotiations regarding a proposed transaction, provided that (a) the disclosing Party agrees to redact information that it reasonably believes is not relevant to the proposed transaction, and (b) the financial terms of this Agreement may be disclosed to any of the foregoing named Persons only after negotiations with such Person have progressed so that such Party reasonably believes that a transaction is reasonably expected to occur. 8.6.2 Securities Filings . Each Party acknowledges and agrees that the other Party may submit this Agreement (including for clarity, the Exhibits and Schedules hereto) to the United States Securities and Exchange Commission (the “ SEC ”) or any other securities exchange and if a Party does submit this Agreement to the SEC or any other securities exchange, such Party agrees to consult with the other Party with respect to the preparation and submission of, a confidential treatment request for this Agreement. If a Party is required by applicable Law to make a disclosure of the terms of this Agreement in a filing with or other submission to the SEC or any other securities exchange or otherwise to comply with applicable Law, and (a) such Party has provided copies of the disclosure to the other Party as far in advance of such filing or other disclosure as is reasonably practicable under the circumstances, (b) such Party has promptly notified the other Party in writing of such requirement and any respective timing constraints, and (c) such Party has given the other Party a reasonable time under the circumstances from the date of notice by such Party of the required disclosure to comment upon, request confidential treatment or approve such disclosure, then such Party will have the right to make such public disclosure at the time and in the manner reasonably determined by its counsel to be required by applicable Law. Notwithstanding anything to the contrary herein, it is hereby understood and agreed that if a Party is seeking to make a disclosure as set forth in this Section 8.6.2 , and the other Party provides comments within the respective time periods or constraints specified herein or within the respective notice, the Party seeking to make such disclosure or its counsel, as the case may be, will in good faith consider incorporating such comments. Section 8.7 Agreement Termination. Upon termination of this Agreement, at the Disclosing Party’s request, the Receiving Party will return or destroy all documents or other 83 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential media containing Confidential Information of the Disclosing Party, provided however that the Receiving Party may retain one (1) copy for archival and compliance purposes, and as required by applicable Law. Section 8.8 Remedies. The Parties agree that money damages may not be an adequate remedy if this ARTICLE 8 is breached and, therefore, either Party may, in addition to any other legal or equitable remedies, seek an injunction or other equitable relief against such breach or threatened breach without the necessity of posting any bond or surety. ARTICLE 9 PUBLICATIONS Section 9.1 Restrictions . Without limiting ARTICLE 8 and subject to the other provisions of this ARTICLE 9 , neither Party shall (a) make any publication or disclosure of Data generated pursuant to the Joint Development Plan or the Collaboration Plan or by or on behalf of the other Party without complying with this ARTICLE 9 or otherwise obtaining the prior written approval of the other Party or (b) use the name of the other Party in any publicity or advertising without the prior written consent of the other Party. Section 9.2 Scientific Papers, Abstracts and Posters. The provisions below apply to preclinical and clinical Data with respect to CoDev Products and the Lead Product, but not to Servier WW Collaboration Products, for which Pieris shall not be entitled to make any publication and Servier shall have entire flexibility to make or not make publications. Pre-clinical and clinical data with respect to CoDev Collaboration Products and the Lead Product may be presented at scientific meetings on a regular basis in accordance with the provisions below. The JDC or JRC, as applicable, shall discuss attendance at conferences and work in good faith to coordinate messaging and any presentations or posters at such events. 9.2.1 Scientific Papers . Each Party through the JSC or its designee shall provide to the other, prior to submission of a draft of any articles and papers, including primary reports of Data, pooled analyses, theses, dissertations and review papers concerning the Product which have been prepared by or on behalf of such Party or under the Joint Development Plan or the Collaboration Plan (each a “ Scientific Paper ”) to be published in medical and scientific journals and similar publications (“ Medical Journals ”). Commencing with the receipt of such draft Scientific Paper, the receiving Party shall have [] Business Days to notify the sending Party of its observations and suggestions with respect thereto (it being understood that, during such []Business Day period, no submission for publication thereof shall take place) and the Parties shall discuss these observations and suggestions. The receiving Party shall have the right to require modifications to such Scientific Paper for patent reasons, trade secret reasons or business reasons, and the sending Party shall remove all Confidential Information of the receiving Party if so requested by the receiving Party. The Party proposing to publish such Scientific Paper shall, in good faith, consider the comments made by the other Party, particularly if disclosure may be prejudicial to the other Party’s opportunity to obtain any Patent. The other Party may in good faith require that the publication be suspended for a period of time not exceeding [] if a Patent may be filed using the Data or Know-How covered in the proposed publication, which period could be extended to an additional [] period with respect to Data or Know-How useful to enrich the patent applications provided that in the event such additional delay is requested, (a) such requesting Party must reasonably 84 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential demonstrate the need for such extension by providing the other Party with a detailed rationale and explanation therefor along with a reasonably detailed work plan as to how such delay and experiments may improve patentability and (b) the Parties will discuss in good faith the scope and duration of any such extended delay (not to exceed such []). Neither Party will publish or present any Confidential Information of the other Party without such other Party’s prior written consent. The sending Party shall provide to the receiving Party copies of any final Scientific Paper accepted by a Medical Journal, not less than [] Business Days prior to the planned publication thereof (upon availability and distribution of such information assuming that providing such information is acceptable taking into consideration the publishers’ need to comply with any healthcare compliance guidelines). To enable free exchange of copyrighted material between the Parties, each Party agrees that it has or shall (i) obtain and maintain, at its own expense, an Annual Copyright License or equivalent license from the Copyright Clearance Center and (ii) list the other Party as a collaborator in an agreement with the Copyright Clearance Center. 9.2.2 Abstracts and Posters . If a Party intends to present findings with respect to any Product at symposia or other meetings of healthcare professionals, or international, national or regional congresses, conferences or meetings organized by a professional society or organization (any such occasion, a “ Scientific Meeting ”), to the extent permitted by applicable Laws, such Party shall provide to the other, prior to submission or presentation, as the case may be, copies of (a) all abstracts that will be submitted for publication, and (b) all posters that will be presented at such Scientific Meeting, in each case, concerning the Product which have been prepared by or on behalf of one of the Parties, for submission or presentation. Commencing with the receipt of any such abstract or poster the receiving Party shall have [] Business Days to inform the sending Party of its observations and suggestions with respect thereto (it being understood that, during such [] Business Day period, no submission or presentation thereof shall take place) and the Parties shall discuss these observations and suggestions. The receiving Party shall have the right to require modifications to such abstract or poster for patent reasons, trade secret reasons or business reasons, and the sending Party shall remove all Confidential Information of the receiving Party if so requested by the receiving Party. The Party proposing to publish such an abstract or make such a presentation shall, in good faith, consider the comments made by the other Party, particularly if disclosure may be prejudicial to the other Party’s opportunity to obtain any patent rights. The other Party may in good faith require that the publication of the abstract or presentation be suspended for a period of time not exceeding [] if a Patent may be filed using the Data or Know-How covered in the proposed abstract or presentation, which period could be extended to an additional [] period with respect to Data or Know-How useful to enrich the patent applications provided that in the event such additional delay is requested, (i) such requesting Party must reasonably demonstrate the need for such extension by providing the other Party with a detailed rationale and explanation therefor along with a reasonably detailed work plan as to how such delay and experiments may improvement patentability and (ii) the Parties will discuss in good faith the scope and duration of any such extended delay (not to exceed such [] A Party will not publish or present any Confidential Information of the other Party without such other Party’s prior written consent. The 85 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential sending Party shall provide to the receiving Party copies of all final abstracts and all final posters accepted for publication or to be presented [] Business Days prior to the planned publication or presentation thereof (upon availability and distribution of such information assuming that providing such information is acceptable taking into consideration the publishers’ need to comply with any healthcare compliance guidelines). The Parties shall use good faith and commercially reasonable efforts to provide the other Party with draft slide presentations in accordance with the foregoing time periods. 9.2.3 Written Materials to be Presented at Scientific Meetings . To the extent permitted by applicable Laws, each Party shall provide to the other, prior to submission or presentation, as the case may be, copies of all written materials (other than abstracts and posters) that will be presented at any Scientific Meetings. Commencing with the receipt of any such written material the receiving Party shall have [] Business Days to inform the sending Party of its observations and suggestions with respect thereto (it being understood that, during such [] Business Day period, no submission or presentation thereof shall take place) and the Parties shall discuss these observations and suggestions. The receiving Party shall have the right to require modifications to such written materials for patent reasons, trade secret reasons or business reasons, and the sending Party shall remove all Confidential Information of the receiving Party if so requested by the receiving Party. The Party proposing to publish such written materials or make such a presentation shall, in good faith, consider the comments made by the other Party, particularly if disclosure may be prejudicial to the other Party’s opportunity to obtain any patent rights. The other Party may require that the publication of such written materials or presentation be suspended for a period of time not exceeding [] if a Patent may be filed using the Data or Know-How covered in the proposed written materials or presentation, which period could be extended to an additional [] period with respect to Data or Know-How useful to enrich the patent applications provided that in the event such additional delay is requested, (a) such requesting Party must reasonably demonstrate the need for such extension by providing the other Party with a detailed rationale and explanation therefor along with a reasonably detailed work plan as to how such delay and experiments may improvement patentability and (b) the Parties will discuss in good faith the scope and duration of any such extended delay (not to exceed such [] A Party will not publish or present any Confidential Information of the other Party without such other Party’s prior written consent. The sending Party shall provide to the receiving Party copies of all final abstracts and all final posters or other written materials accepted for publication or to be presented [] Business Days prior to the planned publication or presentation thereof (upon availability and distribution of such information assuming that providing such information is acceptable taking into consideration the publishers’ need to comply with any healthcare compliance guidelines). The Parties shall use good faith and commercially reasonable efforts to provide the other Party with draft slide presentations in accordance with the foregoing time periods. Section 9.3 Registries . Each Party shall be free to disclose any Clinical Study Data generated by such Party concerning the Product in clinical trial registries, in accordance with applicable Laws; provided , however , except to the extent prohibited or otherwise required by applicable Law (and in any event consistent with applicable Law), that the Party proposing to 86 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential make such disclosure shall have provided the other Party at least [] Business Days prior to such disclosure (to the extent practicable), a detailed description of the proposed disclosure and shall have, in good faith, considered the comments made by the other Party and to delay, upon written request from the other Party, such disclosure by up to [] (or as long as permitted, if less than [] where need to file a patent application. Section 9.4 Timeline Extension or Deferral of Disclosures . 9.4.1 Each Party agrees that it will not unreasonably withhold, condition or delay its consent to requests for extensions of the above timelines in this ARTICLE 9 in the event that material late breaking Data becomes available. 9.4.2 If either Party believes that any proposed press release or other public statement, or any publication, presentation, or other disclosure would be prejudicial to its opportunity to obtain any Patent, then the affected Party shall notify the publishing Party within the timeframe provided for in this ARTICLE 9 as applicable, or if not applicable, as soon as practicable after receipt of the proposed press release or other public statement, publication, presentation, or other disclosure, and the publishing Party shall refrain from making such press release, other public statement, publication, presentation or other disclosure for an additional [] Business Days from the last day of the period otherwise provided for herein to enable the preparation and filing of any necessary patent applications. Section 9.5 Failure to Object to Disclosure . If the Party proposing any press release or other public statement, or any publication, presentation, or other disclosure referred to in this ARTICLE 9 (excluding for the avoidance of doubt any promotional materials) receives no objection from the other Party within the timeframes set forth in the corresponding Section, then, the Party proposing such press release, other public statement, publication, presentation, or other disclosure shall be free to proceed with the same without further reference to or agreement from the other Party; provided , however , that any such publication, presentation, or other disclosure shall acknowledge the other Party’s contribution to any Data included therein and otherwise comply with this Agreement. ARTICLE 10 REPRESENTATIONS, WARRANTIES & COVENANTS Section 10.1 Representations and Warranties of the Parties. 10.1.1 Each Party hereby represents and warrants to the other Party, as of the Effective Date, that: 10.1.1.(a) such Party is duly established, validly existing and in good standing under the Laws of the jurisdiction and has full power and authority to enter into this Agreement and to carry out the provisions hereof; 10.1.1.(b) all requisite corporate action on the part of such Party, its directors and stockholders required by applicable Law for the authorization, execution and delivery by such Party of this Agreement, and the performance of all obligations of such Party under this Agreement, has been taken; 87 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 10.1.1.(c) this Agreement has been duly executed and delivered on behalf of such Party, and constitutes a legal, valid and binding obligation, enforceable against it in accordance with the terms hereof; and 10.1.1.(d) the execution and delivery of this Agreement by such Party do not, and the performance of this Agreement by such Party will not: (i) conflict with, or result in any violation of or default under, any agreement, instrument or understanding, oral or written, to which it or any Affiliate is a party or by which it or any Affiliate is bound; or (ii) violate any provision of any applicable Law. Section 10.1 Representations and Warranties of Pieris. 10.1.1 Generally . Pieris hereby represents and warrants to Servier that, as of the Effective Date: 10.1.1.(a) Pieris has the right to grant the rights granted to Servier under this Agreement, and no rights granted to Servier pursuant to this Agreement are in violation of any existing agreement between Pieris or any of its Affiliates and any Third Party; 10.1.1.(b) None of Pieris or its Affiliates, any Third Party acting by or on behalf of Pieris or any of its Affiliates in connection with the research, Development or Manufacture of the Product prior to the Effective Date has been debarred or is subject to debarment; 10.1.1.(c) Pieris is the owner of or Controls the Pieris Patent Rights listed in Schedule 10.2.1.(c) (with an indication as to which Patent Rights are owned and which are controlled) (“ Existing Pieris Patent Rights ”). Each of the Existing Pieris Patent Rights has been filed in good faith, has been prosecuted in accordance with any applicable duty of candor and has been maintained in a manner consistent with standard industry practice, in each case in each applicable jurisdiction in which such Pieris Patent Rights have been filed, and no official final deadlines with respect to prosecution thereof have been missed and all applicable fees due prior to the Effective Date have been paid on or before the due date for payment; 10.1.1.(d) All inventors of all the Existing Pieris Patent Rights that are owned by Pieris, have been identified as such in the filings with the relevant patent offices and to Pieris’ knowledge, all inventors of all the Existing Pieris Patent Rights that are in-licensed by Pieris have been identified as such in the filings with the relevant patent offices; 10.1.1.(e) Pieris does not Control other Patent Rights Covering the Products than those listed in Schedule 10.2.1.(c) ; 10.1.1.(f) where applicable, all of Pieris’ and its Affiliates’ officers, employees, independent contractors, consultants, and agents as of the Effective Date (other than academics or public or academic institutions subject to Section 2.3.6 ) performing activities under this Agreement where there is the potential for inventive activity have executed agreements requiring assignment or licensing to 88 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Pieris of all inventions Covering a Product made during the course of and as a result of their association with Pieris or its Affiliate, as applicable, and obligating the individual to maintain as confidential the confidential information of Pieris or its Affiliate, as applicable; 10.1.1.(g) where applicable, all of Pieris’ and its Affiliates’ officers, employees, independent contractors, consultants, and agents engaged after the Effective Date (other than academics or public or academic institutions subject to Section 2.3.6 ) performing activities under this Agreement where there is the potential for inventive activity that have not executed agreements with Pieris prior to the Effective Date will execute agreements requiring assignment to Pieris of all inventions Covering a Product made during the course of and as a result of their association with Pieris or its Affiliate, as applicable, and obligating the individual to maintain as confidential the confidential information of Pieris or its Affiliate, as applicable unless otherwise agreed to by the Parties in writing; 10.1.1.(h) There are no agreements (other than the Pieris Background Agreements) to which Pieris or any of its Affiliates is a party under which Pieris or any of its Affiliates obtains or has obtained a license or other right to the Pieris IP from a Third Party to make, use, sell, offer for sale or import the Products in the Field; 10.1.1.(i) To Pieris’ knowledge, the Existing Pieris Patent Rights are, or, upon issuance, will be, valid and enforceable patents. There is no pending or, to Pieris’ knowledge, threatened claim, suit, action, litigation or other proceeding brought by a Third Party against Pieris or any of its Affiliates (a) challenging the validity or enforceability of any of the Existing Pieris Patent Rights, (b) claiming that the making, using, selling, offering for sale or importing of any of the Products constitutes infringement of such Third Party’s Intellectual Property Right(s), or (c) subjecting any of Existing Pieris Patent Rights to interference, reexamination, reissue, revocation, opposition, appeal or other administrative proceedings; 10.1.1.(j) Neither Pieris nor any of its Affiliates has received any communications alleging that it has infringed, misappropriated or otherwise violated, or that it would infringe, misappropriate or otherwise violate, through the manufacture, use, import, export, sale, or offer for sale of any of the Products or any portion thereof, any Intellectual Property Rights or Know-How Controlled by any Third Party; 10.1.1.(k) To Pieris’ knowledge, there is no Third Party intellectual property that would prevent Pieris from generally practicing the Pieris Platform Technology to Manufacture, Develop and Commercialize Anticalin therapeutics generally, which for clarity and without limitation does not include any specific target or particular Anticalin; 10.1.1.(l) Pieris has taken reasonable precautions to preserve the confidentiality of the Pieris Know-How required to be transferred to Servier under this Agreement; 89 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 10.1.1.(m) Pieris has disclosed or made available to Servier in writing, complete and correct copies of (a) any material data from studies of the Lead Product and the Pieris Building Blocks in its possession and (b) all material Regulatory Materials (if any) and correspondence between Pieris and its Affiliates, on the one hand, and any Competent Authority, on the other hand (if any), relating to the Lead Product and the Pieris Building Blocks; 10.1.1.(n) All studies conducted specifically for the Lead Product and the Pieris Building Blocks have been conducted by Pieris or any of its (sub)contractors in accordance with applicable Laws by persons with appropriate education, knowledge and experience; 10.1.1.(o) The documents containing Data and Pieris Know-How disclosed or made available to Servier in the context of the negotiation of this Agreement are true and accurate copies of what they purport to be; 10.1.1.(p) No information or materials provided by Pieris to Servier (whether prepared by Pieris or any subcontractor) contain any materially untrue or, willfully misleading statement of a material fact or willfully omit to state a material fact, with respect to the efficacy, side effects or preclinical or clinical testing of the Lead Product and the Pieris Building Blocks; 10.1.1.(q) In relation to the Pieris Background Agreements: (i) None of the Existing Pieris Patent Rights is licensed from a Third Party, except pursuant to the Pieris Background Agreements. Except under the Pieris Background Agreements, Pieris is not subject to any contractual payment obligations to Third Parties as a result of the execution of this Agreement or the Development, Manufacture or Commercialization of the Products in the Field in the Servier Territory. Pieris has provided a complete, accurate copy of all material terms and conditions of the Pieris Background Agreements to Servier. Pieris will provide an accurate copy of the material terms and conditions of this Agreement to the licensors under the Pieris Background Agreements, redacted for the Parties’ sensitive or confidential information. (ii) The Pieris Background Agreements are a valid and binding obligation and are in full force and effect. All Patents licensed to Pieris under the Pieris Background Agreements, to the extent otherwise being encompassed within the licenses granted to Servier under this Agreement, are Controlled by Pieris for purposes of the licenses granted to Servier under this Agreement; (iii) Pieris is not in material breach or default (and the delivery and execution of this Agreement will not constitute a breach or default) of the Pieris Background Agreements, and Pieris has not received any written notice from the applicable Third Party licensor under such Pieris Background Agreements (A) that Pieris has materially breached or 90 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential defaulted thereunder that has not been cured or (B) of any intention of such Third Party licensor to terminate the Pieris Background Agreements; and (iv) Pieris shall maintain the Pieris Background Agreements, to the extent the rights and licenses granted to Pieris thereunder are sublicensed to Servier hereunder, and shall not modify, amend, terminate or breach the Pieris Background Agreements, if such modification, amendment, termination or breach would adversely affect Servier’s rights under this Agreement (after taking into account any period(s) to cure alleged breaches). Pieris shall take reasonable steps to remediate any issue or breach of such Pieris Background Agreements. In the event that Pieris has failed to take prompt efforts to remediate any breach of the Pieris Background Agreements, Servier shall have the right, at Pieris’ cost, to step in and remediate such breach. Section 10.1 Representations and Warranties of Servier. 10.1.1 Generally . Servier hereby represents and warrants to Pieris that, as of the Effective Date: 10.1.1.(a) Servier has the right to grant the rights granted to Pieris under this Agreement, and no rights granted to Pieris pursuant to this Agreement are in violation of any existing agreement between Servier or any of its Affiliates and any Third Party; 10.1.1.(b) Servier is the owner of or Controls the Servier Patent Rights listed in Schedule 10.3.1.(b) (with an indication as to which Patent Rights are owned and which are controlled) (“ Existing Servier Patent Rights ”). Each of the Existing Servier Patent Rights has been filed in good faith, has been prosecuted in accordance with any applicable duty of candor and has been maintained in a manner consistent with standard industry practice, in each case in each applicable jurisdiction in which such Servier Patent Rights have been filed, and no official final deadlines with respect to prosecution thereof have been missed and all applicable fees due prior to the Effective Date have been paid on or before the due date for payment; 10.1.1.(c) All inventors of all the Existing Servier Patent Rights that owned by Servier, have been identified as such in the filings with the relevant patent offices and to Servier’s knowledge, all inventors of all the Existing Servier Patent Rights that in-licensed by Servier have been identified as such in the filings with the relevant patent offices; 10.1.1.(d) Servier does not Control other Patent Rights Covering the Products than those listed in Schedule 10.3.1.(b) ; 10.1.1.(e) where applicable, all of Servier’ and its Affiliates’ officers, employees, independent contractors, consultants, and agents as of the Effective Date (other than academics or public or academic institutions subject to Section 91 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 2.3.6 ) performing activities under this Agreement where there is the potential for inventive activity have executed agreements requiring assignment or licensing to Servier of all inventions Covering a Product made during the course of and as a result of their association with Servier or its Affiliate, as applicable, and obligating the individual to maintain as confidential the confidential information of Servier or its Affiliate, as applicable; 10.1.1.(f) where applicable, all of Servier’ and its Affiliates’ officers, employees, independent contractors, consultants, and agents engaged after the Effective Date (other than academics or public or academic institutions subject to Section 2.3.6 ) performing activities under this Agreement where there is the potential for inventive activity that have not executed agreements with Servier prior to the Effective Date will execute agreements requiring assignment to Servier of all inventions Covering a Product made during the course of and as a result of their association with Servier or its Affiliate, as applicable, and obligating the individual to maintain as confidential the confidential information of Servier or its Affiliate, as applicable unless otherwise agreed to by the Parties in writing; 10.1.1.(g) To Servier’s knowledge the Servier Patent Rights are, or upon issuance, will be, valid and enforceable patents. There is no pending or, to Servier’s knowledge, threatened claim, suit, action, litigation or other proceeding brought by a Third Party against Servier or any of its Affiliates (a) challenging the validity or enforceability of any of Servier Patent Rights or (b) seeking to subject any of Servier Patent Rights to interference, reexamination, reissue, revocation, opposition, appeal or other administrative proceedings. 10.1.1.(h) Servier has taken reasonable precautions to preserve the confidentiality of the Servier Know-How required to be transferred to Pieris under this Agreement; 10.1.1.(i) Servier has disclosed or made available to Pieris in writing, complete and correct copies of any material data from studies of the Servier Building Blocks in its possession; 10.1.1.(j) All studies conducted specifically for the Servier Building Blocks have been conducted by Servier or any of its subcontractors in accordance with applicable Laws by persons with appropriate education, knowledge and experience; 10.1.1.(k) The documents containing Data and Servier Know-How disclosed or made available to Pieris in the context of the negotiation of this Agreement are true and accurate copies of what they purport to be; and 10.1.1.(l) No information or materials provided by Servier to Pieris (whether prepared by Servier or any subcontractor) contain any materially untrue or, willfully misleading statement of a material fact or willfully omit to state a material fact, with respect to the efficacy, side effects or preclinical or clinical testing of any Servier Building Block; and 92 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 10.1.1.(m) In relation to the Servier Background Contract: (i) None of the Servier IP is licensed from a Third Party, except pursuant to the Servier Background Contract. Except under the Servier Background Contract, Servier is not subject to any contractual payment obligations to Third Parties as a result of the execution of this Agreement or the Development, Manufacture or Commercialization of the Products in the Field in the Pieris Territory. Servier has provided a complete and accurate copy of all material terms and conditions of the Servier Background Contract to Pieris. Servier will provide an accurate copy of the material terms and conditions of this Agreement to the licensors under the Servier Background Contract, redacted for the Parties’ sensitive or confidential information. (ii) The Servier Background Contract are valid and binding obligations and are in full force and effect. All Patents licensed to Servier under the Servier Background Contract, to the extent otherwise being encompassed within the licenses granted to Pieris under this Agreement, are Controlled by Servier for purposes of the licenses granted to Pieris under this Agreement; (iii) Servier is not in material breach or default (and the delivery and execution of this Agreement will not constitute a breach or default) of the Servier Background Contract, and Servier has not received any written notice from the applicable Third Party licensor under such Servier Background Contract (A) that Servier has materially breached or defaulted thereunder or (B) of any intention of such Third Party licensor to terminate the Servier Background Contract; and (i) Servier shall maintain the Servier Background Contract, to the extent the rights and licenses granted to Servier thereunder are sublicensed to Pieris hereunder, and shall not modify, amend, terminate or breach the Servier Background Contract, if such modification, amendment, termination or breach would adversely affect Pieris’ rights under this Agreement (after taking into account any period(s) to cure alleged breaches). Servier shall take reasonable steps to remediate any issue or breach of such Servier Background Contract. In the event that Servier has failed to take prompt efforts to remediate any breach of a Servier Background Contract, Pieris shall have the right, at Servier’s cost, to step in and remediate such breach. 10.1.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN Section 10.1 , Section 10.2 AND Section 10.3 ABOVE, NEITHER PARTY MAKES (AND EACH PARTY EXPRESSLY DISCLAIMS) ANY AND ALLY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR ANY WARRANTIES THAT MAY ARISE 93 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential FROM A COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OR TRADE, INCLUDING WITH RESPECT TO ANY INTELLECTUAL PROPERTY RIGHTS, TECHNOLOGY OR CONFIDENTIAL INFORMATION OF A PARTY. Section 10.2 Mutual Covenants. Each Party hereby covenants throughout the Term as set forth below. 10.2.1 Compliance . Each Party will, and will cause its Affiliates and Sublicensees to, conduct the Research Collaboration and the Development, Manufacture and Commercialization of the Products in material compliance with all applicable Laws, including current governmental regulations concerning current good laboratory practices (GLP), good clinical practices (GCP) and good manufacturing practices (GMP). 10.2.2 Non-Debarment . Such Party will not, and will cause its Affiliates and Sublicensees not to, employ or use any contractor or agent that employs any individual or entity (a) that has been debarred by a Competent Authority under applicable Laws or convicted of a crime for which such Person could be so debarred, or (b) that is the subject of a debarment investigation or proceeding of a Competent Authority under applicable Laws, in each case of clauses (a) and (b), in the conduct of such Party’s, its Affiliates’ and Sublicensees’ activities under this Agreement. 10.2.3 No Conflict . Such Party shall not, and shall cause its Affiliates and Sublicensees not to, enter into any agreement or other arrangement with a Third Party that conflicts with the rights granted to the other Party under this Agreement. 10.2.4 Licensure . If either Party determines in good faith that the licenses under this Agreement are required to be filed with the Federal Trade Commission (“ FTC ”) under the US’s Hart-Scott-Rodino Antitrust Improvements Act of 1976 (15 U.S.C. §18a) (“ HSR ”) or with equivalent foreign Government Authorities under any similar foreign Law, then each Party will promptly prepare and submit any necessary filings and will use commercially reasonable efforts to obtain such approvals and the Effective Date shall occur upon all such HSR or other governmental clearances have been obtained. Each Party will be responsible for its own costs; provided that Servier will pay all filing fee(s) required in the event of an HSR filing or filing for other governmental clearance. Both Parties will use all commercially reasonable efforts to cause the clearance to be obtained as quickly as possible. However, neither Party will be required to adversely affect its legal position (e.g., agree to divestitures or product restrictions) in the interest of expediting such clearance. Section 10.1 Party Covenants. 10.1.1 Pieris shall submit by [] to relevant patent offices the priority patent applications for the [] Building Block and the Lead Product, a draft of which has been communicated to Servier prior to the date hereof, including Servier’s reasonable comments on such patent applications. 10.1.2 Upon a Party’s reasonable request, the other Party shall use Commercially Reasonably Efforts to negotiate and execute appropriate documents (whether through amendment to an existing agreement or a separate side letter) to permit continuation of 94 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential any sublicense granted under a Pieris Background Agreement or Servier Background Contract in the event of termination of such Pieris Background Agreement or Servier Background Contract, as applicable (due to insolvency or otherwise). ARTICLE 11 INDEMNIFICATION; INSURANCE Section 11.1 Pieris Indemnity. Pieris shall defend, indemnify and hold harmless Servier and its Affiliates and their respective directors, officers, agents, representatives, successors, permitted assignees and employees (collectively, the “ Servier Indemnitees ”) from and against any and all liabilities, losses, costs, damages and expenses, including reasonable attorneys’ fees (collectively, “ Damages ”), incurred as a result of or arising out of any claim, suit, action, demand or other proceeding made or brought by a Third Party (each, a “ Third Party Claim ”) against one or more Servier Indemnitees to the extent resulting from (a) the negligence, recklessness, willful misconduct or intentional wrongful acts or omissions of Pieris or its Affiliates or their respective agents, representatives, consultants or independent contractors, in the performance by or on behalf of Pieris of Pieris’ obligations under this Agreement, (b) any breach (or allegation of a breach) by Pieris of any representation, warranty or covenant made by Pieris set forth in ARTICLE 10 of this Agreement or any breach or violation of any covenant or agreement of Pieris in or in performance of this Agreement, or (c) solely as it pertains to a Third Party Claim for product liability in the Pieris Territory, the Development, Manufacturing, Commercialization, handling, storage, labeling or transfer of any Product to the extent such Damages were incurred with respect to the Development, Manufacture or Commercialization by or for Pieris or any of its Affiliates or Sublicensees of the Lead Product or a CoDev Collaboration Product in or for the Pieris Territory (including any such activities performed by Servier pursuant to this Agreement); except, in any such case, to the extent such Damages arise out of or result from the negligence, recklessness, willful misconduct or intentional wrongful acts or omissions or breach of this Agreement by Servier or a Servier Indemnitee or matters for which Servier is obligated to indemnify Pieris under Section 11.2 . Section 11.2 Servier Indemnity . Servier shall defend, indemnify and hold harmless Pieris and its Affiliates and their respective directors, officers, agents, representatives, permitted successors, permitted assignees and employees (collectively, the “ Pieris Indemnitees ”) from and against any and all Damages incurred as a result of or arising out of any Third Party Claim made or brought against one or more Pieris Indemnitees to the extent resulting from (a) the negligence, recklessness, willful misconduct or intentional wrongful acts or omissions of Servier or its Affiliates or their respective agents, representatives, consultants or independent contractors, in the performance by or on behalf of Servier of Servier’s obligations under this Agreement, (b) any breach (or allegation of a breach) by Servier of any representation, warranty or covenant made by Servier set forth in ARTICLE 10 of this Agreement or any breach or violation of any covenant or agreement of Servier in or in performance of this Agreement, or (c) solely as it pertains to a Third Party Claim for product liability in the Servier Territory, the Development, Manufacturing, Commercialization, handling, storage, labeling or transfer of any Product to the extent such Damages were incurred with respect to the Development, Manufacture or Commercialization by or for Servier or any of its Affiliates or Sublicensees of the Lead Product or a CoDev Collaboration Product in or for the Servier Territory or for a Servier WW Collaboration Product anywhere in the world (including any such activities performed by Pieris pursuant to 95 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential this Agreement); except, in any such case, to the extent such Damages arise out of or result from the negligence, recklessness, willful misconduct or intentional wrongful acts or omissions or breach of this Agreement by Pieris or a Pieris Indemnitee or matters for which Pieris is obligated to indemnify Servier under Section 11.1 . Section 11.3 Indemnification and Defense Procedures. 11.3.1 Notice of Claim. All claims for indemnification or defense by a Party as provided herein shall be made solely by the Party seeking indemnification or defense of a Third Party Claim or remedies for any Damages (the “ Indemnified Party ”). The Indemnified Party shall give written notice of the same to the other Party (the “ Indemnifying Party ”) reasonably promptly after the assertion against the Indemnified Party of any Third Party Claim or fact in respect of which the Indemnified Party intends to base a claim for indemnification hereunder (a “ Claim Notice ”), provided, however, that failure or delay to provide such Claim Notice shall not affect the Indemnifying Party’s indemnification or defense obligations, except to the extent such failure materially and adversely affects the ability to defend such claim. Each Claim Notice must contain a description of the Third Party Claim and the nature and amount of any Damages (to the extent that the nature and amount of such Damages is known at such time). The Indemnified Party shall furnish promptly to the Indemnifying Party copies of all notices, papers, correspondence, communications and official documents (including court papers) previously received or sent and thereafter that the Indemnified Party continues to receive or send in respect of any such Third Party Claim. 11.3.2 Assumption of Defense . To the extent permitted by applicable Laws, the Indemnifying Party shall assume the defense and handling of such Third Party Claim, at the Indemnifying Party’s sole expense in accordance with Section 11.3.3 . 11.3.3 Indemnification Procedure. In assuming the defense of any Third Party Claim, the Indemnifying Party: (a) shall act diligently and in good faith with respect to all matters relating to the defense, settlement or disposition of such Third Party Claim as the defense, settlement or disposition relates to the Indemnified Party; (b) may, at its own cost, appoint as counsel in connection with conducting the defense and handling of such Third Party Claim any law firm or counsel reasonably selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; (c) keep the Indemnified Party informed of the status of such Third Party Claim; (d) shall have the right to settle the Claim on any terms the Indemnifying Party chooses, subject to prior notification to the Indemnified Party; provided that the Indemnifying Party shall not settle or otherwise resolve any Third Party Claim which could lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder or which admits any wrongdoing or responsibility for the claim on behalf of the Indemnified Party, without prior written consent of the Indemnified Party, which may not be unreasonably withheld or delayed. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in its defense of any Third Party Claim for which the Indemnifying Party has assumed the defense in accordance with this Section 11.3.3 , and shall have the right (at its own expense) to be present in person or through counsel at all legal proceedings giving rise to the right of indemnification. 96 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 11.3.4 Indemnified Party Right to Participate . If the Indemnifying Party fails to conduct the defense and handling of any Third Party Claim in good faith or if the Third Party Claim seeks non-monetary relief, (a) the Indemnified Party may at the Indemnifying Party’s expense, select counsel reasonably acceptable to the Indemnifying Party in connection with conducting the defense and handling of such Third Party Claim and defend against, and consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim in any manner the Indemnified Party may deem reasonably appropriate (and the Indemnified Party shall regularly inform the Indemnifying Party of the status of such Claim and consult with the Indemnifying Party but shall have no obligation hereunder to obtain any consent from, the Indemnifying Party in connection therewith, except that the Indemnified Party shall not settle such Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed); and (b) the Indemnifying Party shall remain responsible to indemnify the Indemnified Party as provided in this Section 11.3.4 . If the Indemnified Party elects to defend or handle such Third Party Claim in accordance with this Section 11.3.4 , the Indemnifying Party shall cooperate with the Indemnified Party, at the Indemnified Party’s request but at no expense to the Indemnified Party, and shall be entitled to participate in the defense and handling of such Third Party Claim with its own counsel and at its own expense. Section 11.4 Insurance. During the Term and thereafter for a period of five (5) years, each Party shall procure and maintain adequate insurance coverage with internationally-reputable company or a program of self-insurance (which shall be of types and amounts sufficient to cover the liabilities hereunder, contingent or otherwise of such Party and its Affiliates). It is understood that such insurances shall not be construed to create a limit of either Party’s liability with respect to its indemnification obligations under this ARTICLE 11 . Each Party shall provide the other Party with written evidence of such insurance upon request. Each Party shall provide the other Party with written notice at least thirty (30) days prior to the cancellation, non-renewal or material change in the insurance coverage. Section 11.5 DISCLAIMER OF LIABILITY. IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS RESPECTIVE AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES BE LIABLE UNDER THIS AGREEMENT FOR SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES SUFFERED BY THE OTHER PARTY UNDER THIS AGREEMENT, WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE OR OTHERWISE. NOTWITHSTANDING THE FOREGOING, THIS DISCLAIMER DOES NOT APPLY TO LIABILITY OR DAMAGES (A) RESULTING FROM A BREACH OF CONFIDENTIALITY OBLIGATIONS OF A PARTY UNDER ARTICLE 8 OR (B) SUBJECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO Section 11.1, Section 11.2 OR Section 11.3. ARTICLE 12 TERM AND TERMINATION Section 12.1 Term. The term of this Agreement (the “ Term ”) will commence on the Effective Date and will extend, unless this Agreement is terminated earlier in accordance with Section 12.2 , on a Product-by-Product and country-by-country basis, until such time as the 97 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Royalty Term with respect to such Product in such country expires. Upon the natural expiration (as opposed to termination) of the Royalty Term with respect to a Product and country: (a) the licenses granted by Pieris to Servier under this Agreement with respect to such Product shall remain in effect as granted in accordance with this Agreement, shall become irrevocable, fully paid-up and royalty-free licenses and shall last as long as Servier intends to Develop or Commercialize the applicable Product in such country, (b) with regard to the Lead Product and any CoDev Collaboration Product, the licenses granted by Servier to Pieris under this Agreement with respect to such Product shall remain in effect as granted in accordance with this Agreement, shall become irrevocable, fully paid-up and royalty-free licenses and shall last as long as Pieris intends to Develop or Commercialize the Lead Product or applicable CoDev Collaboration Product in such country and (c) Section 6.2 shall no longer apply to the Parties solely with respect to the Development and Commercialization of such Product in such country (including the Manufacture thereof solely for such Development and Commercialization purposes). Section 12.2 Termination. Notwithstanding anything in this Agreement or elsewhere to the contrary, subject to Section 12.3.7 below, this Agreement may be terminated as follows: 12.2.1 Termination for Material Breach . Either Party shall have the right to terminate this Agreement in the event the other Party has materially breached or materially defaulted in the performance of any of its obligations hereunder which breach or default is material in the overall context of the Agreement, and such breach has continued for ninety (90) days after written notice thereof was provided to the breaching Party by the non-breaching Party which clearly describes the remedies that the non-breaching Party intends to apply should the breach remain uncured. Any such termination shall become effective at the end of such ninety (90) day period if, prior to the expiration of the ninety (90) day period, the breaching Party has not cured any such breach or default, provided, that with respect to a breach of such Party’s Commercially Reasonable Efforts obligations to Develop or Commercialize the Product, such cure period shall be extended for a period not to exceed an additional ninety (90) days in the event such breaching Party has, within the original ninety (90) day period prepared and communicated to the non-breaching Party, a remediation plan reasonably designed to cure such breach or default within a reasonable period of time (which plan is reasonably acceptable to the non-breaching Party) and such breaching Party continues to diligently use Commercially Reasonable Efforts to implement such plan throughout such period. If the allegedly breaching Party disputes the breach and provides written notice of that dispute to the other Party, the matter shall be addressed under the dispute resolution provisions in Section 13.3 , and the notifying Party may not terminate this Agreement until it has been finally determined under Section 13.3 that the Agreement was materially breached as described above. The non-breaching Party will have the right to terminate this Agreement with respect to either the entire Product or only the countries to which the uncured material breach relates, provided that this Agreement cannot be terminated only with respect to some (but not all) countries of the European Union. 12.2.2 Termination by Mutual Agreement . This Agreement (as a whole or on a Product-by-Product and country-by-country basis) may be terminated by the mutual written consent of the Parties. 98 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential 12.2.3 Termination by Servier for Convenience . Beginning twelve (12) months after the Effective Date, Servier may terminate this Agreement on a Product-by-Product basis and/or on a country-by-country basis by providing one hundred eighty (180) days’ prior written notice to Pieris, with such termination being effective upon the end of such 180-day notice period. 12.2.4 Termination for Insolvency . Either Party may terminate this Agreement if, at any time, the other Party will file in any court or agency pursuant to any statute or regulation of any state or country, a petition in bankruptcy or insolvency or for the appointment of a receiver or trustee of the Party or of substantially all of its assets, or if the other Party proposes a written agreement of composition or extension of substantially all of its debts, or if the other Party will be served with an involuntary petition against it, filed in any insolvency proceeding, and such petition will not be dismissed within ninety (90) days after the filing thereof, or if the other Party will propose or be a party to any dissolution or liquidation, or if the other Party will make an assignment of substantially all of its assets for the benefit of creditors. Upon the bankruptcy of any Party, the non-bankrupt Party will further be entitled to a complete duplicate of, or complete access to, any such intellectual property, and such, if not already in its possession, will be promptly delivered to the non-bankrupt Party, unless the bankrupt Party elects to continue, and continues, to perform all of its obligations under this Agreement. 12.2.5 Termination for Safety . 12.2.5.(a) Servier may terminate this Agreement with respect to (a) the Lead Product or (b) any Collaboration Product, CoDev Collaboration Product or Servier WW Collaboration Product, immediately upon written notice to Pieris, that such Product reasonably demonstrates a safety issue in humans. 12.2.5.(b) Pieris may terminate this Agreement with respect to the Lead Product or any CoDev Collaboration Product, immediately upon written notice to Servier, that such Product demonstrates a safety issue in humans. 12.2.5.(c) For purposes of this Section 12.2.5 , “safety issue” means instances in which the FDA and the EMA require that the Development, Manufacture or Commercialization be stopped. Section 12.3 Effects of Termination. 12.3.1 Effects of Termination . In the event of any termination of this Agreement in its entirety or with respect to any given Product (a) by Servier for convenience pursuant to Section 12.2.3 , (b) by Pieris for Servier’s material breach pursuant to Section 12.2.1 (without prejudice to any other remedies of Pieris, including the right to claim damages), (c) by Pieris for Servier’s insolvency pursuant to Section 12.2.4 , or (d) by Servier, where it is dropping a Product pursuant to Section 5.2.1 , the following terms shall apply: 12.3.1.(a) At Pieris’ request, Servier will return to Pieris or destroy (and certify such destruction to Pieris), at Pieris’ option, all Pieris’ Confidential Information related to the terminated Product(s) and Pieris Know-How related to the terminated Product(s) (provided that Servier shall be entitled to retain one (1) 99 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential copy for archival and compliance purposes, and as required by applicable Law or regulatory requirement); 12.3.1.(b) Pieris shall have the right to acquire some or all of the inventory of the terminated Product, as requested by Pieris, in the possession of Servier and its Affiliates as of the date of such termination, provided that, if Pieris so acquires any or all such inventory, Pieris shall reimburse Servier the cost incurred by Servier for such inventory; 12.3.1.(a) All licenses and sublicenses granted by Pieris to Servier hereunder shall terminate, provided however that they will continue solely to enable Servier to (i) complete sales of Products for any purchase orders that were in place prior to the effective date of termination and (ii) sell off any existing inventory of Products that Pieris does not purchase pursuant to Section 12.3.1.(b) ; thereafter, Servier will discontinue Commercialization of the applicable Product in the applicable countries. 12.3.1.(b) To the extent requested by Pieris, Servier shall enter into an agreement whereby Servier assigns its rights or grants an exclusive license to Pieris, under Servier IP that is used or necessary to further Develop, Manufacture and Commercialize the terminated Products, at the terms and conditions applicable to Dropped Products by Servier pursuant to Section 5.2.1.(c) , including adequate indemnities to be agreed upon; provided that, with respect to each such terminated Product, such Product will be deemed a “Dropped Product”, Servier will be deemed the “Dropping Party,” and the effective date of termination under this Section will be deemed the “Drop Date” for such Product; and 12.3.1.(c) At the request of Pieris, the Parties will discuss in good faith the wind-down of any ongoing Clinical Studies or Manufacturing campaigns for the terminated Product(s) currently being conducted by or on behalf of Servier or Pieris or their Affiliates at the time of termination; provided that, absent such an agreement, such ongoing Clinical Studies or ongoing Manufacturing campaigns shall be continued (and funded or co-funded) for [] following the notice of termination. 12.3.1.(d) Servier will, as promptly as practicable, and subject to Pieris’ reasonable assistance, to the extent legally permissible (including to the extent permitted under Servier’s obligations to Third Parties on the effective date of termination), (i) transfer and assign to Pieris or Pieris’ designee Servier’s right, title and interest in and to all material governmental or regulatory filings and approvals (including all Regulatory Approvals and pricing approvals, and Regulatory Materials, in all cases, specifically and exclusively relating to the Development, Manufacture or Commercialization of the terminated Products, and (ii) transfer to Pieris or Pieris’ designee copies of all material Data, Know-How, Clinical Study data and safety data in Servier’s possession and Control to the extent specifically related to and required for the research, Development, Manufacture or Commercialization of the terminated Products. In addition, Servier will appoint Pieris as Servier’s and/or Servier’s Affiliates’ agent for all 100 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential terminated Product-related matters involving Regulatory Authorities until all Regulatory Approvals and other regulatory filings hereunder have been assigned to Pieris or its designee. In the event of (x) failure to obtain assignment or (y) with respect to regulatory items that would otherwise fall within (i) and (ii) but for such materials not being specifically related to the terminated Products, but nonetheless which are necessary for the Development, Manufacture or Commercialization of the terminated Products above, in each of (x) and (y) Servier hereby consents and grants to Pieris the right to access and reference (without any further action required on the part of Servier, whose authorization to file this consent with any Regulatory Authority is hereby granted) any such item with respect to all terminated Products. 12.3.1.(e) If Servier or its Affiliates are manufacturing finished product with respect to terminated Products on the effective date of termination, at Pieris’ option (which must be exercised in writing to Servier within [] of the effective date of termination), Servier or its Affiliates will use Commercially Reasonable Efforts to supply such finished product (but solely in the form as such terminated Product was being manufactured by Servier as of the effective date of termination) to Pieris at [] until the earlier of (i) such time as Pieris has procured or developed its own source of such finished product supply, or (ii) [] following the effective date of termination. The Parties will promptly negotiate a supply and related quality agreement to govern the specific terms and conditions of such supply. 12.3.1.(f) If Pieris so requests within [] of the effective date of termination, Servier will use Commercially Reasonable Efforts, to the extent legally permissible (including to the extent permitted under Servier’s obligations to Third Parties on the effective date of termination), to assign to Pieris any Third Party agreements that are specific to and exclusively relating to the Development, Manufacture or Commercialization of the terminated products to which Servier is a party, subject to any required consents of such Third Party. 12.3.1.(g) Servier will use Commercially Reasonable Efforts, and subject to Pieris’ reasonable assistance, to the extent legally permissible (including to the extent permitted under Servier’s obligations to Third Parties on the effective date of termination), to promptly transfer and assign or exclusively license (or, if applicable, will cause its Affiliates to assign) to Pieris all of Servier’s (and such Affiliates’) worldwide right, title and interest in and to any registered trademarks or registered internet domain names that are specific to and exclusively used for the terminated Products (it being understood that the foregoing will not include any trademarks or internet domain names that contain the corporate or business name(s) of Servier or any of its Affiliates or any other products of Servier or any of its Affiliates). 12.3.1.(h) More generally, Servier shall use Commercially Reasonable Efforts to ensure a smooth and orderly transition of the Product, including any Development, Manufacturing, or Commercialization activities ongoing at the time of termination to Pieris, pursuant to a termination agreement to be negotiated 101 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential by the Parties within [] following the termination notice. Such agreement shall be consistent with this Section 12.3 . 12.3.1.(i) For avoidance of doubt, the non-compete set forth in ‎ Section 6.2 regarding the terminated Product (including the discontinued targets pairs therein, except to the extent such target pairs are contained within a Product for which this Agreement remains in effect) will no longer apply. 12.3.1.(j) Notwithstanding this Section 12.3.1 , if this Agreement is Terminated by Pieris for Servier’s material breach pursuant to Section 12.2.1 (including breach of any exclusive license to Pieris or breach of any non-compete), then the licenses granted to Pieris shall continue and Pieris shall owe Servier [] of the royalties set forth in Section 5.2.1.(c)(i) . 12.3.2 Other Cases of Termination . In the event of a termination of this Agreement with respect to one or more Products pursuant to Sections 12.2.2 (Mutual Agreement) or Section 12.2.5 (Safety), by Servier pursuant to Section 12.2.1 (Material Breach by Pieris) or by Servier pursuant to Section 12.2.4 (Pieris Insolvency), without prejudice to any other remedies of Servier, including the right to claim damages, the following terms shall apply: 12.3.2.(a) All Development, Manufacture and Commercialization of such terminated Product by either Party shall immediately cease; 12.3.2.(b) The licenses granted by each Party to the other under, respectively, the Building Block IP and Product Specific IP and the Pieris IP and Servier IP shall immediately terminate; 12.3.2.(c) The non-compete set forth in Section 6.2 regarding the terminated Product (including the discontinued targets pairs therein, except to the extent such target pairs are contained within a Product for which this Agreement remains in effect) will no longer apply; and 12.3.2.(d) Each Party shall retain the right to use any Data generated with respect to the terminated Product for such Party’s internal, research purposes. 12.3.3 Termination for Safety Concern. 12.3.3.(a) If Servier wishes to terminate this Agreement with respect to a Product for a safety concern that does not rise to the level of a safety issue as set forth in Section 12.2.5 , then Servier shall be permitted to do so under the terms and conditions of a termination for convenience by Servier under Sections 12.2.3 and with the effects described under Section 12.3.1 except that (i) Servier’s obligation to provide continued supply of the Product for [] under Section 12.3.1.(g) and (ii) Servier’s obligation to continue and fund or co-fund ongoing Clinical Studies and ongoing Manufacturing campaigns for [] under Section 12.3.1.(e) shall not apply. Instead, the Parties shall discuss and agree in good faith on an appropriate amount of time for continued supply, continuation of ongoing 102 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Clinical Studies and ongoing Manufacturing campaigns and funding of continued development in order to permit an orderly transition of the Product to Pieris so that it may continue Development of such Product, depending on the circumstances and nature of the safety concern. Such agreement shall also include appropriate indemnification provisions for Servier. 12.3.3.(b) If Pieris wishes to terminate this Agreement with respect to the Lead or a CoDev Product for a safety concern that does not rise to the level of a safety issue as set forth in Section 12.2.5 , then Pieris shall be permitted to do so under the terms and conditions with the effects described under Sections 12.3.1(b), (c), and (e)–(j) applied to Pieris mutatis mutandis except that (i) Pieris’s obligation to provide continued supply of the Product for [] under Section 12.3.1.(g) and (ii) Pieris’s obligation to continue and fund or co-fund ongoing Clinical Studies and ongoing Manufacturing campaigns for [] under Section 12.3.1.(e) shall not apply. Instead, the Parties shall discuss and agree in good faith on an appropriate amount of time for continued supply, continuation of ongoing Clinical Studies and ongoing Manufacturing campaigns and funding of continued development in order to permit an orderly transition of the Product to Servier so that it may continue Development of such Product, depending on the circumstances and nature of the safety concern. Such agreement shall also include appropriate indemnification provisions for Pieris. 12.3.3.(c) For purposes of this Section 12.3.3 , “safety concern” means the applicable Party’s reasonable and good faith belief, that there is an unacceptable risk for harm in humans based upon: (i) pre-clinical safety data, including data from animal toxicology studies; or (ii) the observation of a serious adverse effect in humans after a Product has been administered to or taken by humans, such as during a Clinical Study or after the launch of such Product. 12.3.4 Alternative to Termination for Material Breach . In the event of a material breach or default by Pieris that would otherwise be of a sufficiently material nature to allow Servier to terminate the Agreement pursuant to Section 12.2.1 , Servier may, in lieu of terminating the Agreement, and in addition to any other remedies Servier may have with respect to such material breach, elect the following: 12.3.4.(a) (i) the licenses granted to Servier hereunder shall continue and (ii) the provisions of this Agreement shall terminate with the exception of: (1) the milestone, royalty and payment terms under Section 2.6 , Section 3.6 , and ARTICLE 4 (as applicable and as adjusted pursuant to this Section 12.3.4 ), (2) all terms required to enforce such payment terms, such as the financial reporting, audit and record keeping provisions, and (3) all other terms that would otherwise survive termination. 12.3.4.(b) In addition, Servier may request the arbitral tribunal to reduce all future milestone and Royalty payments to be paid to Pieris under this Agreement by a percentage comprised between [] as determined by the arbitral tribunal in its sole discretion, depending on the degree of materiality of the material 103 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential breach referred to it or the value of the Product. The determination of the arbitral tribunal shall be final and binding. 12.3.4.(c) After submission of any Dispute regarding such material breach to arbitration pursuant to Section 13.3 , Servier may elect to reduce all milestone and Royalty payments due to Pieris under this Agreement by [] (i.e., to only pay to Pieris [] of such amounts when they become) and place the remaining [] in escrow with a Third Party escrow agent reasonably acceptable to the Parties and which has entered into a three party agreement with Pieris and Servier, until the matter is resolved by the arbitral tribunal. If the arbitral tribunal awards Servier: (i) damages in excess of the amount placed in escrow, the escrow agent shall return to Servier the amounts placed in escrow and Pieris shall pay the difference to Servier or (ii) damages lower than the amount placed in escrow, the escrow agent shall pay to Servier the amount of damages awarded by the arbitral tribunal and pay the balance of the amount in escrow to Pieris. After the arbitration award has been rendered, Servier shall pay to Pieris the milestone and Royalty payments when they become due as reduced by the arbitral tribunal in accordance with Section 12.3.4.(b) . 12.3.4.(d) Notwithstanding anything to the contrary in the Agreement, the breach of Pieris’ exclusivity under Section 2.1 or Section 3.2 or non-compete covenant under Section 6.2.1 shall be deemed a material breach of Pieris of sufficiently material nature to allow Servier to terminate the Agreement pursuant to Section 12.2.1 (subject to the opportunity to cure and dispute resolution as provided in that Section and the provision of Section 12.3.4(c) pending such dispute resolution). In such case, the provisions of Section 12.3.4.(a) shall apply and the Parties agree that the milestone and Royalty payments due to Pieris shall be [] 12.3.1 Rights in Bankruptcy. All rights and licenses granted under or pursuant to this Agreement are, and shall otherwise be deemed to be, for all purposes of Section 365(n) of the United States Bankruptcy Code and of any similar or analogous provisions of applicable Laws outside of the United States (the “Bankruptcy Code”), licenses and rights to “intellectual property” as defined under Section 101(35A) of the U.S. Bankruptcy Code. Each Party agrees that the other Party, as licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Bankruptcy Code. In the event of the commencement of a bankruptcy proceeding by or against a Party under the Bankruptcy Code (the “ Insolvent Party ”), the other Party shall be entitled to a complete duplicate of (or complete access to, as appropriate) any intellectual property and Know-How licensed to such Party under this Agreement and held by such first Party and its successors and assigns (and all embodiments of such intellectual property and Know-How), provided that, a Party shall not be required to provide any duplicate copies and embodiments of such intellectual property or Know-How to the other Party so long it has already provided such intellectual property and Know-How it is required to provide to under this Agreement, and, if not already in its possession, shall be promptly delivered to it (a) upon any such commencement of a bankruptcy proceeding upon its written request therefore, unless the Insolvent Party 104 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential continues to perform all of its obligations under this Agreement, or (b) if not delivered or granted under (a) above, following the rejection of this Agreement by or on behalf of the Insolvent Party upon written request therefore by the other Party. 12.3.2 Conditional Split. Without prejudice to Section 12.3.5 and without limiting the Parties’ respective rights hereunder, within [] of the Effective Date, the Parties shall agree on and shall implement a mechanism ensuring Servier’s continued license under Pieris IP to the extent this Agreement is terminated or rejected, including splitting this Agreement into two separate agreements: (i) an irrevocable license which a receiver cannot discontinue; and (ii) a collaboration agreement. 12.3.3 Survival . The termination or expiration of this Agreement shall not affect any payment of any debts or obligations accruing prior to or after such date of termination or expiration. The provisions of ARTICLE 1 (to the extent necessary to give effect to the surviving provisions), Section 2.1.5.(e) (the first sentence), Section 2.3.4.(a) , Section 2.3.4.(b) (the first and second sentences), Section 2.5.4 (last sentence with respect to Product sold by or on behalf of such Party, its Affiliates or Sublicensees after the Term during any sell-off period permitted under Section 12.3.1.(c)), Section 2.6 (with respect to Net Sales accrued following the Term during a permitted sell-off period under Section 12.3.1.(c)), Section 3.6 (with respect to Net Sales accrued following the Term during a permitted sell-off period under Section 12.3.1.(c)), Sections 4.1 and 4.2 (with respect to the last Calendar Quarter of the Term or following the Term for any permitted sell-off period under Section 12.3.1.(c) and for final post-Term accounting) Section 4.3 , Section 4.4 (for the duration specific therein), Section 5.1.3.(b), Sections 5.2.1.(b), 5.2.1.(c)(i) and 5.2.1.(d) (solely as applicable with respect to the particular Dropped Product), Section 7.1 , Section 7.2 (solely with respect to Intellectual Property invented under this Agreement that is jointly owned by the Parties pursuant to the terms of this Agreement), Section 7.3 (last three sentences), Section 7.5 (solely with respect to Patents invented under this Agreement that are jointly owned by the Parties pursuant to the terms of this Agreement), Section 7.6.4 ARTICLE 8 , ARTICLE 11 , Section 12.1 (last sentence solely upon the natural expiration of the Agreement), Sections 12.3.1 , 12.3.2 , 12.3.3 , 12.3.5 , and 12.3.7 , and ARTICLE 13 will survive the expiration or any termination of this Agreement for any reason, in accordance with their respective terms and conditions, and for the respective duration stated therein, and where no duration is stated, will survive indefinitely. In addition, any Section that is referred to in the above listed Sections shall survive solely for the interpretation or enforcement of the latters. ARTICLE 13 MISCELLANEOUS Section 13.1 Restrictions; No Other Licenses. Except as expressly set forth hereunder, neither Party grants to the other Party any rights, licenses or covenants in or to any Intellectual Property Rights, whether by implication, estoppel, vicariously, indirectly or otherwise, other than the license rights that are specifically and expressly granted under this Agreement. All rights not specifically and expressly granted by a licensing party under this Agreement are reserved by such licensing party and may be used or practiced by such licensing party for any purpose. Section 13.2 Public Announcements. Except where otherwise expressly permitted hereunder and except as required by applicable Law, neither Party will make any public 105 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential announcement of any information regarding this Agreement or any activities under this Agreement without the prior written approval of the other Party, which approval will not be unreasonably withheld or delayed. Each Party will submit to the other Party any proposed announcements at least thirty (30) days prior to the intended date of publication of such announcement to permit review and approval. The Parties agree to issue the joint press release attached hereto as Exhibit 13.2 on or the day after the Effective Date. Section 13.3 Dispute Resolution. 13.3.1 Arbitration . In the event a dispute arises (each, a “ Dispute ”), the Alliance Managers will attempt in good faith to resolve such Dispute, failing which either Party may cause such Dispute to be referred to the Executive Officers for resolution. The Executive Officers shall attempt in good faith to resolve such Dispute by unanimous consent. If the Executive Officers cannot resolve such Dispute within [] of the matter being referred to them, then either Party may submit such Dispute to arbitration for final resolution by arbitration request (the “ Arbitration Request ”) under the Rules of Arbitration of the International Chamber of Commerce (the “ Rules ”) by three (3) arbitrators appointed in accordance with the said Rules (each such arbitration, an “ Arbitration ”). Each Arbitration will be conducted in English and all foreign language documents shall be submitted in the original language and, if so requested by any arbitrator or Party, shall also be accompanied by a translation into English. The place of arbitration shall be Zurich, Switzerland. The arbitrators in any Arbitration shall enforce and not modify the terms of this Agreement. The award of the arbitrators shall be final and binding on each Party and its respective successors and assigns. All costs and expenses of any Arbitration, including reasonable attorneys’ fees and expenses and the administrative and arbitrator fees and expenses, shall be borne by the Parties as determined by the arbitrators. For purposes of Article 6(4) of the Rules, the Parties agree that claims arising out of or in connection with this Agreement and the Platform Agreement may be determined together in a single arbitration. For purposes of Article 10 of the Rules, the Parties agree that any Party may request the consolidation of any arbitration subject to this Agreement with any arbitration subject to the Platform Agreement, even if the parties to the respective arbitrations are not identical. Unless the Parties subsequently agree otherwise, the arbitrations shall be consolidated into the arbitration that commenced first. 13.3.2 Confidentiality . Except to the limited extent necessary to comply with applicable Law, legal process, or a court order or to enforce a final settlement agreement or secure enforcement or vacatur of the arbitrators’ award, the Parties agree that the existence, terms and content of any Arbitration, all information and documents disclosed in any Arbitration or evidencing any arbitration results, award, judgment or settlement, or the performance thereof, and any allegations, statements and admissions made or positions taken by either Party in any Arbitration shall be treated and maintained in confidence and are not intended to be used or disclosed for any other purpose or in any other forum. 13.3.3 Communications with Internal Counsel . In the course of the negotiation and implementation of this Agreement and the resolution of any disputes, investigations, administrative or other proceedings relating thereto, each Party will call upon the members of its internal legal department to provide advice to such Party and its directors, employees 106 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential and agents on legal matters. Notwithstanding any rights to the contrary under applicable procedural or substantive rules of law, each Party agrees not to request, produce or otherwise use any such communications between members of its legal department and directors, employees or agents in connection with any such disputes, investigations, administrative or other proceedings, to the extent such communications, if they had been exchanged between such Party and external attorneys, would have been covered by legal privilege and not disclosable. Section 13.1 Governing Law. This Agreement and any dispute arising from the performance or breach hereof will be governed by and construed and enforced in accordance with the Laws of Belgium, excluding its rules of conflict of laws. Section 13.2 Assignment. This Agreement will not be assignable by either Party, nor may either Party delegate its obligations or otherwise transfer any licenses granted herein or other rights created by this Agreement, except as expressly permitted hereunder, without the prior written consent of the other Party hereto, which consent will not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, each Party may assign this Agreement, without the consent of the other Party, to an Affiliate or to its Third Party successor in connection with a merger, consolidation, sale of all or substantially all of the assets to which this Agreement pertains or that portion of its business pertaining to the subject matter of this Agreement, or any Change of Control of such Party; provided that the assignee assumes all of the assigning Party’s obligations under this Agreement, subject to this Section 13.5 . Any assignment in violation of this provision is void and without effect. Section 13.1 Acquiror IP. Notwithstanding anything to the contrary in this Agreement, in the event of an acquisition of a Party or its business by an Acquiror after the Effective Date, whether by merger, asset purchase or otherwise, as to any such Acquiror, the non-acquired Party shall not obtain rights, licenses, options or access to any Intellectual Property Rights or Know-How, product candidates or products that are held by the Acquiror or any Affiliate of the Acquiror that becomes an Affiliate of the acquired Party as a result of such acquisition (but excluding the acquired Party itself), that were not generated through any use or access to the Intellectual Property Rights or Know-How of the acquired Party, or that are not used by the acquired Party in connection with a Product under this Agreement. Section 13.2 Binding Agreement. This Agreement, and the terms and conditions hereof, will be binding upon and will inure to the benefit of the Parties and their respective successors, heirs, administrators and permitted assigns. Section 13.3 Force Majeure. Except for payment obligations under this Agreement, no Party will be held liable or responsible to the other Party nor be deemed to be in default under, or in breach of any provision of, this Agreement for failure or delay in fulfilling or performing any obligation of this Agreement when such failure or delay is due to force majeure, and without the fault or negligence of the Party so failing or delaying. For purposes of this Agreement, “force majeure” is defined as causes beyond the control of the Party, including, without limitation, acts of God; Laws of any government; war; civil commotion; destruction of production facilities or materials by fire, flood, earthquake, explosion or storm; labor disturbances; epidemic; and failure of public utilities or common carriers. In the event of force majeure, Pieris or Servier, as the case may be, will immediately notify the other Party of such inability and of the period for which 107 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential such inability is expected to continue. The Party giving such notice will thereupon be excused from such of its obligations under this Agreement as it is thereby disabled from performing for so long as such Party is so disabled, up to a maximum of [], after which time the Party not affected by the force majeure may terminate this Agreement. To the extent possible, each Party will use reasonable efforts to minimize the duration of any force majeure. Section 13.4 Notices. Any notice or request required or permitted to be given under or in connection with this Agreement will be deemed to have been sufficiently given if in writing and personally delivered or sent by certified mail (return receipt requested), facsimile transmission (receipt verified), email or overnight express courier service (signature required), prepaid, to the Party for which such notice is intended, at the address set forth for such Party below: If to Pieris : Pieris Pharmaceuticals GmbH Lise-Meitner-Strasse 30 85354 Freising, Germany Attention: [] With a copy to: Pieris Pharmaceuticals Inc. 255 State Street, 9th Floor Boston, MA 02109 Attention: [] If to Servier : Les Laboratoires Servier 50 rue Carnot 92284 Suresnes Cedex France Attention: [] Facsimile: [] Email: [] With a copy to: Attention: [] Les Laboratoires Servier 50 rue Carnot 92284 Suresnes Cedex France or to such other address for such Party as it will have specified by like notice to the other Parties, provided that notices of a change of address will be effective only upon receipt thereof. If delivered personally or by facsimile transmission, the date of delivery will be deemed to be the date on which such notice or request was given. If sent by overnight express courier service, the date of delivery will be deemed to be the next Business Day after such notice or request was deposited with such service. If sent by certified mail, the date of delivery will be deemed to be 108 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential the third (3rd) day after such notice or request was deposited with the postal service. If sent by email, the date of delivery will be deemed to be the day that the Party giving notice receives electronic confirmation of sending from its email provider. Section 13.5 Waiver. Neither Party may waive or release any of its rights or interests in this Agreement except in writing. The failure of either Party to assert a right hereunder or to insist upon compliance with any term or condition of this Agreement will not constitute a waiver of that right or excuse a similar subsequent failure to perform any such term or condition. No waiver by either Party of any condition or term in any one or more instances will be construed as a continuing waiver of such condition or term or of another condition or term. Section 13.6 Severability. If any provision hereof should be held invalid, illegal or unenforceable in any jurisdiction, the Parties will negotiate in good faith a valid, legal and enforceable substitute provision that most nearly reflects the original intent of the Parties and all other provisions hereof will remain in full force and effect in such jurisdiction and will be liberally construed in order to carry out the intentions of the Parties hereto as nearly as may be possible. Such invalidity, illegality or unenforceability will not affect the validity, legality or enforceability of such provision in any other jurisdiction. Section 13.7 Entire Agreement. This Agreement, including the schedules and exhibits hereto (including the Platform Agreement), sets forth all the covenants, promises, agreements, appendices, warranties, representations, conditions and understandings between the Parties hereto and supersedes and terminates all prior agreements and understandings between the Parties relating to the subject matter hereof, including the Prior CDA. There are no covenants, promises, agreements, warranties, representations, conditions or understandings, either oral or written, between the Parties relating to the subject matter hereof other than as set forth herein and therein. No subsequent alteration, amendment, change or addition to this Agreement will be binding upon the Parties hereto unless reduced to writing and signed by the respective authorized officers of the Parties. To the extent of any conflict between the terms of this Agreement and its schedules and exhibits, or any related agreement, the terms of this Agreement shall govern. Section 13.8 Independent Contractors. Nothing herein will be construed to create any relationship of employer and employee, agent and principal, partnership or joint venture between the Parties. Each Party is an independent contractor. Neither Party will assume, either directly or indirectly, any liability of or for the other Party. Neither Party will have the authority to bind or obligate the other Party nor will either Party represent that it has such authority. Section 13.9 Headings. Headings used herein are for convenience only and will not in any way affect the construction of or be taken into consideration in interpreting this Agreement. Section 13.10 Construction of Agreement. The terms and provisions of this Agreement represent the results of negotiations between the Parties and their representatives, each of which has been represented by counsel of its own choosing, and neither of which has acted under duress or compulsion, whether legal, economic or otherwise. Accordingly, the terms and provisions of this Agreement will be interpreted and construed in accordance with their usual and customary meanings, and each of the Parties hereto hereby waives the application in connection with the interpretation and construction of this Agreement of any rule of Law to the effect that ambiguous or conflicting terms or provisions contained in this Agreement will be interpreted or construed 109 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential against the Party whose attorney prepared the executed draft or any earlier draft of this Agreement. The definitions of the terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The Parties each acknowledge that they have had the advice of counsel with respect to this Agreement, that this Agreement has been jointly drafted, and that no rule of strict construction shall be applied in the interpretation hereof. Unless the context requires otherwise: (a) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”; (b) any reference to any applicable Law herein shall be construed as referring to such applicable Law as from time to time enacted, repealed or amended; (c) any reference herein to any person shall be construed to include the person’s permitted successors and assigns; (d) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof; (e) all references herein to Articles, Sections, or Schedules, unless otherwise specifically provided, shall be construed to refer to Articles, Sections or Schedules of this Agreement; (f) provisions that require that a Party, the Parties or any Committee hereunder “agree”, “consent” or “approve” or the like shall require that such agreement, consent or approval be specific and in writing, whether by written agreement, electronic mail, letter, approved minutes or otherwise (but excluding instant messaging); (g) the term “or” shall be interpreted in the inclusive sense commonly associated with the term “and/or” and (h) the words “will” and “shall” will have the same meaning in this Agreement. This Agreement has been executed in English, and the English version of this Agreement shall control. Section 13.11 Compliance with applicable Law. Each Party’s obligations under this Agreement shall be subject to such Party’s compliance with applicable Law applicable to its performance and its other obligations under the Agreement (including any anti-corruption, export control, environmental, hazardous substance, and data privacy and security Laws). Section 1.1 No Third Party Beneficiary. Subject to Section 5.1.3.(b) , nothing expressed or implied in this Agreement is intended, or shall be construed, to confer upon or give any person other than the Parties and their respective Affiliates, successors and assigns, any rights or remedies under or by reason of this Agreement. Section 13.12 Counterparts. This Agreement may be signed in counterparts, each and every one of which will be deemed an original, notwithstanding variations in format or file designation which may result from the electronic transmission, storage and printing of copies of this Agreement from separate computers or printers. Facsimile signatures will be treated as original signatures. [Remainder of page intentionally left blank; signature page follows] 110 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential IN WITNESS WHEREOF, the Parties have caused this License and Collaboration Agreement to be executed by their duly authorized representatives. For Pieris Pharmaceuticals, Inc.For Les Laboratoires ServierBy:__/s/ Stephen S. Yoder_______________By:__/s/ Christian Bazantay________Name: Stephen YoderName: Mr. Christian BAZANTAYTitle: President and CEOTitle: ProxyBy:_/s/ Eric Falcand______________Name: Mr. Eric FALCANDTitle: ProxyFor Pieris Pharmaceuticals GmbHFor Institut de Recherches Internationales ServierBy:__/s/ Stephen S. Yoder_______________By:__/s/ Emmanuel Canet________Name: Stephen YoderName: Dr. Emmanuel CanetTitle: Managing DirectorTitle: Senior Executive Vice-President Research & Development 111 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Exhibit and Schedule Index Schedule 1.177: Pieris Designated CoDev Collaboration Products Schedule 1.182: Pieris Patent Rights Schedule 1.184: Pieris Platform IP Schedule 1.234: Servier Patent Rights Schedule 3.1.1.(b): Initial Collaboration Products Schedule 10.2.1.(c): Existing Pieris Patent Rights Schedule 10.3.1.(b): Existing Servier Patent Rights Exhibit 1.141: Lead Product DCN Criteria – Required Data Exhibit 1.193: Platform Agreement Exhibit 2.1.4.(a): Lead Product Know-How Initial Transfer List Exhibit 2.1.4.(b): Lead Product and Collaboration Products Know-How Ongoing Transfer List Exhibit 2.3.1.(a): Lead Product Joint Development Plan and Budget Exhibits 3.1.2.(a)1-7: Collaboration Product - Collaboration Plans and Budgets Exhibit 3.2.5.(a): Collaboration Product Know-How Initial Transfer List Exhibit 5.2.1 (c) (ii): Financial Terms for Pieris Drop of the Lead Product Exhibit 13.2: Joint Press Release 112 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Schedule 1.177 Pieris Designated CoDev Collaboration Products [, 1 page] 113 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Schedule 1.182 Pieris Patent Rights [, 1 page] 114 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Schedule 1.184 Pieris Platform IP [, 3 pages] 115 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Schedule 1.234 Servier Patent Rights [, 1 page] 116 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Schedule 3.1.1.(b) Initial Collaboration Products [, 1 page] 117 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Schedule 10.2.1.(c) Existing Pieris Patent Rights [, 4 pages] 118 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Schedule 10.3.1. (b) Existing Servier Patent Rights [, 1 page] 119 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Exhibit 1.141 Lead Product DCN Criteria – Required Data [, 1 page] 120 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Exhibit 1.193 Form of Platform Agreement 121 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Exhibit 2.1.4.(a) Lead Product Know-How Initial Transfer List [, 1 page] 122 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Exhibit 2.1.4.(b) Lead Product and Collaboration Products Know-How Ongoing Transfer List [, 1 page] 123 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Exhibit 2.3.1.(a) Lead Product Joint Development Plan and Budget [, 13 pages] 124 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Exhibits 3.1.2.(a) 1- 7 Collaboration Product - Collaboration Plans and Budgets [, 1 page] 125 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Exhibit 3.1.2. (a)1 Collaboration Plan and Budget [] [, 12 pages] 126 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Exhibit 3.1.2. (a)2 Collaboration Plan and Budget [] [, 12 pages] 127 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Exhibit 3.1.2. (a)3 Collaboration Plan and Budget [ ] [, 11 pages] 128 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Exhibit 3.1.2. (a)4 Collaboration Plan and Budget [ ] [, 10 pages] 129 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Exhibit 3.2.5.(a) Collaboration Product Know-How Initial Transfer List [, 1 page] 130 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Exhibit 5.2.1(c) (ii) Financial Terms for Pieris Drop of the Lead Product Development MilestoneAmountStart of Phase 1 Clinical Study[]Start of Phase 2a Clinical Study or Phase 1 Expansion Cohorts[]Start of Pivotal Clinical Study[][]Development MilestoneAmount[]filing[][][]filing[][][]filing[][][]Filing[]Development MilestoneAmountMarketing Approval[][]Marketing Approval[][]Marketing Approval[][][]Marketing Approvals[][][][][][][][]Royalties (for sales outside of the United States)Rate[][][][][][][][][][]Sales Milestones (for sales outside of the United Sates)Annual Calendar Year - Net Sales ThresholdAmount[][][][][][] 131 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential For the United StatesDevelopment MilestoneAmount[]filing[][][]filing[][][]filing[][]Development MilestoneAmountMarketing Approval[][]Marketing Approval[][]Marketing Approval[][]Marketing Approval[][]Marketing Approval[][]Royalties (for sales in the United States)Rate[][][][][][][][][][][][]Sales Milestones (for sales in the United Sates)Annual Calendar Year - Net Sales ThresholdAmount[][][][][][] For avoidance of doubt, the amounts set forth herein shall be subject to the same payment terms as the development and sales milestone payments and royalties set forth in Section 2.6 or Section 3.6 and the royalty adjustments and other payment terms set forth in ARTICLE 4 . 132 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Exhibit 13.2 Joint Press Release 133 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential Pieris Pharmaceuticals and Servier Forge Strategic Immuno-oncology Co-development Alliance \| \| \|- \| ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- \|• \| Pieris and Servier, an independent international pharmaceutical company headquartered in France with annual sales of more than EUR4 billion, to jointly pursue several bispecific therapeutic programs including Pieris’ proprietary dual checkpoint inhibitor PRS-332 \| \| \|- \| ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- \|• \| Alliance includes four additional bispecific programs and may be expanded to a total of eight immuno-oncology programs (including PRS-332); Pieris has option to co-develop and retain US rights for 4 of these programs, including PRS-332 \| \| \|- \| --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- \|• \| Pieris to receive EUR30 million ($31.3 million USD) upfront, up to EUR324 million ($338 million) in success-based payments for PRS-332, up to EUR193 million ($201 million) in success-based payments for each of the other programs and up to double-digit royalties \| \| \|- \| ---------------------------------------------------------------------------------------------------------------------- \|• \| Pieris will host an investor conference callon Thursday, January 5, 2017 at 8:30 AM (EST) to discuss the collaboration Boston, MA, and Suresnes, France, 5 January 2017 – Pieris Pharmaceuticals, Inc. (NASDAQ: PIRS) , a clinical-stage biotechnology company advancing novel biotherapeutics through its proprietary Anticalin ® technology platform, and Servier, an independent international pharmaceutical company, today announced a broad collaboration in immuno-oncology (IO). Despite the impressive clinical efficacy of checkpoint inhibitors to date, a majority of patients fail to respond to approved therapies. The collaboration seeks to address this significant unmet clinical need by advancing a series of novel molecules, including multiple dual immune checkpoint blockade approaches. Under the collaboration, Pieris and Servier will initially pursue five bispecific therapeutic programs, led by Pieris’ PRS-332 program, a potentially best-in-class PD-1-targeting bispecific checkpoint inhibitor. Pieris and Servier will jointly develop PRS-332 and split commercial rights geographically, with Pieris retaining all commercial rights in the United States and Servier having commercial rights in the rest of the world. The four additional committed programs have been defined, which may combine antibodies from the Servier portfolio with one or more Anticalin proteins based on Pieris’ proprietary platform to generate innovative immuno-oncology bispecific drug candidates. The collaboration may be expanded by up to three additional therapeutic programs. Pieris has the option, at a predefined time point, to co-develop and retain commercial rights in the United States for up to three programs beyond PRS-332, while Servier will be responsible for development and commercialization of the 4 other programs worldwide. The financial terms of the collaboration include an upfront payment to Pieris of EUR30 million (approximately $31.3 million USD). Pieris may also receive FTE funding for specific projects, an option fee upon potential expansion of the collaboration as well as development-dependent and commercial milestone payments for PRS-332 and each additional program. The total development, regulatory and sales-based milestone payments to Pieris could reach EUR324 million (approximately $338 million USD) for PRS-332, and up to EUR193 million (approximately $201 million USD) for each of the other programs. Pieris and Servier 134 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential will share preclinical and clinical development costs for each co-developed program. In addition, Pieris will be entitled to receive tiered royalties up to low double digits on the sales of commercialized products in the Servier territories. Pieris’ multispecific technology allows simultaneous checkpoint inhibition on the same cell, which could have a clear advantage over monoclonal antibody cocktails against different checkpoint targets. PRS-332 is a novel PD-1-based bispecific, comprising an anti-PD-1 antibody genetically linked to an Anticalin protein targeting an undisclosed checkpoint target. Pieris has developed PRS-332, which is currently in preclinical development, with the intent to simultaneously block two immune checkpoints co-expressed on exhausted T cells to further improve on existing PD-1 therapies. “Servier is a highly complementary partner for Pieris, with a very clear commitment to oncology and outstanding development capabilities,” stated Dr. Louis Matis, Senior Vice President and Chief Development Officer of Pieris. “The synergies of building unique bispecifics from Servier’s antibodies and Pieris’ Anticalin proteins are multifold, as the versatility of our platform allows for extensive combinatorial target opportunities with the numerous IO ‘building blocks’ our team has discovered to date.” “This alliance will significantly enhance Servier’s portfolio in immuno-oncology, which already comprises 5 products in late preclinical or early development. Servier’s recognized expertise in drug development will efficiently complement Pieris’ innovative technology, allowing both companies to bring innovative solutions to cancer patients,” stated Jean-Pierre Abastado, PhD, Director of Oncology R&D at Servier. “Servier has built a diversified and innovative portfolio in oncology that includes small molecules, engineered antibodies, and cell therapies for the treatment of both hematological malignancies and solid tumors. Today’s alliance with Pieris adds another dimension to our strategy of becoming a key player in oncology, providing several next-generation bispecific IO drugs to our pipeline,” added Emmanuel Canet, M.D., Ph.D., President of Servier R&D. “Our alliance with Servier is clearly a transformative one for Pieris and is the type of partnership we deliberately set out to achieve to create significant long-term value. This collaboration provides not only an opportunity to advance multiple programs with retained rights in the number one oncology market, but also provides significant funding and flexibility for Pieris to balance financial and operational resources as we enter the next stage of corporate development,” stated Stephen Yoder, President and Chief Executive Officer of Pieris. “The Servier alliance will act as a significant building block of our pipeline expansion in immuno-oncology and demonstrates the value of our proprietary Anticalin drug class.” Conference Call : Pieris will host an investor conference call on Thursday, January 5, 2017 at 8:30 AM (EST) to discuss the collaboration. To access the call, participants may dial 1-877-407-8920 (US & Canada) or 1-412-902-1010 (International) at least 10 minutes prior to the start of the call. An archived replay of the call will be available by dialing 1-877-660-6853 (US & Canada) or 1-201-612-7415 (International) and providing the Conference ID # 13652361 . 135 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential About Pieris Pharmaceuticals: Pieris Pharmaceuticals is a clinical-stage biotechnology company that discovers and develops Anticalin-based drugs to target validated disease pathways in a unique and transformative way. Our pipeline includes immuno-oncology multispecifics tailored for the tumor micro-environment, an inhaled Anticalin protein to treat uncontrolled asthma and a half-life-optimized Anticalin protein to treat anemia. Proprietary to Pieris, Anticalin proteins are a novel class of protein therapeutics validated in the clinic and by partnerships with leading pharmaceutical companies. Anticalin® is a registered trademark of Pieris. For more information visit www.pieris.com . About Servier: Servier is an international pharmaceutical company governed by a non-profit Foundation and headquartered in France. With a strong international presence in 148 countries and a turnover of 4 billion euro in 2016, Servier employs over 21,000 people worldwide. Corporate growth is driven by Servier’s constant search for innovation in five areas of excellence: cardiovascular diseases, diabetes, cancers, immune-inflammatory diseases and neurodegenerative diseases, as well as by its activities in high quality generic drugs. Being completely independent, the Group reinvests 25% of Servier’s products turnover in Research and Development, and all its profits in its growth. Becoming a key player in oncology is part of Servier’s long-term strategy. Currently, there are nine new molecular entities in clinical development in this area, targeting breast and lung cancers, and other solid tumors, as well as various leukemias and lymphomas. This portfolio of innovative cancer treatments is being developed with partners worldwide, and covers different cancer hallmarks and modalities, including cytotoxics, proapoptotics, targeted, immune, and cellular therapies, to deliver life-changing medicines to patients. For more information visit www.servier.com . About Anticalin Therapeutics: Anticalin proteins are derived from lipocalins, small human proteins that naturally bind, store and transport a wide spectrum of molecules. Anticalin proteins feature the typical four-loop variable region and a rigidly conserved beta-barrel backbone of lipocalins, which, together, form a shapeable cup-like binding pocket. Proprietary to Pieris, Anticalin proteins are a novel class of protein therapeutics validated in the clinic and by partnerships with leading pharmaceutical companies. Anticalin ® is a registered trademark of Pieris. Forward Looking Statements This press release contains forward-looking statements as that term is defined in Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Statements in this press release that are not purely historical are forward-looking statements. Such forward-looking statements include, among other things, references to novel technologies and methods; our business and product development plans and timelines; the timing and progress of our studies, development of therapeutic programs; ability to receive research funding; our liquidity and ability to fund our future operations; our ability to achieve certain milestones and receive future milestone or royalty payments; current or future partnerships; or market information. Actual results could differ from those projected in any forward-looking statements due to numerous factors. Such factors include, 136 Portions of the exhibit, indicated by the mark “[],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. --- CONFIDENTIAL TREATMENT REQUESTED Confidential among others, our ability to raise the additional funding we will need to continue to pursue our business and product development plans; the inherent uncertainties associated with developing new products or technologies and operating as a development stage company; our ability to develop, complete clinical trials for, obtain approvals for and commercialize any of our product candidates; competition in the industry in which we operate and market conditions. These forward-looking statements are made as of the date of this press release, and we assume no obligation to update the forward-looking statements, or to update the reasons why actual results could differ from those projected in the forward-looking statements, except as required by law. Investors should consult all of the information set forth herein and should also refer to the risk factor disclosure set forth in the reports and other documents we file with the SEC available at www.sec.gov, including without limitation the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2015 and the Company's Quarterly Reports on Form 10-Q. Contacts at Pieris: Company Contact: Investor Relations Contact: Pieris Pharmaceuticals, Inc. The Trout Group Darlene Deptula-Hicks Thomas Hoffmann SVP and Chief Financial Officer +1-646-378-2931 \| \| \|--------------- \| ------------------------ \|+1-603-553-5803 \| [email protected] [email protected] Media Inquiries: Mario Brkulj +49 175 5010575 mbrkulj @macbiocom.com Contacts at Servier: Karine Bousseau Servier External Communications Tel: +33 1 5572 6037 [email protected] ##END## 137 Portions of the exhibit, indicated by the mark “[*],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
s3://data.kl3m.ai/documents/edgar/0001583077/0001583077-14-000005/15.json	text/markdown	SUB-MANAGEMENT AGREEMENT This SUB-MANAGEMENTAGREEMENT (“*Agreement”) is made effective as of the 27th day of January, 2014 (“EffectiveDate”) by and between AMERICAN REALTY CAPITAL HOSPITALITY PROPERTIES, LLC, a Delaware limited liability company,with an address at 405 Park Avenue, New York, New York 10022 (“Manager”), and CRESTLINE HOTELS &RESORTS, LLC, a Delaware limited liability company, with its principal place of business at 3950 University Drive, Suite 301,Fairfax, Virginia 22030 (“Sub-Manager”). RECITALS:* WHEREAS, ARC HOSPITALITYTRS BALTIMORE, LLC, a Delaware limited liability company (“*TRS”), holds leasehold title of certainreal property located at 1000 Aliceanna Street, Baltimore, MD 21202, more particularly described on Exhibit A, attached to thisAgreement and made a part hereof, on which is a 205-room building operating under the trade name Courtyard by Marriott BaltimoreDowntown/Inner Harbor (the “Hotel”); WHEREAS, pursuant tothat certain Management Agreement dated the 27th day of January, 2014, by and between Manager and TRS (the “ManagementAgreement”), TRS has engaged Manager to operate the Hotel and represent its interests with respect to the Hotel inaccordance with the Management Agreement; and WHEREAS, Manager desiresto avail itself of the knowledge, experience, sources of information, advice, assistance and certain facilities available to theSub-Manager and to have the Sub-Manager undertake the duties and responsibilities hereinafter set forth, on behalf of Manager,and subject to the supervision of TRS, all as provided herein; and WHEREAS, the Sub-Manageris willing to undertake such duties and responsibilities, subject to the supervision of TRS, on the terms and subject to the conditionshereinafter set forth. NOW, THEREFORE, inconsideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency ofwhich are hereby acknowledged by each of the parties, the parties hereto agree as follows: ARTICLE I* Definitions Capitalized and otherterms that are defined in the Management Agreement but not otherwise defined in this Agreement have the respective meanings ascribedto such terms in the Management Agreement, a copy of which is attached hereto as Exhibit B. “*Affiliate”means any individual or entity, directly or indirectly through one or more intermediaries, controlling, controlled by, or undercommon control with a party. The term “control,” as used in the immediately preceding sentence, means, with respectto a corporation, the right to exercise, directly or indirectly, fifty percent (50%) or more of the voting rights attributableto the shares of the controlled corporation, and, with respect to an entity that is not a corporation, the possession, directlyor indirectly, of the power to direct or cause the direction of the management or policies of the controlled entity. “Agreement”shall have the meaning set forth in the Preamble. “Base ManagementFee” shall have the meaning set forth in Section 5.1. “EffectiveDate” shall have the meaning set forth in the Preamble. “FranchiseAgreement” shall have the meaning set forth in the Management Agreement. “Hotel”shall have the meaning set forth in the Recitals. “ManagementAgreement” shall have the meaning set forth in the Recitals. “Manager”shall have the meaning set forth in the Preamble. “TRS”shall have the meaning set forth in the Recitals. “Party”or “Parties” refer to Manager or the Sub-Manager or both, as the case may be. “Sub-ManagementFee” shall have the meaning set forth in Section 5.1. “Sub-Manager”shall have the meaning set forth in the Preamble. ARTICLE II* Appointment Manager, pursuant toits authority to delegate all of its rights and powers to manage and operate the Hotel to the Sub-Manager pursuant to Section19.01 A of the Management Agreement, hereby appoints the Sub-Manager to serve as Sub-Manager for the Hotel and to perform allof the duties, and to assume all of the rights, set forth in the Management Agreement on behalf of the Manager in accordance withthis Agreement. Sub-Manager hereby accepts such appointment. Manager delegates, and the Sub-Manger agrees to perform, all of theduties of Manager set forth in the Management Agreement, all on the terms and subject to the conditions set forth in this Agreement. ARTICLE III Duties of Sub-Manager Under the ManagementAgreement and this Agreement, Manager and Sub-Manager, as applicable, are responsible for managing, operating, directing and supervisingthe operations and administration of the Hotel. Consistent with Article II hereof, Sub-Manager undertakes to use commerciallyreasonable efforts to manage and operate the Hotel in accordance with the standards set forth in the Management Agreement, including, without limitation, compliance with the Franchise Agreement as described in Section 1.04 and Article X of the ManagementAgreement. Subject to the limitations set forth in this Agreement and the Management Agreement, the Sub-Manager shall perform allof the Manager duties set forth in the Management Agreement (a copy of which is attached hereto as Exhibit B), which dutiesare incorporated herein by reference as if fully set forth herein. ARTICLE IV Manager’s Duties Manager agrees thatit shall use its best efforts to obtain from TRS any required consents and/or approvals, so that Sub-Manager shall not be hinderedin its performance of its responsibilities hereunder. Additionally, Manager agrees that it will enforce its rights against TRS,as set forth in the Management Agreement, for any of TRS’s breaches thereunder, including, without limitation, TRS’sfailure to reimburse Manager and Sub-Manager for expenses or adequately capitalizing the Hotel as required in the Management Agreement. ARTICLE V Assignment of Payments As compensation forthe services provided pursuant to this Agreement, Manager hereby assigns payments as follows: 5.1 BaseManagement Fees. Manager hereby agrees to a base sub-management fee (the “*Sub-Management Fee”) of3.25% of the Gross Revenues for each Accounting Period, which shall be paid out of the Manager’s Base Management Fee as setforth in Section 6.01 A of the Management Agreement (the “Base Management Fee”). Sub-Manager shallbe entitled to retain such Sub-Management Fee from the Gross Revenues in accordance with Section 6.01 A of the ManagementAgreement, provided Sub-Manager remits the remaining 0.75% percent of the Base Management Fee to Manager within twenty (20) daysafter the close of each Accounting Period. 5.2 IncentiveManagement Fees. Manager hereby assigns its right to receive from TRS an Incentive Fee, if any, pursuant to Section 6.01B of the Management Agreement. 5.3 ExpenseReimbursements. Manager hereby assigns its right to receive direct payment from TRS of expense reimbursements Sub-Manager incurson behalf of TRS or in connection with the services Sub-Manager provides to TRS pursuant to this Agreement and the Management Agreement. ARTICLE VI* Relationship of the Parties Manager and the Sub-Managerare not partners or joint venturers with each other, and nothing in this Agreement shall be construed to make them such partnersor joint venturers. Nothing herein contained shall prevent the Manager or Sub-Manager from engaging in or earning fees from otheractivities, including, without limitation, the rendering of advice to other persons or entities and the management of other properties,owned or managed by Manager or Sub-Manager, respectively, or any of their Affiliates. Nor shall this Agreement limit or restrictthe right of any manager, director, officer, member, partner, employee or equityholder of Manager or Sub-Manager or their Affiliatesto engage in or earn fees from any other business or to render services of any kind to any other person or entity. Each of Managerand the Sub-Manager shall promptly disclose to TRS the existence of any condition or circumstance, existing or anticipated, ofwhich it has knowledge, that creates or which would reasonably result in a conflict of interest between its obligations to TRSand its obligations to or its interest in any other persons or entities. ARTICLE VII Representations and Warranties 7.1 Representationsand Warranties of the Parties. The Manager and the Sub-Manager each hereby represents and warrants to, and agrees with, theother as follows: (A) SuchParty is duly formed and validly existing under the laws of the jurisdiction of its organization; (B) SuchParty has full power and authority to enter into this Agreement and to conduct its business to the extent contemplated in thisAgreement; (C) ThisAgreement has been duly authorized, executed and delivered by such Party and constitutes the valid and legally binding agreementof such Party, enforceable in accordance with its terms against such Party, except as such enforceability may be limited by bankruptcy,insolvency, moratorium and other similar laws relating to creditors’ rights generally, and by general equitable principles; (D) Theexecution and delivery of this Agreement by such Party and the performance of its duties and obligations hereunder do not resultin a breach of any of the terms, conditions or provisions of, or constitute a default under, any indenture, mortgage, deed of trust,credit agreement, note or other evidence of indebtedness, or any lease or other agreement, or any license, permit, franchise orcertificate to which such Party is a party or by which it is bound or to which its properties are subject or require any authorizationor approval under or pursuant to any of the foregoing, or violate any statute, regulation, law, order, writ, injunction, judgmentor decree to which such Party is subject; (E) SuchParty is not aware of any facts pertaining to such Party or its Affiliates that would cause such Party, or any of such Party’sAffiliates, to be unable to discharge timely the obligations of such Party or its Affiliates under this Agreement or the obligationsof TRS under any agreement to which any of them is a party; (F) Tothe knowledge of such Party, no consent, approval or authorization of, or filing, registration or qualification with, any courtor governmental authority on the part of such Party is required for the execution and delivery of this Agreement by such Partyand the performance of its obligations and duties hereunder and such execution, delivery and performance shall not violate anyother agreement to which such Party is bound; (G) Exceptas specifically provided in this Agreement, such Party is not relying upon the other Party, TRS or their respective Affiliatesor advisors, in connection with any of the matters referred to in this Agreement, including any projections, information, due diligence,representations or warranties (express or implied, oral or written), statements or other matters concerning TRS, the other Party,or otherwise, and each Party hereby confirms that it has conducted an independent investigation of the facts regarding the same(or has chosen not to do so at such Party’s peril); (H) TheParty is not acting as the representative or agent or in any other capacity, fiduciary or otherwise, on behalf of another personor entity in connection with TRS or the other matters referred to in this Agreement; (I) SuchParty is aware that compensation and reimbursements may be payable to Affiliates of the Parties by TRS, as addressed in this Agreementand the Management Agreement; (J) SuchParty understands that the other Party is relying on the accuracy of the representations set forth in this Article VII inentering into this Agreement; (K) SuchParty has not granted to any third party rights that would be inconsistent with the rights granted to the other Party by this Agreement; (L) SuchParty has all requisite licenses to do and perform all acts and receive all fees as contemplated by this Agreement; and (M) Noneof its principals has been convicted of any felony, or convicted of any misdemeanor involving moral turpitude (including fraud),or entered a plea of nolo contendere in connection with any felony or any such misdemeanor. 7.2 Representationsand Warranties of the Sub-Manager. Sub-Manager hereby represents and warrants to, and agrees with, Manager as follows: (A) Thestaff and employees of Sub-Manager and its Affiliates have the skills, knowledge of and expertise in property selection, acquisitions/development,financing, asset and property management, and dispositions as to perform their respective duties and obligations hereunder; and (B) Sub-Manageris sophisticated in hospitality management, has been granted access to such financial and other material information concerningTRS, the other Party and the other Party’s Affiliates, and their respective current and anticipated operations and such duediligence materials as it deems necessary or advisable, as it has requested or may require in connection with this Agreement (includingan advance of expenses that may be reimbursed), is able, either directly or through its agents and representatives, to evaluatesuch information and any due diligence materials provided or made available to it from time to time hereunder; ARTICLE VIII Term and Termination 8.1 Term.This Agreement shall be coterminous with, and have the same meaning as set forth in, the Management Agreement. 8.2 Termination.: (A) IfTRS’s right to terminate the Management Agreement pursuant to Section 6.03 of the Management Agreement becomes exercisable,then Manager shall have the right to terminate this Agreement upon thirty (30) days written notice to Sub-Manager; (B) ThisAgreement may be terminated by Manager, if Sub-Manager materially breaches this Agreement; provided, however, that Sub-Managershall have 30 calendar days after the receipt of notice of such breach from Manager to cure such breach; (C) ThisAgreement may be terminated by Manager, as a result of any fraud, criminal conduct, gross negligence or willful misconduct by Sub-Manageror any Affiliate thereof in any action or failure to act undertaken by such person or entity pertaining to or having a detrimentaleffect upon the ability of Manager or Sub-Manager to perform their respective duties hereunder; provided, however, that Sub-Managerdoes not cure any such act within 30 calendar days after the receipt of notice of such act (or at such later time as may be statedin the notice) from Manager; or (D) ThisAgreement may be terminated by either Party, if the other Party (1) commences a voluntary case under any applicable bankruptcy,insolvency or other similar law now or hereafter in effect, (2) consents to the entry of an order for relief in an involuntarycase under any such law, (3) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian,trustee, sequestrator (or similar official) for the other Party or for any substantial part of its property, or (4) makes any generalassignment for the benefit of creditors under applicable state law; or (E) ThisAgreement may be terminated by either Party, if: (1) an involuntary case under any applicable bankruptcy, insolvency or other similarlaw now or hereafter in effect has been commenced against the other Party, and such case has not been dismissed within 60 daysafter the commencement thereof; or (2) a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official)has been appointed for the other Party or has taken possession of the other Party or any substantial part of its property, andsuch appointment has not been rescinded or such possession has not been relinquished within 60 days after the occurrence thereof. 8.3 Survival.The rights of both Manager and Sub-Manager shall survive any termination of this Agreement as if the termination had occurred underthe Management Agreement with Manager entitled to the rights as owner thereunder and Sub-Manager as manager thereunder. ARTICLE IX Indemnification and Limitation of Liability Manager agrees thatit will indemnify the other Management Company Indemnified Parties with respect to any Harms incurred by them that are indemnifiableunder the Management Agreement, to the extent that TRS fails to provide such indemnification. Sub-Manager agrees that it will indemnifyManager for any indemnification obligation that Manager incurs pursuant to the Management Agreement, to the extent that the indemnifiableHarm is the result of action or inaction by Sub-Manager and/or its Affiliates pursuant to its actions in Manager’s steadpursuant to the terms of this Agreement. Both Parties agree that neither will take any action inconsistent with any limitationof liability or indemnification provisions set forth in the Management Agreement. ARTICLE X Miscellaneous 10.1 Breachof Covenant and Attorneys’ Fees. Manager and Sub-Manager and/or their Affiliates shall be entitled, in case of any breachof this Agreement by the other party or others claiming through it, to injunctive relief and to any other right or remedy availableat law or in equity. In the event any action or proceeding is commenced to obtain a declaration of rights hereunder or to enforceany provision of this Agreement, or to seek rescission of this Agreement for Event of Default or any other relief in connectionwith this Agreement, whether legal or equitable, the prevailing party in such action shall be entitled to recover its reasonableattorneys’ fees in addition to all other relief to which it may be entitled, whether or not such action is prosecuted tojudgment. If either party to this Agreement is required to initiate or defend litigation with a third party because of the violationby the other party of any provision of this Agreement, then such party shall be entitled to reasonable attorneys’ fees andall other reasonable costs incurred in connection with such action from the other party. 10.2 Consents.Except as herein otherwise provided, whenever in this Agreement the consent or approval of Manager or Sub-Manager is required,such consent or approval shall not be unreasonably withheld, conditioned, or delayed. 10.3 ApplicableLaw. This Agreement shall be construed under and shall be governed by the laws of the State where the Hotel is located. 10.4 Headings.Headings of Articles and Sections are inserted only for convenience and are in no way to be construed as a limitation on the scopeof the particular Articles or Sections to which they refer. 10.5 Notices.Notices, statements and other communications to be given under the terms of this Agreement shall be in writing and delivered byhand against receipt or sent by certified mail, return receipt requested, or by nationally recognized overnight courier: To Manager: American Realty Capital Hospitality Properties, LLC c/o American Realty Capital 405 Park Avenue New York, New York 10022 Attention: Jonathan P. Mehlman with a copy to: American Realty Capital 405 Park Avenue New York, New York 10022 Attention: Jesse C. Galloway To Sub-Manager: Crestline Hotels & Resorts, LLC 3950 University Drive, Suite 301 Fairfax, Virginia 22030 Attn: General Counsel with a copy to: Crestline Hotels & Resorts, LLC 3950 University Drive, Suite 301 Fairfax, Virginia 22030 Attn: Chief Executive Officer or at such other address as from time totime designated by the party receiving the notice. Any such notice which is properly mailed, as described above, shall be deemedto have been served as of three (3) business days after said posting. 10.6 Equityand Debt Offerings. Neither Manager nor Sub-Manager (as an “issuing party”) shall make reference to the other party(the “non-issuing party”) or any of its Affiliates in any prospectus, private placement memorandum, offering, offeringcircular, or offering documentation related thereto (collectively referred to as the “Prospectus”), issued by the issuingparty, unless the non-issuing party has received a copy of all such references. In no event will the non-issuing party be deemeda participant or sponsor of the offering described in any such Prospectus, nor will it have any responsibility for the issuingparty’s obligations in connection with such offering or for the Prospectus, and the Prospectus shall affirmatively so state.The issuing party shall not include any proprietary mark or proprietary materials of the non-issuing party and shall not includea summary of this Agreement without prior written consent of the non-issuing party. The Prospectus shall further disclose thatthe non-issuing party has made no representations, warranties, or guarantees whatsoever with respect to any of contents of or thematerials contained in the Prospectus or the Prospectus itself. The issuing party shall only make use of any forecasts, annualplans or projections prepared in the issuing party’s name (or the names of any of the issuing party’s affiliates).The issuing party shall indemnify, defend, and hold harmless the non-issuing party and its Affiliates (and their respective directors,officers, shareholders, employees and agents) from and against all loss, costs, liability, and damage (including attorneys’fees and expenses, and the cost of litigation) arising out of any Prospectus or the offering described therein. 10.7 EstoppelCertificates. Sub-Manager will, at any time and from time to time within fifteen (15) days of the request of Manager or TRSor a Qualified Lender, execute, acknowledge, and deliver to the other party and such Qualified Lender, if any, a certificate certifying: (A) Thatthe Agreement is unmodified and in full force and effect (or, if there have been modifications, that the same is in full forceand effect as modified and stating such modifications); (B) Thedates, if any, on which the distributions of Operating Profit have been paid; (C) Whetherthere are any existing Defaults by the other party to the knowledge of the party making such certification, and specifying thenature of such Defaults, if any; and (D) Suchother matters as may be reasonably requested. Any such certificates may be relied upon by any party to whomthe certificate is directed. 10.8 EntireAgreement. This Agreement, together with other writings signed by the parties expressly stated to be supplementary hereto andtogether with any instruments to be executed and delivered pursuant to this Agreement, constitutes the entire agreement betweenthe parties and supersedes all prior understandings and writings, and may be changed only by a writing signed by the parties hereto.This instrument may be executed in counterparts, each of which shall be deemed an original and all such counterparts together shallconstitute one and the same instrument. 10.9 Confidentiality.Manager and Sub-Manager agree that the terms, conditions, and provisions set forth in this Agreement are strictly confidential.Further, Manager agrees to keep strictly confidential all proprietary materials of Sub-Manager and the parties agree to keep strictlyconfidential any information of a proprietary or confidential nature about or belonging to the other party, or to any Affiliateof such other party, to which such party gains or has access by virtue of the relationship between the parties. Except as disclosuremay be required to obtain financing for the Hotel from a secured lender, or as may be required by law or by the order of any government,regulatory authority, or tribunal or otherwise to comply with any applicable legal requirements (including, as necessary, to obtainlicenses, permits, and other public approvals required for the operation of the Hotel), each party shall make every effort to ensurethat the information described in this Section 10.9 is not disclosed to any outside person or entities (including any announcementsto the press) without the prior approval of the other party. It is understood and agreed that this Section 10.9 is not intendedto prohibit or limit disclosure of the matters set forth in this Section 10.9 by Manager or Sub-Manager (i) to their respectiveofficers, directors, employees, financial advisors, attorneys, accountants, potential lenders, consultants, and representativeson a need to know basis, or (ii) as required by any governmental agency or any federal or state law or regulation, or (iii) asrequired pursuant to the rules of any exchange or securities system on which such party’s (or any of its Affiliates’)shares are traded, or (iv) to the extent legally compelled by legal process. The obligations of this Section 10.9 shallsurvive any Termination of this Agreement. 10.10 NoParty Deemed Drafter. Manager and Sub-Manager agree that (i) no party shall be deemed to be the drafter of this Agreement and(ii) in the event that his Agreement is ever construed by a court of law, such court shall not deem either party to be the drafterof this Agreement. 10.11 ProprietaryMarks. During the Term of this Agreement, the name “Crestline,” whether used alone or in connection with otheranother word(s), and all proprietary marks (being all present and future trademarks, trade names, symbols, logos, insignia, servicemarks, and the like) of Sub-Manager or any one of its Affiliates, whether or not registered (“*Proprietary Marks”)shall in all events remain the exclusive property of Sub-Manager and its Affiliates. Manager shall have no right to use any ProprietaryMark, except during the Term of this Agreement and solely in connection with the Hotel. Any signage installed using any ProprietaryMark shall at all times be in conformance with the specifications provided by Sub-Manager. [SIGNATURES FOLLOW ON NEXT PAGE] IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed by their duly authorized officers. EXHIBIT A* Hotel Legal Description ** EXHIBIT B ** Management Agreement
s3://data.kl3m.ai/documents/govinfo/BILLS/BILLS-107hr2870ih/txt.json	text/markdown	``` [Congressional Bills 107th Congress] [From the U.S. Government Publishing Office] [H.R. 2870 Introduced in House (IH)] 107th CONGRESS 1st Session H. R. 2870 To extend for 6 additional months the period for which chapter 12 of title 11 of the United States Code is reenacted. _______________________________________________________________________ IN THE HOUSE OF REPRESENTATIVES September 10, 2001 Ms. Baldwin introduced the following bill; which was referred to the Committee on the Judiciary _______________________________________________________________________ A BILL To extend for 6 additional months the period for which chapter 12 of title 11 of the United States Code is reenacted. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. AMENDMENTS. Section 149 of title I of division C of Public Law 105-277, as amended by Public Law 106-5, Public Law 106-70, Public Law 107-8, and Public Law 107-17, is amended-- (1) by striking ``October 1, 2001'' each place it appears and inserting ``April 1, 2002'', and (2) in subsection (a)-- (A) by striking ``May 31, 2001'' and inserting ``September 30, 2001'', and (B) by striking ``June 1, 2001'' and inserting ``October 1, 2001''. SEC. 2. EFFECTIVE DATE. The amendments made by section 1 shall take effect on October 1, 2001. <all> ```
s3://data.kl3m.ai/documents/edgar/0001056404/0001056404-19-002333/12.json	text/markdown	(logo)CWCapital ASSET MANAGEMENT February28, 2019 Management’sAssertion on Compliance with Regulation AB Criteria Re:Assessment of Compliance for services provided pursuant to the Pooling andServicing Agreements entered into by CWCapital Asset Management LLC beginningJanuary 1, 2006 for the 12 month period ended December 31, 2018. CWCapitalAsset Management LLC (“CWCAM”) is responsible for assessing compliance withapplicable servicing criteria set forth in Item 1122 (d) of Regulation AB ofthe Securities and Exchange Commission for the securitizations issued beginningJanuary 1, 2006, as listed on Appendix A (“Applicable Servicing Criteria”). CWCAMhas assessed its compliance with the applicable servicing criteria as ofDecember 31, 2018 and for the period from January 1, 2018 to December 31, 2018(the “Reporting Period”). In making this assessment, management used thecriteria set forth by the Securities and Exchange Commission in paragraph (d)of Item 1122 of Regulation AB, excluding the criteria set forth in Item 1122(d)(1)(iii), (d)(3)(i)(b), (d)(3)(i)(c), (d)(3)(i)(d), (d)(3)(ii), (d)(3)(iii),(d)(3)(iv), (d)(4)(v), (d)(4)(ix), (d)(4)(x), (d)(4)(xi), (d)(4)(xii),(d)(4)(xiii), (d)(4)(xiv), and (d)(4)(xv) of Regulation AB, which CWCAM hasconcluded are not applicable to the activities it performs (collectively, the“Not Applicable Criteria”). With respect to applicable servicing criteria(d)(1)(ii), (d)(2)(vi), (d)(4)(i), (d)(4)(iii), and (d)(4)(iv), CWCAM hasdetermined that there were no occurrences of events that would require CWCAM toperform such activities. The securitizations covered by this report include allsecuritizations wherein CWCAM is named as the Special Servicer for securitizationsissued beginning January 1, 2006, as listed in Appendix B (the “Platform”). Basedon such assessment, management believes, as of December 31, 2018 and for theReporting Period, the following: 1) CWCAM has determined that the NotApplicable Criteria are in fact not applicable to the activities it performswith respect to the Platform. 2) CWCAM has complied in all materialrespects with the servicing criteria set forth in Item 1122 (d), with theexception of the Not Applicable Criteria and any material instance ofnoncompliance described in Schedule A hereto. ScheduleB hereto includes Management’s Discussion of the Material Instance ofNoncompliance noted in Schedule A. CohnReznickLLP, an independent registered public accounting firm, has issued an attestationreport on CWCAM’s compliance with the Applicable Servicing Criteria as ofDecember 31, 2018 and for the Reporting Period. CWCapitalAsset Management LLC By:/s/ David B. Iannarone DavidB. Iannarone ChiefExecutive Officer Date:February 28, 2019 By:/s/ James P. Shevlin JamesP. Shevlin President/ChiefOperating Officer Date:February 28, 2019 By:/s/ Bruce Cunningham BruceCunningham ChiefFinancial Officer Date:February 28, 2019 Schedule A Material Instance ofNoncompliance CWCAM’sassessment of compliance with the Applicable Servicing Criteria set forth bythe Securities and Exchange Commission in paragraph (d) of Item 1122 ofRegulation AB as of December 31, 2018 and for the Reporting Period, disclosed amaterial instance of noncompliance occurred with respect to the servicingcriterion set forth in 1122(d)(2)(vii), as follows: • Withrespect to compliance 1122(d)(2)(vii), CWCAM’s policies and procedures were notproperly followed with respect to timely completion of bank reconciliations. Schedule B Management’sDiscussion on Material Instance of Noncompliance 1122(d)(2)(vii),Reconciliations are prepared on a monthly basis for all asset-backed securitiesrelated bank accounts, including custodial accounts and related bank clearingaccounts. These reconciliations (A) are mathematically accurate; (B) areprepared within 30 calendar days after the bank statement cutoff date, or suchother number of days specified in the transaction agreements; (C) are reviewedand approved by someone other than the person who prepared the reconcilingitems; and (D) contain explanations for reconciling items. These reconcilingitems are resolved within 90 calendar days of their original identification, orsuch other number of days specified in the transaction agreements. Noncompliance Theinstance of material noncompliance, for the Reporting Period included a failureto complete the required bank reconciliations within 30 calendar days after thebank statement cutoff date. In five of the twelve months related to theReporting Period, the required reconciliations were not completed within the 30calendar days requirement as follows: February 2018: bank reconciliations wereprepared on June 22, 2018 March 2018: bank reconciliations wereprepared on May 1, 2018 September 2018: bank reconciliations wereprepared on November 6, 2018 November 2018: bank reconciliations wereprepared on February 19, 2019 December 2018: bank reconciliations wereprepared on February 6, 2019 Remediation Inresponse to the lack of adherence to company policy and procedures, theCompliance Committee reviewed the reasons for noncompliance and added twoadditional procedures to supplement its existing procedures: 1) the accounting department has added thecompletion of bank account reconciliations within 30 calendar days to itsmonthly closing checklist, which is reviewed and signed off by a CWCAM officer;and 2) the Chief Financial Officer has set upa monthly electronic reminder requiring that the completed bank reconciliationsbe forwarded to the CFO for an additional layer of review. Appendix A \| \| *Relevant Servicing Criteria* \| \| \|------------------\|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------\|-------------------------------------------------------------------------------------------------------------------------------------------------------\| \| Reference \| Criteria \| CWCAM \| \| \| General Servicing Considerations \| \| \| 1122(d)(1)(i) \| Policies and procedures are instituted to monitor any performance or other triggers and events of default in accordance with the transaction agreements. \| Applicable \| \| 1122(d)(1)(ii) \| If any material servicing activities are outsourced to third parties, policies and procedures are instituted to monitor the third party’s performance and compliance with such servicing activities. \| Applicable \| \| 1122(d)(1)(iii) \| Any requirements in the transaction agreements to maintain a back-up servicer for the mortgage loans are maintained. \| Not Applicable \| \| 1122(d)(1)(iv) \| A fidelity bond and errors and omissions policy is in effect on the party participating in the servicing function throughout the reporting period in the amount of coverage required by and otherwise in accordance with the terms of the transaction agreements. \| Applicable \| \| 1122(d)(1)(v) \| Aggregation of information, as applicable, is mathematically accurate and the information conveyed accurately reflects the information. \| Applicable \| \| \| Cash Collection and Administration \| \| \| 1122(d)(2)(i) \| Payments on mortgage loans are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days following receipt, or such other number of days specified in the transaction agreements. \| Applicable \| \| 1122(d)(2)(ii) \| Disbursements made via wire transfer on behalf of an obligor or to an investor are made only by authorized personnel. \| Applicable \| \| 1122(d)(2)(iii) \| Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for such advances, are made, reviewed and approved as specified in the transaction agreements. \| Applicable \| \| 1122(d)(2)(iv) \| The related accounts for the transaction, such as cash reserve accounts or accounts established as a form of overcollateralization, are separately maintained (e.g., with respect to commingling of cash) as set forth in the transaction agreements. \| Applicable \| \| 1122(d)(2)(v) \| Each custodial account is maintained at a federally insured depository institution as set forth in the transaction agreements. For purposes of this criterion, “federally insured depository institution” with respect to a foreign financial institution means a foreign financial institution that meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act. \| Applicable \| \| 1122(d)(2)(vi) \| Unissued checks are safeguarded so as to prevent unauthorized access. \| Applicable \| \| 1122(d)(2)(vii) \| Reconciliations are prepared on a monthly basis for all asset-backed securities related bank accounts, including custodial accounts and related bank clearing accounts. These reconciliations (A) are mathematically accurate; (B) are prepared within 30 calendar days after the bank statement cutoff date, or such other number of days specified in the transaction agreements; (C) are reviewed and approved by someone other than the person who prepared the reconciliation; and (D) contain explanations for reconciling items. These reconciling items are resolved within 90 calendar days of their original identification, or such other number of days specified in the transaction agreements. \| Applicable \| \| \| Investor Remittances and Reporting \| \| \| 1122(d)(3)(i) \| Reports to investors, including those to be filed with the Commission, are maintained in accordance with the transaction agreements and applicable Commission requirements. Specifically, such reports (A) are prepared in accordance with timeframes and other terms set forth in the transaction agreements; (B) provide information calculated in accordance with the terms specified in the transaction agreements; (C) are filed with the Commission as required by its rules and regulations; and (D) agree with investors’ or the trustee’s records as to the total unpaid principal balance and number of mortgage loans serviced by the Servicer. \| (A) Applicable (B) Not Applicable (C) Not Applicable (D) Not Applicable \| \| 1122(d)(3)(ii) \| Amounts due to investors are allocated and remitted in accordance with timeframes, distribution priority and other terms set forth in the transaction agreements. \| Not Applicable \| \| 1122(d)(3)(iii) \| Disbursements made to an investor are posted within two business days to the Servicer’s investor records, or such other number of days specified in the transaction agreements. \| Not Applicable \| \| 1122(d)(3)(iv) \| Amounts remitted to investors per the investor reports agree with cancelled checks, or other form of payment, or custodial bank statements. \| Not Applicable \| \| \| Pool Asset Administration \| \| \| 1122(d)(4)(i) \| Collateral or security on mortgage loans is maintained as required by the transaction agreements or related mortgage loan documents. \| Applicable \| \| 1122(d)(4)(ii) \| Mortgage loan and related documents are safeguarded as required by the transaction agreements. \| Applicable \| \| 1122(d)(4)(iii) \| Any additions, removals or substitutions to the asset pool are made, reviewed and approved in accordance with any conditions or requirements in the transaction agreements. \| Applicable \| \| 1122(d)(4)(iv) \| Payments on mortgage loans, including any payoffs, made in accordance with the related mortgage loan documents are posted to the Servicer’s obligor records maintained no more than two business days after receipt, or such other number of days specified in the transaction agreements, and allocated to principal, interest or other items (e.g., escrow) in accordance with the related mortgage loan documents. \| Applicable \| \| 1122(d)(4)(v) \| The Servicer’s records regarding the mortgage loans agree with the Servicer’s records with respect to an obligor’s unpaid principal balance. \| Not Applicable \| \| 1122(d)(4)(vi) \| Changes with respect to the terms or status of an obligor’s mortgage loans (e.g., loan modifications or re-agings) are made, reviewed and approved by authorized personnel in accordance with the transaction agreements and related pool asset documents. \| Applicable \| \| 1122(d)(4)(vii) \| Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated, conducted and concluded in accordance with the timeframes or other requirements established by the transaction agreements. \| Applicable \| \| 1122(d)(4)(viii) \| Records documenting collection efforts are maintained during the period a mortgage loan is delinquent in accordance with the transaction agreements. Such records are maintained on at least a monthly basis, or such other period specified in the transaction agreements, and describe the entity’s activities in monitoring delinquent mortgage loans including, for example, phone calls, letters and payment rescheduling plans in cases where delinquency is deemed temporary (e.g., illness or unemployment). \| Applicable \| \| 1122(d)(4)(ix) \| Adjustments to interest rates or rates of return for mortgage loans with variable rates are computed based on the related mortgage loan documents. \| Not Applicable \| \| 1122(d)(4)(x) \| Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such funds are analyzed, in accordance with the obligor’s mortgage loan documents, on at least an annual basis, or such other period specified in the transaction agreements; (B) interest on such funds is paid, or credited, to obligors in accordance with applicable mortgage loan documents and state laws; and (C) such funds are returned to the obligor within 30 calendar days of full repayment of the related mortgage loans, or such other number of days specified in the transaction agreements. \| Not Applicable \| \| 1122(d)(4)(xi) \| Payments made on behalf of an obligor (such as tax or insurance payments) are made on or before the related penalty or expiration dates, as indicated on the appropriate bills or notices for such payments, provided that such support has been received by the servicer at least 30 calendar days prior to these dates, or such other number of days specified in the transaction agreements. \| Not Applicable \| \| 1122(d)(4)(xii) \| Any late payment penalties in connection with any payment to be made on behalf of an obligor are paid from the servicer’s funds and not charged to the obligor, unless the late payment was due to the obligor’s error or omission. \| Not Applicable \| \| 1122(d)(4)(xiii) \| Disbursements made on behalf of an obligor are posted within two business days to the obligor’s records maintained by the servicer, or such other number of days specified in the transaction agreements. \| Not Applicable \| \| 1122(d)(4)(xiv) \| Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in accordance with the transaction agreements. \| Not Applicable \| \| 1122(d)(4)(xv) \| Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction agreements. \| Not Applicable \| Appendix B \| AVENTURA 2018-AVM \| GSMS 2012-GCJ7 \| UBS 2012-C2 \| \|-------------------\|----------------------\|-----------------\| \| BACM 2006-6 \| GSMS 2014-GC22 \| UBS 2017-C1 \| \| BACM 2007-1 \| GSMSC 2014-GC26 \| WBCMT 2006-C23 \| \| BACM 2007-2 \| GSMS 2015-GC32 \| WBCMT 2006-C25 \| \| BACM 2007-3 \| HHPT 2017-HYT2 MZB \| WBCMT 2006-C26 \| \| BACM 2007-4 \| JPMBB 2014-C23 \| WBCMT 2006-C28 \| \| BACM 2007-5 \| JPMC 2006-CIBC17 \| WBCMT 2007-C30 \| \| BACM 2008-1 \| JPMC 2006-LDP9 \| WBCMT 2007-C32 \| \| BANK 2017-BNK5 \| JPMC 2007-CIBC18 \| WBCMT 2007-C34 \| \| BHMS 2018-ATLS \| JPMC 2008-C2 \| WFCM 2015-C30 \| \| BMARK2018-B2 \| JPMC 2018-LAQ \| WFCM 2016-C35 \| \| BENCHMARK 2018-B4 \| JPMCC 2013-LC11 \| WFCM 2016-LC25 \| \| BENCHMARK 2018-B8 \| JPMCC 2015-FL7 \| WFCM 2016-NXS6 \| \| CD 2007-CD4 \| JPMCC 2016-WSP MZ \| WFRBS 2013-C15 \| \| CFCRE 2016-C3 \| JPMCC 2017-JP7 \| WFRBS 2013-UBS1 \| \| CGCMT 2007-C6 \| JPMDB 2017-C5 \| WFRBS 2014-C21 \| \| CGCMT 2016-P4 \| LBCMT 2007-3 \| WFRBS 2014-C22 \| \| CGCMT 2016-P6 \| LBUBS 2006-C4 \| WFRBS 2014-C23 \| \| COBALT 2007-C2 \| LBUBS 2007-C2 \| WFRBS 2014-C25 \| \| COBALT 2007-C3 \| LBUBS 2008-C1 \| \| \| COMM 2006-C7 \| MBR 2018-MBR \| \| \| COMM 2012-LC4 \| MLCFC 2006-1 \| \| \| COMM 2015-CCRE23 \| MLCFC 2006-2 \| \| \| COMM 2015-CCRE25 \| MLCFC 2007-5 \| \| \| COMM 2015-CCRE26 \| MLCFC 2007-6 \| \| \| COMM 2016-DC2 \| MSBAM 2014-C19 \| \| \| CSFB 2006-TFL2 \| MSBAM 2015-C20 \| \| \| CSFB 2007-C4 \| MSBAM 2015-C21 \| \| \| CSAIL 2017-CX10 \| MSBAM 2015-C27 \| \| \| DBUBS 2011-LC3 \| MSC 2016-UBS11 \| \| \| GRACE 2014-GRCE \| MSCI 2016-UBS9 \| \|
s3://data.kl3m.ai/documents/cap/11701617.json	text/markdown	#### In re Penny L. LUTZKE, Debtor. Bankruptcy No. 697-64902-AER13. United States Bankruptcy Court, D. Oregon. June 19, 1998. 553John Putnam Pries, Eugene, OR, for Debt- or. R. Scott Palmer, Muhlheim, Palmer & Wade, Eugene, OR, for Creditor. MEMORANDUM OPINION ALBERT E. RADCLIFFE, Bankruptcy Judge. This matter came before the court on the debtor’s objection to the claim of James Haas (creditor). After a hearing where argument was heard, the matter was submitted. BACKGROUND* On August 26, 1997, debtor filed her petition for relief herein pursuant to Chapter 13 of the Bankruptcy Code. On October 29,1997, creditor filed his proof of claim in the amount of $8,629.54. The creditor claims that his debt is entitled to priority status as a child support obligation. Debtor has objected to the creditor’s proof of claim conceding it should be allowed as a non-priority unsecured claim in the amount stated by creditor but objecting to any treatment of the claim as a priority debt. The material facts are undisputed. Creditor is the debtor’s ex-husband, who, pursuant to a pre-petition decree of dissolution and consequent modified decree, owed child support to the debtor for the benefit of their two children. Before the petition was filed, creditor overpaid the amounts specified as support in the amount of $3,629.54. No order exists which obligates the debtor to. pay creditor child support. ISSUE The sole issue before the court is whether creditor’s claim deriving from an overpayment of child support is a “priority” claim under 11 U.S.C. § 507(a)(7).1 DISCUSSION Section 507(a)(7) provides a seventh priority claim for: > ... allowed claims for debts to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that such debt- > 554(A) is assigned to another entity, voluntarily, by operation of Law, or otherwise; or > (B) includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance or support. The creditor contends that since his claim arises from an overpayment of child support, the consequent debt owing to him should retain its character as child support and the statutory priority accorded thereto. This “overpayment” issue appears to be a matter of first impression in this district. The closest analogous case, In re Bryer,216 B.R. 755 (Bankr.E.D.Pa.1998) involved an ex-husband who voluntarily paid mortgage payments on his former marital home to protect his credit rating while his ex-wife was living there. The ex-wife subsequently petitioned for an increase in monthly child support payments. The parties agreed to an increase but with a monthly credit for the mortgage payments husband made, an order consistent with the agreement was entered. The wife then filed Chapter 13 and the husband claimed the credits as a priority child support debt pursuant to § 507(a)(7). In determining that the credits were not “actually in the nature of support”, the court applied the third Circuit’s2 test used to determine if this same requirement had been met in § 523(a)(5).3 The court reviewed the language and substance of the agreement and the order involving the credits, the parties’ relative financial circumstances at the time the credits were ordered, and the function served by the obligation. These are similar to the factors used in the Ninth Circuit to ascertain whether an obligation is actually in the nature of support under § 523(a)(5). See, In Re Gibson,103 B.R. 218 (9th Cir. BAP 1989) and In Re Gionis,170 B.R. 675 (9th Cir. BAP 1994) aff'd, 92 F.3d 1192 (9th Cir.1996). The Ninth Circuit Bankruptcy Appellate Panel has held that the same factors are applied to determine whether or not a debt is a priority support debt pursuant to § 507(a)(7) or a nondischargeable support debt pursuant to § 523(a)(5), at least insofar as determining whether or not the debt is actually in the nature of support. In re Chang,210 B.R. 578 (9th Cir. BAP 1997), see also,§ 101(12A) which defines “debt for child support” as “a debt of a kind specified in § 523(a)(5) of this title for maintenance or support of a child of the debtor.” Here, assuming the overpayment is “in connection with” the divorce decree, as required by § 507(a)(7), creditor merely argues in a eonclusory fashion that the overpayment debt should retain the same character as when he originally paid the sums to the debtor. He has stipulated, however, that the debtor is under no obligation to pay him support. As with the husband in Bryer, supra,he makes no argument that the amount overpaid is necessary either for his or his children’s support. “Need” is an important factor in determining whether a debt is actually in the nature of support. See, Gionis, supra.Creditor does not argue any income disparity in debtor’s favor at the time the over payments were made, nor does the record support such a finding. The record does not show that any minor children were living with the creditor when he made the payments. Disparity of income and the presence of minor children are factors in determining “need”. Gionis, supra.* 555Further, while determining what is “support” under § 507(a)(7) is a matter of federal law, state law may be instructive. See, Gibson, suprawhere the court noted that courts can look to state law for guidance in determining whether an obligation is actually in the nature of alimony, maintenance, or support for § 523(a)(5) purposes. Oregon law would not consider creditor’s overpayment claim to be “child support”. Support obligations are for the benefit of the dependent child, not the parent. State ex rel. Juvenile Court of State of Louisiana v. McIntyre,97 Or.App. 56, 775 P.2d 329 (1989). See also,ORS 107.106(1)(b) which, when this case was filed, required that support orders be accompanied by the following statement: “Oregon law recognizes that child support and visitation terms are designed for the child’s benefit.”4 Finally, the creditor’s argument finds no aid in § 507(a)(7)’s legislative history. The section was added by § 304(c) of the Bankruptcy Reform Act of 1994, Pub.L. 103-394 (October 1994) and became effective for all cases commenced after October 22, 1994.5 As the Floor Statements placed in the Congressional Record provide in pertinent part: Section 304: > .. .is intended to provide greater protection for alimony, maintenance and support obligations owing to a spouse, former spouse, or child of a debtor in bankruptcy... Subsection (c) provides a new bankruptcy priority relating to debts for alimony, maintenance or support obligations. 140 Cong.Rec.H. 10,764 et. Seq. (Daily ed. October 4, 1994). These comments make it clear that only “support” debt is included within the ambit of § 507(a)(7). CONCLUSION* Section 507(a)(7) was enacted to provide additional protection for creditors and their dependents, in needof support. The debtor’s objection should be sustained. Creditor’s claim should be allowed in the amount of $3,629.54 as a general unsecured claim. A separate order consistent herewith shall be entered. This opinion constitutes the court’s findings of fact and conclusions of law pursuant to FRBP 7052. They shall not be separately stated. 1 . Unless otherwise noted, all subsequent statutory references are to Title 11 of the United States Code. 2 . See, In re Gianakas,917 F.2d 759 (3rd Cir.1990). 3 . 11 U.S.C. § 523(a)(5) provides: > (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt- > (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that - > (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 402(a)(26) of the Social Security Act, or any such debt which has been assigned to the Federal Government or to a State or any political subdivision of such State); or > (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support; 4 . This text was revised slightly effective October 4, 1997 to provide: "[t]he terms of child support and parenting time (visitation) are designed for the child’s benefit and not the parent’s benefit.” See also,OAR 461-195-001(28) defining: > "Support” as "cash payments or other benefits that a person has been ordered by a court or by administrative process, or has voluntarily agreed, to provide for the benefit and maintenance of another person”; > "Child Support” as “payments that an obligor has been ordered (or has agreed) to pay for the benefit of a child; and > "spousal support” as "payments that an obli-gor has been ordered (or has agreed) to pay for the benefit of a current or former spouse. > "Obligor” is defined under OAR 461-195-001(23) as "any person who is required (or has agreed) to pay child support, spousal support, alimony and/or medical support under an administrative process order, court order, or voluntary agreement. The obligor is usually the absent non-custodial parent of the beneficiary children under a support order.” > Under these definitions, creditor’s claim would not be considered spousal or child support. 5 . Along with § 507(a)(7), several other sections protecting marital obligations were added (e.g. § 523(A)(15) (excepting certain marital obligations from discharge); § 522(f)(1)(A) (protecting judicial liens that secure support obligations from avoidance); § 362(b)(2)(A) (excepting the establishment or modification of support from the automatic stay); and § 547(c)(7) (protecting support payments from avoidance as preferential transfers).
s3://data.kl3m.ai/documents/edgar/0001193125/0001193125-05-186230/	text/plain	Specimen Class B Common Stock Certificate Exhibit 4.4 NUMBER SHARES CLASS B COMMON STOCK ISRAEL GROWTH PARTNERS ACQUISITION CORP. INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE CUSIP This certifies that SEE REVERSE FOR CERTAIN DEFINITIONS is the owner of FULLY PAID AND NON-ASSESSABLE SHARES OF THE CLASS B COMMON STOCK, PAR VALUE $.0001 PER SHARE, OF ISRAEL GROWTH PARTNERS ACQUISITION CORP. (hereinafter called the “Corporation”), transferable upon the books of the Corporation by the holder hereof in person or by duly authorized attorney upon surrender of this certificate properly endorsed. This certificate and the shares represented hereby are issued under and shall be subject to all the provisions of the Certificate of Incorporation and By-Laws of the Corporation (copies of which are on file at the office of the Transfer Agent of the Corporation), to all of which the holder by acceptance hereof assents. This certificate is not valid unless countersigned by the Transfer Agent. Witness the facsimile seal of the Corporation and the facsimile signatures of its duly authorized officers. Dated: COUNTERSIGNED: By: By: AMERICAN STOCK TRANSFER & TRUST COMPANY, as Transfer Agent Authorized Officer SECRETARY CHIEF EXECUTIVE OFFICER ISRAEL GROWTH PARTNERS ACQUISITION CORP. CORPORATE SEAL 2005 DELAWARE * ISRAEL GROWTH PARTNERS ACQUISITION CORP. The Corporation will furnish without charge to each stockholder who so requests, a statement of the powers, designations, preferences and relative, participating, optional, or other special rights or each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common UNIF GIFT MIN ACT - _________ Custodian __________ TEN ENT - as tenants by the entireties (Cust) (Minor) JT TEN - as joint tenants with right of survivorship and not astenants in common under Uniform Gifts to Minors Act ___________________ (State) Additional abbreviations may also be used though not in the above list. For value received, hereby sell, assign and transfer unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE (PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE) shares of the capital stock represented by the within Certificate; and do hereby irrevocably constitute and appoint ______________ Attorney to transfer the said stock on the books of the within named Corporation with full power of substitution in the premises. Dated NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. THE HOLDER OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE FUNDS FROM THAT CERTAIN TRUST FUND ESTABLISHED ON BEHALF OF THE HOLDERS OF THE CORPORATION’S CLASS B COMMON STOCK ONLY IN THE EVENT THAT THE CORPORATION IS UNABLE TO COMPLETE A BUSINESS COMBINATION OR IF THE HOLDER SEEKS TO CONVERT HIS OR HER RESPECTIVE SHARES INTO CASH UPON A BUSINESS COMBINATION WHICH HE OR SHE VOTED AGAINST AND WHICH IS ACTUALLY COMPLETED BY THE CORPORATION. IN NO OTHER EVENT SHALL THE HOLDER HAVE ANY RIGHT OR INTEREST OF ANY KIND IN OR TO THE TRUST FUND.
s3://data.kl3m.ai/documents/edgar/0001056404/0001056404-15-000577/10.json	text/markdown	(logo) KPMG KPMG LLP Aon Center Suite 5500 200 East Randolph Drive Chicago, IL 60601-6436 Report of Independent Registered Public Accounting Firm The Board of Directors The Corporate Trust Services division of Wells Fargo Bank, National Association: We have examined management’s assessment, included in the accompanying Assessment of Compliance with the Applicable Servicing Criteria, that the Corporate Trust Services division of Wells Fargo Bank, National Association (the “Company”) complied with the servicing criteria set forth in Item 1122(d) of the Securities and Exchange Commission’s Regulation AB for residential mortgage‐backed securities (“RMBS”) transactions backed by pools of residential mortgage loans and commercial mortgage‐backed securities (“CMBS”) transactions backed by pools of commercial mortgage loans, in each case for which the Company provides document custody services and where the RMBS and CMBS transactions were either (a) publicly‐issued pursuant to a registration statement under the Securities Act of 1933 on or after January 1, 2006, or (b) privately‐issued pursuant to an exemption from registration on or after January 1, 2006 where the Company has an obligation under the transaction agreements to deliver an assessment of compliance with the applicable servicing criteria under Item 1122(d) of Regulation AB; provided however that, the platform excludes any transactions where the offered securities were issued, sponsored and/or guaranteed by any agency or instrumentality of the U.S. government or any government sponsored entity, other than certain securitizations of residential mortgage loan transactions issued, sponsored and/or guaranteed by the Federal Deposit Insurance Company (the “Document Custody Platform”) as of and for the twelve months ended December 31, 2014. Management has determined that the servicing criteria set forth in Item 1122(d)(1)(ii), 1122(d)(1)(iv), 1122(d)(4)(i), 1122(d)(4)(ii) and 1122(d)(4)(iii) are applicable to the activities performed by the Company with respect to the Document Custody Platform as of and for the twelve months ended December 31, 2014; provided however that, with respect to the Document Custody Platform, servicing criterion 1122(d)(4)(iii) is applicable only as it relates to the Company’s obligation to review and maintain the required loan documents related to any additions, removals or substitutions in accordance with the transaction agreements (the “Applicable Servicing Criteria”), as of and for the twelve months ended December 31, 2014. Management has determined that all other servicing criteria set forth in Item 1122(d) are not applicable to the Document Custody Platform. With respect to applicable servicing criteria 1122(d)(1)(ii) and 1122(d)(4)(iii), management has determined that there were no activities performed during the twelve months ended December 31, 2014 with respect to the Document Custody Platform, because there were no occurrences of events that would require the Company to perform such activities. Appendix A to the Assessment of Compliance with the Applicable Servicing Criteria identifies the individual transactions defined by management as constituting the Document Custody Platform. Management is responsible for the Company’s compliance with the servicing criteria. Our responsibility is to express an opinion on management’s assessment about the Company’s compliance based on our examination. Our examination was conducted in accordance with the attestation standards of the Public Company Accounting Oversight Board (United States) and, accordingly, included examining, on a test basis, evidence about the Company’s compliance with the servicing criteria specified above and performing such other procedures as we considered necessary in the circumstances. Our examination included testing selected asset‐backed transactions and securities that comprise the Document Custody Platform, testing selected servicing activities related to the Document Custody Platform, and determining whether the Company processed those selected transactions and performed those selected activities in compliance with the servicing criteria. Furthermore, our procedures were limited to the selected transactions and servicing activities performed by the Company during the period covered by this report. Our procedures were not designed to determine whether errors may have occurred either prior to or subsequent to our tests that may have affected the balances or amounts calculated or reported by the Company during the period covered by this report for the selected transactions or any other transactions. We believe that our examination provides a reasonable basis for our opinion. Our examination does not provide a legal determination on the Company’s compliance with the servicing criteria. In our opinion, management’s assessment that the Company complied with the aforementioned servicing criteria as of and for the twelve months ended December 31, 2014 is fairly stated, in all material respects. /s/ KPMG LLP Chicago, Illinois February 25, 2015 \| KPMG LLP is a Delaware limited liability partnership, the U.S. member firm of KPMG International Cooperative (“KPMG International”), a Swiss entity. \| \|------------------------------------------------------------------------------------------------------------------------------------------------------------------\|
s3://data.kl3m.ai/documents/recap/gov.uscourts.cand.201179.26.0.pdf.json	text/markdown	1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. C-08-1321 EMC JOINT DISCOVERY PLAN KRONENBERGER BURGOYNE, LLP Henry M. Burgoyne (CA Bar No. 203748) Karl S. Kronenberger (CA Bar No. 226112) Jeffrey M. Rosenfeld (CA Bar No. 222187) Margarita Calpotura (C A Bar No. 244711) 150 Post Street, Suite 520 San Francisco, CA 94108 Telephone: (415) 955-1155 Facsimile: (415) 955-1158 [email protected] [email protected] [email protected] [email protected] Attorneys for Defendant Me mber Source Media, LLC. Jason K. Singleton, State Bar #166170 [email protected] Richard E. Grabowski, State Bar # 236207 [email protected] SINGLETON LAW GROUP 611 “L” Street, Suite A Eureka, CA 95501 (707) 441-1177 Fax: 441-1533 Attorney for Plaintiff, ASIS INTERNET SERVICES UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ASIS INTERNET SERVICES , a California corporation, Plaintiff, vs. MEMBER SOURCE MEDIA, LLC, et al. , Defendants. Case No. CV-08-1321-EMC JOINT DISCOVERY PLAN Case 3:08-cv-01321-EMC Document 26 Filed 07/03/2008 Page 1 of 71 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. C-08-1321 EMC 1 JOINT DISCOVERY PLAN Pursuant to Rule of Civil Procedure 26(f) (3), and the Court’s di rection, Plaintiff ASIS Internet Services (“ ASIS”) and Defendant Member S ource Media, LLC (“Member Source”) submit this Joint Discovery Plan. I. What changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a st atement of when initial disclosures were made or will be made. A. Member Source’s Statement. The parties have exchanged initial disclosur es pursuant to Rule of Civil Procedure 26(a). Member Source serv ed its initial disclosures on ASIS on June 4, 2008. ASIS served its initial disclosures on Member Sour ce on June 11, 2008. ASIS, which claims that the addresses to which Member Source sent the al leged emails (“Emails”) are confidential corporate informati on, has yet to produce versions of the Emails containing such addresses . If and when ASIS does produce comple te versions of the Emails, ASIS is expected to designate such addresses as “Confidential” and/or “Highly ConfidentialAttorneys’ Eyes Only.” Of course, any such designation would make it extremely cumbersome or impossible for Member Source to gather information, including from third parties, relating to the Emails, in particular as concerns any expression of affirmative consent by the owners/operators of such a ddresses to receive the Emails. Member Source will raise the designat ion issue with the Court as soon as is practicable. B. ASIS’s Statement. A confidential designation would allo w Defendant’s employees, experts and technical staff access to the unredacted emails. II. The subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues. A. Member Source’s Statement. In its Order Granting Defendant’s Motion for Security for Costs; and Setting Case Management Schedule [Docket No. 7] (the “Order”), the Court se t forth the parameters of Case 3:08-cv-01321-EMC Document 26 Filed 07/03/2008 Page 2 of 71 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. C-08-1321 EMC 2 JOINT DISCOVERY PLAN discovery to take place during the first phase of this action. The only remaining issue concerns depositions, specifical ly the handling of witnesse s with knowledge of both ASIS’s alleged standing and other merits issues. Member Source has identified at least four such witnesses, to in clude ASIS owners Nella Whit e and Rex White, ASIS employee Sally Then, and ASIS’s accountant (whom ASIS described in prior liti gation but failed to specifically identify) . During the parties’ June 11 ca se management conference, the Court suggested that ASIS permit Member Source to conduct two-part depositions of such witnesses—the first part (regarding standing) to take place during the initial phase of this litigation and the second part (regarding all other merits i ssues) to take place later. Accordingly, Member Source requests that the Court issue a discovery order permitting Member Source to conduct two-part depositions of the four witnesses set forth above. In the meet and confer over this discovery plan, ASIS for the first time suggested that it be permitted to propoun d additional discovery concerni ng the involvement of third party “affiliates” in the sending of the Ema ils. Member Source strenuously objects to ASIS’s proposed “affiliate” discovery, insofar as any investigation as to the source of each of 5,000-plus emails, few if any of wh ich were sent by Member Source, would create an extraordinary amount of work for Me mber Source, thus defeating the purpose of bifurcation . ASIS’s proposed additional discovery is a thinly-veiled fishing expedition aimed at gathering information for use in filing future CAN-SPAM lawsuits. B. ASIS’s Statement. Plaintiff is not opposed to Defendant taking two depositions prior to the proposed dispositive motion, and that such testimony be limited to standing issues, or that Defendant have the opp ortunity to depose such witnesses a second time on all other issues after t he question on standing is resolved. Plaintiff has propounded 7 subpoena’s prio r to the Court’s issuing its order on Security on Costs. This was done with Defendant’s advance notice and consent. Case 3:08-cv-01321-EMC Document 26 Filed 07/03/2008 Page 3 of 71 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. C-08-1321 EMC 3 JOINT DISCOVERY PLAN Defendant has been provided with the emails at issu e in this litigation in redacted format. Plaintiff requests le ave to propound five very simple interrogatories to determine whether Defendant can identify which of its affiliates sent the subject emails, or simply a st atement under oath that it cannot identify which affiliates sent the emails. III. Any issues about disclosure or discovery of electr onically stored information, including the form or fo rms in which it should be produced. A. Member Source’s Statement. Based on ASIS’s docum ent production in ASIS v. Optin Global, et al. , No. 05- 5124, Member Source has serious concerns about the efforts taken by ASIS to preserve relevant documents existent at or after the ti me ASIS decided to file this lawsuit. In particular, Member Source is concerned that ASIS has failed to preserve email server logs, spam filter and virus sca nning logs, server configurat ion data, remote user access logs, and other information obviously relevant to the issues of, without limitation, ASIS’s receipt of, and adverse effects allegedly caused by, the Emails. Member Source requests that the Court issue a preservation order requiring ASIS and its contractors, attorneys and other agents to preserve all el ectronic documents that may prove relevant to any claim or defense in this case. B. ASIS’s Statement. There is no substance to Defendant’s argument that Plaintiff failed to preserve evidence in the Optin Globa l matter. Defendant should at least identify what evidence it has concerns about befor e requiring the Court consider such a protective order. Moreover, the law itse lf contains doctrines designed to address such concerns. IV. Any issues about claims of privilege or of protection as trial-preparation materials, including — if th e parties agree on a procedure to assert these claims after production — whether to ask the court to include thei r agreement in an order. Case 3:08-cv-01321-EMC Document 26 Filed 07/03/2008 Page 4 of 71 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. C-08-1321 EMC 4 JOINT DISCOVERY PLAN The parties agree that disclosure and disc overy in this case will likely involve production of confidential, propr ietary, or private information for which special protection from public disclosure is warrant ed. The parties intend to subm it a Stipulated Protective Order to the Cour t for its approval. V. What changes should be made in the limitations on discovery imposed under these rules or by local rule, and wh at other limitations should be imposed. The parties have agreed that discovery wil l comply with the Federal Rules of Civil Procedure and agree that with the exception of the proposed discovery schedules set forth above, there should be no need at this time to impose additional limitations on the subject matter or timing of discovery in this case. VI. Any other orders that the court s hould issue under Rule 26(c) or under Rule 16(b) and (c). A. Member Source’s Statement. As directed by the Court, the parties have discussed a stay of this case pending a resolution of the appeal relating to ASIS v. Optin Global. Thus far, ASIS has refused to stipulate to a stay. Member Source believes a stay of this action is entirely appropriate because: 1) almost any construction of CAN-SPAM will foreclose ASIS’s alleged standing; 2) litigation of just the standing issue in this ca se will cost the parties, in particular Member Source, scores of thousands of dollars in attorn eys’ fees; 3) ASIS’s concerns regarding the preservation of evidence can be satisfied by much less burdensome and expensive means, such as preservation orders. In another ASIS CAN-SPAM case, ASIS v. Azoogle.com, Inc. , No. C-07-4630 JCS, Judge Spero recently stat ed his intention to stay that litigation pending outcome of the ASIS v. Optin Global appeal. ASIS responded by vol untarily agreeing to dismiss ASIS v. Azoogle , in its entirety, with prejudice. ( ASIS v. Azoogle had previously been stayed by Judge Patel, in November 2007, pending a resolution of ASIS v. Optin Global .) ASIS attempts to distin guish this case from ASIS v. Azoogle on the ground that discovery in ASIS v. Azoogle would have been futile, given the pa ssage of time. That distinction Case 3:08-cv-01321-EMC Document 26 Filed 07/03/2008 Page 5 of 71 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. C-08-1321 EMC 5 JOINT DISCOVERY PLAN lacks all credibility, giv en that the first of the Emails at issue here were sent in March 2006, just three months after t he first emails at issue in ASIS v. Azoogle . If it were too late for discovery in ASIS v. Azoogle , then it is too late for discovery here. ASIS and Member Source wi ll submit a joint letter on the issue of a stay, as directed by the Court. In the event that ASIS and Member Source are unable to reach agreement, Member Source will seek leave of the Court to file a motion to stay . B. ASIS’s Statement. The ASIS v. Azoogle.com, Inc. , No. C-07-4630 JCS matter has already been stayed for a year. As a result, el ectronic data in the possession of third parties and which Plaintiff needed for prosec ution of the action, probably no longer exists. Hence, Plaintiff’s offer there to dism iss for a waiver of costs. If this matter is stayed pending the appeal in Optin Global , the likelihood of tracking down the senders of the subject emails and establis hing their relationship to Defendant becomes remote. It is not uncommon for various District Courts to have divergent views on complex questions of law. If eac h time this occurred, all related cases were stayed pending the outcome of an a ppeal in any one case, there would be a considerable number of stayed matters. Justice delayed is justice denied. Moreover, the parties and the Court hav e contemplated and effected a plan to hear the standing question in an expedited manner. If Defendant prevails, Defendant will have thei r stay pending appeal. Case 3:08-cv-01321-EMC Document 26 Filed 07/03/2008 Page 6 of 71 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. C-08-1321 EMC 6 JOINT DISCOVERY PLAN DATED: July 3, 2008 KRONENBERGER BURGOYNE, LLP By: /s/ Henry M. Burgoyne Henry M. Burgoyne, III Attorney for Defendan t Member Source Media, LLC DATED: July 3, 2008 SINGLETON LAW GROUP By: /s/ Jason K. Singleton Jason K. Singleton Attorney for Plaintiff ASIS Internet Services ATTESTATION OF CONCURRENCE IN FILING Pursuant to N.D. Cal. General Order No. 45, section 45 X(B), I, Henry M. Burgoyne, III, hereby attest that the concurr ence to the filing of this Joint Discovery Report has been obtained from Counsel for Pl aintiff who has provided the conformed signature above. DATED: July 3, 2008 KRONENBERGER BURGOYNE, LLP By: /s/ Henry M. Burgoyne Henry M. Burgoyne, III Attorney for Defendan t Member Source Media, LLC Case 3:08-cv-01321-EMC Document 26 Filed 07/03/2008 Page 7 of 7
s3://data.kl3m.ai/documents/recap_docs/2014/06/05/venie_v._velasquez.pdf.json	text/plain	This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 D. CHIPMAN VENIE, 3 Plaintiff-Appellee, 4 v. NO. 33,427 5 ANNA VELASQUEZ, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Carl J. Butkus, District Judge 9 D. Chipman Venie 10 Albuquerque, NM 11 Pro Se Appellee 12 James Rawley 13 Albuquerque, NM 14 for Appellant 15 MEMORANDUM OPINION 16 HANISEE, Judge. 17 {1} Appellant, Anna Velasquez, appeals from the district court’s order dismissing 18 her appeal. We issued a notice of proposed disposition proposing to affirm. Appellant 2 1 has responded with a timely memorandum in opposition, which we have duly 2 considered. We remain unpersuaded that our initial proposed disposition was 3 incorrect. We therefore affirm the district court. 4 {2} In her memorandum in opposition, Appellant continues to argue that the 5 district court erred in determining that an audio transcript of the trial was necessary 6 to support an appeal from the metropolitan court to the district court. [MIO 1] 7 Appellant’s argument that the district court could hear her appeal without reference 8 to the trial court proceedings is an argument that she could appeal de novo to the 9 district court. See State v. Foster, 2003-NMCA-099, ¶ 9, 134 N.M. 224, 75 P.3d 824 10 (noting that in a de novo appeal, in contrast to appeals on the record, a district court 11 conducts a new trial as if the trial in the lower court had not occurred). The question 12 whether a party is entitled to a de novo appeal in district court is a question of law that 13 we review de novo. See State v. Krause, 1998-NMCA-013, ¶ 3, 124 N.M. 415, 951 14 P.2d 1076. 15 {3} The district court dismissed Appellant’s appeal of the metropolitan court 16 judgment on the basis that she had failed to record the bench trial in metropolitan 17 court. [RP 73-76] See Rule 3-708(A) NMRA (“Every civil proceeding in the 18 metropolitan court shall be tape recorded if requested by a party.”). We agree with the 19 district court’s analysis on this issue. [RP 73-76] The New Mexico Constitution grants 20 district courts appellate jurisdiction over all inferior courts, and trials in district court 3 1 are de novo unless otherwise provided by law. See N.M. Const. art. VI, § 13; N.M. 2 Const. art. VI, § 27; State v. Wilson, 2006-NMSC-037, ¶ 7, 140 N.M. 218, 141 P.3d 3 1272. In the case of civil appeals from metropolitan court, the Legislature has 4 “otherwise provided by law” because pursuant to NMSA 1978, Section 34-8A-6(B) 5 (1993), the metropolitan court is a “court of record” for civil appeals. See Wilson, 6 2006-NMSC-037, ¶ 7 (determining that Section 34-8A-6(C) creates an exception to 7 the rule mandating de novo hearings for appeals from metropolitan court to district 8 court because it provides that the metropolitan court is a court of record for certain 9 cases, and appeals under this section are heard on record). 10 {4} “On-record Metropolitan Court proceedings are an exception to the general rule 11 that defendants are entitled to a de novo trial in district court[.]” Wilson, 2006- 12 NMSC-037, ¶ 11. In an on-record appeal from metropolitan court, the district court 13 does not conduct a new trial; rather, it reviews the metropolitan court trial for legal 14 error. See Serna v. Gutierrez, 2013-NMCA-026, ¶ 13, 297 P.3d 1238 (noting that in 15 an on-record metropolitan court appeal, the district court reviews for legal error); 16 Foster, 2003-NMCA-099, ¶ 9 (stating that in an on-record appeal from metropolitan 17 court, the district court sits as a typical appellate court and reviews the trial in the 18 lower court for legal error). Accordingly, we believe that Appellant’s failure to make 19 a record of the metropolitan court trial precludes appeal to district court. See generally 20 Michaluk v. Burke, 1987-NMCA-044, ¶ 25, 105 N.M. 670, 735 P.2d 1176 (“Where 4 1 the record on appeal is incomplete, the ruling of the trial court is presumed to be 2 supported by the evidence.”); Sandoval v. Baker Hughes Oilfield Operations, Inc., 3 2009-NMCA-095, ¶ 65, 146 N.M. 853, 215 P.3d 791 (observing that it is the duty of 4 the appellant to provide a record adequate to review the issues on appeal). 5 {5} In her memorandum in opposition, Appellant continues to argue that Plaintiff 6 did not comply with Rule 3-708(A) NMRA, which states, “Every civil proceeding in 7 the metropolitan court shall be tape recorded if requested by a party. The summons 8 shall contain a notice of the right to request a taped record of the proceedings.” [MIO 9 1-2] Additionally, Rule 3-202(B)(4) NMRA states that the summons shall include “a 10 notice that the defendant may request prior to any proceeding that the proceeding be 11 recorded. The notice shall advise the defendant if a tape recording is not made of the 12 proceedings it may effectively preclude the defendant from appealing to the district 13 court.” The record indicates that Plaintiff failed to notify Appellant of the right to 14 record the proceedings in his metropolitan court summons. [RP 75-76] Appellant 15 argues that Plaintiff’s failure to comply with the requirement of Rule 3-708(A) should 16 operate as a waiver of his right to object to the lack of record on appeal. However, as 17 we stated in our notice of proposed summary disposition, we do not agree that 18 Plaintiff’s failure to notify her of the right to record the proceedings creates a right to 19 de novo appeal in district court in a civil case. Additionally, Appellant has not cited 20 to authority in support of her argument that a party’s failure to comply with the 5 1 aforementioned rules would constitute a waiver of the right to object to the lack of 2 record on appeal. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 3 676 P.2d 1329 (stating that where a party cites no authority to support an argument, 4 we may assume no such authority exists); ITT Educ. Servs., Inc. v. Taxation & 5 Revenue Dep’t, 1998-NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d 969 (stating that this 6 Court will not consider propositions that are unsupported by citation to authority). 7 {6} As we noted in the notice of proposed disposition, despite Plaintiff’s failure to 8 include the requisite notice in the summons, information regarding the right and the 9 obligation to record the proceedings was readily available to Appellant, as it is plainly 10 stated in metropolitan court rules. See Rule 3-708(A) (stating that every civil 11 proceeding in metropolitan court shall be tape recorded if requested by a party); Rule 12 3-706(E)(5) NMRA (stating that the appellant shall file a copy of the record on appeal 13 from metropolitan court to district court, which shall consists of any transcripts of the 14 proceedings, either stenographically made or tape recorded). 15 {7} Finally, Appellant continues to argue that the lack of a record does not bar 16 review in this case because the issue before the metropolitan court involved a purely 17 legal issue of whether the contract was substantively unconscionable. [MIO 2-3] 18 Appellant asserts that this is a question of law that the court resolves by only looking 19 at the contract terms. [MIO 2-4] Accordingly, Appellant argues that there is no 20 difference between the district court reviewing for “legal error” and de novo review 6 1 under these circumstances. [MIO 4-5] See Foster, 2003-NMCA-099, ¶ 9 (stating that 2 in an on-record appeal from metropolitan court, the district court sits as a typical 3 appellate court and reviews the trial in the lower court for legal error). 4 {8} We disagree. We first reject Appellant’s argument that courts review only the 5 contract terms in determining whether a contract is substantively unconscionable. See 6 State ex rel. State Highway & Transp. Dep’t v. Garley, 1991-NMSC-008, ¶¶ 31-32, 7 111 N.M. 383, 806 P.2d 32 (holding that the common law rule to be applied to all 8 contracts states that when a contract is claimed to be substantively unconscionable, 9 the parties should be allowed to present evidence as to its commercial setting, purpose, 10 and effect). Additionally, as we pointed out in the notice of proposed summary 11 disposition, there was in fact a trial in metropolitan court. It therefore appears that the 12 metropolitan court did not limit itself to reviewing the contract terms in determining 13 whether the fee was unconscionable. For this Court to disregard evidence before the 14 metropolitan court would be contrary to our longstanding case law. See, e.g., 15 Michaluk, 1987-NMCA-044, ¶ 25 (“Where the record on appeal is incomplete, the 16 ruling of the trial court is presumed to be supported by the evidence.”); Dillard v. 17 Dillard, 1986-NMCA-088, ¶ 6, 104 N.M. 763, 727 P.2d 71 (observing that the 18 appellant has the duty to provide a record adequate to review the issues on appeal). 19 {9} For these reasons, we affirm the district court. 20 {10} IT IS SO ORDERED. 7 1 __________________________________ 2 J. MILES HANISEE, Judge 3 WE CONCUR: 4 _________________________________ 5 JONATHAN B. SUTIN, Judge 6 _________________________________ 7 CYNTHIA A. FRY, Judge
s3://data.kl3m.ai/documents/edgar/0001047469/0001047469-05-023039/	text/plain	Exhibit 10.22 INDEMNITY AGREEMENT Indemnity Agreement (“Indemnity” or “Agreement”) dated as of August 11, 2005 among the Indemnitor (defined below), THE NEWKIRK MASTER LIMITED PARTNERSHIP, a Delaware limited partnership (“NMLP”), KEYBANK NATIONAL ASSOCIATION, a national banking association having an address at 101 Federal Street, Boston, Massachusetts, and the other lending institutions which become parties to the Loan Agreement (defined below) (KeyBank National Association and such other lending institutions which become parties to the Loan Agreement are collectively referred to as the “Lenders” and each individually as a “Lender”), and KEYBANK NATIONAL ASSOCIATION, as Administrative Agent (the “Administrative Agent”). All capitalized terms used in this Agreement which are not otherwise specifically defined herein shall have the same meaning herein as in the Loan Agreement. RECITALS WHEREAS, reference is hereby made to the loan arrangement (the “Loan Arrangement”) entered into by and between, among others, NMLP, the Administrative Agent and the Lenders, as evidenced by, among other documents, instruments and agreements, that certain Master Loan Agreement dated as of even date herewith among (i) NMLP, (ii) T-Two Partners, L.P., a Delaware limited partnership (“T-Two”), (iii) the Administrative Agent, (iv) Bank of America, N.A., as “Deposit Account Co-Agent”, and (v) the Lenders (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”). WHEREAS, as a condition to entering into the Loan Arrangement, the Administrative Agent and the Lenders have required that, among other things, NMLP and the Indemnitor execute and deliver this Agreement. As used herein: A. The term “Actual NMLP Loss” shall mean the sum of all payments made by, or on behalf of, or from the assets of, NMLP, any NMLP Subsidiary, or any NMLP Loan Party (except the Newkirk Indemnitor or the members of the NMLP GP) to, or on behalf of, the Integrated Group on account of the Integrated Obligations. B. The “Indemnitor” shall mean, singly and collectively, NEWKIRK NL HOLDINGS LLC, a Delaware limited liability company, NEWKIRK MLP CORP., a Delaware corporation, VORNADO REALTY, L.P., a Delaware limited partnership, VORNADO NEWKIRK LLC, a Delaware limited liability company, VNK L.L.C., a Delaware limited liability company, and APOLLO REAL ESTATE INVESTMENT FUND III, L.P., a Delaware limited partnership. C. The term “Indemnified Matters” shall mean any and all claims, rights to payment of money and other rights or causes of action held, asserted or threatened by the Integrated Group or any other Person against NMLP, any NMLP Subsidiary, any NMLP Loan Party (except the Newkirk Indemnitor or the members of the NMLP GP), or any Indemnified Party under, or arising out of, the Integrated Documents and the transactions with the Integrated 1 Group relative thereto, including, without limitation, (i) the Integrated Obligations and (ii) any liens granted to, or held by, the Integrated Group to secure the repayment of the Integrated Obligations. D. The term “Indemnified Party” shall mean: (i) NMLP; (ii) all those claiming by, through or under NMLP; (iii) Administrative Agent and/or each Lender; (iv) all those claiming by, through or under the Administrative Agent or any Lender, including any subsequent holder of the NMLP Loan and any present or future owner of a participation interest therein, but specifically excluding any unrelated third party purchaser of any of the NMLP Collateral; and (v) as to each of the foregoing, their respective parent and subsidiary corporations, and, as applicable, the respective officers or directors, of any one or more of them, and any person, firm or entity which controls them but specifically excluding any unrelated third party purchaser of any of the NMLP Collateral. FOR VALUE RECEIVED, the Indemnitor hereby unconditionally agrees as follows: 1. Indemnification. Except as provided below, at all times, both before and after the repayment of the NMLP Loan, Indemnitor hereby agrees that it shall at its sole cost and expense indemnify, defend, exonerate, protect and save harmless each Indemnified Party against and from any and all damages, losses, liabilities, obligations, penalties, claims, litigation, demands, defenses, judgment, suits, proceedings, costs, disbursements or expenses of any kind or nature whatsoever, including, without limitation, reasonable attorneys’ and experts’ fees and disbursements, which may at any time be imposed upon, incurred by or asserted or awarded against such Indemnified Party and arising from or out of or in connection with the Indemnified Matters, provided, however that no Indemnitor shall be liable under this Indemnity for any damages, losses, liabilities, obligations, penalties, claims, litigation, demands, defenses, judgment, suits, proceedings, costs, disbursements or expenses arising out of or relating to the gross negligence or willful misconduct of an Indemnified Party. Without limiting the generality of the foregoing in respect of matters other than any Actual NMLP Loss, any Actual NMLP Loss shall be deemed to be a loss, liability, and expense incurred by NMLP and arising from or out of or in connection with the Indemnified Matters, and therefore, subject to indemnification under this Section 1. Any such Actual NMLP Loss shall be paid by the Indemnitor to NMLP within fifteen (15) days of demand by NMLP or the Administrative Agent therefor. Notwithstanding the terms and provisions hereof, NMLP irrevocably directs the Indemnitor to pay to the Administrative Agent (but only to the extent of the then outstanding NMLP Obligations) the unpaid amount of any Actual NMLP Loss (which payment shall be applied to the NMLP Obligations in accordance with the provisions of the Loan Agreement) if a payment of an Actual NMLP Loss has been demanded by NMLP or the Administrative Agent and payment of such Actual NMLP Loss has not been made in full to, or on behalf of, NMLP within fifteen (15) days of such demand. The Administrative Agent shall have the right to enforce the obligations of the Indemnitor with respect to any Actual NMLP Loss, but only for so long as NMLP Obligations are outstanding. An Indemnified Party shall provide notice to the Indemnitor of any claim which may form the basis of an indemnity hereunder other than a claim for an Actual NMLP Loss 2 (a “Claim”) within ninety (90) days of receipt or notice of such Claim and shall thereafter provide the Indemnitor with copies of all documents received by such Indemnified Party relating to such Claim; provided, however, failure by such Indemnified Party to provide any such notice or documents will not relieve the Indemnitor of their obligation to indemnify the Indemnified Parties hereunder. Upon notice of a Claim, an Indemnitor may notify any Indemnified Party involved in such Claim that it desires to defend such Indemnified Party against such Claim, whereupon such Indemnitor, except as hereinafter provided, shall have the right to defend such Indemnified Party by appropriate proceedings and shall have the power to reasonably direct and control such defense, in all instances subject to the approval of the Indemnified Party, which approval will not be unreasonably withheld. All costs and expenses incurred by an Indemnitor in defending such Claim shall be paid by such Indemnitor. An Indemnitor shall not consent to the entry of any judgment or enter into any settlement in respect of a Claim without the consent of the Indemnified Parties involved in the Claim, which consent shall not be unreasonably withheld or delayed and provided such Indemnitor makes satisfactory arrangements for the immediate satisfaction of such judgment or settlement. The extent an Indemnitor shall direct, control or participate in the defense or settlement of any Claim, the Indemnified Parties involved in such Claim will, as reasonably required, give the Indemnitor and their counsel access to, during normal business hours and after reasonable notice, the relevant business records and other documents (subject to customary confidentiality agreements and any limitations required based on any nondisclosure requirements imposed on the such Indemnified Party), and permit them, during normal business hours and after reasonable notice, to consult with the relevant employees and counsel of such Indemnified Parties. 1.1 Limitation. Notwithstanding anything to the contrary contained herein, with the exception of obligations that have as of such date ripened into an actual or threatened cause of action or claim for damages (the “Existing Claim”) or thereafter arise out of or are related to such Existing Claim, the Indemnitor’s liability hereunder shall be terminated after the full payment and performance of all NMLP Obligations under the NMLP Loan Documents, including, but not limited to, repayment in full of the NMLP Loan and all preference periods under all applicable bankruptcy and insolvency laws having elapsed with either: (a) no claim being made during such period against the Administrative Agent or any Lender for the disgorgement of any property or money received, or (b) if such a claim has been filed, the dismissal thereof pursuant to a final, non-appealable decision of a court of competent jurisdiction (“Non-Contestable Payment”). 1.2 Recovery of Costs. Any and all amounts paid or advanced by the Administrative Agent or any Lender pursuant to this Agreement and all costs and expenditures reasonably incurred in connection with any action taken pursuant to the terms of this Agreement, including but not limited to reasonable attorneys’ fees and expenses, and all court costs, shall be payable upon demand with interest thereon at the Default Rate if not paid within fifteen (15) days of demand thereof and, to the extent not prohibited by law, but only if such amounts have been paid or advanced by the Administrative Agent or a Lender. 2. Waivers. Indemnitor each hereby waive and relinquish to the fullest extent now or hereafter not prohibited by applicable law: 3 2.1 Suretyship Defenses. All suretyship defenses and defenses in the nature thereof; 2.2 Marshalling. Any right or claim of right to cause a marshalling of NMLP’s or any of NMLP’s Subsidiaries’ assets or to cause the Administrative Agent or any Lender to proceed against any of the NMLP Collateral for the NMLP Loan before proceeding under this Agreement against any Indemnitor, or to require Lender to proceed against Indemnitor in any particular order; 2.3 Notice. Notice of the acceptance hereof, presentment, demand for payment, protest, notice of protest, or any and all notice of nonpayment, nonperformance, nonobservance or default or other proof or notice of demand whereby to charge Indemnitor therefor; and 2.4 Statute of Limitations. The pleading of any Statute of Limitations as a defense to such Indemnitor’s obligations hereunder. 3. Jury Trial. INDEMNITOR, NMLP, THE ADMINISTRATIVE AGENT AND LENDERS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN-CONNECTION WITH THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTIES. 4. Cumulative Rights. The Administrative Agent’s rights under this Agreement shall be in addition to and not in limitation of all of the rights and remedies of the Administrative Agent under the other NMLP Loan Documents. All rights and remedies of the Administrative Agent shall be cumulative and may be exercised in such manner and combination as the Administrative Agent may determine. 5. No Impairment. The liability of Indemnitor hereunder shall in no way be limited or impaired by, and Indemnitor hereby assents to and agrees to be bound by, any amendment or modification of the provisions of the other NMLP Loan Documents to or with the Administrative Agent and Lenders by NMLP, any NMLP Subsidiary, or any NMLP Loan Party, or any successor or assign thereof. In addition, the liability of Indemnitor under this Agreement shall in no way be limited or impaired by: 5.1 Extensions. Any extensions of time for performance required by any of the other NMLP Loan Documents; 5.2 Waiver. Any waiver, consent or approval granted or denied under any of the other NMLP Loan Documents; 5.3 Transfer. Any sale or assignment of the NMLP Loan, or any sale, assignment or foreclosure of the NMLP Security Documents, or any sale or transfer of all or part of the NMLP Collateral; 4 5.4 Exculpatory Language. Any exculpatory, or nonrecourse, or limited recourse provision in any of the NMLP Loan Documents (except as specifically contained in this Agreement) limiting the Administrative Agent’s or any Lender’s recourse or limiting the Administrative Agent’s or any Lender’s rights to a deficiency judgment against NMLP or any other party; 5.5 Inaccuracies. The accuracy or inaccuracy of any of the representations or warranties made by or on behalf of any Indemnitor under the NMLP Loan Documents or otherwise; 5.6 Release. The release of Indemnitor, or of any other person or entity from performance or observance of any of the agreements, covenants, terms or conditions contained in any of the other NMLP Loan Documents by operation of law, the Administrative Agent’s or any Lender’s voluntary act, or otherwise; 5.7 Bankruptcy or Reorganization. The filing of any bankruptcy or reorganization proceeding by or against NMLP, any NMLP Subsidiary, any NMLP Loan Party, any Indemnitor, or any subsequent owner of any NMLP Collateral; 5.8 Substitution. The release or substitution in whole or part of any NMLP Collateral or security for the NMLP Loan; 5.9 Failure To Perfect. The Administrative Agent’s failure to file any UCC financing statements (or the Administrative Agent’s improper recording or filing of any thereof) or to otherwise perfect, protect, secure, or insure any security interest or lien given as security for the NMLP Loan; 5.10 Release of Parties. The release of any party now or hereafter liable upon or in respect of the NMLP Loan; or 5.11 Invalidity. The invalidity or unenforceability of all or any portions of any of the NMLP Loan Documents as to any Indemnitor or to any other person or entity. Any of the foregoing may be accomplished with or without notice to NMLP or any Indemnitor or with or without consideration. 6. Delay Not Waiver. No delay on the Administrative Agent’s part in exercising any right, power or privilege hereunder or under any of the NMLP Loan Documents shall operate as a waiver of any such privilege, power or right. No waiver by the Administrative Agent in any instance shall constitute a waiver in any other instance. 7. Warranties and Representations. The Indemnitor represents and warrants to the Administrative Agent, as of the date hereof: 5 7.1 No Claim. There is no claim pending against NMLP, any NMLP Subsidiary, any Loan Party or any Indemnified Party under or related to the Indemnified Matters and to the Indemnitor’s knowledge, no such claim threatened; 7.2 Valid and Binding. This Agreement constitutes the legal, valid and binding obligation of the Indemnitor in accordance with the terms hereof; 7.3 No Violations. The performance of the obligations evidenced hereby will not constitute a violation of any law, order, regulation, contract, organizational document or agreement to which the Indemnitor is a party or by which any of its property is or may be bound; 7.4 No Litigation. There is no material litigation or administrative proceeding now pending or to its knowledge threatened in writing against the Indemnitor which if adversely decided could materially impair the ability of the Indemnitor to pay or perform its obligation hereunder; and 7.5 Material Economic Benefit. The Indemnitor owns, directly or indirectly, various ownership and economic interests in NMLP. The Indemnitor further believes that the providing of the NMLP Loan to NMLP will constitute a substantial and material benefit to the Indemnitor. 8. Multiple Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. Each of the counterparts shall constitute but one and the same instrument and shall be binding upon each of the parties individually as fully and completely as if all had signed but one instrument so that the liability of the Indemnitor hereunder shall be unaffected by the failure of any of the undersigned to execute any or all of said counterparts. 9. Notices. Any notice or other communication in connection with this Agreement shall be in writing and (i) deposited in the United States mail, postage prepaid, by registered or certified mail, or (ii) hand delivered by any commercially recognized courier service or overnight delivery service, such as Federal Express, addressed as follows: If to the Indemnitor: NEWKIRK NL HOLDINGS, LLC 7 Bulfinch Place, Suite 500 Boston, Massachusetts 02114 Attention: Carolyn Tiffany, Chief Operating Officer 6 NEWKIRK MLP CORP. 7 Bulfinch Place, Suite 500 Boston, Massachusetts 02114 Attention: Carolyn Tiffany, Chief Operating Office VORNADO REALTY L.P. 888 7th Avenue New York, New York 10019 Attention: Clifford Broser (212) 894-7000 FAX: (212) 894-7071 VORNADO NEWKIRK L.L.C. 888 7th Avenue New York, New York 10019 Attention: Clifford Broser (212) 894-7000 FAX: (212) 894-7071 VNK L.L.C. 888 7th Avenue New York, New York 10019 Attention: Clifford Broser (212) 894-7000 FAX: (212) 894-7071 APOLLO REAL ESTATE INVESTMENT FUND III, L.P. c/o Apollo Real Estate Advisors III, L.P. Two Manhattanville Road, 2nd Floor Purchase, New York 10577 Attn: Stuart Koenig Facsimile Number: (212) 515-3283 with copies by regular mail or such hand delivery to: Mark I. Fisher, Esquire Katten Muchin Zavis Rosenman 575 Madison Avenue New York, New York 10022-2585 (212) 940-8584 FAX: (212) 940-8776 7 David J. Heymann, Esquire Post Heymann & Koffler, LLP Two Jericho Plaza, Wing A, Suite 111 Jericho, New York 11753 (516) 681-3636 FAX: (516) 433-2777 Arthur Adler, Esquire Sullivan & Cromwell, LLP 125 Broad Street New York, New York 10004-2498 (212) 558-4000 FAX (212) 558-3588 If to Administrative Agent: KeyBank National Association 101 Federal Street Boston, Massachusetts 02110 Attention: Mr. Jeffry M. Morrison, Vice President FAX (617) 204-5769 with copies by regular mail or such hand delivery to: Riemer & Braunstein LLP Three Center Plaza Boston, Massachusetts 02108 Attention: Steven J. Weinstein, Esquire If to NMLP: Newkirk Master Limited Partnership Two Jericho Plaza, Wing A, Suite 111 Jericho, New York 11753 Attention: Peter Braverman, Executive Vice President And The Newkirk Master Limited Partnership 7 Bulfinch Place, Suite 500 Boston, Massachusetts 02114 Attention: Carolyn Tiffany, Chief Operating Officer 8 with copies by regular mail or such hand delivery to: Post Heymann & Koffler, LLP Two Jericho Plaza, Wing A, Suite 111 Jericho, New York 11753 Attention: David J. Heymann, Esquire And Katten Muchin Zavis Rosenman 575 Madison Avenue New York, New York 10022-2585 Attention: Mark I. Fisher, Esquire And Sullivan & Cromwell, LLP 125 Broad Street New York, New York 10004 Attention: Arthur Adler, Esquire Any such addressee may change its address for such notices to any other address in the United States as such addressee shall have specified by written notice given as set forth above. All periods of notice shall be measured from the deemed date of delivery. A notice shall be deemed to have been given, delivered and received, when so delivered or tendered for delivery during customary business hours on a Business Day at the specified address. 10. No Oral Change. No provision of this Agreement may be changed, waived, discharged, or terminated orally by telephone or by any other means except by an instrument in writing signed by the party against whom enforcement of the change, waiver or discharge or termination is sought. 11. Parties Bound; Benefit. This Agreement shall be binding upon the Indemnitor and its successors, assigns and shall be for the benefit of the Administrative Agent and the Lenders, and of any subsequent holder of the NMLP Loan and of any owner of a participation interest therein. In the event the NMLP Loan is sold or transferred, then the liability of the Indemnitor to the Administrative Agent and the Lenders shall then be in favor of both the Administrative Agent and the Lenders originally named herein and each subsequent holder of the NMLP Loan and any of interest therein. 12. Partial Invalidity. Each of the provisions hereof shall be enforceable against each Indemnitor to the fullest extent now or hereafter permitted by law. The invalidity or unenforceability of any provision hereof shall not limit the validity or enforceability of each other provision hereof. 13. Governing Law and Consent to Jurisdiction. This Agreement and the rights and obligations of the parties hereunder shall in all respects be governed by and construed and 9 enforced in accordance with the laws of the Commonwealth of Massachusetts. The parties further agree that the Administrative Agent may enforce its rights under this Agreement including, but not limited to, the rights to sue Indemnitor in accordance with applicable law. The Indemnitor hereby irrevocably submits to the nonexclusive jurisdiction of any Massachusetts State or Federal Court sitting in Massachusetts over any suit, action or proceeding arising out of or relating to this Agreement and the Indemnitor hereby agrees and consents that in addition to any methods of service of process provided for under applicable law, all service of process in any such suit, action or proceeding in any Massachusetts State or Federal Court sitting in Massachusetts may be made by certified or registered mail, return receipt requested, directed to the Indemnitor at the address for notice pursuant to Section 9 above and service so made shall be completed fifteen (15) days after the same shall have been so mailed. 14. Survival. Except as provided in Section 1.1 hereof, the representations and warranties in Section 7 hereof and the indemnity in Section 1 hereof shall continue in effect and shall survive (among other events) any payment and satisfaction of the NMLP Loan and the NMLP Obligations, any termination or discharge of the NMLP Security Documents, or release of any NMLP Collateral. 15. Acknowledgment of Pledge. The Indemnitor acknowledges that (i) in accordance with the terms and provisions of the NMLP Security Documents, NMLP has collaterally assigned to the Administrative Agent, on behalf of the Lenders, its right, title and interest in and to this Indemnity Agreement and (ii) upon the receipt of written notice from the Administrative Agent of the occurrence of an Event of Default, the Indemnitor shall pay any amounts due hereunder to NMLP, to the Administrative Agent or as may be otherwise directed by the Administrative Agent. [SIGNATURE PAGES FOLLOW] 10 Witness the execution and delivery hereof as an instrument deemed made under seal as of the 11th day of August, 2005. APOLLO REAL ESTATE INVESTMENT FUND III, L.P., A Delaware limited partnership By: Apollo Real Estate Advisors III, L.P., a Delaware limited partnership, its General Partner By: Apollo Real Estate Capital Advisors III, Inc., a Delaware corporation, its General Partner By: Name: Stuart Koenig Title: Vice President S-1 Witness the execution and delivery hereof as an instrument deemed made under seal as of the 11th day of August, 2005. NEWKIRK NL HOLDINGS LLC, A Delaware limited liability company By: Newkirk Manager (NV) Corp., its Manager By: Name: John J. Cramer Title: Vice President S-2 Witness the execution and delivery hereof as an instrument deemed made under seal as of the 11th day of August, 2005. NEWKIRK MLP CORP., A Delaware corporation By: Name: John J. Cramer Title: Vice President S-3 Witness the execution and delivery hereof as an instrument deemed made under seal as of the 11th day of August, 2005. VORNADO REALTY L.P., A Delaware limited partnership By: Vornado Realty Trust, as its General Partner By: Name: Joseph Macnow Title: Executive Vice President – Finance And Administration, Chief Financial Officer S-4 Witness the execution and delivery hereof as an instrument deemed made under seal as of the 11th day of August, 2005. VORNADO NEWKIRK L.L.C., A Delaware limited liability company By: Vornado Realty L.P., as its Member By: Vornado Realty Trust, as its General Partner By: Name: Joseph Macnow Title: Executive Vice President – Finance And Administration, Chief Financial Officer S-5 Witness the execution and delivery hereof as an instrument deemed made under seal as of the 11th day of August, 2005. VNK L.L.C., A Delaware limited liability company By: Two Penn Plaza REIT, Inc., its sole member By: Name: Joseph Macnow Title: Vice President and Chief Financial Officer S-6 Witness the execution and delivery hereof as an instrument deemed made under seal as of the 11th day of August, 2005. NMLP: THE NEWKIRK MASTER LIMITED PARTNERSHIP, a Delaware limited partnership By: MLP GP LLC, its General Partner By: Newkirk MLP Corp., its Manager By: Name: John J. Cramer Title: Vice President S-7
s3://data.kl3m.ai/documents/recap/gov.uscourts.cand.227393/gov.uscourts.cand.227393.20.0.pdf.json	text/markdown	1 Case No.: 10-CV-02024-LHK ORDER SETTING BRIEFING SCHEDULE AND HEARING ON MOTION TO WITHDRAW; CONTINUING DEADLINE FOR SUMMARY JUDGMENT MOTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28United States District CourtFor the Northern District of California UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ATSU ACOLATSE, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) Case No.: 10-CV-02024-LH K ORDER SETTING BRIEFING SCHEDULE AND HEARING ON MOTION TO WITHDRAW; CONTINUING DEADLINE FOR SUMMARY JUDGMENT MOTION On November 16, 2010, Marc V. Kalagian and the Law Offices of Rohlfing & Kalagian, as attorneys for Plaintiff Atsu Acolat se, moved for an order to relieve them as counsel of record in this case. Under the current case schedule, Pl aintiff’s motion for summary judgment or remand was due today, November 22, 2010. In order to re solve Plaintiff counsel’s motion expeditiously and avoid prejudice to Plaintiff, the Court will continue the deadline for Plaintiff’s summary judgment motion and set a hearing date and ex pedited briefing schedule for the motion to withdraw. The motion to withdraw will be heard on December 21, 2010, at 1:30 p.m., in Courtroom 4, fifth floor, in the San Jose Courthouse. If Plai ntiff or Defendant wishes to oppose the motion, they shall file an opposition by Thursday, December 9, 2010. Plaintiff’s counsel may file a response to Case 5:10-cv-02024-LHK Document 20 Filed 11/22/10 Page 1 of 22 Case No.: 10-CV-02024-LHK ORDER SETTING BRIEFING SCHEDULE AND HEARING ON MOTION TO WITHDRAW; CONTINUING DEADLINE FOR SUMMARY JUDGMENT MOTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28United States District CourtFor the Northern District of California any opposition no later than Wednesday, December 15, 2010. The deadline for Plaintiff to file a motion for summary judgment is continued; th e Court will determine a revised deadline in conjunction with its order on the motion to withdraw. Plaintiff’s counsel shall serv e this Order on Plaintiff by certified mail as soon as possible and file proof of servi ce with the Court. IT IS SO ORDERED. Dated: November 22, 2010 _________________________________ LUCY H. KOH United States District Judge Case 5:10-cv-02024-LHK Document 20 Filed 11/22/10 Page 2 of 2
s3://data.kl3m.ai/documents/edgar/0001130319/0001130319-07-000204/9.json	text/markdown	Exhibit 99.8Consent of Independent Registered Public Accounting FirmWe consent to the use in this Annual Report (Form 40-F) of Paramount Resources Ltd. of our reportsdated March 16, 2007 with respect to a) the consolidated financial statements of ParamountResources Ltd. for the year ended December 31, 2006, and b) management’s assessment of theeffectiveness of internal control over financial reporting, and the effectiveness of internalcontrol over financial reporting of Paramount Resources Ltd., and to the incorporation by referenceof the above-mentioned reports in the Registration Statement (Form F-10 No. 333-121260) ofParamount Resources Ltd. and in the related Prospectus./s/ Ernst & Young LLPChartered AccountantsCalgary, AlbertaMarch 20, 2007
s3://data.kl3m.ai/documents/cap/11699850.json	text/markdown	#### UNITED STATES of America, Appellee, v. John M. BOVE and Theodore J. Cervini, Defendants, Thomas J. Zeppieri, Defendant-Appellant. Docket No. 97-1239. United States Court of Appeals, Second Circuit. Argued May 12, 1998. Decided Aug. 13, 1998. 45Sara M. Lord, Assistant United States Attorney for the Northern District of New York, Albany, New York (Thomas J. Maro-ney, United States Attorney, of counsel), for Appellee. Phillip G. Steck, Cooper, Erving, Savage, Nolan & Heller, LLP, Albany, New York, for Defendant-Appellant. Before: WINTER, Chief Judge, MeLAUGHLIN, Circuit Judge, and SHADUR, Senior District Judge. * The Honorable Milton I. Shadur, of the United States District Court for the Northern District of Illinois, sitting by designation. SHADUR, Senior District Judge: Thomas Zeppieri (“Zeppieri”) appeals from the sentence imposed by the United States District Court for the Northern District of New York (Thomas J. McAvoy, ChiefJudge) after Zeppieri had entered a guilty plea to (1) one count of subscribing to a false tax return in violation of 26 U.S.C. § 7206(1) and (2) one count of conspiring to structure financial transactions to evade reporting requirements in violation of 18 U.S.C. § 371. Application of the sentencing guidelines (“Guidelines”) produced a concurrent prison sentence of 12 months and 1 day on each count, a three-year term of supervised release, a $100 special assessment and a $15,000 fine. Before us Zeppieri challenges various aspects of the Guideline calculations that produced his custodial sentence. We affirm certain of the disputed aspects of the district court’s calculations, but because we find that other of those aspects were in error, we remand the case for resentencing. Background In May 1994 Adirondack Entertainment and Recreation, Inc. (“Adirondack”), a corporation whose officers included Chief Executive Officer Zeppieri, President Thomas Cer-vini (“Cervini”), Vice-president John Bove (“Bove”) and Secretary-treasurer Robert Signoracci, began negotiations with Karis Realty, Inc. (“Karis”) to lease a parcel of property in Lake GeorgeVillage, New York that included an amusement arcade and a miniature golf course. Karis was represented in those discussions by its President Charles Yagar and its Secretary-treasurer Jilda Yagar (“Jilda”) (collectively “Yagars”). Eventually the parties agreed orally on a payment of $50,000 for the lease, half of which was to be paid directly to the Yagars as a concealed cash transaction. Pursuant to that oral agreement, Cervini wrote two checks on Adirondack’s bank account — one for $25,000 to acquire the lease and another for $5,000 to secure an option to purchase the Lake George property. Cervini and Zeppieri then delivered those checks to Jilda along 46with $25,000 in cash and a lease agreement that falsely stated a $25,000 payment for the lease. On August 15, 1994 Yagars agreed to sell the property to Adirondack for $950,000. Because the agreed-upon deal called for a secret $100,000 cash payment to Yagars at the closing, on October 19 of that year the parties signed documents that misrepresentedthe purchase price as $850,000. Adirondack then tendered $50,000 in cash and a $50,000 cashier’s check to Yagars. Yagars refused to accept the check and demanded an additional $50,000 in cash to conform to the parties’ agreement. Shortly thereafter Zeppieri drafted or received six cheeks totaling $50,000, each made payable to “Cash” for an amount less than $10,000 (apparently to evade the issuance of currency transactions reports).1 On the following day Bove and Zeppieri either personally cashed or arranged for the cashing of each check, and they then delivered $50,000 to Yagars to complete the real estate transaction. On January 19, 1995 Zeppieri, in response to questions posed by a federal agent, reaffirmed as accurate the fraudulently-prepared real estate documents showing an $850,000 purchase price. In addition to his position at Adirondack, Zeppieri was the President and majority shareholder of Z’s Amusements Inc. (“Amusements”), a company that operated amusement game and vending machines. During the grand jury investigation into the fraudulent real estate transaction, it was discovered that a large number of Amusements’ corporate checks had been written to cover Zeppieri’s personal expenses. Amusements improperly deducted those items as corporate expenses on its 1992 and 1994 tax returns.2 For his part Zeppieri failed to declare that income on his 1992-1994 personal returns, so that both the corporate and Zep-pieri’s personal income were severely un-derreported. As stated at the outset of this opinion, in accordance with the plea agreement Zeppieri plead guilty to (1) one count of conspiring to structure financial transactions to evade reporting requirements and (2) one count of subscribing to a false tax return for the 1993 tax year. At Zeppieri’s March 20, 1997 sentencing hearing the district court determined that the Guideline base offense level for the conspiracy count was 6, to which the judge then added 5 levels to reflect the fact that $50,000 was the amount that had been structured (Guideline § 2F1.1(b)(1)(F)). As to the tax count, the district court calculated a tax loss of $41,912, for which Guideline § 2T4.1(H) prescribed an offense level of 13, to which the judge then added 2 levels because he found that the offenses in the two counts did not group (Guideline § 3D1.4) and deducted 2 levels for acceptance of responsibility (Guideline § 3El.l(a)). Because first offender Zeppieri was in Criminal History Category I, the adjusted offense level of 13 yielded a sentencing range of 12 to 18 months (Sentencing Table Ch. 5 Pt. A). After the district judge imposed a sentence at the low end of that range, Zeppi-eri appealed the district court’s order and was granted a stay of his sentence pending the outcome of this appeal. Standard of Review* As we have frequently noted, we review the district court’s legal interpretation of the Guidelines de novo and review the related factual findings under the clearly erroneous standard (United States v. Escotto,121 F.381, 85 (2d Cir.1997)). In the latter respect, United States v. Macklin,927 F.2d 1272, 1282 (2d Cir.1991)(internal quotation marks omitted) teaches: > A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Tax Loss Calculation Zeppieri first challenges his sentence on the ground that the district court erroneous47ly calculated the “tax loss” attributable to him in determining the base offense level for his filing of a false tax return. We review that determination de novo (Escotto,121 F.3d at 85). Guideline § 2Tl.l(a) directs that the base offense level be derived from the tax table in Guideline § 2T4.1 in terms of the “tax loss,” which Guideline § 2Tl.l(c)(l) defines as “the total amount of loss that was the object of the offense (ie.,the loss that would have resulted had the offense been successfully completed).” Guideline § 2T1.1 Application Note 7 goes on to provide that “[i]f the offense involves both individual and corporate tax returns [as is the ease here], the tax loss is the aggregate tax loss from the offenses taken together.” At the time of sentencing this Court had not yet addressed the appropriate aggregation methodology for calculating the tax loss when a defendant both understates income on his or her corporate income tax return and fails to report the receipt of diverted funds on his or her personal tax return. In reliance on the Sixth Circuit’s opinion in United States v. Cseplo,42 F.3d 360, 362-64 (6th Cir.1994), the district court applied a corporate tax rate of 34% to the unreported corporate income and an individual tax rate of 28% to the full amount of unreported individual income (undiminished by the imputed corporate tax). Those calculations produced the already-referred-to aggregate tax loss of $41,912, and the consequent base offense level of 13 (Guideline § 2T4.1(H)). But the Cseplo approach was notuniversally shared. At sentencing Zeppieri argued that the district court should instead follow United States v. Harvey,996 F.2d 919, 920-21 (7th Cir.1993), which explicitly rejected the aggregation approach endorsed in Cseploon the premise that it overstated the revenues lost to the Treasury and essentially amounted to double taxation in the calculation of the tax loss. Harvey, id.held that when a single crime causes both corporate and personal income to be understated, the tax loss should be computed sequentially— that is, the amount that should have been paid as corporate tax should be deducted from the individual’s unreported income before the tax loss on the personal income side is calculated. If the district court had used the Harveyaggregation method, Zeppieri’s tax loss would have been less than $40,000, dropping the base offense level to 12 (Guideline § 2T4.1(G)). When combined with Zeppieri’s Criminal History Category of I, that lower offense level would produce a sentencing range in Zone C of the Sentencing Table, thus qualifying Zeppieri for a split sentence, under which as much as half of his sentence could take the form of supervised release with a condition that substitutes community confinement or home detention for full-fledged custodial time (Guideline § 601.1(d)(2)). Just a week before oral argument in this ease, a panel of this Court resolved the issue in United States v. Martinez-Rios,143 F.3d 662 (2d Cir.1998). Martinez-Rios, id.at 672 chose the Seventh Circuit’s Harveyapproach rather than the Cseplomethod followed by the district court. We therefore remand the case to the district court for sentencing based on a recalculation of Zeppieri’s tax loss in light of the principles recently announced in Martinez-Rios.* Inclusion ofW-2 Income Zeppieri also contends that the district court improperly considered some non-charged conduct — his failure to declare $14,-800 in W-2 income in tax year 1992 — in calculating the tax loss for Guideline purposes. According to Zeppieri, the only tax deficiencies that the district court should have considered were those attributable to the criminal activity actually charged in the indictment. We reject that argument. Guideline § 1B1.3 directs sentencing courts to consider all “relevant conduct” when calculating a defendant’s base offense level. In turn Guideline § lB1.3(a)(l)(A)(emphasis added) defines “relevant conduct” to include “allacts and omissions committed ... by the defendant ... that occurred during the commission of the offense of conviction.” That broadly in-48elusive language clearly encompasses both charged and non-charged conduct. Relatedly, the interpretive and explanatory commentaries to Guideline § 1B1.3 confirm that a defendant need not have been charged or convicted of those related acts or omissions for them to qualify as relevant conduct. As Application Note 1 explains: > The principles and limits of sentencing accountability under this guideline are not always the same as the principles and limits of criminal liability. Under subsections (a)(1) and (a)(2), the focus is on the specific acts and omissions for which the defendant is to be held accountable in determining the applicable guideline range, rather than on whether the defendant is criminally liable for an offense as a principal, accomplice, or conspirator. That proposition is further confirmed by the Background comment: > Conduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range. Unsurprisingly, the inclusion of non-charged relevant criminal conduct in the tax loss calculation used to set the base offense level is supported by caselaw from several of our sister Circuits (see, e.g., United States v. Noske,117 F.3d 1053, 1060 (8th Cir.1997); United States v. Meek,998 F.2d 776, 781-82 (10th Cir.1993); United States v. Daniel,956 F.2d 540, 544 (6th Cir.1992)). It is beyond cavil that Zeppieri’s failure to declare certain W-2 income in his 1992 tax return amounts to criminal conduct under the tax code. Accordingly we hold that the district court properly considered that non-charged conduct in calculating the tax loss attributable to Zeppieri for purposes of determining his base offense level under Guideline § 2T1.1. Conspiracy Offense* Next Zeppieri urges that the district court improperly applied the Guidelines in calculating the base offense level for the conspiracy offense. Under Guideline § 2X1.1(a) that level looks to the Guideline for the underlying substantive offense. Where as here the offense is 18 U.S.C. § 371 structuring, Guideline § 2S1.3(a) establishes an initial base offense level of 6, to which is added the same number of offense levels that the fraud and deceit table in Guideline § 2F1.1 prescribes for the value of the funds involved. And on that score Guideline § 2S1.3 Application Note 1 explains that “ ‘value of the funds’ means the amount of the funds involved in the structuring or reporting conduct.” Because Zeppieri was found to have structured a total of $60,000, for which Guideline § 2Fl.l(b)(l)(F) would prescribe a 5-level enhancement, the resultant base offense level would be ll.3 But Zeppieri maintains that he was entitled to an offense level reduction under Guideline § 2S1.3(b)(2), which mandates a decrease to level 6 if four conditions (A) through (D) are met: > 1. Zeppieri did not know or -believe that the funds were the proceeds of unlawful activity, or were intended to promote unlawful activity. > 2. Zeppieri did not act with reckless disregard of the source of the structured funds. > 3. Those funds were the proceeds of lawful activity. > 4. Finally, the funds were used for a lawful purpose. Because both Zeppieri and the government agree that Zeppieri has satisfied the first three of those conditions, what remains at issue is the meaning to be ascribed to the fourth requirement — what is intended by its “lawful purpose” phrase. It was the district court’s view that because the funds ultimately wound up in a cash form that enabled Yagars to commit tax evasion, they were by definition used for an unlawful purpose. That, however, reflects a misunderstanding of the relevant Guideline language. Guideline § 2S1.3(b)(2)(D) speaks in terms of the purpose for which the structured funds were used by the defendant— 49whether for a legal or an illegal purpose. And here the funds themselves were used for Adirondack’s wholly lawful purpose of purchasing real estate. In terms of Guideline § 2Sl,3(a) and (b), then, we hold that the district court’s determination that Zeppieri used the fundsfor an unlawful purpose was incorrect as a matter of law. We do note that Guideline § 2S1.3(c) sets out a rule, under the caption “Cross Reference,” that can trump Guideline § 2S1.3(a) and (b): > If the offense was committed for the purposes of violating the Internal Revenue laws, apply the most appropriate guideline from Chapter Two, Part T (Offenses Involving Taxation) if the resulting offense level is greater than that determined above. And in this instance the offenseof structuring was clearly committed for the known purpose of facilitating Yagars’ contemplated tax evasion, even though the fundsthemselves were obtained and used for the lawful purpose of buying Yagars’ real estate. But the government did not seek Zeppi-eri’s sentencing on that predicate at the district court level (or before us), and we are disinclined to address the matter on a basis never argued at any stage of the case. Instead, on the already-ordered remand the district court is instructed to reduce the conspiracy count’s base offense level to 6 pursuant to Guideline § 2S1.3(b)(2). Grouping of Offenses* Zeppieri finally urges that the district court erred in refusing to group the conspiracy and tax offenses for sentencing purposes.4 Guideline § 3D 1.2 dictates that “[a]ll counts involving substantially the same harm shall be grouped together.... ” It then goes on to identify four alternative methods to determine what constitutes “substantially the same harm,” as to which Guideline § 3D1.2 Application Note 7 expressly states that the methods are alternative and that any one or more may be applied. As we observed regarding that Guideline in United States v. Mizrachi,48 F.3d 651, 654 (2d Cir.1995): > Under this analysis, closely related counts are, in effect, treated as a single offense, id.§ 3D1.2, and counts not closely related receive incremental penalties that produce a total sentence significantly less than what would have resulted if the sentences were calculated for each count separately and then aggregated, id.§ 3D 1.4. In those terms Zeppieri maintains that his two offenses are “closely related.” But that contention simply does not survive analysis. First, the two schemes did not “involve the same victim,” thus negating the potential applicability of Guideline §§ 3D1.2(a) and (b). From that perspective, the crime charged in the conspiracy count had multiple victims: It not only illegally reduced the income taxes collected by the federal government from Yagars but also deprived the local government of its full entitlement to real estate taxes and cheated all Karts shareholders other than the Yagars out of $100,000. Zeppieri’s tax scheme, however, had no individual victim — instead it implicated “the public interest in preserving the integrity of the nation’s tax system” (Guideline § 2T1.1 Introductory Commentary). But even if that distinction were to be viewed as nonmaterial: > 1. Both counts clearly did not involve “the same act or transaction,” thus rendering Guideline § 3D 1.2(a) inapplicable. > 2. Nor were the acts or transactions in the two counts “connected by a common criminal objective,” nor did they “consti-tut[e] part of a common scheme or plan,”550so that Guideline § 3D1.2(b) is not in it either. It does not require any discussion to rule out Guideline § 3D1.2(e), for there is no basis for asserting that either of the counts “embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to ... the [other] count[ ].” That then leaves only Guideline § 3D1.2(d) for possible consideration among the alternative definitions of “substantially the same harm.” That alternative applies by its terms to offenses that are covered by certain specified guidelines, but only under limited conditions — and the only such condition that is potentially applicable here would exist if “the offense level is determined largely on the basis of the total amount of harm or loss” (Guideline § 3D1.2(d)). In that regard it would certainly require some stretching to view the discrete offenses committed by Zep-pieri as “closely related” or as “involving the same harm” in any event. But we need not resolve that question in those terms, because one of his two offenses plainly does not fit the limiting language first quoted in this paragraph. It is of course true as to the tax count that “the offense level is determined largely on the basis of the total amount of loss,” as we have discussed earlier. But in an ironic way the very fact that we have sustained Zeppieri’s contention that the offense level on the structuring count is only the base offense level of 6, without any increase whatever for the amount of funds involved, means that the offense level on that count is not determined at all by the amount of the loss. So Guideline § 3D1.2(d), Zeppi-eri’s last prospect for grouping, proves unavailable as well. In sum, Guideline § 3D 1.2 provides no refuge for Zeppieri on the basis that the two counts at issue were “closely related” or involved “substantially the same harm.” We affirm the district court’s conclusion that Zeppieri’s offenses are not to be grouped for sentencing purposes. Conclusion* For the reasons stated in this opinion, we uphold both the district court’s decision not to group Zeppieri’s two offenses and the district court’s inclusion of non-charged conduct in the tax loss calculation, but we REVERSE the ultimate sentence imposed by the district court and REMAND the case for resentencing, with instructions (1) to recalculate Zeppieri’s tax loss in accordance with the current state of this Court’s caselaw and (2) to reduce the conspiracy count base offense level to 6. 1 . 31 U.S.C. § 5313(a) prescribes that financial institutions must file reports of multiple currency transactions in excess of $10,000 during any business day. 2 . Amusements failed to file a 1993 corporate tax return. 3 . In that respect the government did not seek either of the sentencing enhancements provided for in Guideline § 2S1.3(b)(1) and (c)(1). 4 . At oral argument Zeppieri’s counsel characterized his arguments under Guideline § 2SI.3(b) and on the grouping issue as inversely related, so that his victory on the former — as we have just ordered — would automatically result in his defeat on the issue to which we now turn. Because no such automatic correlation exists, we will proceed with a separate analysis of the grouping question (although, as will be seen, our resolution of the Guideline § 2S 1.3(b) issue does have a bearing here). 5 . On that score, “the identity of the participants in the [two offenses] was not constant” (see United States v. Chartier,970 F.2d 1009, 1016 (2d Cir.1992)). On the one hand, the conspiracy count involved multiple parties — Zeppieri, Bove, Cervini, Signoracci and Yagars. By contrast, Zeppieri acted alone in evading his own income taxes.
s3://data.kl3m.ai/documents/edgar/0000950170/0000950170-23-011280/11.json	text/markdown	Exhibit 34.2 \| \| \| \|----------\|----------------------------------------------------------------------------------------------------------------------------------------------------------------\| \| Deloitte \| Deloitte & Touche LLP Certified Public Accountants Brickell World Plaza 600 Brickell Avenue Suite 3700 Miami, FL 33131-3090 USA Tel:+1 305 372 3100 \| REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM To the Members of LNR Partners, LLC We have examined management's assertion, included in the accompanying Management Report on Assessment of Compliance with SEC Regulation AB Servicing Criteria included on Appendix A, that LNR Partners, LLC (the "Company") complied with the servicing criteria set forth in Item 1122 (d) of the Securities and Exchange Commission's Regulation AB for the commercial mortgaged-backed securities transactions for which the Company served as special servicer and that were registered with the Securities and Exchange Commission pursuant to the Securities Act of 1933 as of and for the year ended December 31, 2022 (the "Platform"), excluding criteria 1122(d)(1)(iii), (3)(i)(C), (3)(i)(D), (3)(ii), (3)(iii), (3)(iv), (4)(v), (4)(ix), (4)(x), (4)(xi), (4)(xii), (4)(xiii), (4)(xiv) and (4) (xv) (the "servicing criteria") as of and for the year ended December 31, 2022, which management has determined are not applicable to the activities performed by the Company with respect to the Platform. Management is responsible for the Company's compliance with the servicing criteria and its assertion. Our responsibility is to express an opinion on management's assertion about the Company's compliance with the servicing criteria based on our examination. Our examination was conducted in accordance with the standards of the Public Company Accounting Oversight Board (United States) and in accordance with attestation standards established by the American Institute of Certified Public Accountants. Those standards require that we plan and perform the examination to obtain reasonable assurance about whether management's assertion about compliance with the servicing criteria is fairly stated, in all material respects, and, accordingly, included examining, on a test basis, evidence about the Company's compliance with the servicing criteria, including tests on a sample basis of the servicing activities related to the Platform, determining whether the Company performed those selected activities in compliance with the servicing criteria during the specified period, and performing such other procedures as we considered necessary in the circumstances. Our procedures were limited to selected servicing activities performed by the Company during the period covered by this report and, accordingly, such samples may not have included servicing activities related to each asset-backed transaction included in the Platform. Further, an examination is not designed to detect noncompliance arising from errors that may have occurred prior to the period specified above that may have affected the balances or amounts calculated or reported by the Company during the period covered by this report. We believe that the evidence we obtained in our examination is sufficient and appropriate to provide a reasonable basis for our opinion. As described in management's assertion, for servicing criteria Item 1122(d)(2)(vii), the Company has engaged a vendor to perform certain activities required by this servicing criteria. The Company has determined that this vendor is not considered a "servicer" as defined in Item 1101(j) of Regulation AB, and the Company has elected to take responsibility for assessing compliance with the servicing criteria applicable to this vendor as permitted by the SEC's Compliance and Disclosure Interpretation 200.06, Vendors Engaged by Servicers ("C&DI 200.06"). As permitted by C&DI 200.06, the Company has asserted that it has policies and procedures in place designed to provide reasonable assurance that the vendor's activities comply in all material respects with the servicing criteria applicable to this vendor. The ---- Company is solely responsible for determining that it meets the SEC requirements to apply C&DI 200.06 for the vendor and related criteria as described in its assertion, and we performed no procedures with respect to the Company's determination of its eligibility to apply C&DI 200.06. Our examination does not provide a legal determination on the Company's compliance with the servicing criteria. In our opinion, management's assertion that the Company complied with the aforementioned servicing criteria as of and for the year ended December 31, 2022, for the commercial mortgage-backed securities Platform is fairly stated, in all material respects. /s/ Deloitte & Touche LLP February 15, 2023 ----
s3://data.kl3m.ai/documents/edgar/0001193125/0001193125-14-166362/2.json	text/markdown	Exhibit 4.35 EXECUTION VERSION PURCHASE AGREEMENT DATED FEBRUARY 7, 2014 BY AND BETWEEN SUNGY MOBILE LIMITED, SUNGY TECHNOLOGY CORPORATION, SUNGY TECHNOLOGY LIMITED, GETJAR NETWORKS LIMITED AND THOMAS BURKE, AS THE SELLER REPRESENTATIVE --- TABLE OF CONTENTS \| \| \| \| \| \| \| \|------------------------------------------------------- \| \| ------------------------------------ \| -- \| ---- \| -- \| \| \| \| \| \| Page \| \|ARTICLE I. DEFINITIONS \| \| \| 1 \| \|Section 1.01 \| \| Definitions \| \| \| 1 \| \|Section 1.02 \| \| Additional Defined Terms \| \| \| 6 \| \| \| \|ARTICLE II. PURCHASE AND SALE OF THE SHARES AND SOLD IP \| \| \| 7 \| \|Section 2.01 \| \| Shares and Sold IP \| \| \| 7 \| \|Section 2.02 \| \| Purchase Consideration; Payment \| \| \| 7 \| \|Section 2.03 \| \| Funding of Escrow Account \| \| \| 7 \| \|Section 2.04 \| \| Earnouts \| \| \| 7 \| \|Section 2.05 \| \| Fair Consideration \| \| \| 9 \| \|Section 2.06 \| \| Withholding \| \| \| 9 \| \| \| \|ARTICLE III. CLOSING \| \| \| 10 \| \|Section 3.01 \| \| Closing Date \| \| \| 10 \| \|Section 3.02 \| \| Deliveries by Seller \| \| \| 10 \| \|Section 3.03 \| \| Deliveries by the Purchaser Parties \| \| \| 11 \| \|Section 3.04 \| \| Company Obligations \| \| \| 11 \| \| \| \|ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF SELLER \| \| \| 11 \| \|Section 4.01 \| \| Organization; Power \| \| \| 12 \| \|Section 4.02 \| \| Authorization \| \| \| 12 \| \|Section 4.03 \| \| Capital Structure; Subsidiaries \| \| \| 13 \| \|Section 4.04 \| \| No Conflict or Violation \| \| \| 13 \| \|Section 4.05 \| \| Consents and Approvals \| \| \| 14 \| \|Section 4.06 \| \| Financial Statements and Information \| \| \| 14 \| \|Section 4.07 \| \| Books and Records \| \| \| 14 \| \|Section 4.08 \| \| Tax Matters \| \| \| 15 \| \|Section 4.09 \| \| Absence of Undisclosed Liabilities \| \| \| 16 \| \|Section 4.10 \| \| Real Property; Personal Property. \| \| \| 16 \| \|Section 4.11 \| \| Employees and Employee Benefit Plans \| \| \| 17 \| \|Section 4.12 \| \| Intellectual Property \| \| \| 18 \| \|Section 4.13 \| \| Licenses and Permits \| \| \| 21 \| \|Section 4.14 \| \| Insurance \| \| \| 22 \| \|Section 4.15 \| \| Material Contracts \| \| \| 22 \| \|Section 4.16 \| \| FCPA \| \| \| 22 \| \|Section 4.17 \| \| Bank Accounts \| \| \| 23 \| \|Section 4.18 \| \| Certain Transactions \| \| \| 23 \| \|Section 4.19 \| \| Litigation \| \| \| 23 \| \|Section 4.20 \| \| Compliance with Law \| \| \| 23 \| \|Section 4.21 \| \| Brokers and Finders Fees \| \| \| 23 \| \|Section 4.22 \| \| Insolvency \| \| \| 23 \| \|Section 4.23 \| \| Assigned Contracts \| \| \| 23 \| \|Section 4.24 \| \| Operating Budget \| \| \| 24 \| \|Section 4.25 \| \| Source Code; R&D; and Access \| \| \| 24 \| i --- \| \| \| \| \| \| \| \|----------------------------------------------- \| \| ----------------------------------------------------------- \| -- \| \| -- \| \| \| \|ARTICLE V. REPRESENTATIONS OF PURCHASER PARTIES \| \| \| 24 \| \|Section 5.01 \| \| Organization; Power \| \| \| 24 \| \|Section 5.02 \| \| Authorization and Validity of Agreement \| \| \| 24 \| \|Section 5.03 \| \| No Conflict or Violation \| \| \| 25 \| \|Section 5.04 \| \| Approvals and Consents \| \| \| 25 \| \|Section 5.05 \| \| Brokers and Finders Fees \| \| \| 25 \| \|Section 5.06 \| \| Purchaser Shares \| \| \| 25 \| \|Section 5.07 \| \| Securities Filings \| \| \| 25 \| \| \| \|ARTICLE VI. COVENANTS \| \| \| 25 \| \|Section 6.01 \| \| Director and Officer Indemnification \| \| \| 25 \| \|Section 6.02 \| \| Release of Claims. \| \| \| 26 \| \|Section 6.03 \| \| Non-Competition; Non-Solicitation \| \| \| 26 \| \|Section 6.04 \| \| Sold IP Further Assurances \| \| \| 27 \| \|Section 6.05 \| \| Employee Incentive Shares \| \| \| 27 \| \|Section 6.06 \| \| Employee Matters. \| \| \| 28 \| \|Section 6.07 \| \| Conduct of Business \| \| \| 29 \| \|Section 6.08 \| \| Seller Representative \| \| \| 29 \| \|Section 6.09 \| \| Seller Dividends \| \| \| 29 \| \| \| \|ARTICLE VII. INDEMNIFICATION; SURVIVAL \| \| \| 29 \| \|Section 7.01 \| \| Indemnification By Seller \| \| \| 29 \| \|Section 7.02 \| \| Indemnification by Purchaser \| \| \| 30 \| \|Section 7.03 \| \| Indemnification Notice; Litigation Notice \| \| \| 30 \| \|Section 7.04 \| \| Defense of Claims \| \| \| 31 \| \|Section 7.05 \| \| Disagreement Notice \| \| \| 31 \| \|Section 7.06 \| \| Payment of Losses \| \| \| 31 \| \|Section 7.07 \| \| Survival \| \| \| 32 \| \|Section 7.08 \| \| Limitations on Indemnity \| \| \| 32 \| \|Section 7.09 \| \| Escrow Claims \| \| \| 33 \| \| \| \|ARTICLE VIII. TAX MATTERS \| \| \| 33 \| \|Section 8.01 \| \| Tax Indemnification \| \| \| 33 \| \|Section 8.02 \| \| Preparation and Filing of Tax Returns and Payment of Taxes. \| \| \| 35 \| \|Section 8.03 \| \| Cooperation, Exchange of Information and Record Retention \| \| \| 35 \| \|Section 8.04 \| \| Tax Contests \| \| \| 36 \| \|Section 8.05 \| \| Tax Dispute Resolution \| \| \| 36 \| \|Section 8.06 \| \| Transfer Taxes \| \| \| 36 \| \|Section 8.07 \| \| FIRPTA Certificate \| \| \| 37 \| \|Section 8.08 \| \| Tax Treatment \| \| \| 37 \| \|Section 8.09 \| \| Exclusivity \| \| \| 37 \| ii --- \| \| \| \| \| \| \| \|------------------------------------- \| \| ---------------------------------------------- \| -- \| \| -- \| \| \| \|ARTICLE IX. INTERIM TRADEMARK LICENSE \| \| \| 37 \| \|Section 9.01 \| \| Licensed Trademark \| \| \| 37 \| \|Section 9.02 \| \| Restrictions \| \| \| 37 \| \|Section 9.03 \| \| Trademark License Term \| \| \| 37 \| \| \| \|ARTICLE X. MISCELLANEOUS \| \| \| 37 \| \|Section 10.01 \| \| Public Announcements \| \| \| 37 \| \|Section 10.02 \| \| Costs and Expenses \| \| \| 38 \| \|Section 10.03 \| \| Further Assurances \| \| \| 38 \| \|Section 10.04 \| \| Seller Representative \| \| \| 38 \| \|Section 10.05 \| \| Addresses for Notices, Etc. \| \| \| 39 \| \|Section 10.06 \| \| Headings \| \| \| 41 \| \|Section 10.07 \| \| Construction \| \| \| 41 \| \|Section 10.08 \| \| Severability \| \| \| 41 \| \|Section 10.09 \| \| Entire Agreement and Amendment \| \| \| 42 \| \|Section 10.10 \| \| No Waiver; Cumulative Remedies \| \| \| 42 \| \|Section 10.11 \| \| Parties in Interest \| \| \| 42 \| \|Section 10.12 \| \| Successors and Assigns; Assignment \| \| \| 42 \| \|Section 10.13 \| \| Governing Law; Dispute Resolution; Arbitration \| \| \| 42 \| \|Section 10.14 \| \| Waiver of Jury Trial \| \| \| 43 \| \|Section 10.15 \| \| Counterparts \| \| \| 43 \| \|Section 10.16 \| \| Table of Contents and Captions \| \| \| 43 \| \|Section 10.17 \| \| Schedules, Exhibits and Certificates \| \| \| 44 \| \| \| \| \|------------- \| \| ------------------------------------------------ \|Exhibit A \| \| Form of Assignment and Assumption Agreement \|Exhibit B \| \| Form of Escrow Agreement \|Exhibit C \| \| Form of Employment and Non-competition Agreement \|Exhibit D \| \| Form of Bird and Bird Opinion \|Exhibit E \| \| Form of Maples and Calder Opinion \|Exhibit F \| \| Form of Restricted Share Award Agreement \|Exhibit G \| \| Form of FIRPTA Certificate \|Exhibit H \| \| Form of FIRPTA Notice \| \| \|Schedule 1 \| \| Sold IP \|Schedule 2 \| \| Revenue Earnout Target \|Schedule 6.05 \| \| Employee Incentive Shares iii --- PURCHASE AGREEMENT THIS PURCHASE AGREEMENT (Agreement), dated as of February 7, 2014, is by and among Sungy Mobile Limited, an exempted company registered under the laws of the Cayman Islands (Sungy), Sungy Technology Corporation, a Delaware corporation and a wholly-owned subsidiary of Sungy (Purchaser), Sungy Technology Limited, a company incorporated with limited liability under the laws of the British Virgin Islands and a wholly-owned subsidiary of Sungy (IP Purchaser and, together with Sungy and Purchaser, the Purchaser Parties and each a Purchaser Party), GetJar Networks Limited, a private limited company organized under the laws of the United Kingdom (Seller) and Thomas Burke, as the seller representative (the Initial Seller Representative). WITNESSETH: WHEREAS, GetJar, Inc., a Delaware corporation (the Company) is engaged in the business of operating a technology services platform designed to enable mobile application developers and advertisers to monetize mobile applications; WHEREAS, Seller owns all of the outstanding shares of capital stock of the Company and certain intellectual property as set forth herein; and WHEREAS, Purchaser desires to purchase from Seller, and Seller desires to sell to Purchaser, all of the outstanding shares of capital stock of the Company and IP Purchaser desires to purchase from Seller, and Seller desires to sell to IP Purchaser, certain intellectual property of the Company pursuant to this Agreement. NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and promises contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows: ARTICLE I. DEFINITIONS Section 1.01 Definitions. As used in this Agreement, the following terms have the meanings indicated below: Additional Payments shall mean the Monthly Earnout and the Revenue Earnout. Affiliate shall mean any Person that directly or indirectly controls, is controlled by or is under common control with Purchaser or Seller, as the case may be. As used in this definition, control (including, its correlative meanings controlled by and under common control with) means possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of outstanding voting securities or partnership or other ownership interests, by Contract or otherwise). 1 --- Assignment and Assumption Agreement shall mean the assignment and assumption agreement, dated as of the date hereof, between Seller and the Company substantially in the form of Exhibit A hereof. Business shall mean the business of the Seller (other than the app-store business). Business Day shall mean any day other than Saturday, Sunday and any day on which commercial banks in New York are authorized by Law to be closed. Code shall mean the Internal Revenue Code of 1986, as amended. Company Employee shall mean any employee of the Company listed in Section 4.11(a) of the Disclosure Schedules. Company IP shall mean all Intellectual Property owned or purported to be owned by the Company. Contracts shall mean any contract, agreement, indenture, note, bond, loan, instrument, lease, conditional sale contract, mortgage, security agreement, license, franchise, commitment or other arrangement or agreement, whether written or oral. Earnout Target shall mean the Monthly Earnout Target or the Revenue Earnout Target, as applicable. Employee Plans shall mean all contracts of employment and each employee benefit plan, as defined in Section 3(3) of ERISA (whether or not subject to ERISA), each employment, severance or similar Contract and each other plan or arrangement (written or oral) providing for compensation, bonuses, commission, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers compensation, supplemental unemployment benefits, severance benefits, change of control payments, post-employment or retirement benefits and other time-off benefits (including compensation, pension, health, medical or life insurance benefits) which is maintained, administered or contributed by the Company or any ERISA Affiliate and covers any employee or former employee of the Company, or with respect to which the Company has, or could reasonably be expected to have, any Liability. Encumbrance shall mean all liens (statutory or other), leases, mortgages, pledges, security interests, conditional sales agreements, charges, claims, options, easements, rights of way (other than easements of record) and other encumbrances (other than non-exclusive licenses of Intellectual Property entered in the ordinary course of business consistent with past practice) of any kind or nature whatsoever. ERISA shall mean the Employee Retirement Income Security Act of 1974. ERISA Affiliate shall mean any trade or business, whether or not incorporated, that together with the Company would be deemed a single employer within the meaning of Section 4001(b) of ERISA. 2 --- Escrow Account shall have the meaning ascribed to such term in the Escrow Agreement. Escrow Agent shall mean the escrow agent to be appointed pursuant to the Escrow Agreement. Escrow Agreement shall mean the escrow agreement, substantially in the form of Exhibit B hereto, dated as of the Closing Date, by and among Purchaser, Seller and the Escrow Agent. GAAP shall mean the prevailing generally accepted accounting principles in the United States, in effect from time to time, consistently applied. Governmental Entity shall mean any court, government agency, department, commission, board, bureau or instrumentality of the United States, any local, county, state, federal or political subdivision thereof, or any foreign governmental entity of any kind. Intellectual Property shall mean all intellectual property and industrial property rights of any kind or nature throughout the world, including all U.S. and foreign (a) patents and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions, and extensions thereof, and all rights in any of the foregoing, (b) rights in designations of source or origin, such as trademarks, service marks, names, corporate names, trade names, domain names, logos, slogans, trade dress, and designs, (c) copyrights and rights in copyrightable subject matter, (d) rights in Software, (e) rights in trade secrets and all other information, know-how, unpatented inventions, processes, formulae, source code, models, and methodologies which are proprietary or are not generally known or publicly available (Trade Secrets), (f) rights of publicity, privacy and rights to Personal Data, (g) rights in databases and data collections, (h) moral rights and rights of attribution and integrity, and (i) all rights in applications and registrations for the foregoing. The phrases to the Knowledge of any Person, or Known to any Person, or words of similar import, shall mean the actual knowledge of any Person as well as the knowledge that each such Person could be reasonably presumed to possess by virtue of such Persons relationship or position with any entity. The phrases has Knowledge of or to the Knowledge of or Known to, when used in reference to (a) Seller, shall mean the Knowledge of Chris Dury, Joseph Molnar and Tom Burke and (b) the Company, shall mean the Knowledge of Chris Dury and Joseph Molnar. Law shall mean any local, county, state, federal, foreign or other law, statute, regulation, ordinance, rule, order, decree, judgment, consent decree, settlement agreement or governmental requirement enacted, promulgated, entered into, agreed or imposed by any Governmental Entity. Liability with respect to any Person, shall mean any liability or obligation of any kind of such Person, whether known or unknown, absolute or contingent. 3 --- Licenses and Permits shall mean all governmental licenses, permits, franchises, certificates, approvals and authorizations that relate directly or indirectly to, or are necessary for, the conduct of the Companys business, including, without limitation, those set forth on Section 4.13 of the Disclosure Schedules, and all pending applications therefor or renewals thereof. Material Adverse Effect when used with respect to the Company and/or Seller, shall mean any event, change, occurrence, condition or circumstance which has had or could reasonably be expected to have a material adverse impact on any of the Shares, the Sold IP or the ability of any party hereto to consummate any of the transactions contemplated by this Agreement whether as a result of any legislative or regulatory change, revocation of any Licenses and Permits or otherwise. Monthly Earnout shall mean an aggregate of 288,615 Purchaser Shares. Monthly Earnout Target shall mean, for the months February and March 2014 combined, an aggregate net operating loss of not more than $0.2 million. Open Source Materials shall mean all Software that is distributed under a license that is approved by the Open Source Initiative (as listed at http://opensource.org/licenses/index.html) or that meets the Open Source Definition (as defined at http://opensource.org/docs/osd). Person shall mean any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, or unincorporated organization, or any governmental agency, officer, department, commission, board, bureau, or instrumentality thereof. Personal Data shall mean personally identifiable information and other user data relating to the Business that is in the possession of or under the control of the Company, or Seller or its Affiliates. Privacy Laws/Policies shall mean applicable Laws, and, to the extent applicable to Company, any and all terms of use and privacy policies (or other contractual commitments or obligations) of the Company, governing privacy, data protection, data security or the collection, storage, handling, disclosure, transfer or use of Personal Data collected, stored, processed, used, or held for use by or on behalf of the Company. Proceeding shall mean any action, arbitration, audit, charge, claim, hearing, investigation, litigation or suit. Purchaser Shares shall mean Class A Ordinary Shares of Purchaser. Revenue Earnout shall mean an aggregate of 1,154,459 Purchaser Shares. Revenue Earnout Target shall mean the goals set forth on Schedule 2 hereto. Seller Representative shall mean the Initial Seller Representative or such other Person who may replace the Seller Representative pursuant to the applicable provisions of this Agreement. Software shall mean any and all computer programs (whether in source code, object code, or other form), algorithms, databases, compilations and data. 4 --- Sold IP shall mean the all Intellectual Property owned by Seller or its Affiliates (other than the Company) related to, or used or held for use in, the Companys Business, including the Intellectual Property described on Schedule 1 hereto; provided that Sold IP does not include the GetJar mark. Tax or Taxes shall mean all federal, state, local and foreign taxes (including premium taxes, gross receipts taxes, excise taxes, value added taxes, occupancy taxes, employment taxes, unemployment taxes, ad valorem taxes, custom duties, transfer taxes, and fees), levies, imposts, impositions, assessments and other governmental charges in the nature of a tax imposed upon a Person, including all taxes and governmental charges imposed upon any of the personal properties, real properties, tangible or intangible assets, income, receipts, payrolls, transactions, stock transfers, capital stock, net worth or franchises of a Person (including all sales, use, withholding or other taxes which a Person is required to collect or pay over to any government), and all related additions to tax, penalties or interest thereon and shall include any liabilities for Taxes of any other Person by contract, as a transferee or successor to another Person, or under Treasury Regulations Section 1.1502-6 or any analogous provisions of state, local or non-U.S. Law. Tax Return shall mean and include all returns, statements, declarations, estimates, forms, reports, information returns and any other documents (including all consolidated, affiliated, combined or unitary versions of the same), including all related and supporting information, filed or required to be filed with any Governmental Entity in connection with the determination, assessment, reporting, payment, collection or administration of any Taxes. Transfer Regulations shall mean the Transfer of Undertakings (Protection of Employment) Regulations 2006 and any other legislation in any relevant jurisdiction to implement or in accordance with the Acquired Rights Directive (EC Business Transfers Directive No. 77/187) (as amended). Technology and Documentation shall mean all technology supporting the Software used or held for use in the Business, and all documentation, including user manuals and training materials, related to any such Software. 5 --- Section 1.02 Additional Defined Terms. In addition to terms defined above, the following terms shall have the respective meanings given to them in the sections set forth below: \| \| \| \| \| \|------------------------------ \| \| ------- \| ------------------- \| \|Defined term \| \| Section \| \|Accounting Referee \| \| \| Section 2.04(d) \| \|Accounts \| \| \| Section 4.17 \| \|Agreement \| \| \| Preamble \| \|Assigned Contracts \| \| \| Section 4.23 \| \|Claim Amount \| \| \| Section 7.06 \| \|Claimant \| \| \| Section 7.03 \| \|Closing \| \| \| Section 3.01 \| \|Closing Date \| \| \| Section 3.01 \| \|Company \| \| \| Recitals \| \|Company Budget \| \| \| Section 4.24 \| \|Continuing Employees \| \| \| Section 6.06(a) \| \|Determination Date \| \| \| Section 7.06 \| \|Disagreement Notice \| \| \| Section 7.05 \| \|Disclosure Schedules \| \| \| ARTICLE IV \| \|Earnout Dispute Notice \| \| \| Section 2.04(d) \| \|Earnout Report \| \| \| Section 2.04(d) \| \|Election Notice \| \| \| Section 7.04 \| \|Escrow Amount \| \| \| Section 2.03 \| \|FCPA \| \| \| Section 4.16 \| \|Final Earnout Report \| \| \| Section 2.04(d) \| \|Financial Statements \| \| \| Section 4.06(a) \| \|FIRPTA Certificate \| \| \| Section 8.07 \| \|FIRPTA Notice \| \| \| Section 8.07 \| \|Indemnification Basket \| \| \| Section 7.08(a) \| \|Indemnification Notice \| \| \| Section 7.03 \| \|Indemnified Parties \| \| \| Section 7.02 \| \|Indemnifying Party \| \| \| Section 7.03 \| \|Indemnity Loss \| \| \| Section 7.01 \| \|IP Purchaser \| \| \| Preamble \| \|Licensed Trademark \| \| \| Section 9.01 \| \|Litigation Notice \| \| \| Section 7.03 \| \|Monthly Earnout Report \| \| \| Section 2.04(b) \| \|Pre-Closing Tax Period \| \| \| Section 8.01(a)(ii) \| \|Purchase Consideration \| \| \| Section 2.02 \| \|Purchaser \| \| \| Preamble \| \|Purchaser Indemnified Parties \| \| \| Section 7.01 \| \|Purchaser Parties \| \| \| Preamble \| \|Purchaser Party \| \| \| Preamble \| \|Real Property Leases \| \| \| Section 4.10(b) \| \|Revenue Earnout Report \| \| \| Section 2.04(c) \| \|Scheduled Contracts \| \| \| Section 4.15(a) \| \|Seller \| \| \| Preamble \| \|Seller Indemnified Parties \| \| \| Section 7.02 \| \|Seller Representative \| \| \| Preamble \| \|Sellers Portion \| \| \| Section 8.01(a)(ii) \| \|Shares \| \| \| Section 4.03(a) \| \|Special Representations \| \| \| Section 7.07 \| \|Straddle Period \| \| \| Section 8.01(a)(ii) \| \|Sungy \| \| \| Preamble \| \|Survival Date \| \| \| Section 7.07 \| \|Tax Claim \| \| \| Section 8.01(d) \| \|Tax Indemnity Termination Date \| \| \| Section 8.01(b) \| \|Tax Specialist \| \| \| Section 8.05 \| \|Union \| \| \| Section 4.11(d) \| 6 --- ARTICLE II. PURCHASE AND SALE OF THE SHARES AND SOLD IP Section 2.01 Shares and Sold IP. Upon the terms and subject to the conditions set forth in this Agreement and on the basis of the representations, warranties, covenants and agreements herein contained, at the Closing, (i) Purchaser shall purchase, acquire and accept from Seller, and Seller shall sell, transfer, assign, convey and deliver to Purchaser, all of the right, title and interests in and to the Shares free and clear of all Encumbrances and (ii) IP Purchaser shall purchase, acquire and accept from Seller, and Seller shall sell, transfer, assign, convey and deliver to IP Purchaser, all of the right, title and interests in and to the Sold IP free and clear of all Encumbrances. Section 2.02 Purchase Consideration; Payment. The aggregate consideration to be paid at the Closing by Sungy to Seller for the Shares and the Sold IP shall be an amount of cash in the form of immediately available funds equal to $4,792,976.56 (the Purchase Consideration). Section 2.03 Funding of Escrow Account. Subject to and on the terms and conditions of this Agreement, at the Closing, Purchaser shall deposit $490,317.18 (the Escrow Amount) into the Escrow Account. The deposit made by Purchaser at the Closing shall be by wire transfer of immediately available funds to the Escrow Agent. The Escrow Account, to the extent not set forth in this Agreement, shall be governed by the Escrow Agreement; provided, however, that in the event of any conflict between the terms of this Agreement and the Escrow Agreement, the terms of this Agreement shall control. Section 2.04 Earnouts. (a) In addition to the Purchase Consideration, Sungy shall pay each of the Additional Payments, if any, to Seller in accordance with this Section 2.04. (b) Determination of Monthly Earnout Target Achievement. On or prior to May 25, 2014, the Purchaser Parties shall prepare and deliver to Seller a written report (the Monthly Earnout Report) with their determination of achievement of the Monthly Earnout Target and the calculation thereof. (c) Determination of Revenue Earnout Target Achievement. On or prior to April 20, 2015, the Purchaser Parties shall prepare and deliver to Seller a written report (the Revenue Earnout Report) with their determination of achievement of the Revenue Earnout Target and the calculation thereof. 7 --- (d) Final Earnout Report. In the case of either the Monthly Earnout Report or the Revenue Earnout Report (each, an Earnout Report), Seller shall have thirty (30) calendar days following receipt of such Earnout Report to review the contents thereof and give the Purchaser Parties written notice (the Earnout Dispute Notice) of any objection to the calculations set forth in such Earnout Report. During such thirty (30) calendar day period, the Purchaser Parties shall promptly respond to any questions Seller, its accountants and legal counsel may have with regard to the applicable Earnout Target, and provide Seller and its accountants and legal advisors with reasonable access and cooperation for purposes of verifying such Earnout Report, (1) subject to reasonable and customary agreements as to confidentiality and non-disclosure and any applicable Laws or legal privileges, in which case, the Purchaser Parties will exercise their best efforts to provide Seller with alternative means of conducting Sellers review of the relevant records necessary to verify such Earnout Report, (2) limited to the applicable system logs and accounting records necessary to verify such Earnout Report and (3) during regular working hours and otherwise in a reasonable manner so as to not result in disruption to the Purchaser Parties or the Companys business. During such thirty (30) calendar day period, Seller may accept such Earnout Report at any time, and if so accepted, such Earnout Report shall be final (the Final Earnout Report) or, if at the end of such thirty (30) calendar day period, Seller has not delivered an Earnout Dispute Notice to the Purchaser Parties, the Earnout Report shall be the Final Earnout Report. Otherwise, the applicable Earnout Report shall not be final. If Seller timely and properly delivers an Earnout Dispute Notice to the Purchaser Parties, during the thirty (30) calendar days after the day on which the Earnout Dispute Notice is given, Seller and the Purchaser Parties shall use reasonable good faith efforts to resolve such dispute and agree on a Final Earnout Report. If Seller and the Purchaser Parties are unable to reach agreement during such thirty (30) calendar day period, they shall promptly thereafter cause an accounting firm of internationally recognized independent public accountants as may be agreed upon by Seller and the Purchaser Parties in good faith (the Accounting Referee) to determine whether the applicable Earnout Target has been achieved. Seller and the Purchaser Parties will request that the Accounting Referee render a determination as to whether the applicable Earnout Target has been achieved within thirty (30) calendar days after its retention. Seller and the Purchaser Parties will cooperate with the Accounting Referee, and the Purchaser Parties shall provide the Accounting Referee with reasonable access and cooperation for purposes of allowing the Accounting Referee to determine whether the applicable Earnout Target has been achieved, (1) subject to reasonable and customary agreements as to confidentiality and non-disclosure and any applicable Laws or legal privileges, in which case, the Purchaser Parties will exercise their best efforts to provide Seller with alternative means of conducting Sellers review of the relevant records necessary to verify such Earnout Report, (2) limited to the applicable system logs and accounting records necessary for the determination of whether the applicable Earnout Target has been achieved and (3) during regular working hours and otherwise in a reasonable manner so as to not result in disruption to the Purchaser Parties or the Companys business. Such report by the Accounting Referee shall be final, binding and conclusive for all purposes hereunder upon the Purchaser Parties and Seller, and shall be deemed the Final Earnout Report. The Purchaser Parties shall maintain such system logs and accounting records referred to in the prior sentence for at least one year after the Final Earnout Report to which such logs and records relate. The fees and expenses of the Accounting Referee shall be paid by Seller, unless it is determined by the Accounting Referee that the applicable Earnout Target has been achieved, in which case, such fees and expenses shall be paid by the Purchaser Parties; provided, however, that if at the time the Accounting Referee is retained, the Seller has been dissolved, the Seller Representative shall provide the Accounting Referee with a deposit of the estimated fees and expenses of the Accounting Referee. If, according to the Final Earnout Report, the applicable Earnout Target has been achieved, Sungy shall pay the applicable Additional Payments in accordance with Section 2.04(e). 8 --- (e) Payment of Additional Payments. Subject to the terms of this Section 2.04, the applicable Additional Payments shall be paid by Sungy to Seller: (i) in the case of the Monthly Earnout, if both (A) a Final Earnout Report has been issued stating that the Monthly Earnout Target has been achieved and (B) a Final Earnout Report has been issued stating that the Revenue Earnout Target has been achieved, then within five (5) Business Days of the issuance of the Final Earnout Report referenced in clause (B); and (ii) in the case of the Revenue Earnout, one-half within five (5) Business Days of the issuance of a Final Earnout Report stating that the Revenue Earnout Target has been achieved and one-half on the first Business Day after the first anniversary of the initial Revenue Earnout payment. (f) Conduct of Business Post-Closing. The Purchaser Parties shall, and following the Closing shall cause the Company to, use commercially reasonable efforts to integrate the GetJar technology into the Sungy mobile applications, which shall include, by September 30, 2014, use of the GetJar advertising platform as the preferred source of advertisement and the GetJar virtual currency system instead of other internal or third party systems in the top 8 mobile applications as measured by Monthly Active Users (MAU) during the calendar month of September 2014, provided that the GetJar advertising platform provides higher average revenue per Daily Active Users (DAU) than third party ad networks or Sungys own ad network. In addition, the Purchaser Parties shall act in good faith with respect to any actions taken by the Purchaser Parties as well as any failures to act, in each case, that would reasonably be expected to prevent the Additional Payments from being earned. Seller acknowledges and agrees that, other than the foregoing, none of the Purchaser Parties will owe Seller any fiduciary duty or express or implied duty in respect of this Agreement to cause the Additional Payments to be earned. Seller acknowledges that there can be no assurances that any Additional Payments will be earned under this Agreement. Section 2.05 Fair Consideration. Each of the parties acknowledges and agrees that the consideration provided for in this ARTICLE II represents fair consideration and reasonable equivalent value for the sale and transfer of the Shares and the Sold IP and the transactions, covenants and agreements set forth in this Agreement, which consideration was agreed upon as the result of arms-length good faith negotiations between the parties and their respective representatives. Section 2.06 Withholding. Sungy or Sungys agent shall be entitled to deduct and withhold from the Purchase Consideration, or other payment otherwise payable pursuant to this Agreement or the Escrow Agreement, the amounts required to be deducted and withheld under the Code, or any provision of any federal, state, local or foreign tax Law. To the extent that amounts are so deducted and withheld and timely remitted to the appropriate Tax authority, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to such holder in respect of whom such deduction and withholding was made. The parties hereby confirm their mutual understanding that, under Law currently in effect, no withholding Tax is required in connection with any payment made under this Agreement. 9 --- ARTICLE III. CLOSING Section 3.01 Closing Date. The closing of the transactions contemplated by this Agreement (the Closing) shall take place at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, 300 South Grand Avenue, Los Angeles, CA 90071, at 10:00 a.m., local time on the date hereof (the Closing Date). The Closing may be accomplished by facsimile or email (in PDF format) transmission to the respective offices of legal counsel for the parties of the requisite documents, duly executed where required, delivered upon actual confirmed receipt, with originals to be delivered thereafter. The parties hereto acknowledge and agree that all proceedings at the Closing shall be deemed to be taken and all documents to be executed and delivered by all parties at the Closing shall be deemed to have been taken and executed simultaneously, and no proceedings shall be deemed taken nor any document executed or delivered until all have been taken, executed and delivered. Section 3.02 Deliveries by Seller. Concurrently with the Closing, Seller shall deliver (or cause to be delivered) to the Purchaser Parties: (a) evidence reasonably satisfactory to the Purchaser Parties of the capacity and authority of each person executing any document to be delivered by Seller to the Purchaser Parties at or prior to Closing; (b) resignations of each director of the Company; (c) copies of each consent, waiver, authorization and approval required pursuant to Section 4.05 of this Agreement; (d) a Certificate of Good Standing of the Company issued by the Secretary of State of the State of Delaware and a Certificate of Foreign Qualification of the Company issued the Secretary of State of the State of California, each dated within ten (10) calendar days of the Closing; (e) copies of resolutions adopted by the board of directors of Seller authorizing and approving the execution and delivery of this Agreement and all agreements and other documents and instruments contemplated hereby and thereby and the consummation of the transactions contemplated hereby and thereby, certified to be true, complete, correct and in full force and effect by the Secretary of Seller; (f) a cross receipt duly executed by Seller acknowledging delivery by Sungy of the Purchase Consideration; (g) a copy of the Assignment and Assumption Agreement, duly executed by Seller and the Company; (h) a copy of the Escrow Agreement duly executed by Seller; 10 --- (i) executed copies of employment and non-competition agreements substantially in the form of Exhibit C hereto between the Company and each of Joseph Molnar, William Haney Scott, Stephen C. Shertz and Brian J. Fox; (j) the FIRPTA Certificate, duly executed by the Company; (k) the FIRPTA Notice, duly executed by the Company; and (l) an opinion of Bird & Bird, UK counsel to Seller, dated as of the Closing, in substantially the form attached as Exhibit D hereto. Section 3.03 Deliveries by the Purchaser Parties. (a) Concurrently with the Closing, the Purchaser Parties shall deliver (or cause to be delivered) to Seller: (i) the Purchase Consideration paid by wire transfer of immediately available funds to the account or accounts designated by Seller; and (ii) a copy of the Escrow Agreement duly executed by the Purchaser Parties. (b) Promptly, but in any event no later than three (3) Business Days after the Closing Date, the Purchaser Parties shall deliver (or cause to be delivered) to Seller an opinion of Maples and Calder, Cayman Islands counsel to Purchaser, dated as of the Closing, in substantially the form attached hereto as Exhibit E hereto. (c) Concurrently with the Closing, the Purchaser Parties shall deliver (or cause to be delivered) to the Escrow Agent: (i) the Escrow Amount paid by wire transfer of immediately available funds to the account or accounts designated by the Escrow Agent; and (d) a copy of the Escrow Agreement duly executed by the Purchaser Parties. Section 3.04 Company Obligations. Concurrently with the Closing, Seller shall ensure that the board of directors of the Company takes appropriate corporate action, whether at a properly convened meeting of the board of directors or by means of an action by written consent, to accept the resignations of each director of the Company effective as of the Closing. ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF SELLER Seller hereby represents and warrants to the Purchaser Parties as of the date of this Agreement, subject to such exceptions as are specifically disclosed in the disclosure schedules delivered by Seller to the Purchaser Parties concurrently with the execution of this Agreement (the Disclosure Schedules): 11 --- Section 4.01 Organization; Power. (a) Seller is a private limited company duly organized, validly existing, and in good standing under the Laws of the United Kingdom. Seller has full corporate power and authority to own, lease and operate its assets and to conduct its business as it is now being conducted, except where the failure to be so duly qualified and licensed and in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or prevent or materially impair or delay the ability of Seller to perform its obligations under this Agreement. (b) The Company is a corporation duly organized, validly existing, and in good standing under the Laws of the State of Delaware. The Company has full corporate power and authority to own, lease and operate its assets and to conduct its business as it is now being conducted. The Company is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification necessary, except where the failure to be so duly qualified and licensed and in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company. The copies of the certificate of incorporation and by-laws of the Company which were previously furnished to the Purchaser Parties are true, complete and correct copies of such documents as in effect on the date of this Agreement and as of the Closing. Section 4.02 Authorization. (a) Seller has the full corporate power and authority to enter into this Agreement and such other agreements, documents and instruments contemplated by this Agreement to which it is a party and to carry its obligations hereunder and thereunder. The board of directors of Seller has determined that this Agreement and the transactions contemplated hereby are fair to and in the best interests of Seller and its stockholders. (b) The execution and delivery of this Agreement and such other agreements, documents and instruments contemplated by this Agreement by Seller and the consummation by Seller of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary action on the part of Seller, including (i) the majority of the board of directors of Seller and (ii) seventy-five percent (75%) of the outstanding shares of Seller, and no other corporate or other proceedings on the part of Seller is necessary to authorize the execution, delivery and performance of this Agreement or any other such agreement, document or instrument contemplated by this Agreement, as applicable. (c) This Agreement has been duly and validly executed and delivered by Seller and, assuming that this Agreement constitutes a valid and binding agreement of the Purchaser Parties, constitutes a valid and binding obligation of Seller, enforceable against Seller in accordance with its terms and conditions, except that such enforceability may be limited by applicable bankruptcy, insolvency, moratorium or other similar Laws affecting or relating to enforcement of creditors rights generally or general principles of equity. 12 --- Section 4.03 Capital Structure; Subsidiaries. (a) As of the Closing Date, the authorized capital of the Company consists solely of one thousand (1,000) shares of common stock, par value $0.001 per share, of the Company, of which one thousand (1,000) shares are issued and outstanding (the Shares) and are held beneficially and of record by Seller, free and clear of any Encumbrances. The Shares have been duly authorized, are fully paid and non-assessable and were issued in compliance in all material respects with all applicable federal and state securities Laws, and constitute all of the outstanding equity interests of the Company. (b) There are no outstanding options, warrants, calls, commitments, agreements or other rights of any kind obligating Seller or the Company to issue, deliver or sell, pledge, grant a security interest on or encumber or cause to be issued, delivered or sold, pledged or encumbered or a security interest to be granted on, any equity interests of the Company or obligating Seller or the Company to grant, extend or enter into any such option, warrant, call, commitment, agreement or other right. (c) The Company does not, directly or indirectly have any subsidiaries and, as of the Closing Date, will not directly or indirectly own or control, directly or indirectly, any interest in any other corporation, partnership, trust, joint venture, limited liability company, association, or other business entity. There are no voting trusts, stockholder agreements, proxies or other agreements or understandings in effect with respect to the voting or transfer of shares of capital stock or other equity interests of the Company. Section 4.04 No Conflict or Violation. Except as set forth on Section 4.04 of the Disclosure Schedules, the execution, delivery, consummation and performance of this Agreement by Seller does not and will not: (a) violate or conflict with any provision of the articles of incorporation or bylaws of Seller or the Company, or resolutions adopted by the board of directors of Seller or the Company; (b) violate any applicable Law or Privacy Laws/Policies to which Seller or the Company are subject; (c) with or without notice, lapse of time or both, violate or result in a breach of, or constitute a default under, result in the acceleration of or create in any Person the right to accelerate, terminate or cancel any material Contract, consent, order or other instrument or obligation to which Seller or the Company is a party, or by which Sellers or the Companys assets or properties may be bound; (d) result in the imposition of any Encumbrance or restriction on the Shares, the Company IP or the Sold IP (with or without notice, lapse of time or both); or (e) result in the loss or impairment of or payment of any additional amounts with respect to, require the consent of any other Person in respect of, nor give rise to any right of any Person to terminate or alter, the Companys right to own, use, or hold for use any Company IP, Sold IP or any Intellectual Property of any third party as owned, used or held for use in the conduct of the Business, in the case of each of (b), (c), (d) and (e) above, which would reasonably be expected to have a material adverse impact on the Company, the Business or the Sold IP. 13 --- Section 4.05 Consents and Approvals. Section 4.05 of the Disclosure Schedules sets forth a list of each consent, waiver, authorization or approval of any Governmental Entity, or of any other Person, and each declaration to or filing or registration with any Governmental Entity required in connection with the execution and delivery of this Agreement by Seller, or any agreement, document or instrument contemplated thereby by the Company or Seller, as applicable, or the performance by the Company or Seller of its obligations hereunder or thereunder the failure of which to obtain would reasonably be expected to have a Material Adverse Effect on the Company or the Sold IP. Section 4.06 Financial Statements and Information. (a) The Seller has delivered or made available to the Purchaser Parties true and complete copies of the following financial statements (such financial statements, the Financial Statements): (i) the unaudited balance sheet of the Company as of December 31, 2012 and 2013; (ii) the unaudited income statements of the Company for the years ended December 31, 2012 and 2013; and (iii) the unaudited cash flow statements of the Company for the years ended December 31, 2012 and 2013. (b) The Financial Statements (i) are accurate and complete in all material respects and have been prepared based on the books and records of the Company in accordance with GAAP applied on a consistent basis throughout the periods covered thereby and (ii) fairly present, in all material respects, the financial position of the Company as of the dates thereof and the results of operations for the periods then ended, in each case, subject to the absence of footnotes for the periods covered by the Financial Statements. (c) The Company maintains systems of internal accounting controls reasonably designed to provide reasonable assurances that (i) all transactions are executed in accordance with managements general or specific authorization, (ii) all transactions are recorded as necessary to permit the preparation of annual and interim financial statements in conformity with GAAP and to maintain proper accountability for items, (iii) access to its property and assets is permitted only in accordance with managements general or specific authorization and (iv) that the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Section 4.07 Books and Records. The Company does not have minute books or records of any meetings or corporate action taken by the board of directors or the shareholder of the Company. 14 --- Section 4.08 Tax Matters. (a) The Company has filed or caused to be filed on a timely basis all material Tax Returns that are or were required by applicable Law to be filed by it. All material Tax Returns required to be filed by Seller in respect of the Sold IP have been duly filed on a timely basis. All such Tax Returns filed by the Company or Seller, as applicable, are true, correct and complete in all material respects and were prepared in compliance with all applicable Laws. The Company has paid all Taxes required to be paid by it and Seller has paid all Taxes relating to the Sold IP, except such Taxes as are being contested in good faith and as to which adequate reserves have been provided. Except as would not reasonably be expected to result in a material Liability to the Company, the Company has made all withholding of Taxes required by applicable Law to be made by it, including, without limitation, withholding with respect to compensation paid to employees, and the amounts withheld have been properly paid over to the appropriate Governmental Entity. (b) Section 4.08(b) of the Disclosure Schedules contains a complete and accurate list of all Tax Returns of the Company or Seller relating to the Sold IP (excluding any corporate Tax Returns of Seller) that have been audited or that are currently under audit and accurately describes any deficiencies or other amounts that were paid or are currently being contested. All deficiencies proposed as a result of such audits have been paid, reserved against, settled or are being contested in good faith by appropriate proceedings as described on Section 4.08(b) of the Disclosure Schedules. The Company has delivered or made available to Purchaser copies of any examination reports, statements or deficiencies or similar items with respect to such audits. The Company or Seller has not been informed in writing by any Governmental Entity of the commencement or anticipated commencement of any such audit. Neither the Company nor Seller (to the extent related to the Sold IP) has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency, which period (after giving effect to such waiver or extension) has not expired. (c) The Company is not a party to any Tax sharing agreement, Tax allocation agreement, Tax indemnity agreement or similar Contract relating to Taxes (including any advance pricing agreement or closing agreement relating to Taxes but excluding any commercial contracts entered into in the ordinary course of business not primarily related to Taxes) that will require any payment by the Company after the Closing Date. (d) There are no liens for Taxes upon any property or assets of the Company or the Sold IP except for liens for real and personal property Taxes not yet due and payable. (e) The Company will not be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) closing agreement as described in Section 7121 of the Code (or any corresponding provision of state, local or foreign income Tax Law) entered into prior to the Closing; (ii) installment sale or open transaction disposition made on or prior to the Closing Date; (iii) prepaid amount received on or prior to the Closing Date; (iv) cancellation of indebtedness income under Section 108(i) of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law); or (v) intercompany transaction or excess loss accounts described in the Treasury Regulations promulgated under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law) relating to a transaction occurring prior to the Closing. 15 --- (f) No power of attorney has been granted by or with respect to the Company with respect to any matter relating to Taxes that is currently in effect. (g) Each material related party transaction involving the Company is at arms length in material compliance with Section 482 of the Code and the Treasury Regulations promulgated thereunder and any similar provision of non-U.S., state and local Law. The Company is not a party to any cost-sharing agreement or similar arrangement which is not a qualified cost sharing arrangement within the meaning of Treasury Regulation Section 1.482-7 or is not a cost sharing arrangement described in Treasury Regulation Section 1.482-7T(b). The Company has maintained in all material respects all necessary documentation in connection with such related party transactions in accordance with Sections 482 and 6662 of the Code and with Treasury Regulations promulgated thereunder. (h) The Company has not been a member of any affiliated group within the meaning of Section 1504(a) of the Code, or any similar affiliated or consolidated group for Tax purposes under state, local or non-U.S. Law (other than a group the common parent of which is the Company), or has any liability for Taxes of any Person (other than the Company) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or non-U.S. Law as a transferee or successor, by contract or otherwise. (i) The Company has not engaged in any reportable transactions that were required to be disclosed pursuant to Section 6011 of the Code and the Treasury Regulations promulgated thereunder. Section 4.09 Absence of Undisclosed Liabilities. The Company does not have any Liabilities that would be required by GAAP to be reflected on a balance sheet of the Company (including the notes thereto) except for (a) Liabilities set forth on Section 4.09 of the Disclosure Schedules or as disclosed, set forth or reserved for in the Financial Statements, (b) Liabilities incurred in the ordinary course of business, (c) Liabilities arising under any of the material Contracts or any other contract or agreement to which the Company is a party, as of the date hereof and (d) Liabilities which would not reasonably be expected to have a Material Adverse Effect on the Company. Section 4.10 Real Property; Personal Property. (a) Owned Real Property. The Company does not own any real property. (b) Leased Real Properties. Section 4.10 of the Disclosure Schedules sets forth a true and complete list of all leases of real property to which the Company is a party or by which the Company is bound, in each case, as of the date hereof (collectively, the Real Property Leases). Each Real Property Lease is a valid, binding and legally enforceable obligation of the Company and, to the Companys Knowledge, of the other parties thereto, except, in each case, as enforcement may be limited by bankruptcy, insolvency, moratorium or other similar Laws affecting or relating to enforcement of creditors rights generally or general principles of equity. Each Real Property Lease is in full force and effect and the Company is not (with or without notice or lapse of time, or both) in breach or default under any such Real Property Lease and, to the Companys Knowledge, no other party to any such Real Property Lease is (with or without notice or lapse of time, or both) in breach or default thereunder. 16 --- (c) Personal Property. As of the date hereof, the Company owns or holds under valid leases all material tangible personal property necessary for the conduct of the Business as presently conducted by the Company, free and clear of all Encumbrances. Section 4.11 Employees and Employee Benefit Plans. (a) Section 4.11 of the Disclosure Schedules contains a true and complete list of (i) all employees of the Company and each such employees location of employment, title or position, hourly rate or salary, 2013 bonus and 2014 target bonus, classification as exempt or non-exempt, and whether such employee is employed at-will or has any entitlement to severance or notice period in connection with the termination of employment, and (ii) all individuals who act as independent contractors or consultants to the Company. (b) Except as set forth on Section 4.11 of the Disclosure Schedules: (i) none of the employees of the Company is entitled to any bonus, incentive or deferred compensation or termination package which exceeds the minimum obligations imposed by applicable Laws; (ii) neither Seller nor the Company has entered into any agreement with any of the employees of the Company which provides for a termination notice or termination indemnities greater than the minimum termination notice or indemnities provided by applicable Law; (iii) the Company is in compliance in all material respects with applicable Laws relating to employment or labor matters; and (c) there is no lawsuit, arbitration, labor dispute or proceedings pending against the Company or Seller initiated by or relating to any of the employees of the Company or any former employee or contractor of the Company. (d) No employee of the Company is represented by any trade union, works council or other labor organization (Union) with respect to his or her employment with the Company, and to the Knowledge of the Company, there are no Union organizing activities with respect to the Companys employees. The Company is not bound by or subject to any Contract or collective bargaining agreement with any Union. There has not been, and to the Knowledge of the Company, there is not pending or threatened, any strike, lockout, or picketing involving the Company. (e) Section 4.11 of the Disclosure Schedules contains a true and complete list of all Employee Plans, and the Company does not sponsor, maintain or contribute to and is not required to contribute to any other employee benefit plan, fund, program, agreement or arrangement. Seller has heretofore made available to Purchaser a true and complete copy of each Employee Plan and any amendments thereto. No liability under Title IV or Section 302 of ERISA has been incurred by the Company or any ERISA Affiliate that has not been satisfied in full. Each Employee Plan has been operated and administered in all material respects in accordance with its terms and applicable Law. 17 --- (f) Except as set forth on Section 4.11 of the Disclosure Schedules, the Company is not party to any agreement, contract, arrangement or plan, in each case, that has resulted in or could result, separately or in the aggregate, in the (i) payment of any severance or any increase in severance pay, including, without limitation, upon any termination of employment after the date of this Agreement, to any employee or former employee of the Company (ii) acceleration of the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or result in any other material obligation pursuant to, any Employee Plan with respect to any employee or former employee of the Company, or (iii) payment of any excess parachute payment within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code or result in an excise tax to the recipient of such payment pursuant to Section 4999 of the Code. (g) Except as set forth on Section 4.11 of the Disclosure Schedules, neither the Company nor any ERISA Affiliate has any current or projected liability in respect of post-employment or post-retirement health, medical or life insurance benefits for retired, former or current employees of the Company or any ERISA Affiliate, except as required to avoid excise tax under Section 4980B of the Code. No condition exists that would prevent Purchaser from amending or terminating any Employee Plan. (h) The Seller shall satisfy in full all Liabilities arising at any time in relation to or concerning any entitlement of or other benefit to the officers and employees of the Company under or in accordance with the Sellers Share Option Scheme adopted by resolution of the Sellers directors on October 24, 2007 including, without limitation, any such Liabilities arising on or in relation to the transaction contemplated in this Agreement. Section 4.12 Intellectual Property. (a) Sold IP. Schedule 1 sets forth a complete and accurate list of all Intellectual Property owned or purported to be owned by Seller that is (i) registered Intellectual Property and applications therefor (other than the GetJar mark) or (ii) Software that is material to the Business. Seller has complete and unrestricted power and the unqualified right to sell, convey, assign, transfer and deliver the Sold IP, and the instruments of assignment and transfer to be executed and delivered by Seller to Purchaser concurrently herewith shall be valid and binding obligations of Seller, enforceable in accordance with their respective terms, and shall effectively vest in Purchaser good, marketable and insurable title to the Sold IP. (b) Company IP. Section 4.12(b) of the Disclosure Schedules sets forth a complete and accurate list of all Company IP that is (i) registered Intellectual Property and applications therefor or (ii) Software that is material to the Business. The Company is the sole and exclusive owner and, with respect to applications and registrations, record owner, of all Company IP, free and clear of all Encumbrances, and all Company IP is subsisting and, to the Knowledge of Seller, is valid and enforceable. None of the Company IP or Sold IP is subject to any proceeding before, outstanding order, writ, or injunction of or stipulation with any Governmental Entity, or any Contract entered into in settlement of such a proceeding, restricting the use, transfer or licensing by the Company thereof. None of the Company IP or Sold IP is subject to any exclusive outbound licenses or any non-exclusive outbound licenses (other than non-exclusive licenses granted in the ordinary course of business consistent with past practice). 18 --- (c) No Infringement. To the Knowledge of Seller, the conduct of the Business, as such Business has been conducted and is presently conducted does not infringe, misappropriate, or otherwise violate, and has not infringed, misappropriated, or otherwise violated, any Persons Intellectual Property rights, and there has been no such claim asserted or threatened (including in the form of offers or invitations to obtain a license to patents of any Person) against the Company or Seller, or, to the Knowledge of Seller, any other Person. To the Knowledge of Seller, no Person is infringing, misappropriating, or otherwise violating any Company IP or Sold IP in a manner that would reasonably be expected to be material to the Company, and no such claims have been asserted or threatened against any Person by or on behalf of the Company or Seller. (d) Sufficiency. To the Knowledge of Seller, the Company IP, the Sold IP and the Open Source Materials owned by the Company comprise all of the Intellectual Property owned by the Company, Seller and Sellers Affiliates that is used in, held for use in, or necessary to run the Business as currently conducted. (e) Employees. Each founder and each current and former employee and independent contractor of the Company, Seller or their Affiliates that has invented, created or developed any Intellectual Property used or held for use in the Business has executed a written agreement that, subject to limitations of applicable Laws: (i) assigns to the Company, Seller or their Affiliate, as applicable, all right, title and interest in and to any and all Intellectual Property (x) relating at the time of conception or reduction to practice to the Business or (y) resulting from work performed by such founder, employee or independent contractor for the Company, Seller or their Affiliate, as applicable; and (ii) contains provisions designed to prevent unauthorized disclosure of the Companys, Sellers or their Affiliates, as applicable, Trade Secrets. To the Knowledge of Seller, no party to such written Contract has breached or violated the terms thereof or has attempted or threatened to challenge the enforceability, scope or applicability of any such Contract. No Intellectual Property used or held for use in the Business was invented, created or developed by any founder or current or former employee of the Company, Seller or their Affiliate, as applicable, prior to such Persons employment by the Company, Seller or their Affiliate, as applicable. (f) Maintenance of Trade Secrets. Seller and the Company take reasonable measures to protect the confidentiality of Trade Secrets owned, used or held for use by the Company. To the Knowledge of Seller, there has not been any disclosure or publication of any Trade Secrets owned by the Company, Seller or their Affiliates to any Person in a manner that has resulted or is likely to result in the loss of trade secret or other proprietary rights in and to such information (other than when the Company, Seller or their Affiliates, as applicable, has made a commercially reasonable, bona fide decision to no longer maintain the information as confidential). 19 --- (g) Results of Consummation of Transaction. No current or former Affiliate, partner, director, stockholder, officer, consultant or employee of the Company will, after giving effect to the Transactions, own any Intellectual Property used in, held for use in, or otherwise material to the Business or retain any rights to use any of the Company IP, except for any rights to use the Companys products and services that such Person has obtained in the same manner and to the same extent as any other third party customer of the Company generally obtains rights to use the Companys products or services. (h) Company Software. With respect to the use of Software and Technology and Documentation in the Business, (i) the Company has not experienced any material defects in such Software or Technology and Documentation, including any material error or omission in the processing of any transactions, other than defects which have been corrected, remediated, or otherwise sufficiently addressed so as to render them immaterial, (ii) to the Knowledge of Seller, no such Software or Technology and Documentation owned by the Company or used in the Business contains any device or feature designed to permit unauthorized access, disrupt, disable, or otherwise harm, damage or impair the functioning of any Software, Technology and Documentation, and (iii) the Company, Seller and their Affiliates have not delivered, licensed or made available, and none of the Company, Seller and their Affiliates have any duty or obligation (whether present, contingent, or otherwise) to deliver, license or make available, the source code for any Software owned by the Company or used in the Business to any escrow agent or other Person, except for (A) source code made available to employees and independent contractors to the extent necessary to permit such employees and independent contractors to perform their duties for the benefit of the Company and (B) source code for the Companys SDK provided to app developers in the ordinary course of business. (i) Information Technology; Security. Except as may be set forth in Section 4.12(i) of the Disclosure Schedules, no information technology systems of Seller or its Affiliates (other than the Company) are used or held for use in the Business, and after the consummation of the Transactions contemplated in this Agreement, no information technology systems that are used or held for use in the Business will be retained by Seller or its Affiliates. The Company has taken reasonable steps and implemented reasonable procedures designed to protect its information technology systems from (i) the inclusion of any device or feature designed to permit unauthorized access, disrupt, disable or otherwise harm, damage or impair Software, hardware or data, and (ii) unauthorized access, use, modification or other misuse. To the Knowledge of Seller, there have been no material security breaches in the information technology systems of the Company. There have been no disruptions in any of the information technology systems of the Company that have materially adversely affected the Business or operations of the Company. (j) Open Source Materials. The Company is in material compliance with the terms and conditions of all licenses for the Open Source Materials used by the Company, including all copyright notice and attribution requirements. Except as may be set forth in Section 4.12(j) of the Disclosure Schedules, the Company has not: (i) incorporated Open Source Materials into, or combined Open Source Materials with, (ii) distributed Open Source Materials in conjunction with, or (iii) used Open Source Materials in connection with, any Software owned by the Company, in such a way that, with respect to (i), (ii) or (iii), requires any source code of Software owned by the Company to be (A) offered, disclosed, or distributed, (B) licensed for the purpose of making derivative works, or (C) redistributed at no charge, in each case to any Person. 20 --- (k) Inbound Licenses. Other than the Open Source Software owned by the Company, licenses to generally commercially available Software that is available for a cost of not more than $1,000, and licenses to use the information technology systems licensed or leased from vendors in the ordinary course of business, the Company does not license any Intellectual Property material to the Business from any third Person. (l) Privacy. The Company has never transferred, sold, rented or otherwise made available any Personal Data (including name, address, telephone number or email address) of any natural person to any Person. The Company has at all times complied with all applicable Privacy Laws/Policies in all material respects. No claims have been asserted or threatened against the Company (or Seller or any of their Affiliates in relation to the Business), alleging a violation of any Persons privacy or personal information or data rights (or of any applicable Privacy Laws/Policies). The Company has taken commercially reasonable steps to implement and maintain a system of internal controls designed to provide reasonable assurance that the Company complies with all applicable Privacy Laws/Policies. (m) Intellectual Property Indemnification Obligations. Except for those Contracts identified in Section 4.12(m) of the Disclosure Schedules, there are no Contracts between the Company and any other Person wherein or whereby the Company has assumed or agreed to assume any obligation or duty or to warrant, indemnify, reimburse, hold harmless, guaranty or otherwise assume or incur any obligation or liability of such Person with respect to any infringement, misappropriation, dilution or other violation of a third Persons Intellectual Property. (n) Communications with Google. Google Inc. has never asserted to the Company, Seller or their Affiliates that the Company or the Business was in violation of any of the applicable terms of service, terms of use, policies or any Contracts between the Company and Google Inc. or otherwise governing the Business, and, to the Knowledge of the Company, Google Inc. has never prevented the Company, Seller or their Affiliates from offering, and has never threatened to prevent the Company, Seller or their Affiliates from offering, any products or services related to the Business through Google Play. (o) Government Funding; Standard-Setting Organizations. To the Knowledge of Seller, no funding, facilities or personnel of any Governmental Entity, educational institution or research center, was used in the invention, creation or development of any material Company Intellectual Property or Sold IP. The Company, Seller and their Affiliates have not made any submission or suggestion to, and are not (and have never been) subject to any Contract with, any standard-setting organization, standards body, consortium or any similar organization that would obligate the Company, Seller or their Affiliates to grant licenses to or otherwise impair or limit their control of any Intellectual Property rights which relate to the Business. Section 4.13 Licenses and Permits. Section 4.13 of the Disclosure Schedules sets forth a list, together with a description of type, duration and status, of each of the material Licenses and Permits held by the Company. The Company has provided Purchaser with true and complete copies of all material Licenses and Permits. The Company is in compliance in all material respects with all terms, conditions and requirements of all Licenses and Permits and no Proceeding is pending or threatened relating to the revocation or limitation of any of the Licenses and Permits except as may be required in connection with consummation of the transactions contemplated hereby. 21 --- Section 4.14 Insurance. The Company is covered by insurance coverage with reputable insurers in such amounts and covering such risks as are in accordance with normal industry practice for companies engaged in businesses similar to those of the Company and a list of such policies is set forth on Section 4.14 of the Disclosure Schedules. There are no pending claims by the Company under such policies to which the insurers have denied coverage or otherwise reserved rights. During the past three (3) years, the Company has not been refused any insurance, nor has its coverage been limited, by any insurance carrier to which it has applied for insurance. No default exists with respect to the obligations of the Company under any such insurance policy, and all such insurance policies are in full force and effect, and all premiums due thereon have been paid. No written notice of cancellation or termination has been received with respect to any such policy as of the date hereof. Section 4.15 Material Contracts. (a) Section 4.15 of the Disclosure Schedules sets forth a true, complete and correct list of each material Contract (collectively, the Scheduled Contracts) to which the Company is a party or by which it is bound that is currently in effect including all Contracts relating to: employment of any person; aggregate committed payments to or from the Company in excess of $30,000 per year; or agreements between the Company and any of its Affiliates, in each case, other than at-will offer letters containing no severance provisions and other than consulting contracts, which may be cancelled on less than ninety (90) days notice without penalty to the Company. (b) With respect to the Companys performance of its obligations under the Scheduled Contracts, no event of default or breach has occurred or is continuing under any such Scheduled Contract. With respect to the performance by any other party of its obligations under the Scheduled Contracts, to the Knowledge of the Company no event of default or breach has occurred or is continuing under any such Scheduled Contract. The Company has provided Purchaser with true and complete copies of all the Scheduled Contracts of the Company and each amendment, supplement, waiver or modification thereto. All of the Scheduled Contracts identified on, or required to be identified on Section 4.15 of the Disclosure Schedules are in full force and effect. There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any amounts paid by or payable to the Company under current or completed Scheduled Contracts with any Person having the contractual or statutory right to demand or require such renegotiation, and no such Person has made written demand for such renegotiation. Section 4.16 FCPA. The Company has not, and, to the Knowledge of the Company, none of its directors, officers, agents, employees, affiliates or other person associated with or acting on behalf of the Company has, (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977 (the FCPA); or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment. The Company has instituted and maintains policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance with the FCPA. 22 --- Section 4.17 Bank Accounts. Section 4.17 of the Disclosure Schedules sets forth a true, correct and complete list of bank accounts and investment accounts of any nature maintained by the Company (collectively, the Accounts), including the name of each bank or other institution, account numbers and a list of signatories to each account. Section 4.18 Certain Transactions. There are no agreements between the Company and Seller or any Affiliate of Seller that will continue after the Closing Date. Section 4.19 Litigation. Except as set forth on Section 4.19 of the Disclosure Schedules, (a) there are no investigations, audits or Proceedings pending or, to the Companys Knowledge, threatened against or affecting the Company or any of its assets, (b) there are no unsatisfied judgments of any kind against the Company or any of its assets and (c) the Company is not subject to any judgment, order, decree, rule or regulation of any court or Governmental Entity. Section 4.20 Compliance with Law. The Company is in compliance in all material respects with all applicable Laws. To the Knowledge of the Company, the Company is not in default with respect to any order, writ, judgment, award, injunction or decree of any Governmental Entity or arbitrator applicable to it, its officers, directors and employees or any of its assets. The Company has not received, at any time since December 31, 2011, any written notice or other written communication from any Governmental Entity or any other Person regarding any actual, alleged, possible or potential violation of, or failure to comply with, any term or requirement of any order to which the Company or any of its assets is or has been subject. Section 4.21 Brokers and Finders Fees. No broker, finder or other Person is entitled to any commission or finders fee in connection with this Agreement or the transactions contemplated by this Agreement as a result of any actions or commitments of the Company or Seller. Section 4.22 Insolvency. (i) No resolution has been passed in relation to Seller or the Company, (ii) no step has been taken in relation to Seller or the Company and (iii) no Proceedings have been started, or threatened, against Seller or the Company, in each case, for its winding-up or dissolution, or for the appointment of a liquidator, receiver, administrator, administrative receiver or similar officer over any or all of its assets. Section 4.23 Assigned Contracts. Section 4.23 of the Disclosure Schedules sets forth each developer, publisher and customer contract (the Assigned Contracts) relating to the Business originally entered into by Seller. As of the date hereof, each Assigned Contract has been validly assigned to the Company pursuant to the Assignment and Assumption Agreement and such assignment did not constitute a default under any Assigned Contract. Except as set forth on Section 4.23 of the Disclosure Schedules, each of the Assigned Contracts is in full force and effect, and is the legal, valid and binding obligation of the Company, and, to the Knowledge of Seller, is valid, binding and enforceable against the other parties thereto. 23 --- Section 4.24 Operating Budget. To the Knowledge of the Company, Section 4.24 of the Disclosure Schedules sets forth the Companys reasonable good faith estimate of a monthly budget and forecast for the operations of the Companys business for 2014 (the Company Budget). For the period from January 27, 2014 through the date hereof, Purchaser has caused the Company to operate in accordance with the Company Budget in all material respects. Section 4.25 Source Code; R&D; and Access. At or prior to the Closing Date, the Company has delivered to Sungy a complete and accurate copy of the source code of the GetJar advertising platform, documentation relating to any current research and development projects and access and administrative rights to the information technology systems (including servers and computers) of the Company. ARTICLE V. REPRESENTATIONS OF PURCHASER PARTIES Each of the Purchaser Parties hereby represents and warrants to Seller as follows: Section 5.01 Organization; Power. It is a corporation or an exempted company, as applicable, duly organized, validly existing, and in good standing under the Laws of the jurisdiction of its formation and has all requisite corporate power and authority to own its properties and assets and to conduct its business as it is now conducted. Section 5.02 Authorization and Validity of Agreement. (a) It has all requisite corporate power and authority to enter into this Agreement. This Agreement has been duly and validly executed and delivered by it and, assuming that this Agreement constitutes a valid and binding agreement of Seller, constitutes a valid and binding obligation of it, enforceable against it in accordance with its terms and conditions, except that such enforceability may be limited by applicable bankruptcy, insolvency, moratorium or other similar Laws affecting or relating to enforcement of creditors rights generally or general principles of equity. No other corporate proceedings on its part, including without limitation, a vote of its equity holders, are necessary to authorize the execution or delivery of this Agreement. (b) It has all requisite corporate power and authority to enter into all other agreements, documents and instruments executed by it in connection with the transactions contemplated by this Agreement, and to perform its obligations hereunder and thereunder. All other agreements, documents and instruments executed by it in connection with the transactions contemplated by this Agreement have been duly and validly executed and delivered by it and, assuming that such agreement, document or instrument constitutes a valid and binding agreement of each other party thereto, shall constitute a valid and binding obligation of it, enforceable against it in accordance with each of their terms and conditions, except that such enforceability may be limited by applicable bankruptcy, insolvency, moratorium or other similar Laws affecting or relating to enforcement of creditors rights generally or general principles of equity. The execution and delivery of all other agreements, documents and instruments executed by it in connection with the transactions contemplated by this Agreement and the performance of the obligations of it hereunder and thereunder have been duly authorized by all necessary corporate action by its board of directors. No other corporate proceedings on its part are necessary to authorize the execution, delivery or performance of such other agreements, documents and instruments contemplated by this Agreement to which it is a party, or the transactions contemplated. 24 --- Section 5.03 No Conflict or Violation. The execution, delivery, consummation and performance of this Agreement by it does not and will not (a) violate or conflict with any provision of its articles of incorporation or articles of association, as applicable, or bylaws, (b) violate any applicable provision of Law or (c) with or without notice, lapse of time or both, violate or result in a breach of, or constitute a default under, result in the acceleration of or create in any Person the right to accelerate, terminate or cancel any material Contract, consent, order or other instrument or obligation to which it is a party or by which it is bound or to which any of its properties or assets is subject. Section 5.04 Approvals and Consents. The execution, delivery and performance of this Agreement by it does not require it to obtain the consent or approval of, or to make any filing with, any Governmental Entity or any other Person except such consents, approvals and filings, the failure to obtain or make which would not, individually or in the aggregate, adversely affect it or its ability to perform its obligations hereunder. Section 5.05 Brokers and Finders Fees. No broker, finder or other Person is entitled to any commission or finders fee in connection with this Agreement or the transactions contemplated by this Agreement as a result of any actions or commitments of it or its Affiliates. Section 5.06 Purchaser Shares. The Purchaser Shares, when issued and delivered and paid for in compliance with the provisions of this Agreement, will be validly issued, fully paid and nonassessable and free of any Encumbrances. Section 5.07 Securities Filings. Sungys F-1 registration statement filed with the Securities Exchange Commission, at the time it became effective, did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. No additional periodic reports under the Securities Exchange Act of 1934, as amended, are required to filed as of the date hereof. ARTICLE VI. COVENANTS Section 6.01 Director and Officer Indemnification. Following the Closing, Sungy and Purchaser shall fulfill and honor in all respects the obligations of the Company pursuant to any indemnification obligations under the Companys organizational documents as in effect on the date of this Agreement. In addition, following the Closing, Sungy and Purchaser shall cause the Company not to make any changes to its certificate of incorporation or bylaws that would adversely affect the rights of persons who are currently or were officers or directors of the Company to claim indemnification from such entity under the terms of such certificate of incorporation or bylaws as in effect on the date hereof for acts taken prior to the Closing. 25 --- Section 6.02 Release of Claims. (a) From and after Closing, Seller hereby waives any claims which it might otherwise have against the Company or any employees of the Company in respect of the completeness or accuracy of any information supplied, or for any failure to supply information, to Seller or any of its Affiliates in connection with this Agreement and the transactions contemplated hereby. (b) From and after the Closing, except as arising out of actions or omissions occurring after the Closing Date or arising as a result of this Agreement between Seller or any of its Affiliates, on the one hand, and the Company, on the other hand, and without prejudice to the representations and warranties given by given by the Purchaser Parties pursuant to ARTICLE V, Seller hereby waives and releases the Company, its Affiliates, their respective shareholders, and their respective officers, directors and employees from, to the fullest extent permitted by applicable Law, any and all other rights, defenses, claims and causes of action, known or unknown, foreseen or unforeseen which Seller has or may have in the future against the Company or any of its Affiliates. (c) From and after the Closing, except as arising out of actions or omissions occurring after the Closing Date or arising as a result of this Agreement between Purchaser, on the one hand, and the Company, on the other hand, and without prejudice to the representations and warranties given by Seller pursuant to ARTICLE IV, the Purchaser Parties hereby waive and release Seller, its Affiliates, their respective shareholders, and their respective officers, directors and employees from, to the fullest extent permitted by applicable Law, any and all other rights, defenses, claims and causes of action, known or unknown, foreseen or unforeseen which the Company has or may have in the future against Seller or any of its Affiliates. Section 6.03 Non-Competition; Non-Solicitation. (a) Seller and its subsidiaries shall not, at any time during the three (3) year period immediately following the Closing Date, directly or indirectly, own, manage, control or participate in the ownership, management or control of , any Person primarily engaged in the mobile advertising network, except as explicitly contemplated under this Agreement, in the geographic regions where the Business is conducted as of the Closing Date; provided, however, that the ownership of securities representing no more than five percent (5%) of the outstanding voting power of any competitor, developer, publisher or customer of the Company, which securities are listed on any national securities exchange or traded actively in the national over-the-counter market, shall not be deemed to be a breach of this provision so long as the Person owning such securities has no other material connection or relationship with such competitor, developer, publisher or customer; and provided, further, that the business of the Sellers subsidiaries as conducted by Sellers subsidiaries as of the Closing Date shall not be deemed a violation of this Section 6.03(a). 26 --- (b) Seller further agrees that for a period of three (3) years after the Closing Date, it shall not, and shall not permit any of its subsidiaries to, directly or indirectly, for Sellers benefit, or for the benefit of any other Person, solicit the employment or services of, hire, or retain any person who as of the Closing Date was employed by the Company as an employee or consultant. (c) It is the desire and intent of the parties that the provisions of this Section 6.03 shall be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. If any particular provisions or portion of this Section 6.03 shall be adjudicated to be invalid or unenforceable but would be valid and enforceable if part of the wording of the restriction is deleted or any time period is shortened, such restriction shall apply with such modifications as is necessary to make it valid and enforceable. (d) The parties recognize that the performance of the obligations under this Section 6.03 by Seller are special, unique and extraordinary in character, and that in the event of the breach by Seller of the terms and conditions of this Section 6.03 the Purchaser Parties shall be entitled, if so elected, to obtain damages for any breach of this Section 6.03, or seek to enforce the specific performance thereof by Seller, or to enjoin Seller from performing services for any Person. For the avoidance of doubt, nothing in this Section 6.03 shall bind the shareholders of Seller, and only those shareholders of Seller who enter into an employment and non-competition agreement with the Company pursuant to this Agreement are so bound in accordance with the terms of such shareholders agreement. Section 6.04 Sold IP Further Assurances. On and after the Closing Date, Seller covenants and agrees to cooperate and take such reasonable steps and execute such other and further documents, at Sungy or IP Purchasers cost and expense, as may be necessary or appropriate to cause to be executed and delivered, all instruments and to make all filings with, and to obtain all consents, and to take all such other actions as Sungy, IP Purchaser or the Company may reasonably request Seller to take from time to time, consistent with the terms of this Agreement, in order to convey all right, title and interest in and to the Sold IP to IP Purchaser or its designee or to perfect IP Purchasers or its designees title in the Sold IP. Section 6.05 Employee Incentive Shares. After the Closing Date, Sungy agrees to enter into restricted share award agreements substantially in the form of Exhibit F hereto or a form with substantially similar material terms for each of the employees and contractors of the Company in the restricted share amounts set forth on Schedule 6.05. 27 --- Section 6.06 Employee Matters. (a) Following the Closing Date, Company employees that continue employment with the Company or become employed by Sungy or a subsidiary of Sungy (the Continuing Employees) will receive employee benefits no less favorable in the aggregate than (i) benefits provided by the Company immediately prior to the Closing Date and which have been disclosed to Purchaser prior to the Closing Date, or (ii) benefits provided by Sungy or its subsidiary to similarly-situated employees. For purposes of determining eligibility to participate, vesting and entitlement to benefits where length of service is relevant (including for purposes of vacation accrual) under employee benefit plans of Sungy or its subsidiaries in which Continuing Employees participate, Sungy or Purchaser shall cause Continuing Employees to receive service credit for their period of service with the Company prior to the Closing Date, except where doing so would cause a duplication of benefits. To the extent permitted by applicable law, Sungy will waive limitations as to preexisting conditions exclusions (or actively at work or similar limitations), evidence of insurability requirements and waiting periods with respect to participation and coverage requirements applicable to the Continuing Employees under any medical, dental and vision plans in which such employees become eligible to participate after the Closing Date. Continuing Employees and their eligible dependents will receive credit for any co-payments, deductibles and maximum out-of-pocket requirements (or similar payments) made under the Employee Plans for the year of the Closing under any medical, dental or vision plans of Sungy or a subsidiary for the purposes of satisfying any applicable deductible, out-of-pocket, maximum out-of-pocket requirements or similar requirements in the year in which the Closing occurs. (b) Sungy agrees to reserve an aggregate of 3,074,033 Purchaser Shares for the purpose of grants of restricted shares to employees and contractors of the Company. (c) Nothing in Section 6.06(a) or Section 6.06(b) of this Agreement shall (i) create any third-party beneficiary rights in any employee or former employee (including any beneficiary or dependent thereof) or service provider or former service provider (including any beneficiary or dependent thereof) of the Company in any respect, including in respect of continued employment (or resumed employment), or create any legal or equitable rights in any such persons in respect of any such Sections or any benefits that may be provided, directly or indirectly, under any Employee Plan or any employee or service provider program or arrangement of Sungy any of its subsidiaries, or (ii) constitute or be construed to constitute an amendment to any of the compensation or benefit plans maintained for or provided to employees or other persons prior to or following the Closing. Nothing in this Agreement shall constitute a limitation on the rights to amend, modify or terminate any such plans or arrangements of Sungy or any of its subsidiaries. (d) Other than the Company Employees, to the Knowledge of the Company and Seller, no person will be employed by the Company and no persons employment or contract of employment will transfer to the Company or to a Purchaser Party or any Purchaser Party Affiliate on Closing or in connection with the transactions contemplated by this Agreement, whether pursuant to the Transfer Regulations or otherwise. (e) If, as a consequence of the transactions contemplated by this Agreement the contract of employment of any person who is not a Company Employee is transferred to a Purchaser Party or any of their Affiliates by the Transfer Regulations or otherwise by operation of law (or Liabilities in respect of any such persons employment are transferred to a Purchaser Party or any Purchaser Party Affiliate) or it is alleged that this is the case, Seller shall indemnify the Purchaser Parties (for themselves and on behalf of their Affiliates) and keep the Purchaser Parties indemnified from and against all Losses which they suffer or incur in connection with or as a result of such transfer or alleged transfer howsoever and whenever arising relating to: (i) the contract of employment of any such person or its termination; and (ii) any duty or Liability of a Purchaser Party or a Purchaser Party Affiliate to any such person or that persons representative(s). 28 --- (f) The parties agree that any Losses incurred by an Affiliate of the Purchaser Parties shall be deemed to be Losses incurred by the Purchaser Parties for the purposes of the indemnities in Section 6.06(e) and shall be recoverable by the Purchaser Parties as such, provided, however, that Sellers obligations for an Indemnity Loss relating to Section 6.06(e) shall be subject to the limitation set forth in Section 7.08(b). Section 6.07 Conduct of Business. Immediately following the Closing, the Company will continue to trade in the same manner as it has previously done so and shall not take any steps immediately following the Closing to carry out any other activity. Section 6.08 Seller Representative. In the event that Seller is placed into liquidation, administration or any other analogous process, Seller shall appoint or procure the appointment of the Seller Representative as the liquidator, administrator or similar officeholder in respect of such proceeding. Section 6.09 Seller Dividends. Until such time as Seller has paid the fees of Purchasers advisors as provided in Section 10.02, Seller shall not declare or pay any dividend on, or make any distribution in respect of, any of Sellers equity securities in an amount which could render Seller unable to pay the advisor fees pursuant to Section 10.02. ARTICLE VII. INDEMNIFICATION; SURVIVAL Section 7.01 Indemnification By Seller. Subject to Sections 7.07 and 7.08, other than with respect to matters related to Taxes, which shall be governed exclusively by ARTICLE VIII, following the Closing, Seller shall indemnify and hold harmless the Purchaser Parties and each of their successors, shareholders, officers, directors, employees, representatives, Affiliates and agents (the Purchaser Indemnified Parties) from and against any and all monetary damages, losses, judgments, Liabilities, Proceedings, penalties, costs and expenses (including costs of investigation and defense and reasonable attorneys fees and expenses) (each, an Indemnity Loss), directly or indirectly arising from or relating to: (a) any breach of any of the representations and warranties of Seller in this Agreement; (b) any breach or nonfulfillment of any of the covenants, obligations or agreements of Seller in this Agreement; 29 --- (c) any Company Employee voluntarily terminating such employees employment with the Company, other than for good reason, prior to the first anniversary of the Closing Date; (d) any operating expenses of the Company during the calendar month of January 2014, including, but not limited to, the compensation of any employee or contractor of the Company for work or services performed during such period; and (e) the termination of any person who was an employee or contractor of the Company prior to the Closing who is not a Company Employee. For the purposes of any Indemnity Loss pursuant to Section 7.01(c), such Indemnity Loss shall be conclusively deemed to be, in the case of Chris Dury, Chief Executive Officer of the Company, $250,000, in the case of Joseph Molnar, $200,000, in the case of William Haney Scott, $150,000, in the case of Brian J. Fox or Stephen C. Shertz, $100,000, and, in the case of each other Company Employee, $25,000. Section 7.02 Indemnification by Purchaser. Subject to Sections 7.07 and 7.08, Purchaser shall indemnify and hold harmless Seller and its successors, shareholders, officers, directors, employees, representatives, Affiliates and agents (the Seller Indemnified Parties and, together with the Purchaser Indemnified Parties, the Indemnified Parties) from and against any and all Indemnity Losses arising from or relating to any misrepresentation, breach of warranty or nonfulfillment of any of the representations, warranties, covenants, obligations or agreements of Purchaser in this Agreement or any certificate, document, schedule, exhibit or instrument executed in connection herewith or therewith. Section 7.03 Indemnification Notice; Litigation Notice. If a party entitled to indemnity pursuant to Sections 7.01 or 7.02 (the Claimant) believes that it has suffered or incurred any Indemnity Loss, it shall so notify the party which the Claimant believes has an obligation to indemnify (the Indemnifying Party) promptly in writing describing such loss or expense, the amount thereof, if known, and the method of computation of such loss or expense, all with reasonable particularity (the Indemnification Notice). If any action at Law, suit in equity, arbitration or administrative action is instituted by or against a third party with respect to which the Claimant intends to claim any Liability or expense as an Indemnity Loss under this ARTICLE VII, it shall promptly notify the Indemnifying Party in writing of such action, matter or suit describing such loss or expense, the amount thereof, if known, and the method of computation of such loss or expense, all with reasonable particularity (the Litigation Notice) in lieu of an Indemnification Notice. The delay in providing, or failure to provide, the Litigation Notice shall not release the Indemnifying Party from any of its obligations under this ARTICLE VII, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. A claim under this ARTICLE VII may be made by notice to the Seller Representative or the Purchaser, as the case may be. 30 --- Section 7.04 Defense of Claims. The Indemnifying Party shall have twenty (20) calendar days after receipt of the Litigation Notice to notify the Claimant that it elects to conduct and control any legal or administrative action or suit with respect to an identifiable claim (the Election Notice). If the Indemnifying Party gives a Disagreement Notice (as defined below) or does not give the foregoing Election Notice, the Claimant shall have the right to defend, contest, settle or compromise such action or suit in the exercise of its sole discretion. If the Indemnifying Party gives the foregoing Election Notice and provides information reasonably satisfactory to the Claimant confirming the Indemnifying Partys financial capacity to defend such Indemnity Loss, the Indemnifying Party shall have the right to undertake, conduct and control, through counsel selected by the Indemnifying Party and at the Indemnifying Partys sole expense, the conduct and settlement of such action or suit, and the Claimant shall cooperate with the Indemnifying Party in connection therewith; provided, however, that (a) the Indemnifying Party shall not thereby consent to the terms of any settlement or to the imposition of any injunction against the Claimant without the prior written consent of the Claimant (such approval not be unreasonably withheld or delayed) unless such settlement provides the Claimant with a full release from Liability and the sole relief provided in connection with such settlement is monetary damages, (b) the Indemnifying Party shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Claimant, but the fees and expenses of such legal counsel shall be borne by the Claimant, except as provided in clause (c) below, (c) upon a final determination of such action or suit, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this ARTICLE VII for the full amount of any Indemnity Loss incurred by the Claimant, except fees and expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such action or suit by the Indemnifying Party in good faith. Section 7.05 Disagreement Notice. If the Indemnifying Party does not agree that the Claimant is entitled to full reimbursement for the amount specified in the Indemnification Notice or the Litigation Notice, as the case may be, the Indemnifying Party shall notify the Claimant, which notice shall set forth a brief description in reasonable detail of the Indemnifying Partys objection to each item of loss (the Disagreement Notice) within twenty (20) calendar days of its receipt of the Indemnification Notice or the Litigation Notice, as the case may be. Failure to deliver a Disagreement Notice in a timely manner shall be considered an express acknowledgment by the Indemnifying Party of its obligation to indemnify and hold harmless the Claimant with respect to the Indemnity Loss set forth in the Indemnification Notice or the Litigation Notice, as the case maybe. Following delivery of a Disagreement Notice by an Indemnifying Party, Seller and Purchaser resolve any resulting dispute in accordance withSection 10.13(b). Section 7.06 Payment of Losses. The Indemnifying Party shall pay to the Claimant in immediately available funds (or, as described below, the Claimant shall be paid from the Escrow Account) the amount to which the Claimant may become entitled by reason of the provisions of this ARTICLE VII (the Claim Amount) within fifteen (15) Business Days after such amount is finally determined (the Determination Date) either by mutual agreement of the parties or by a final judgment of the trial court or administrative body having jurisdiction. Where payment of the Claim Amount is to be made from the Escrow Account, Seller shall, within five (5) Business Days after the Determination Date, provide notice to the Escrow Agent of such Claim Amount to be paid, including the amount to be paid and the party to be paid, together with any authorization for such payment as the Escrow Agent may require. 31 --- Section 7.07 Survival. Notwithstanding the foregoing, the Indemnifying Party shall have no Liability with respect to any Indemnification Notice which is not received by the Indemnifying Party pursuant to Section 7.03 on or before the one year anniversary of the Closing Date (the Survival Date); provided, however, that the Indemnifying Party shall remain liable for any Indemnity Loss (a) arising under Section 7.01(b), (b) arising from fraud, intentional misrepresentation or criminal activity on the part of Seller or (c) arising from or related to a breach of any representation contained in Section 4.01 (Organization; Power), Section 4.02 (Authorization), Section 4.03 (Capital Structure; Subsidiaries), and Section 4.21 (Brokers and Finders Fees), (collectively, the Special Representations), in each instance, in connection with an Indemnification Notice which is received by the second anniversary of the Closing Date. Notwithstanding anything to the contrary herein, in no event shall the terms and conditions of this Section 7.07 limit Purchasers obligations relating to the Additional Payments as provided in this Agreement. Section 7.08 Limitations on Indemnity. (a) Deductible on Sellers and Purchasers Obligations. Subject to the terms and conditions of this ARTICLE VII, Seller will not have any obligation for any Indemnity Loss under Section 7.01(a) other than with respect to any breach of a Special Representation, arising under ARTICLE VIII, or arising from fraud, willful misconduct, or intentional misrepresentation by or on the part of Seller, and Purchaser will not have any obligation for any Indemnity Loss under Section 7.02, unless and until the aggregate amount of all Indemnity Losses for which such Indemnifying Party is obligated hereunder exceeds $100,000 (the Indemnification Basket). After the Indemnification Basket is exceeded, the Indemnified Parties shall thereafter be entitled to be paid the amount of all Indemnity Losses, subject to the limitations on recovery and recourse set forth herein. (b) Cap on Sellers and Purchasers Obligations. Subject to the terms and conditions of this ARTICLE VII, Sellers obligations for an Indemnity Loss, in the aggregate, will not exceed the Escrow Amount. Subject to the terms and conditions of this ARTICLE VII, Purchasers obligations for an Indemnity Loss, in the aggregate, will not exceed the Escrow Amount, except with respect to Purchasers obligations relating to the Additional Payments as provided in this Agreement. (c) Sole and Exclusive Remedies. The right to indemnification under this ARTICLE VII, subject to all of the terms, conditions and limitations hereof, shall constitute the sole and exclusive right and remedy available to any party hereto for any actual or threatened breach of this Agreement, and none of the parties hereto shall initiate or maintain any legal action at law or in equity against any other party hereto which is directly or indirectly related to any breach or threatened breach of this Agreement, except that any party may pursue legal or equitable relief against any other party for any claim for fraud or intentional misrepresentation. (d) No Special Losses. Except as permitted by the following sentence, notwithstanding any other term herein, no party will be obligated to any other Person for any consequential, incidental, indirect, special, exemplary or punitive damages or Indemnity Losses based thereon, including regarding loss of future revenue, income or profits, diminution of value or loss of business reputation or opportunity, and no party will be obligated to any other Person for any Indemnity Loss determined as a multiple of income, revenue or the like, relating to the breach of any representation, warranty, covenant, or agreement herein. The preceding sentence does not apply to any such identified damages or Indemnity Losses which are awarded in a final, non-appealable judgment or judicial order arising as in connection with a third-party claim described in a Litigation Notice. 32 --- Section 7.09 Escrow Claims. (a) On the first Business Day following the second anniversary of the Closing Date, Purchaser and Seller shall cause the Escrow Agent to release the then existing amounts in the Escrow Account to Seller, less the amount of claims for indemnification which have been paid or have been asserted by the Purchaser Indemnified Parties but not paid. Any unreleased amount shall be retained by the Escrow Agent. The amounts in the Escrow Account so retained shall be released by the Escrow Agent upon the resolution of such claims, to the extent not utilized to pay the Purchaser Indemnified Parties for any such claims resolved in favor of a Purchaser Indemnified Party, in accordance with the resolution of such claims. (b) As provided in Section 7.06, amounts in the Escrow Account shall be available to Purchaser Indemnified Parties to satisfy their claims against Seller for indemnification hereunder. ARTICLE VIII. TAX MATTERS Section 8.01 Tax Indemnification. (a) From and after the Closing, Seller will indemnify and hold harmless the Purchaser Indemnified Parties from and against any Indemnity Loss actually incurred by any such Purchaser Indemnified Party as a result of: (i) any breach of any representation or warranty of the Company or Seller set forth in Section 4.08; (ii) any Taxes in respect of the Sold IP or any Taxes of the Company with respect to (A) any Tax period ending on or before the Closing Date (a Pre-Closing Tax Period); or (B) any Tax period beginning before and ending after the Closing Date (a Straddle Period) to the extent such Taxes are allocable in accordance with Section 8.01(c) to the portion of such period beginning before and ending on the Closing Date (the Sellers Portion); and (iii) any Taxes imposed on the Company under Treasury Regulations Section 1502-6 (and all corresponding provisions of state, local or foreign Law) as a result of being a member of any federal, state, local or foreign consolidated, unitary, combined or similar group before the Closing Date. 33 --- (b) Survival. The indemnification rights of the Purchaser Indemnified Parties pursuant to Section 8.01(a) shall survive until the date that is the one year anniversary of the Closing Date (the Tax Indemnity Termination Date). The representations and warranties contained in Section 4.08 shall survive until the Tax Indemnity Termination Date. Any claim for indemnity under Section 8.01(a) shall be deemed time-barred, and no such claim shall be made after the period specified in the immediately preceding sentence; provided, however, that in the event a Purchaser Indemnified Party has incurred a Loss or received written notice from a third party of a third party claim for which such Purchaser Indemnified Party is entitled to indemnification under Section 8.01(a) and such Purchaser Indemnified Party provides written notice of a claim for indemnification under Section 8.01(a) to the Indemnifying Party in good faith and in accordance with the requirements of Section 7.03 before the expiration of the applicable survival period and includes copies of all material written evidence upon which such claim is based, then the indemnification rights pursuant to Section 8.01(a) that would otherwise terminate as set forth above shall survive as to such claim until such time as such claim is fully and finally resolved. (c) Straddle Period Allocation. In order to apportion appropriately any Taxes relating to a Straddle Period, the parties hereto shall, to the extent permitted or required under applicable Law, treat the Closing Date as the last day of the taxable year or period of the Company for all Tax purposes. In any case where applicable Law does not permit the Company to treat the Closing Date as the last day of the taxable year or period: (i) the amount of any income Taxes, premium Taxes, gross receipts Taxes, sales or use Taxes or withholding or employment Taxes for Sellers Portion of the Straddle Period shall be determined based on an interim closing of the books as of the close of business on the Closing Date (and for such purpose, the taxable period of any partnership or other pass-through entity in which any the Company holds a beneficial interest shall be deemed to terminate at such time); and (ii) the amount of other Taxes of the Company for Sellers Portion of the Straddle Period shall be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction, the numerator of which is the number of days in the taxable period ending on the day before the Closing Date, and the denominator of which is the number of days in such Straddle Period. (d) Tax Claim Notice. The notice provisions of Section 7.03 shall apply to any claim for indemnification pursuant to this ARTICLE VIII (a Tax Claim). (e) Manner of Payment. Any Indemnification of the Purchaser Indemnified Parties pursuant to this Section 8.01 shall be effected by payment from the Escrow Account; provided, however, that, if the Seller remains in existence, to extent the indemnification amount exceeds the balance of the Escrow Account or the Escrow Account has been would up pursuant to Section 7.09(a), the remainder of such indemnification amount shall be paid by Seller by wire transfer of immediately available funds from Seller, in each case, to an account designated in writing by the applicable Purchaser Indemnified Party within fifteen (15) Business Days after the determination thereof. Any payment not made with such period shall be payable with interest as provided in Section 7.06. (f) The indemnification obligations set forth in this Section 8.01 shall not exceed the Escrow Amount. 34 --- Section 8.02 Preparation and Filing of Tax Returns and Payment of Taxes. (a) Seller shall prepare or cause to be prepared and shall timely file or cause to be timely filed all required Tax Returns relating to the Company with respect to any Pre-Closing Tax Period, provided, that such Tax Returns shall be prepared and all elections with respect to such Tax Returns shall be made, to the extent permitted by Law, in a manner consistent with past practice. No later than thirty (30) days prior to filing any such Tax Return (including any extension thereof), Seller shall submit such Tax Return to the Purchaser for its review, comment, and consent. Seller shall make any revisions as are reasonably requested by Purchaser. Seller shall timely pay or cause to be paid any Taxes shown to be due on any such Tax Returns. If any Tax Returns required to be filed by Seller under this Section 8.02 are due after the Closing Date, and Seller is not authorized by Law to file such Tax Returns, Seller shall submit such Tax Returns to Purchaser at least three (3) days prior to the due date for such Tax Return, and Purchaser shall file such Tax Returns with the appropriate Governmental Entity. (b) Purchaser shall prepare or cause to be prepared and shall timely file or cause to be timely filed all other required Tax Returns relating to the Company that are due after the Closing Date (including Tax Returns with respect to any Straddle Period) provided, that for Tax Returns with respect to any Straddle Period, such Tax Returns shall be prepared and all elections with respect to such Tax Returns shall be made, to the extent permitted by Law, in a manner consistent with past practice. Purchaser shall timely pay or cause to be paid any Taxes shown to be due thereon subject to Purchasers right to indemnification pursuant to Section 8.01 hereof. Section 8.03 Cooperation, Exchange of Information and Record Retention. From and after the Closing Date until the Tax Indemnity Termination Date Purchaser, the Company, and Seller shall, and shall cause their respective representatives to, (i) mutually cooperate with respect to the Tax matters covered by this ARTICLE VIII, which shall include making employees available at reasonable times during regular business hours to provide additional information or explanation of materials or documents, (ii) retain and maintain all books and records with respect to Tax matters pertinent to the Company relating to any taxable period beginning before the Closing Date, and abide by all record retention agreements entered into with any taxing authority, (iii) furnish such books and records upon reasonable request by the other party and (iv) mutually cooperate in filing all necessary Tax Returns (including amended Tax Returns and claims for refund) under applicable Law and with respect to any audit, litigation or other Proceeding with respect to Taxes, including executing and delivering appropriate and customary forms and authorizations, as appropriate, when the requesting party reasonably requires such forms in connection with any Tax dispute or claim for refund. Any request for information or documents pursuant to this Section 8.03 shall be made by the requesting party in writing. Any information obtained under this Section 8.03 shall be kept confidential, except (i) as otherwise reasonably may be necessary in connection with the filing of Tax Returns or claims for refund or in conducting an audit or contesting any proposed Tax assessment or as may be otherwise reasonably required by applicable Law, or to enforce rights under this Agreement, or (ii) for any external disclosure in audited financial statements or regulatory filings which a party reasonably believes is required by applicable Law or stock exchange or similar applicable rules. Notwithstanding the foregoing, and in addition to all other obligations imposed by this Section 8.03 each of Seller and Purchaser agree to give the other party reasonable written notice prior to transferring, destroying or discarding any files and records with respect to Tax matters of the Company and, if the other party so requests, to allow the other party to take possession of such files and records. 35 --- Section 8.04 Tax Contests. (a) Seller or Sellers Representative shall have the sole right to represent the interests of the Company, and the right to employ counsel of its choice at its expense and to make decisions with respect to negotiation, contest or settlements in any Tax Claim relating to Pre-Closing Tax Period Tax Returns; provided that (i) Seller acknowledges and agrees in writing that the indemnification provisions of this ARTICLE VIII apply to the Pre-Closing Tax Period Taxes in dispute, (ii) Seller shall keep Purchaser advised as to the current status and progress of such settlement or defense, and (iii) Seller shall not, without the prior written consent of Purchaser (which shall not be unreasonably withheld or delayed), settle or compromise any such Tax Claim if any such settlement or compromise could affect any tax period other than a Pre-Closing Tax Period; and (b) Purchaser and Seller or, if Seller is no longer in existence, the Seller Representative shall jointly represent the interests of the Company, and shall jointly employ mutually agreed counsel (with expenses divided in the proportions that the Sellers Portion and the Purchasers Portion are of the relevant Straddle Period Tax) and shall jointly make decisions with respect to negotiation, contest or settlements in any Tax Claim related to a Straddle Period Tax Return. Section 8.05 Tax Dispute Resolution. Except as otherwise provided, with respect to any dispute or a disagreement relating to Taxes between the parties, the parties shall cooperate in good faith to resolve such dispute between them; but if the parties are unable to resolve such dispute, the parties shall submit the dispute to a certified public accountant or attorney specializing in taxes of the kind in dispute, provided that such individual is independent with respect to Seller, Purchaser, and their respective Affiliates, as mutually agreed upon by Purchaser and Seller (in either case, the Tax Specialist) for resolution, which resolution shall be final, conclusive and binding on the parties. The parties agree that the Tax Specialist shall resolve any dispute in a manner consistent with the past practices with respect to such items unless otherwise required by Law. Seller and Purchaser shall each be liable for one half of the fees and expenses of the Tax Specialist. Purchaser and Seller agree to execute, if requested by the Tax Specialist, a reasonable engagement letter, including customary indemnification provisions in favor of the Tax Specialist. Section 8.06 Transfer Taxes. Seller and Purchaser shall each be liable for one half of all transfer, documentary, sales, use, stamp, registration, conveyance, real property transfer or gains, value added, stock transfer and other similar Taxes and fees (including any penalties and interest) incurred in connection with the transactions contemplated by this Agreement that are not recoverable. Purchaser and Seller shall jointly prepare, execute and file all necessary Tax Returns and other documentation with respect to all such Taxes, fees, costs, charges and expenses. 36 --- Section 8.07 FIRPTA Certificate. The Company shall, on or prior to the Closing Date, provide Purchaser with a properly executed Foreign Investment and Real Property Tax Act of 1980 notification letter (the FIRPTA Certificate), substantially in the form of Exhibit G attached hereto, which states that shares of capital stock of the Company do not constitute United States real property interests under Section 897(c) of the Code. In addition, simultaneously with delivery of such FIRPTA Certificate, the Company shall have provided to Purchaser, as agent for the Company, a form of notice to the IRS in accordance with the requirements of Treasury Regulation Section 1.897-2(h)(2) along with written authorization for Purchaser to deliver such notice form to the IRS on behalf of the Company upon the Closing of the purchase of the Shares, all in substantially the form of Exhibit H attached hereto (the FIRPTA Notice). Section 8.08 Tax Treatment. The Company, Purchaser, and Seller agree to treat each indemnification payment pursuant to ARTICLE VII and this ARTICLE VIII as an adjustment to the aggregate Purchase Price for all Tax purposes and shall take no position contrary thereto unless required to do so by applicable Tax Law pursuant to a determination as defined in Section 1313(a) of the Code. Section 8.09 Exclusivity. This ARTICLE VIII shall govern all matters, including indemnification claims, with respect to Taxes and in the event of any conflict between the provisions of this ARTICLE VIII and any other provision of this Agreement, this ARTICLE VIII shall control. ARTICLE IX. INTERIM TRADEMARK LICENSE Section 9.01 Licensed Trademark. Effective as of the Closing, Seller hereby grants to the Company a worldwide, non-exclusive, non-transferable, royalty-free license to use and reproduce the Seller trademark GETJAR (the Licensed Trademark) solely during the Trademark License Term (as defined below); provided, that, the Companys license to the Licensed Trademark shall be limited to activities that are consistent with the Companys usage of the Licensed Trademark (in terms of scope, nature and quality) as it has made prior to the Closing. Section 9.02 Restrictions. Seller reserves all rights in the Licensed Trademark not expressly granted herein. All goodwill and benefits from the Companys use of the Licensed Trademark will automatically vest in and inure to the benefit of Seller. The Company will exercise commercially reasonable efforts to comply with any reasonable trademark usage policies and guidelines provided to the Company by Seller. Section 9.03 Trademark License Term. As used in this ARTICLE IX, Trademark License Term means up to twenty-four (24) months after the Closing Date. ARTICLE X. MISCELLANEOUS Section 10.01 Public Announcements. Any public announcement, press release or similar publicity with respect to the transactions provided for in or contemplated by this Agreement will be issued, if at all, at such time and in such manner as determined jointly by Sungy and Seller, unless public disclosure is necessary to comply with applicable Laws. 37 --- Section 10.02 Costs and Expenses. Whether or not the transactions contemplated by this Agreement are consummated, except as otherwise expressly provided herein, each of the parties shall bear all expenses and costs incurred by it in connection with this Agreement and the transactions contemplated by any of them, including, without limitation, the fees and disbursements of any legal counsel, independent accountants or any other Person or representative whose services have been used by such party; provided, however, that the fees and expenses relating to Purchasers engagement of Skadden, Arps, Slate, Meagher & Flom LLP, Maples and Calder, KPMG LLP and Jones Lang LaSalle in connection with the transactions contemplated by this Agreement shall be paid by Seller immediately after the Closing Date pursuant to invoices and payment instructions provided by such advisors to Seller at or prior to the Closing Date. Section 10.03 Further Assurances. From and after the date of this Agreement, the parties shall cooperate reasonably with each other in connection with any steps required to be taken as part of their respective obligations under this Agreement, and shall: (a) furnish upon request to each other such further information; (b) execute and deliver to each other such other documents; and (c) do such other acts and things, all as the other party may reasonably request for the purpose of carrying out the intent of transactions contemplated by this Agreement. Section 10.04 Seller Representative. (a) The Seller hereby constitutes and appoints Thomas Burke as its representative and its true and lawful attorney-in-fact, with full power and authority in its name and on its behalf: (i) to act on Sellers behalf in the absolute discretion of the Seller Representative with respect to all matters relating to this Agreement, including, without limitation, execution and delivery of any amendment, supplement, or modification of this Agreement, any waiver of any claim or right arising out of this Agreement and any claims for indemnification pursuant to ARTICLE VII and ARTICLE VIII; and (ii) in general, to do all things and to perform all acts, including executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable to effectuate the provisions of this Agreement. This appointment and grant of power and authority is coupled with an interest and is in consideration of the mutual covenants made herein and is irrevocable and shall not be terminated by any act of Seller or by operation of law or by the occurrence of any other event. Seller hereby consents to the taking of any and all actions and the making of any decisions required or permitted to be taken or made by the Seller Representative pursuant to this Section 10.04. Seller agrees that the Seller Representative shall have no obligation or Liability to any Person for any action or omission to be taken or omitted by the Seller Representative in good faith hereunder, and Seller shall indemnify and hold the Seller Representative harmless from and against any and all loss, damage, expense or liability (including reasonable counsel fees and expenses) which the Seller Representative may sustain as a result of any such action or omission by the Seller Representative hereunder. 38 --- (b) The Purchaser Parties shall be entitled to rely upon any document or other paper delivered by the Seller Representative as being authorized by Seller, and the Purchaser Parties shall not be liable to Seller or any of its Affiliates or its stockholders for any action taken or omitted to be taken by the Purchaser Parties based on such reliance. Seller agrees that the Purchaser Parties shall be entitled to rely on any agreement, settlement, notice, waiver, decision, act, consent or instruction of the Seller Representative, including an amendment, extension or waiver of this Agreement, and each action shall constitute a decision of Seller and shall be final, binding and conclusive upon Seller as if Seller had taken such action. (c) With respect to Sections 2.04, 7.03, 7.04, 7.05, 7.06, 7.09, 8.04, 8.05 and 10.01 of this Agreement, any reference to Seller, or to any act to be taken by Seller or to any right of Seller being exercised, in each case after the Closing, shall, in the event that Seller is dissolved, be construed as a reference to the Seller Representative, or that act being taken or that right being exercised by the Seller Representative, as the case may be. (d) In the event that the Seller Representative resigns, is replaced or otherwise ceases to act as liquidator, administrator or similar officeholder in connection with the liquidation, administration or any other analogous process with respect to Seller, Seller shall appoint such successor liquidator, administrator or similar officeholder as the successor Seller Representative under this Agreement. Section 10.05 Addresses for Notices, Etc. All notices, requests, demands and other communications that are required or may be given pursuant to the terms of this Agreement shall be in writing, and delivery shall be deemed sufficient in all respects and to have been duly given as follows: (a) on the actual date of service if delivered personally; (b) at the time of receipt of confirmation by the transmitting party if by facsimile transmission; (c) at the time of receipt if given by electronic mail to the e-mail addresses set forth in this Section 10.05; (d) on the third day after mailing if mailed by first-class mail return receipt requested, postage prepaid and properly addressed as set forth in this Section 10.05; or (e) on the day after delivery to a nationally recognized overnight courier service during its business hours or the Express Mail service maintained by the United States Postal Service during its business hours for overnight delivery against receipt, and properly addressed as set forth in this Section: \| \| \| \|------------- \| \| -------------------------------------------------------------------------------------------------------------------------------------------------------------------- \|If to Seller: \| \| GetJar Networks Limited c/o Bird and Bird LLP 90 Fetter Lane London EC41 1EQ Attention: Chris Barrett Facsimile: +44 20 7415 6111 E-mail: [email protected] 39 --- \| \| \| \|-------------------------------- \| \| ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ \|With a copy to: \| \| Wilson Sonsini Goodrich & Rosati, PC 650 Page Mill Road Palo Alto, CA 94304 Attention: John B. Turner and Arthur Schneiderman Facsimile: (650) 493.6811 E-mail: [email protected] \| \| \|With a copy to: \| \| Bird & Bird LLP 15 Fetter Lane London EC4A 1JP United Kingdom Attention: Chris Barrett Facsimile: +44 20 7415 6111 E-mail: [email protected] \| \| \|If to the Seller Representative: \| \| Thomas Burke 397 Missouri St San Francisco CA 94107 Facsimile: 650-638-1660 E-mail: [email protected] \| \| \|With a copy to: \| \| Wilson Sonsini Goodrich & Rosati, PC 650 Page Mill Road Palo Alto, CA 94304 Attention: John B. Turner and Arthur Schneiderman Facsimile: (650) 493.6811 E-mail: [email protected] \| \| \|With a copy to: \| \| Bird & Bird LLP 15 Fetter Lane London EC4A 1JP United Kingdom Attention: Chris Barrett Facsimile: +44 20 7415 6111 E-mail: [email protected] \| \| \|If to the Purchaser Parties: \| \| Sungy Mobile Limited Floor 17, Tower A, China International Center No. 33 Zhongshan 3rd Road, Yuexiu District Guangzhou 510055 Peoples Republic of China Attention: Yuqiang Deng Facsimile: +86-20-37570112 E-mail: [email protected] 40 --- \| \| \| \|--------------- \| \| ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- \|With a copy to: \| \| Skadden, Arps, Slate, Meagher & Flom LLP 300 South Grand Avenue, 34th Floor Los Angeles, CA 90071 U.S.A. Attention: Michael Gisser Facsimile: (213) 621-5213 E-mail: [email protected] Any party may change its address or other contact information for notice by giving notice to each other party in accordance with the terms of this Section 10.05. In no event will delivery to a copied Person alone constitute delivery to the party represented by such copied Person. Section 10.06 Headings. The article, section and paragraph headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. Section 10.07 Construction. (a) The parties have participated jointly in the negotiation and drafting of this Agreement and, in the event of an ambiguity or a question of intent or a need for interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. (b) The term Agreement means this agreement together with all Schedules, Annexes and Exhibits hereto, as the same may from time to time be amended, modified, supplemented or restated in accordance with the terms hereof. Unless the context otherwise requires, words importing the singular shall include the plural, and vice versa. The use in this Agreement of the term including means including, without limitation. The words herein, hereof, hereunder, hereby, hereto, hereinafter, and other words of similar import refer to this Agreement as a whole, including the Schedules, Annexes and Exhibits, as the same may from time to time be amended, modified, supplemented or restated, and not to any particular article, section, subsection, paragraph, subparagraph or clause contained in this Agreement. All references to articles, sections, subsections, clauses, paragraphs, schedules and exhibits mean such provisions of this Agreement and the Schedules, Annexes and Exhibits attached to this Agreement, except where otherwise stated. The use herein of the masculine, feminine or neuter forms shall also denote the other forms, as in each case the context may require. The use in this Agreement of the terms furnished, provided, delivered, made available and similar terms refers, with respect to the provision of information and documents to the Purchaser Parties, in addition to the physical delivery of such information or documents to the Purchaser Parties, to such information and/or documents as are made available by Seller or any of its consultants, advisors or attorneys. Section 10.08 Severability. The invalidity or unenforceability of any provision of this Agreement shall in no way affect the validity or enforceability of any other provision of this Agreement. 41 --- Section 10.09 Entire Agreement and Amendment. This Agreement, including the Exhibits and Schedules referred to and incorporated by reference herein that form a part of this Agreement, contains the entire understanding of the parties with respect to the subject matter of this Agreement. There are no representations, promises, warranties, covenants or undertakings other than those expressly set forth in or provided for in this Agreement. This Agreement supersedes all prior agreements and understandings among the parties hereto with respect to the transactions contemplated by this Agreement, and including, without limitation, the Summary of Terms for Proposed Acquisition, dated as of December 13, 2013. This Agreement may not be amended, supplemented, or otherwise modified except by a written agreement executed by each of the parties hereto. Section 10.10 No Waiver; Cumulative Remedies. Except as specifically set forth herein, the rights and remedies of the parties to this Agreement are cumulative and not alternative. No failure or delay on the part of any party in exercising any right, power or remedy under this Agreement will operate as a waiver of such right, power or remedy, and no single or partial exercise of any such right, power or remedy will preclude any other or further exercise of such right, power or remedy or the exercise of any other right, power or remedy. To the maximum extent permitted by applicable Law, (a) no claim or right arising out of this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of that party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement. Section 10.11 Parties in Interest. Nothing in this Agreement is intended to confer any rights or remedies under or by reason of this Agreement on any Person other than the Purchaser Parties and Seller, and their respective successors and permitted assigns. Section 10.12 Successors and Assigns; Assignment. This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of Law or otherwise) without the prior written consent of the other parties, except that each of the Purchaser Parties may each assign in its sole discretion its rights and interests hereunder to any Affiliate of the Purchaser Parties, provided that in each case no such assignment shall relieve such party of its duties or obligations hereunder. Seller may assign its rights to be paid the Revenue Earnout and its rights to be paid any amount from the Escrow Account under Section 7.09 of this Agreement to its shareholders in connection with the liquidation of Seller after the Closing. Except as expressly set forth herein, nothing in this Agreement shall confer any claim, right, interest or remedy on any Person (other than the parties hereto) or inure to the benefit of any Person (other than the parties hereto). Section 10.13 Governing Law; Dispute Resolution; Arbitration. (a) Applicable Law. The Laws of the State of New York shall govern the creation, interpretation, construction and enforcement of and the performance under this Agreement and all transactions and agreements contemplated by any of them, as well as any and all claims arising out of or relating in any way to this Agreement, notwithstanding the choice of law rules of any other state or jurisdiction. 42 --- (b) Dispute Resolution. If a dispute or disagreement between Seller and Purchaser arising out of, in connection with or relating to this Agreement (other than a dispute which is subject to the procedures set forth in Sections 2.04(b) and 8.05), including, without limitation, claims for indemnification pursuant to ARTICLE VII, the parties shall promptly attempt in good faith to resolve any such dispute by negotiations between Seller and Purchaser. Seller and Purchaser shall meet, either in-person or via teleconference, at a mutually acceptable time and place within twenty (20) calendar days after delivery of a Disagreement Notice or other notice of a dispute, and thereafter as often to resolve such dispute in good faith. If a dispute is not resolved by negotiation pursuant to this Section 10.13(b), then any dispute, Proceeding or other claim arising out of or relating to this Agreement (other than a dispute which is subject to the procedures set forth in Sections 2.04(b) and 8.05) shall be resolved in accordance with Section 10.13(c). (c) Arbitration. Any Proceeding arising out of, in connection with or relating to this Agreement, including the interpretation, validity, invalidity, breach or termination thereof, shall be finally settled and resolved by binding arbitration. The arbitration shall be conducted in Hong Kong under the Hong Kong International Arbitration Centre Administered Arbitration Rules in force when the notice of arbitration is submitted in accordance with the said Rules. The place or situs of arbitration shall be Hong Kong, the number of arbitrators shall be three and arbitration proceedings shall be conducted in English. Any award rendered by the arbitral tribunal shall be final, conclusive and binding upon the parties hereto. To the extent permitted by law, the parties hereto irrevocably waive any right to any form of appeal, review or recourse of any rendered award to any state or other judicial authority. Judgment upon any award rendered may be entered in any court having jurisdiction. Section 10.14 Waiver of Jury Trial. For any Proceeding which is permitted under this Agreement to be filed in a court, each party hereby expressly and irrevocably waives any right to a trial by jury in such Proceeding, including but not limited to those Proceedings to enforce or defend any rights under this Agreement or under any amendment, consent, waiver, instrument, document or agreement delivered or which may in the future be delivered in connection with it or arising from any relationship existing in connection with this Agreement. Each party agrees that in any such Proceeding, the matters shall be tried to a court and not to a jury. Section 10.15 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same agreement. Facsimile or electronic transmission of a counterpart hereto shall constitute an original hereof. Section 10.16 Table of Contents and Captions. The Table of Contents and captions of the Articles and Sections of this Agreement are solely for convenient reference and shall not be deemed to affect the meaning or interpretation of any provision of this Agreement. 43 --- Section 10.17 Schedules, Exhibits and Certificates. All Schedules and Exhibits referred to herein form an integral part of this Agreement and shall be deemed to be part of this Agreement to the same extent as if set forth in the text of this Agreement. Other than such representations and warranties contained herein or therein, no other representations or warranties as to the Shares, the Company, the Purchaser Parties or Seller have been made or may be relied upon. [Signature Pages Follow] 44 --- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. SUNGY:SUNGY MOBILE LIMITEDBy: /s/ Yuqiang DengName: Yuqiang DengTitle: Chief Executive OfficerPURCHASER:SUNGY TECHNOLOGY CORPORATIONBy: /s/ Yuqiang DengName: Yuqiang DengTitle: Chief Executive OfficerIP PURCHASER:SUNGY TECHNOLOGY LIMITEDBy: /s/ Yuqiang DengName: Yuqiang DengTitle: Chief Executive Officer [Signature Page to Purchase Agreement] --- SELLER:GETJAR NETWORKS LIMITEDBy: /s/ Getjar Networks LimitedName:Title: DirectorSELLER REPRESENTATIVE:THOMAS BURKEBy: /s/ Thomas Burke [Signature Page to Purchase Agreement] --- Schedule 1 Sold IP \| \| \| \| API Front-door \| \| - \| \| -------------- \| \| \| \| Manages SDK integrations that perform server-to-server voucher requests. \| \| - \| \| ------------------------------------------------------------------------ \| \| \| \| Ad Server \| \| - \| \| --------- \| \| \| \| Serves ads real-time. \| \| - \| \| --------------------- \| \| \| \| Auth \| \| - \| \| ---- \| \| \| \| Handles user and SDK application authorization and authentication. \| \| - \| \| ------------------------------------------------------------------ \| \| \| \| Catalog \| \| - \| \| ------- \| \| \| \| Manages defines for products, apps. \| \| - \| \| ----------------------------------- \| \| \| \| Device Management Service \| \| - \| \| ------------------------- \| \| \| \| Aids device compatibility. \| \| - \| \| -------------------------- \| \| \| \| ERS \| \| - \| \| --- \| \| \| \| Used to do ad attribution. \| \| - \| \| -------------------------- \| \| \| \| Id \| \| - \| \| -- \| \| \| \| Generates globally unique ids used by a majority of services storing data. \| \| - \| \| -------------------------------------------------------------------------- \| \| \| \| Image \| \| - \| \| ----- \| \| \| \| Generates cacheable images of any size for ads/apps served. \| \| - \| \| ----------------------------------------------------------- \| \| \| \| Localization \| \| - \| \| ------------ \| \| \| \| Services data to aid in localized prices, strings shown to users. \| \| - \| \| ----------------------------------------------------------------- \| \| \| \| Location \| \| - \| \| -------- \| \| \| \| Maps IP addresses into physical locations. \| \| - \| \| ------------------------------------------ \| \| \| \| Product \| \| - \| \| ------- \| \| \| \| Generates ads, purchased products and deals shown to user. It coordinates data from the ad server, catalog service and ranking service. \| \| - \| \| --------------------------------------------------------------------------------------------------------------------------------------- \| \| \| \| Ranking \| \| - \| \| ------- \| \| \| \| Looks at users apps and set of available ads and personalizes the ad result. \| \| - \| \| ---------------------------------------------------------------------------- \| \| \| \| SDKHost \| \| - \| \| ------- \| \| \| \| Manages information on hosts integrating the GetJar SDK. \| \| - \| \| -------------------------------------------------------- \| \| \| \| Search \| \| - \| \| ------ \| \| \| \| Handles the browsing/real-time serving/searching of categories and apps \| \| - \| \| ----------------------------------------------------------------------- \| \| \| \| Transaction \| \| - \| \| ----------- \| \| \| \| Real-time processing of earn, purchase, voucher requests from consumers \| \| - \| \| ----------------------------------------------------------------------- \| \| \| \| Usage \| \| - \| \| ----- \| \| \| \| Handles the reception and initial filtering of user application and phone usage information. \| \| - \| \| -------------------------------------------------------------------------------------------- \| \| \| \| User \| \| - \| \| ---- \| \| \| \| Stores definitions about consumers including the device information and apps. \| \| - \| \| ----------------------------------------------------------------------------- --- \| \| \| \| Wallet \| \| - \| \| ------ \| \| \| \| Stores Users GetJar Gold balances and Gold reservations for managed currencies. \| \| - \| \| -------------------------------------------------------------------------------- \| \| \| \| Admin \| \| - \| \| ----- \| \| \| \| Internal tool to manage users, apps, SDKs, etc. \| \| - \| \| ----------------------------------------------- \| \| \| \| DevZone \| \| - \| \| ------- \| \| \| \| Legacy system allowing ad management \| \| - \| \| ------------------------------------ \| \| \| \| Front-end \| \| - \| \| --------- \| \| \| \| Manages the display for offer walls, GetJar Rewards app and interstitial ads \| \| - \| \| ---------------------------------------------------------------------------- \| \| \| \| Portal \| \| - \| \| ------ \| \| \| \| New system used to perform self-service ad management and SDK integration. \| \| - \| \| -------------------------------------------------------------------------- --- Schedule 2 Revenue Earnout Target Achievement of the Revenue Earnout Target requires meeting the following goal: Prior to the first anniversary of the Closing Date, the Company shall have developed a mobile advertising platform for Sungy and the earn-out revenues of Sungys Mobile application products and services as reported in Sungys Quarterly Reports (Earn-out Revenues) shall be at least $13.5 million in Sungys fiscal quarter ending December 31, 2014. In the event that the Earn-out Revenues information is not specified in Sungys Quarterly Reports, it shall be determined based upon Sungys internal accounting records. \| \| (a) \| The following shall be included in Earn-out Revenues: \| \| --- \| ----------------------------------------------------- \| \| (i) \| Revenues from paid downloads and in-app purchases, excluding revenues generated from paid downloads and in-app purchases through distribution channels in China, transaction fees and relevant taxes; \| \| --- \| ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- \| \| (ii) \| Revenues from direct advertising customers, excluding direct advertising revenues sourced from China, transaction fees and relevant taxes; \| \| ---- \| ------------------------------------------------------------------------------------------------------------------------------------------ \| \| (iii) \| Revenues from GetJar incentive advertising used by Sungy applications; and \| \| ----- \| -------------------------------------------------------------------------- \| \| (iv) \| Revenues from advertising spaces on Sungy applications that had been used by other advertising networks prior to the Closing Date and have been used by the GetJar advertising platform after the Closing Date, excluding the aggregated revenues from these advertising spaces in the three calendar months immediately prior to the change of advertising networks to the GetJar advertising platform. \| \| ---- \| -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- \| \| (b) \| Earn-out Revenues shall be reduced by: \| \| --- \| -------------------------------------- \| \| (i) \| If costs and expenses have been incurred in order to attract new users for Sungy applications, the smaller of (A) the revenue from such new users of Sungy applications or (B) the promotional costs associated with such new users. \| \| --- \| ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ --- \| \| (c) \| For games developed by third parties or by Sungy and published as Sungy applications, (1) in-app purchase revenue is excluded from the Earn-out Revenue, and (2) any ads delivered by the GetJar advertising platform through Sungy applications for such games will increase the Earn-out Revenue by the average cost per install price in each country multiplied by the number of installs delivered in each country. A game delivered is counted as an install when a user downloads the game software binary and launches the game. \| \| --- \| ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ \| \| (d) \| Earn-out Revenues shall not include any other form of revenues not specified herein. \| \| --- \| ------------------------------------------------------------------------------------ \| \| (e) \| Earn-out Revenues shall otherwise be determined in accordance with GAAP. \| \| --- \| ------------------------------------------------------------------------ --- Schedule 6.05 Employee Incentive Shares
s3://data.kl3m.ai/documents/recap_docs/2016/12/19/robyn_edwards_v._gene_salter_properties_1.pdf.json	text/plain	United States Court of Appeals For the Eighth Circuit ___________________________ No. 16-2179 ___________________________ Robyn G. Edwards; Mikki Adams lllllllllllllllllllll Plaintiffs - Appellants v. Gene Salter Properties and Salter Construction Inc.; Brittany Pringle, Employee lllllllllllllllllllll Defendants - Appellees ____________ Appeal from United States District Court for the Eastern District of Arkansas - Little Rock ____________ Submitted: December 6, 2016 Filed: December 19, 2016 [Unpublished] ____________ Before SMITH, BOWMAN, and BENTON, Circuit Judges. ____________ PER CURIAM. Robyn Edwards and Mikki Adams appeal after the District Court dismissed their pro se action for failure to state a claim under the Fair Housing Act (FHA). Plaintiffs tried to rent an apartment from defendants but were told they had to show they had sufficient income to qualify as renters by providing pay stubs, an “offer letter,” or tax returns. Plaintiffs could not provide such documentation because their only sources of income were government disability benefits, retirement benefits, and rental income. Plaintiffs offered to provide proof of these income sources, but defendants refused to accept such proof. As relevant, plaintiffs claim that defendants violated the FHA by refusing to allow them to prove that they had sufficient income to qualify as renters through documentation of their receipt of government benefits and rental income. See 42 U.S.C. § 3604(f)(1) (stating that it is unlawful to “discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap”). We agree with the District Court that plaintiffs did not sufficiently allege disparate treatment. They alleged that they were treated differently because of their form of income, not because of a handicap. See Peebles v. Potter, 354 F.3d 761, 766 (8th Cir. 2004) (“In disparate-treatment cases [under the Rehabilitation Act], a similarly situated disabled individual is treated differently because of his disability than less- or non-disabled individuals.”). Further, plaintiffs did not sufficiently allege a disparate impact, that is, that handicapped persons are or will be disproportionately impacted by the income-verification policy. See Ricci v. DeStefano, 557 U.S. 557, 577 (2009) (noting in a Title VII case that disparate-impact discrimination involves practices that have a “disproportionately adverse effect” on a protected group). We conclude, however, that plaintiffs sufficiently alleged that defendants violated the FHA by failing to make a reasonable accommodation necessary to afford them the equal opportunity to rent an apartment from defendants. See 42 U.S.C. § 3604(f)(3)(B) (stating that handicap discrimination includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling”). Plaintiffs may be able to show that the requested accommodation was reasonable, even if the inability to comply with defendants’ policy for documenting income was not caused by Edwards’s handicap. See US Airways, Inc. v. Barnett, 535 U.S. 391, 398 (2002) (noting that a reasonable accommodation might -2- involve making an exception to a facially neutral rule that others must obey in order to allow a disabled employee to hold a position that he was able to perform). We vacate the dismissal of plaintiffs’ failure-to-accommodate claim, we affirm in all other respects, and we remand to the district court for further proceedings consistent with this opinion. ______________________________ -3-
s3://data.kl3m.ai/documents/edgar/0001193125/0001193125-05-184596/	text/plain	Amendment to Change in Control Agreements Exhibit 10.8 FORM OF AMENDMENT TO THE ENFIELD FEDERAL SAVINGS AND LOAN ASSOCIATION CHANGE IN CONTROL AGREEMENT WHEREAS, (the “Executive”) entered into a change in control agreement with Enfield Federal Savings and Loan Association (the “Association”) effective , 200 (the “Agreement”); and WHEREAS, the Association and the Executive desire to amend the Agreement to modify the benefit the Executive would receive under the Agreement in the event of a change in control of the Association or NEBS Bancshares, Inc.; and WHEREAS, the Agreement provides that the Agreement may be amended or modified at any time prior to a Change in Control by means of a written instrument signed by the parties. NOW, THEREFORE, the Association and the Executive hereby agree to amend the Agreement as follows: Effective as of the closing of the NEBS Bancshares, Inc. public offering, Section 3(a)(i) of the Agreement shall be deleted in its entirety and replaced with the following new Section 3(a)(i): “(i) a lump sum cash payment equal to 2.99 times the Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the “Code”). Such payment shall be made not later than five (5) days following Executive’s termination of employment under this Section 3.” IN WITNESS WHEREOF, the Association has caused this Amendment to the Agreement to be executed by its duly authorized officer, and Executive has signed this Amendment, on the day of 200 . ATTEST: ENFIELD FEDERAL SAVINGS AND LOAN ASSOCIATION For the Board of Directors WITNESS: EXECUTIVE
s3://data.kl3m.ai/documents/recap_docs/2006/10/03/USA_v._Collins_12.pdf.json	text/plain	* 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. United States Court of Appeals Fifth Circuit FILED October 3, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 06-40163 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BILLY MAX COLLINS, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:05-CR-55-ALL -------------------- Before DeMOSS, STEWART and PRADO, Circuit Judges. PER CURIAM:* Billy Max Collins appeals his 24-month sentence imposed following his guilty-plea conviction for being a felon in possession of a firearm. Collins argues that the district court erred by denying him a reduction pursuant to U.S.S.G. § 2K2.1(b)(2), which provides that provides that a defendant’s base offense level should be decreased to six “[i]f the defendant . . . possessed all ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearms or No. 06-40163 -2- ammunition.” § 2K2.1(b)(2). He contends that the Government presented no evidence which contradicted his testimony as to his use of the firearm and the district court’s findings were insufficient to support its decision denying him the reduction. Following United States v. Booker, 543 U.S. 220 (2005), this court reviews the district court’s application of the Sentencing Guidelines de novo and its factual findings for clear error. United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005); United States v. Villanueva, 408 F.3d 193, 203 & n.9 (5th Cir.), cert. denied, 126 S. Ct. 268 (2005). The district court agreed with the Government’s conclusion that Collins’s testimony that he used the firearm for sporting purposes was not credible. The district court’s credibility determination was supported by ample record evidence and thus was not clearly erroneous. See United States v. Ocana, 204 F.3d 585, 593 (5th Cir. 2000). Accordingly, the district court did not err by denying Collins a § 2K2.1(b)(2) reduction. Collins’s sentence is affirmed. AFFIRMED.
s3://data.kl3m.ai/documents/cap/1170289.json	text/markdown	#### In the Matter of the Estate of Amelia Cirello, Deceased. Surrogate’s Court, Kings County, July 13, 1966. Bernard Ulanofor administratrix. Siragusa & Varónfor petitioner. 1008Edward S. Silver, J. In this proceeding for a compulsory accounting’ by the administratrix, the petitioner is a son of the decedent, who died in 1951. At that time he was confined in a State prison serving a life sentence. Upon his release on parole in J une, 1963, the petitioner made demand upon the respondent, to whom letters of administration were granted on November 5, 1951, that she make payment to him of his distributive share of the estate. Upon her failure and refusal to do so, petitioner instituted this proceeding. The attorney for the administratrix has filed his own affidavit, opposing the grant of the relief demanded in the petition. The administratrix has failed to file an answer. The affidavit of said attorney is technically insufficient as an answer (Surrogate’s Ct. Act, §§ 49, 50; Matter of Herlihy,38 N. Y. S. 2d 663). The court will, however, consider the defenses contained in the affidavit of the administratrix’ attorney of the Statute of Limitations and the petitioner’s capacity to sue. It is well settled that a person serving a life sentence is deemed civilly dead under the provisions of section 511 of the Penal Law but is not divested of his property rights and is entitled to inherit as a distributee under section 83 of the Decedent Estate Law (Penal Law, § 512; Averyv. Everett,110 N. Y. 317; Matter of Shaffer,184 Misc. 855; 1 Davids, New York Law of Wills; § 17; 8 Heaton, Surrogates’ Courts [Eager, ed.], § 15). However, while the convict is imprisoned his civil rights are suspended (Penal Law, § 510) and he lacks capacity to sue or bring any action or proceeding (Bammanv. Erickson,259 App. Div. 1040; Averyv. Everett, supra).Although this disability continued even after the prisoner serving a life sentence was released on parole (Lehrmanv. State of New York,176 Misc. 1022; Matthewsv. State of New York,13 Misc 2d 298), section 511 of the Penal Law was amended (L. 1952, ch. 167, eff. March 25, 1952) by the addition of subdivision 3thereto, conferring upon a person sentenced to imprisonment for life, while he is released on parole,the right “ to institute an action or proceeding in a court or before a body or officer exercising judicial, quasi-judicial or administrative functions, with respect to matters other than those arising out of his arrest and detention.” Accordingly the court holds that the fact that the petitioner has been sentenced to life imprisonment does not bar him from maintaining this proceeding while he is on parole. The court will now consider the defense of Statute of Limitations. The 10-year Statute of Limitations applied to the right of a distributee to maintain a proceeding in the Surrogate’s Court against an administrator for an accounting (Matter of* 1009 Ashheim,185 N. Y. 609, affg. 111 App. Div. 176; Matter of Menahan,224 App. Div. 139), which was shortened to six years by CPLR 213 (subd. 1), added from section 53 of the Civil Practice Act without change of substance. However, the Statute of Limitations did not begin to run until the administrator openly repudiated his obligation to administer the estate (Matter of Contresty,27 Misc 2d 810; Matter of Menahan,supra; Matter of Anderson,122 App. Div. 453, 455; Matter of Velsor,40 Misc 2d 595; Matter of Lewin,*41 Misc 2d 72). As such open repudiation by the administratrix in the case at bar did not occur until after the petitioner’s release on parole in June, 1963, the court holds that the defense of the Statute of Limitations is without merit. The application to compel the administratrix to render and judicially settle her account is granted. The account shall be filed together with a petition for its judicial settlement and a citation issued thereon directed to all parties in interest within 60 days after service upon the administratrix of a certified copy of the order hereon.
s3://data.kl3m.ai/documents/recap/gov.uscourts.cand.192243.105.0.pdf.json	text/markdown	UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA AMENDED CIVIL MINUTE ORDER Magistrate Judge JOSEPH C. SPERO Date: September 19, 2008 C007-2659 JCS MIGUEL ORTEGA, ET AL v. CITY OF OAKLAND, ET AL. Attorneys: Brenda D. Posada James Y. Higa, Charles Vose, and Kandis A. Westmore Time: 10:31-11:25 Deputy Clerk: LASHANDA SCOTT Reporter: Sahar McVickar PROCEEDINGS: RULING 1.Deft’s Motion to Strike Second Amended Complaint Taken Under Submission 2.Deft’s Motion for Sanctions Taken Under Submission 3.Deft Alcantar’s Joinder to City of Oakland’s Motion to Strike Taken Under Submission 4.Deft’s Motion for Partial Summary Judgment Taken Under Submission 5.Further Case Management Conference Matter Held ( ) Status Conference ( ) P/T Conference ( ) Case Management Conference ORDERED AFTER HEARING: Further Settlement Conference set for Oct ober 28, 2008 before Chief Magistrate Judge James Larson. Final Pretrial Conference set for November 21, 2008 at 1:30 p.m. ( XX ) ORDER TO BE PREPARED BY: Plntf Deft Court XX ( ) Referred to Magistrate For: Se ttlement Conference as soon as schedule permits ( )By Court ( )Parties to approach Chief Magistrate in future ( ) CASE CONTINUED TO for Discovery Cut-Off Early - Expert Discovery Cut-Off______________ Plntf to Name Experts by Deft to Name Experts by______________ P/T Conference Date - Trial Date - set for days Type of Trial: ( )Jury ( )Court Notes: Case 3:07-cv-02659-JCS Document 105 Filed 09/19/2008 Page 1 of 1
s3://data.kl3m.ai/documents/govinfo/BILLS/BILLS-107hr3218ih/pdf.json	text/plain	I 107TH CONGRESS 1ST SESSION H. R. 3218 To amend the Internal Revenue Code of 1986 to allow a credit against income tax to holders of bonds issued to finance land and water reclamation of abandoned mine land areas. IN THE HOUSE OF REPRESENTATIVES NOVMEBER 1, 2001 Mr. KANJORSKI (for himself, Mrs. CUBIN, Mr. SHERWOOD, Mr. NEY, Mr. HOLDEN, Mr. GEKAS, Ms. KAPTUR, Ms. HART, Mr. MURTHA, and Mr. BORSKI) introduced the following bill; which was referred to the Committee on Ways and Means A BILL To amend the Internal Revenue Code of 1986 to allow a credit against income tax to holders of bonds issued to finance land and water reclamation of abandoned mine land areas. 1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 SECTION 1. SHORT TITLE. 4 This Act may be cited as the ‘‘Abandoned Mine Land 5 Area Redevelopment Act of 2001’’. 2 •HR 3218 IH 1 SEC. 2. CREDIT TO HOLDERS OF QUALIFIED ABANDONED 2 MINE LAND AREA REDEVELOPMENT BONDS. 3 (a) IN GENERAL.—Subpart B of part IV of sub4 chapter A of chapter 1 of the Internal Revenue Code of 5 1986 is amended by adding at the end the following new 6 section: 7 ‘‘SEC. 30B. CREDIT TO HOLDERS OF QUALIFIED ABAN8 DONED MINE LAND AREA REDEVELOPMENT 9 BONDS. 10 ‘‘(a) ALLOWANCE OF CREDIT.—In the case of a tax11 payer who holds a qualified abandoned mine land area re12 development bond on a credit allowance date of such bond 13 which occurs during the taxable year, there shall be al14 lowed as a credit against the tax imposed by this chapter 15 for such taxable year an amount equal to the sum of the 16 credits determined under subsection (b) with respect to 17 credit allowance dates during such year on which the tax18 payer holds such bond. 19 ‘‘(b) AMOUNT OF CREDIT.— 20 ‘‘(1) IN GENERAL.—The amount of the credit 21 determined under this subsection with respect to any 22 credit allowance date for a qualified abandoned mine 23 land area redevelopment bond is 25 percent of the 24 annual credit determined with respect to such bond. 25 ‘‘(2) ANNUAL CREDIT.—The annual credit de26 termined with respect to any qualified abandoned 3 •HR 3218 IH 1 mine land area redevelopment bond is the product 2 of— 3 ‘‘(A) the applicable credit rate, multiplied 4 by 5 ‘‘(B) the outstanding face amount of the 6 bond. 7 ‘‘(3) APPLICABLE CREDIT RATE.—For purposes 8 of paragraph (1), the applicable credit rate with re9 spect to an issue is the rate equal to an average 10 market yield (as of the day before the date of 11 issuance of the issue) on outstanding long-term cor12 porate debt obligations (determined under regula13 tions prescribed by the Secretary). 14 ‘‘(4) SPECIAL RULE FOR ISSUANCE AND RE15 DEMPTION.—In the case of a bond which is issued 16 during the 3-month period ending on a credit allow17 ance date, the amount of the credit determined 18 under this subsection with respect to such credit al19 lowance date shall be a ratable portion of the credit 20 otherwise determined based on the portion of the 3- 21 month period during which the bond is outstanding. 22 A similar rule shall apply when the bond is re23 deemed. 24 ‘‘(c) QUALIFIED ABANDONED MINE LAND AREA RE25 DEVELOPMENT BOND.—For purposes of this section— 4 •HR 3218 IH 1 ‘‘(1) IN GENERAL.—The term ‘qualified aban2 doned mine land area redevelopment bond’ means 3 any bond issued as part of an issue if— 4 ‘‘(A) the issuer is an approved special pur5 pose entity, 6 ‘‘(B) all of the net proceeds of the issue 7 are deposited into either— 8 ‘‘(i) an approved segregated program 9 fund, or 10 ‘‘(ii) a sinking fund for payment of 11 principal on the bonds at maturity, 12 ‘‘(C) the issuer designates such bond for 13 purposes of this section, and 14 ‘‘(D) the term of each bond which is part 15 of such issue does not exceed 30 years. Not more than 1 16 ⁄6 of the net proceeds of an issue 17 may be deposited into a sinking fund referred to in 18 subparagraph (B)(ii). 19 ‘‘(2) LIMITATION ON AMOUNT OF BONDS DES20 IGNATED.—The maximum aggregate face amount of 21 bonds designated by an approved special purpose en22 tity shall not exceed the portion of the national vol23 ume cap allocated to that entity by the Adminis24 trator of the Environmental Protection Agency. 5 •HR 3218 IH 1 ‘‘(3) NATIONAL VOLUME CAP.—The national 2 volume cap is $20,000,000,000. The Administrator 3 of the Environmental Protection Agency shall allo4 cate such amount among the approved special pur5 pose entities, except that not less than 6 $2,000,000,000 of such amount shall be allocated to 7 an entity whose comprehensive plan only covers 8 abandoned mine land areas containing anthracite 9 coal. 10 ‘‘(4) APPROVED SPECIAL PURPOSE ENTITY.— 11 The term ‘approved special purpose entity’ means a 12 State or local governmental entity, or an entity de13 scribed in section 501(c) and exempt from tax under 14 section 501(a), if— 15 ‘‘(A) such entity is established and oper16 ated exclusively to carry out qualified purposes, 17 ‘‘(B) such entity has a comprehensive plan 18 to restore and redevelop abandoned mine land 19 areas, and 20 ‘‘(C) such entity and plan are approved by 21 the Administrator of the Environmental Protec22 tion Agency. 23 ‘‘(5) APPROVED SEGREGATED PROGRAM 24 FUND.—The term ‘approved segregated program 25 fund’ means any segregated fund the amounts in 6 •HR 3218 IH 1 which may be used only for qualified purposes, but 2 only if such fund has safeguards approved by such 3 Administrator to assure that such amounts are only 4 used for such purposes. 5 ‘‘(d) LIMITATION BASED ON AMOUNT OF TAX.— 6 ‘‘(1) IN GENERAL.—The credit allowed under 7 subsection (a) for any taxable year shall not exceed 8 the excess of— 9 ‘‘(A) the sum of the regular tax liability 10 (as defined in section 26(b)) plus the tax im11 posed by section 55, over 12 ‘‘(B) the sum of the credits allowable 13 under part IV of subchapter A (other than this 14 section and subpart C thereof, relating to re15 fundable credits). 16 ‘‘(2) CARRYOVER OF UNUSED CREDIT.—If the 17 credit allowable under subsection (a) for any taxable 18 year exceeds the limitation imposed by paragraph 19 (1) for such taxable year, the excess shall be carried 20 to the succeeding taxable year and added to the 21 amount allowable as a credit under subsection (a) 22 for such succeeding taxable year. 23 ‘‘(e) OTHER DEFINITIONS.—For purposes of this 24 section— 7 •HR 3218 IH 1 ‘‘(1) ABANDONED MINE LAND AREAS.—The 2 term ‘abandoned mine land areas’ means lands and 3 water eligible pursuant to section 404 of the Surface 4 Mining Control and Reclamation Act of 1977 (30 5 U.S.C. 1234) for expenditures from the Abandoned 6 Mine Reclamation Fund under title IV of such Act 7 (30 U.S.C. 1231 et seq.). 8 ‘‘(2) QUALIFIED PURPOSE.—The term ‘quali9 fied purpose’ means, with respect to any qualified 10 abandoned mine land area redevelopment bond— 11 ‘‘(A) the purchase, restoration, and rede12 velopment of abandoned mine land areas, 13 ‘‘(B) the cleanup of waterways and their 14 tributaries, both surface and subsurface, on 15 abandoned mine land areas from acid mine 16 drainage and other pollution, 17 ‘‘(C) the provision of financial and tech18 nical assistance for infrastructure construction 19 and upgrading water and sewer systems on 20 abandoned mine land areas, 21 ‘‘(D) research and development relating to 22 abandoned mine land areas, 23 ‘‘(E) other environmental and economic de24 velopment purposes relating to abandoned mine 25 land areas, and 8 •HR 3218 IH 1 ‘‘(F) such other purposes as are set forth 2 in the comprehensive plan prepared by the 3 issuer and approved by the Administrator of the 4 Environmental Protection Agency. 5 ‘‘(3) CREDIT ALLOWANCE DATE.—The term 6 ‘credit allowance date’ means— 7 ‘‘(A) March 15, 8 ‘‘(B) June 15, 9 ‘‘(C) September 15, and 10 ‘‘(D) December 15. 11 Such term includes the last day on which the bond 12 is outstanding. 13 ‘‘(4) BOND.—The term ‘bond’ includes any ob14 ligation. 15 ‘‘(f) CREDIT INCLUDED IN GROSS INCOME.—Gross 16 income includes the amount of the credit allowed to the 17 taxpayer under this section (determined without regard to 18 subsection (d)) and the amount so included shall be treat19 ed as interest income. 20 ‘‘(g) BONDS HELD BY REGULATED INVESTMENT 21 COMPANIES.—If any qualified abandoned mine land area 22 redevelopment bond is held by a regulated investment 23 company, the credit determined under subsection (a) shall 24 be allowed to shareholders of such company under proce25 dures prescribed by the Secretary. 9 •HR 3218 IH 1 ‘‘(h) CREDITS MAY BE STRIPPED.—Under regula2 tions prescribed by the Secretary— 3 ‘‘(1) IN GENERAL.—There may be a separation 4 (including at issuance) of the ownership of a quali5 fied abandoned mine land area redevelopment bond 6 and the entitlement to the credit under this section 7 with respect to such bond. In case of any such sepa8 ration, the credit under this section shall be allowed 9 to the person who on the credit allowance date holds 10 the instrument evidencing the entitlement to the 11 credit and not to the holder of the bond. 12 ‘‘(2) CERTAIN RULES TO APPLY.—In the case 13 of a separation described in paragraph (1), the rules 14 of section 1286 shall apply to the qualified aban15 doned mine land area redevelopment bond as if it 16 were a stripped bond and to the credit under this 17 section as if it were a stripped coupon. 18 ‘‘(i) TREATMENT FOR ESTIMATED TAX PURPOSES.— 19 Solely for purposes of sections 6654 and 6655, the credit 20 allowed by this section to a taxpayer by reason of holding 21 a qualified abandoned mine land area redevelopment bond 22 on a credit allowance date shall be treated as if it were 23 a payment of estimated tax made by the taxpayer on such 24 date. 10 •HR 3218 IH 1 ‘‘(j) CREDIT MAY BE TRANSFERRED.—Nothing in 2 any law or rule of law shall be construed to limit the trans3 ferability of the credit allowed by this section through sale 4 and repurchase agreements. 5 ‘‘(k) REPORTING.—The issuer of qualified abandoned 6 mine land area redevelopment bonds shall submit reports 7 similar to the reports required under section 149(e). 8 ‘‘(l) TERMINATION.—This section shall not apply to 9 any bond issued more than 10 years after the date that 10 the first qualified abandoned mine land area redevelop11 ment bond is issued.’’ 12 (b) REPORTING.—Subsection (d) of section 6049 of 13 such Code (relating to returns regarding payments of in14 terest) is amended by adding at the end the following new 15 paragraph: 16 ‘‘(8) REPORTING OF CREDIT ON QUALIFIED 17 ABANDONED MINE LAND AREA REDEVELOPMENT 18 BONDS.— 19 ‘‘(A) IN GENERAL.—For purposes of sub20 section (a), the term ‘interest’ includes amounts 21 includible in gross income under section 30B(f) 22 and such amounts shall be treated as paid on 23 the credit allowance date (as defined in section 24 30B(e)(3)). 11 •HR 3218 IH 1 ‘‘(B) REPORTING TO CORPORATIONS, 2 ETC.—Except as otherwise provided in regula3 tions, in the case of any interest described in 4 subparagraph (A) of this paragraph, subsection 5 (b)(4) of this section shall be applied without 6 regard to subparagraphs (A), (H), (I), (J), (K), 7 and (L)(i). 8 ‘‘(C) REGULATORY AUTHORITY.—The Sec9 retary shall prescribe such regulations as are 10 necessary or appropriate to carry out the pur11 poses of this paragraph, including regulations 12 which require more frequent or more detailed 13 reporting.’’ 14 (c) CONFORMING AMENDMENT.—The table of sec15 tions for subpart B of part IV of subchapter A of chapter 16 1 of such Code is amended by adding at the end the fol17 lowing new item: ‘‘Sec. 30B. Credit to holders of qualified abandoned mine land area redevelopment bonds.’’ 18 (d) DEADLINE FOR REGULATIONS.—The Secretary 19 of the Treasury shall prescribe the regulations required 20 by section 6049(d)(8) of the Internal Revenue Code of 21 1986 (as added by this section) not later than 120 days 22 after the date of the enactment of this Act. 23 (e) APPROVAL OF BONDS, ETC., BY ADMINISTRATOR 24 OF THE ENVIRONMENTAL PROTECTION AGENCY.—The 12 •HR 3218 IH 1 Administrator of the Environmental Protection Agency 2 shall act on any request for an approval required by sec3 tion 30B of the Internal Revenue Code of 1986 (as added 4 by this section) not later than 60 days after the date such 5 request is submitted to such Administrator. 6 (f) EFFECTIVE DATE.—The amendments made by 7 this section shall apply to obligations issued after Decem8 ber 31, 2001. Æ
s3://data.kl3m.ai/documents/recap/gov.uscourts.cand.280129/gov.uscourts.cand.280129.122.0.pdf.json	text/markdown	1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 United States District Court Northern District of California UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA WRI WEST GATE SOUTH, L.P. , Plaintiff , v. RELIANCE MEDIAWORKS (USA) INC., et al. , Defendant s . Case No. 14 - cv - 03802 - JD ORDER CONDITIONALLY DISMISSING CASE The Court is advised that the parties have settled. Dkt. No. 121 . Consequently, the Court vacates all pretrial deadlines and dismisses this case without prejudice. If any party certifies to the Court within ninety days from the date of this order that the agreed consideration for the settlement of this action has not been delivered, this order will be vacated and the case wil l be set for a case management conference. If no certification is filed, the dismissal will be with prejudice after the passage of the ninety days. IT IS SO ORDERED. Dated: March 25, 2016 ________________________ JAMES DONATO United States District Judge Case 3:14-cv-03802-JD Document 122 Filed 03/25/16 Page 1 of 1
s3://data.kl3m.ai/documents/cap/1170116.json	text/markdown	#### Susie Menyweather et al., Plaintiffs, v.Niagara Frontier Transit System, Inc., Defendant. Supreme Court, Erie County, November 10, 1965. Ruñáis, Broderick, Shoemaker, Rickert, Ruñáis $ Vaughanfor defendant. Arthur E. Schulgasserfor plaintiff. Frank J. Kronenberg, J. The defendant has moved this court for a protective order in respect to a notice of examination before trial served upon the defendant which contains certain recitals relative to the production of ‘ ‘ all statements and reports made by said employee to said Defendant concerning the happening which is the subject matter of this action and to produce any and all statements and reports made to the Motor Vehicle Bureau concerning the same.” Examination of the cases indicates that in the development of the law of discovery very recently the courts of this State have permitted the examination of reports by the operator of certain motor vehicles and omnibuses and common carriers made in the regular course of business. Originally the statements given under any circumstances following an accident were not available for discovery. However, the rule now appears to be, since the enactment of the new Civil Practice Law and Rules, that statements given in the ordinary course of business even following the accident are proper subjects of discovery providing they are not attorneys’ work products and given subsequent to suit. This has been applied specifically in cases where the defendant in particular has an institutionalized claim department or operation to which the reports are made in the ordinary course of business or in the case of individual drivers where some special circumstance might arise. (Scheerv. City of Syracuse,41 Misc 2d 1060; Bloomv. New York City Tr. Auth.,20 A D 2d 687; and the 4th Dept. affirmance of a lower court decision in Ciminov. Rochester Tr. Corp.,23 A D 2d 968.) This court feels that the law in the ease before us is that, in the case of a common carrier or other organization of such *245complexity that it maintains its own claim investigation department or safety department or similar department, agency or category, such as a municipal corporation or an organization which maintains a number of vehicles or a number of operations over which it would be reasonably assumed that reports of the maintenance of the vehicle, device, equipment or plant would be regularly kept up or should be regularly kept up whether for insurance or other purposes, a report made immediately after the accident in the regular course of business would be subject to discovery and in addition if no such report is promptly made then the first report made of whatever nature prior to the institution of proceedings. Although admittedly the notice of examination is vague, general and all-encompassing, this court upon reargument would not be disposed to give any more than this. Therefore to this limited extent, the statement or statements made immediately following the accident shall be the proper subject of the subpoena and to this limited extent the motion of the defendant for a protective order is denied and the balance of said motion is granted.
s3://data.kl3m.ai/documents/cap/11698939.json	text/markdown	No. 96-1374. #### Shaller et ux. v.Walker et al. Ct. Sp. App. Md. Certiorari denied.
s3://data.kl3m.ai/documents/recap_docs/2001/11/29/Moton_vs._State_of_Utah.pdf.json	text/plain	This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. F I L E D United States Court of Appeals Tenth Circuit NOV 29 2001 PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS TENTH CIRCUIT ERVIN MOTON, Petitioner-Appellant, v. No. 01-4124 STATE OF UTAH; HENRY GALETKA, Warden, Respondents-Appellees. (D.C. No. 2:00-CV-272-B) (D. Utah) ORDER AND JUDGMENT Before HENRY, BRISCOE and MURPHY, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Petitioner Ervin Moton, a Utah state prisoner appearing pro se, seeks a certificate of appealability (COA) to challenge the district court's dismissal of his 28 U.S.C. § 2254 2 habeas petition. We deny a COA and dismiss the appeal. In June 1984, Moton was convicted in state court of two felony counts: sodomy upon a child and sexual abuse of a child. The Utah Supreme Court affirmed his convictions on direct appeal in January 1988. Over twelve years later, on March 28, 2000, Moton filed his federal habeas petition challenging his convictions. The district court dismissed the habeas petition as untimely under 28 U.S.C. § 2244(d)(1). On April 24, 1996, Congress amended what had been “the long-standing prior practice in habeas corpus litigation that gave a [state] prisoner virtually unlimited amounts of time to file a habeas petition in federal court,” and “established a one-year period of limitations for [federal] habeas petitions.” Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998) (citing 28 U.S.C. § 2244(d)(1)). By statute, the one-year period of limitations generally begins running from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). For prisoners whose convictions became final prior to the AEDPA's effective date, April 24, 1996, the limitations period commences on April 24, 1996, and expires one year later. See Hoggro, 150 F.3d at 1225-26. Under AEDPA, the one-year limitations period is tolled while a defendant pursues state post-conviction relief, see 28 U.S.C. § 2244(d)(2), and we have held that the one-year limitations period “may be subject to equitable tolling.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). After reviewing the record on appeal, we agree with the district court that Moton’s 3 federal habeas petition was untimely. Moton’s convictions became final well prior to the effective date of the AEDPA and his one-year period of limitations for filing a federal habeas petition began running on April 24, 1996. Moton did not file his federal habeas petition until March 28, 2000, nearly three years after the expiration of the limitations period. Although Moton now makes vague assertions about his lack of access to legal materials or representation, we find those assertions insufficient to warrant equitable tolling of the limitations period. Moton also contends that AEDPA’s imposition of a one-year limitations period for filing a petition for a writ of habeas corpus is unconstitutional, primarily because the limitations period violates the Suspension Clause, U.S. Const. art. I, § 9, cl. 2. We reject Moton’s constitutional challenges. The AEDPA, including its limitations period, is constitutional. Cf. Felker v. Turpin, 518 U.S. 651, 664 (1996); Miller, 141 F.3d at 978. In particular, the limitations period, which is not jurisdictional, does not prohibit habeas petitions but simply requires that they be filed within a reasonable time. Further, the one-year limitations period has the rational purpose of encouraging the timely and efficient disposition of habeas claims. We DENY Moton’s application for a COA, deny his request to proceed in forma pauperis on appeal, and DISMISS the appeal. The mandate shall issue forthwith. Entered for the Court Mary Beck Briscoe Circuit Judge
s3://data.kl3m.ai/documents/edgar/0001104659/0001104659-08-052182/4.json	text/markdown	Exhibit 32.1 CERTIFICATIONPURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906OF THE SARBANES-OXLEY ACT OF 2002 Inconnection with the Quarterly Report of Microfluidics InternationalCorporation, a Delaware corporation (the “Company”), on Form 10-Q for theperiod ended June 30, 2008, as filed with the Securities and ExchangeCommission on the date hereof (the “Report”), I, Michael C Ferrara, Presidentand Chief Executive Officer, hereby certify, pursuant to 18 U.S.C. Section 1350,as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002,that, to the best of my knowledge: (1) The Report fully complies with therequirements of section 13(a) or 15(d) of the Securities Exchange Actof 1934; and (2) The information contained in the Reportfairly presents, in all material respects, the financial condition and resultsof operations of the Company. \| \| /s/ Michael C. Ferrara \| \|-----------------------------\|----------------------------------------\| \| \| Michael C. Ferrara \| \| \| President and Chief Executive Officer \| \| Date: August 12, 2008 \| \| ----
s3://data.kl3m.ai/documents/recap_docs/1999/06/11/Larry_vs._Apfel.pdf.json	text/plain	* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. F I L E D United States Court of Appeals Tenth Circuit JUN 11 1999 PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT RAYMOND LARRY, JR., Plaintiff-Appellant, v. KENNETH S. APFEL, Commissioner, Social Security Administration, Defendant-Appellee. No. 98-7086 (D.C. No. CV-97-215-B) (E.D. Okla.) ORDER AND JUDGMENT * Before ANDERSON , KELLY , and BRISCOE , Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. -2- Plaintiff Raymond Larry, Jr. appeals from the denial of social security disability and supplemental security income (SSI) benefits. He argues that the administrative law judge (ALJ) erred: (1) by finding at step four that he could perform the full range of sedentary work, limited only by the need to alternate sitting and standing, without also considering his claimed manipulative impairment; and (2) by not ordering a consultative examination at step five to fully develop the record regarding the nature and severity of his impairments. We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. Plaintiff was born on December 25, 1958, and was thirty-seven years old at the time of the ALJ’s decision. He has a high school education. His past work includes owning and operating a café, destroying rejected ammunition, and working in a stockyard. He filed his claim for disability and SSI benefits on September 16, 1994, alleging that he became disabled on July 30, 1994, due to the residual effects of being shot six times. His alleged impairments include bullets remaining in his body; surgical staples still in his abdomen; pain, aching, and stinging in his legs; headaches; and problems reaching and using his fingers. He was shot on July 30, 1994, spent three months in the hospital, and was last seen by his doctor on November 30, 1994. He has not consulted any doctor since then. He testified that he could not afford medical treatment, and that every time he -3- went to his doctor’s office, the staff asked him when he would be able to pay something on his large outstanding bill. The ALJ decided plaintiff’s claim at step five of the evaluation sequence. See Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). At step four, the ALJ determined that plaintiff could not return to any of his past jobs. He found that plaintiff nevertheless retained the residual functional capacity (RFC) to perform the full range of sedentary work, limited only by the need to alternate sitting and standing. At step five, the ALJ found that plaintiff had a high school education, no transferable skills, and was a younger individual. Based on these findings, the ALJ used Rules 201.27, 201.28, and 201.29 of the medical-vocational guidelines (the “grids”), 20 C.F.R. pt. 404, subpt. P, app. 2, as a framework for a decision that plaintiff is not disabled. A vocational expert identified approximately thirty unskilled sedentary jobs that plaintiff can perform with the limitations the ALJ found him to have. The ALJ therefore concluded that plaintiff is not disabled. The Appeals Council denied review, making the ALJ’s decision the final agency decision. Plaintiff then brought this suit. The district court adopted the magistrate judge’s recommendation that the agency’s decision be upheld. We review the agency’s decision on the whole record to determine only whether the factual findings are supported by substantial evidence and the correct -4- legal standards were applied. See Goatcher v. United States Dep’t of Health & Human Servs. , 52 F.3d 288, 289 (10th Cir. 1995). We may not reweigh the evidence or substitute our judgment for that of the agency. See Kelley v. Chater , 62 F.3d 335, 337 (10th Cir. 1995). Because plaintiff demonstrated that he could not return to any of his past work, the ALJ had the burden “to show that the claimant retain[ed] the . . . RFC to do other work that exists in the national economy.” Thompson v. Sullivan , 987 F.2d 1482, 1487 (10th Cir. 1993). Plaintiff argues that the ALJ erred by impliedly finding at step four that he could perform the manipulative demands of sedentary work. Plaintiff alleges a manipulative impairment due to atrophy and partial loss of use of his fingers after being shot in his left arm. The ALJ found that plaintiff “has severe residuals of multiple gun shot wounds to the abdomen, neck and left arm,” but made no specific finding as to whether plaintiff has a significant manipulative impairment. Appellant’s App., Vol. II, at 10. This was error. The agency acknowledges that “[m]ost unskilled sedentary jobs require good use of both hands and the fingers; i.e., bilateral manual dexterity.” Social Security Ruling 96-9p, 1996 WL 374185, at 8. Thus, “[a]ny significant manipulative limitation of an individual’s ability to handle and work with small objects with both hands will result in a significant erosion of the unskilled sedentary -5- occupational base.” Id. For this reason, a manipulative impairment would matter greatly to plaintiff’s claim. The ALJ is also required to assess the claimant’s “work-related abilities on a function-by-function basis.” Social Security Ruling 96-8p, 1996 WL 374184, at 1 (citing 20 C.F.R. §§ 404.1545(b), 416.945(b)); see also Social Security Ruling 96-9p, 1996 WL 374185, at *2. The ALJ is bound by the agency’s rulings. See 20 C.F.R. § 402.35(b)(1). In light of the evidence of a gunshot injury to plaintiff’s arm, which the ALJ expressly found to be true, the ALJ was required to assess whether plaintiff suffered a manipulative impairment as a result. See id. On remand, the ALJ must make a specific finding on this point. If the ALJ determines that the medical evidence is inconclusive, he should exercise his discretionary power to order a consultative examination. See Thompson , 987 F.2d at 1491. Plaintiff also argues that the ALJ should have ordered a consultative examination at step five to fully develop the record concerning all of his impairments. Because we remand the case for legal error in the assessment of plaintiff’s RFC at step four, we remand this step five issue as well. -6- The judgment of the United States District Court for the Eastern District of Oklahoma is REVERSED and the case is REMANDED with directions to remand to the agency for additional proceedings. Entered for the Court Stephen H. Anderson Circuit Judge
s3://data.kl3m.ai/documents/edgar/0001888524/0001888524-23-002957/18.json	text/markdown	(logo) KPMG KPMG LLP Aon Center Suite 5500 200 E. Randolph Street Chicago, IL 60601-6436 Report of Independent Registered Public Accounting Firm The Board of Directors Wells FargoBank, National Association: We have examined management’s assertion, included in theaccompanying ASSESSMENT OF COMPLIANCE WITH THE APPLICABLE SERVICING CRITERIA,that the Corporate Trust Services division of Wells Fargo Bank, NationalAssociation (the “Company”) complied with the servicing criteria set forth inItem 1122(d) of the Securities and Exchange Commission’s Regulation AB forcommercial mortgage-backed securities (“CMBS”) transactions backed by pools ofcommercial mortgage loans and/or backed by CMBS for which the Company wasappointed to perform trustee, securities administration, paying agent services,and/or related services, and for which either (a) some or all of the issuedsecurities for such CMBS transactions were publicly offered pursuant to aregistration statement delivered under the Securities Act of 1933, as amended,or (b) the issued securities for such CMBS transactions were privately offeredpursuant to an exemption from registration and the Company has an obligationunder the transaction agreements to deliver an assessment of compliance withthe applicable servicing criteria under Item 1122(d) of Regulation AB; providedhowever that, (i) the platform excludes any transactions for which the offeredsecurities were issued, sponsored and/or guaranteed by any agency orinstrumentality of the U.S. government or any government-sponsored entity, and(ii) the platform excludes any transactions for which the offered securitieswere issued pursuant to a transaction that closed prior to January 1, 2006 andfor which the Company outsources all material servicing activities (as definedby Regulation AB) to a party other than Computershare Trust Company or anyaffiliate thereof (the “CMBS Platform”) as of and for the twelve months endedDecember 31, 2022. Appendix A to the ASSESSMENT OF COMPLIANCE WITH THEAPPLICABLE SERVICING CRITERIA identifies the individual asset-backedtransactions and securities defined by management as constituting the CMBSPlatform. Management has determined that the servicing criteria set forth inItem 1122(d)(1)(ii), 1122(d)(1)(iv), 1122(d)(2)(iii) and 1122(d)(2)(vi) areapplicable to the servicing activities performed by the Company with respect tothe CMBS Platform as of and for the twelve months ended December 31, 2022 (the“Applicable Servicing Criteria”). With respect to Applicable ServicingCriterion 1122(d)(2)(iii), Management has determined that there were noactivities performed during the twelve months ended December 31, 2022 withrespect to the CMBS Platform, because there were no occurrences of events thatwould require the Company to perform such activities. The Company’s managementhas determined that all other servicing criteria set forth in Item 1122(d) arenot applicable to the Company because the Company does not perform activities withrespect to the CMBS Platform relating to those servicing criteria. Managementis responsible for the Company’s compliance with the Applicable ServicingCriteria. Our responsibility is to express an opinion on management’s assertionabout the Company’s compliance with the Applicable Servicing Criteria based onour examination. Our examination was conducted in accordance with the standards ofthe Public Company Accounting Oversight Board (United States) and in accordancewith attestation standards established by the American Institute of CertifiedPublic Accountants to obtain reasonable assurance and, accordingly, includedexamining, on a test basis, evidence about the Company’s compliance with theApplicable Servicing Criteria and performing such other procedures as weconsidered necessary in the circumstances. Our examination included testingselected asset-backed transactions and securities that comprise the CMBSPlatform, testing selected servicing activities related to the CMBS Platform,and determining whether the Company processed those selected transactions andperformed those selected activities in compliance with the Applicable ServicingCriteria. Furthermore, our procedures were limited to the selected transactionsand servicing activities performed by the Company during the period covered bythis report. Our procedures were not designed to determine whether errors mayhave occurred either prior to or subsequent to our tests that may have affectedthe balances or amounts calculated or reported by the Company during the periodcovered by this report for the selected transactions or any other transactions.We believe that our examination provides a reasonable basis for our opinion.Our examination does not provide a legal determination on the Company’scompliance with the Applicable Servicing Criteria. We are required to be independent and to meet our other ethicalresponsibilities in accordance with relevant ethical requirements relating tothe examination engagement. In our opinion, management’s assertion that the Company compliedwith the aforementioned Applicable Servicing Criteria as of and for the twelvemonths ended December 31, 2022 is fairly stated, in all material respects. We do not express an opinion or any form of assurance on thestatements in Appendix B to the ASSESSMENT OF COMPLIANCE WITH THE APPLICABLESERVICING CRITERIA. /s/ KPMG LLP Chicago, Illinois February17,2023 KPMG LLP, a Delaware limited liability partnership and a memberfirm of the KPMG global organization of independent member firmsaffiliated with KPMG International Limited, a private English company limited byguarantee.
s3://data.kl3m.ai/documents/govinfo/BILLS/BILLS-110hr3688pcs/pdf.json	text/plain	II Calendar No. 480 110TH CONGRESS 1ST SESSION H. R. 3688 IN THE SENATE OF THE UNITED STATES NOVEMBER 13, 2007 Received; read twice and placed on the calendar AN ACT To implement the United States-Peru Trade Promotion Agreement. 1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 4 (a) SHORT TITLE.—This Act may be cited as the 5 ‘‘United States-Peru Trade Promotion Agreement Imple6 mentation Act’’. 7 (b) TABLE OF CONTENTS.—The table of contents for 8 this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Purposes. Sec. 3. Definitions. TITLE I—APPROVAL OF, AND GENERAL PROVISIONS RELATING TO, THE AGREEMENT cnoel on PROD1PC69 with BILLS 2 HR 3688 PCS Sec. 101. Approval and entry into force of the Agreement. Sec. 102. Relationship of the Agreement to United States and State law. Sec. 103. Implementing actions in anticipation of entry into force and initial regulations. Sec. 104. Consultation and layover provisions for, and effective date of, proclaimed actions. Sec. 105. Administration of dispute settlement proceedings. Sec. 106. Arbitration of claims. Sec. 107. Effective dates; effect of termination. TITLE II—CUSTOMS PROVISIONS Sec. 201. Tariff modifications. Sec. 202. Additional duties on certain agricultural goods. Sec. 203. Rules of origin. Sec. 204. Customs user fees. Sec. 205. Disclosure of incorrect information; false certifications of origin; denial of preferential tariff treatment. Sec. 206. Reliquidation of entries. Sec. 207. Recordkeeping requirements. Sec. 208. Enforcement relating to trade in textile or apparel goods. Sec. 209. Regulations. TITLE III—RELIEF FROM IMPORTS Sec. 301. Definitions. Subtitle A—Relief From Imports Benefiting From the Agreement Sec. 311. Commencing of action for relief. Sec. 312. Commission action on petition. Sec. 313. Provision of relief. Sec. 314. Termination of relief authority. Sec. 315. Compensation authority. Sec. 316. Confidential business information. Subtitle B—Textile and Apparel Safeguard Measures Sec. 321. Commencement of action for relief. Sec. 322. Determination and provision of relief. Sec. 323. Period of relief. Sec. 324. Articles exempt from relief. Sec. 325. Rate after termination of import relief. Sec. 326. Termination of relief authority. Sec. 327. Compensation authority. Sec. 328. Confidential business information. Subtitle C—Cases Under Title II of the Trade Act of 1974 Sec. 331. Findings and action on goods of Peru. TITLE IV—PROCUREMENT Sec. 401. Eligible products. TITLE V—TRADE IN TIMBER PRODUCTS OF PERU Sec. 501. Enforcement relating to trade in timber products of Peru. cnoel on PROD1PC69 with BILLS 3 HR 3688 PCS Sec. 502. Report to Congress. TITLE VI—OFFSETS Sec. 601. Customs user fees. Sec. 602. Time for payment of corporate estimated taxes. 1 SEC. 2. PURPOSES. 2 The purposes of this Act are— 3 (1) to approve and implement the free trade 4 agreement between the United States and Peru en5 tered into under the authority of section 2103(b) of 6 the Bipartisan Trade Promotion Authority Act of 7 2002 (19 U.S.C. 3803(b)); 8 (2) to strengthen and develop economic rela9 tions between the United States and Peru for their 10 mutual benefit; 11 (3) to establish free trade between the United 12 States and Peru through the reduction and elimi13 nation of barriers to trade in goods and services and 14 to investment; and 15 (4) to lay the foundation for further coopera16 tion to expand and enhance the benefits of the 17 Agreement. 18 SEC. 3. DEFINITIONS. 19 In this Act: 20 (1) AGREEMENT.—The term ‘‘Agreement’’ 21 means the United States-Peru Trade Promotion 22 Agreement approved by Congress under section 23 101(a)(1). cnoel on PROD1PC69 with BILLS 4 HR 3688 PCS 1 (2) COMMISSION.—The term ‘‘Commission’’ 2 means the United States International Trade Com3 mission. 4 (3) HTS.—The term ‘‘HTS’’ means the Har5 monized Tariff Schedule of the United States. 6 (4) TEXTILE OR APPAREL GOOD.—The term 7 ‘‘textile or apparel good’’ means a good listed in the 8 Annex to the Agreement on Textiles and Clothing 9 referred to in section 101(d)(4) of the Uruguay 10 Round Agreements Act (19 U.S.C. 3511(d)(4)), 11 other than a good listed in Annex 3–C of the Agree12 ment. 13 TITLE I—APPROVAL OF, AND 14 GENERAL PROVISIONS RE15 LATING TO, THE AGREEMENT 16 SEC. 101. APPROVAL AND ENTRY INTO FORCE OF THE 17 AGREEMENT. 18 (a) APPROVAL OF AGREEMENT AND STATEMENT OF 19 ADMINISTRATIVE ACTION.—Pursuant to section 2105 of 20 the Bipartisan Trade Promotion Authority Act of 2002 21 (19 U.S.C. 3805) and section 151 of the Trade Act of 22 1974 (19 U.S.C. 2191), Congress approves— 23 (1) the United States-Peru Trade Promotion 24 Agreement entered into on April 12, 2006, with the 25 Government of Peru, as amended on June 24 and cnoel on PROD1PC69 with BILLS 5 HR 3688 PCS 1 June 25, 2007, respectively, by the United States 2 and Peru, and submitted to Congress on September 3 27, 2007; and 4 (2) the statement of administrative action pro5 posed to implement the Agreement that was sub6 mitted to Congress on September 27, 2007. 7 (b) CONDITIONS FOR ENTRY INTO FORCE OF THE 8 AGREEMENT.—At such time as the President determines 9 that Peru has taken measures necessary to comply with 10 those provisions of the Agreement that are to take effect 11 on the date on which the Agreement enters into force, the 12 President is authorized to exchange notes with the Gov13 ernment of Peru providing for the entry into force, on or 14 after January 1, 2008, of the Agreement with respect to 15 the United States. 16 SEC. 102. RELATIONSHIP OF THE AGREEMENT TO UNITED 17 STATES AND STATE LAW. 18 (a) RELATIONSHIP OF AGREEMENT TO UNITED 19 STATES LAW.— 20 (1) UNITED STATES LAW TO PREVAIL IN CON21 FLICT.—No provision of the Agreement, nor the ap22 plication of any such provision to any person or cir23 cumstance, which is inconsistent with any law of the 24 United States shall have effect. cnoel on PROD1PC69 with BILLS 6 HR 3688 PCS 1 (2) CONSTRUCTION.—Nothing in this Act shall 2 be construed— 3 (A) to amend or modify any law of the 4 United States, or 5 (B) to limit any authority conferred under 6 any law of the United States, 7 unless specifically provided for in this Act. 8 (b) RELATIONSHIP OF AGREEMENT TO STATE 9 LAW.— 10 (1) LEGAL CHALLENGE.—No State law, or the 11 application thereof, may be declared invalid as to 12 any person or circumstance on the ground that the 13 provision or application is inconsistent with the 14 Agreement, except in an action brought by the 15 United States for the purpose of declaring such law 16 or application invalid. 17 (2) DEFINITION OF STATE LAW.—For purposes 18 of this subsection, the term ‘‘State law’’ includes— 19 (A) any law of a political subdivision of a 20 State; and 21 (B) any State law regulating or taxing the 22 business of insurance. 23 (c) EFFECT OF AGREEMENT WITH RESPECT TO PRI24 VATE REMEDIES.—No person other than the United 25 States— cnoel on PROD1PC69 with BILLS 7 HR 3688 PCS 1 (1) shall have any cause of action or defense 2 under the Agreement or by virtue of congressional 3 approval thereof; or 4 (2) may challenge, in any action brought under 5 any provision of law, any action or inaction by any 6 department, agency, or other instrumentality of the 7 United States, any State, or any political subdivision 8 of a State, on the ground that such action or inac9 tion is inconsistent with the Agreement. 10 SEC. 103. IMPLEMENTING ACTIONS IN ANTICIPATION OF 11 ENTRY INTO FORCE AND INITIAL REGULA12 TIONS. 13 (a) IMPLEMENTING ACTIONS.— 14 (1) PROCLAMATION AUTHORITY.—After the 15 date of the enactment of this Act— 16 (A) the President may proclaim such ac17 tions, and 18 (B) other appropriate officers of the 19 United States Government may issue such reg20 ulations, 21 as may be necessary to ensure that any provision of 22 this Act, or amendment made by this Act, that takes 23 effect on the date on which the Agreement enters 24 into force is appropriately implemented on such 25 date, but no such proclamation or regulation may cnoel on PROD1PC69 with BILLS 8 HR 3688 PCS 1 have an effective date earlier than the date on which 2 the Agreement enters into force. 3 (2) EFFECTIVE DATE OF CERTAIN PROCLAIMED 4 ACTIONS.—Any action proclaimed by the President 5 under the authority of this Act that is not subject 6 to the consultation and layover provisions under sec7 tion 104 may not take effect before the 15th day 8 after the date on which the text of the proclamation 9 is published in the Federal Register. 10 (3) WAIVER OF 15-DAY RESTRICTION.—The 15- 11 day restriction contained in paragraph (2) on the 12 taking effect of proclaimed actions is waived to the 13 extent that the application of such restriction would 14 prevent the taking effect on the date the Agreement 15 enters into force of any action proclaimed under this 16 section. 17 (b) INITIAL REGULATIONS.—Initial regulations nec18 essary or appropriate to carry out the actions required by 19 or authorized under this Act or proposed in the statement 20 of administrative action submitted under section 21 101(a)(2) to implement the Agreement shall, to the max22 imum extent feasible, be issued within 1 year after the 23 date on which the Agreement enters into force. In the case 24 of any implementing action that takes effect on a date 25 after the date on which the Agreement enters into force, cnoel on PROD1PC69 with BILLS 9 HR 3688 PCS 1 initial regulations to carry out that action shall, to the 2 maximum extent feasible, be issued within 1 year after 3 such effective date. 4 SEC. 104. CONSULTATION AND LAYOVER PROVISIONS FOR, 5 AND EFFECTIVE DATE OF, PROCLAIMED AC6 TIONS. 7 If a provision of this Act provides that the implemen8 tation of an action by the President by proclamation is 9 subject to the consultation and layover requirements of 10 this section, such action may be proclaimed only if— 11 (1) the President has obtained advice regarding 12 the proposed action from— 13 (A) the appropriate advisory committees 14 established under section 135 of the Trade Act 15 of 1974 (19 U.S.C. 2155); and 16 (B) the Commission; 17 (2) the President has submitted to the Com18 mittee on Finance of the Senate and the Committee 19 on Ways and Means of the House of Representatives 20 a report that sets forth— 21 (A) the action proposed to be proclaimed 22 and the reasons therefor; and 23 (B) the advice obtained under paragraph 24 (1); cnoel on PROD1PC69 with BILLS 10 HR 3688 PCS 1 (3) a period of 60 calendar days, beginning on 2 the first day on which the requirements set forth in 3 paragraphs (1) and (2) have been met, has expired; 4 and 5 (4) the President has consulted with the com6 mittees referred to in paragraph (2) regarding the 7 proposed action during the period referred to in 8 paragraph (3). 9 SEC. 105. ADMINISTRATION OF DISPUTE SETTLEMENT PRO10 CEEDINGS. 11 (a) ESTABLISHMENT OR DESIGNATION OF OFFICE.— 12 The President is authorized to establish or designate with13 in the Department of Commerce an office that shall be 14 responsible for providing administrative assistance to pan15 els established under chapter 21 of the Agreement. The 16 office shall not be considered to be an agency for purposes 17 of section 552 of title 5, United States Code. 18 (b) AUTHORIZATION OF APPROPRIATIONS.—There 19 are authorized to be appropriated for each fiscal year after 20 fiscal year 2007 to the Department of Commerce such 21 sums as may be necessary for the establishment and oper22 ations of the office established or designated under sub23 section (a) and for the payment of the United States share 24 of the expenses of panels established under chapter 21 of 25 the Agreement. cnoel on PROD1PC69 with BILLS 11 HR 3688 PCS 1 SEC. 106. ARBITRATION OF CLAIMS. 2 The United States is authorized to resolve any claim 3 against the United States covered by article 4 10.16.1(a)(i)(C) or article 10.16.1(b)(i)(C) of the Agree5 ment, pursuant to the Investor-State Dispute Settlement 6 procedures set forth in section B of chapter 10 of the 7 Agreement. 8 SEC. 107. EFFECTIVE DATES; EFFECT OF TERMINATION. 9 (a) EFFECTIVE DATES.—Except as provided in sub10 section (b), this Act and the amendments made by this 11 Act take effect on the date on which the Agreement enters 12 into force. 13 (b) EXCEPTIONS.—Sections 1 through 3 and this 14 title take effect on the date of the enactment of this Act. 15 (c) TERMINATION OF THE AGREEMENT.—On the 16 date on which the Agreement terminates, this Act (other 17 than this subsection) and the amendments made by this 18 Act shall cease to have effect. 19 TITLE II—CUSTOMS PROVISIONS 20 SEC. 201. TARIFF MODIFICATIONS. 21 (a) TARIFF MODIFICATIONS PROVIDED FOR IN THE 22 AGREEMENT.— 23 (1) PROCLAMATION AUTHORITY.—The Presi24 dent may proclaim— 25 (A) such modifications or continuation of 26 any duty, cnoel on PROD1PC69 with BILLS 12 HR 3688 PCS 1 (B) such continuation of duty-free or ex2 cise treatment, or 3 (C) such additional duties, 4 as the President determines to be necessary or ap5 propriate to carry out or apply articles 2.3, 2.5, 2.6, 6 3.3.13, and Annex 2.3 of the Agreement. 7 (2) EFFECT ON GSP STATUS.—Notwithstanding 8 section 502(a)(1) of the Trade Act of 1974 (19 9 U.S.C. 2462(a)(1)), the President shall, on the date 10 on which the Agreement enters into force, terminate 11 the designation of Peru as a beneficiary developing 12 country for purposes of title V of the Trade Act of 13 1974 (19 U.S.C. 2461 et seq.). 14 (b) OTHER TARIFF MODIFICATIONS.—Subject to the 15 consultation and layover provisions of section 104, the 16 President may proclaim— 17 (1) such modifications or continuation of any 18 duty, 19 (2) such modifications as the United States 20 may agree to with Peru regarding the staging of any 21 duty treatment set forth in Annex 2.3 of the Agree22 ment, 23 (3) such continuation of duty-free or excise 24 treatment, or 25 (4) such additional duties, cnoel on PROD1PC69 with BILLS 13 HR 3688 PCS 1 as the President determines to be necessary or appropriate 2 to maintain the general level of reciprocal and mutually 3 advantageous concessions with respect to Peru provided 4 for by the Agreement. 5 (c) CONVERSION TO AD VALOREM RATES.—For pur6 poses of subsections (a) and (b), with respect to any good 7 for which the base rate in the Schedule of the United 8 States to Annex 2.3 of the Agreement is a specific or com9 pound rate of duty, the President may substitute for the 10 base rate an ad valorem rate that the President deter11 mines to be equivalent to the base rate. 12 (d) TARIFF RATE QUOTAS.—In implementing the 13 tariff rate quotas set forth in Appendix I to the Schedule 14 of the United States to Annex 2.3 of the Agreement, the 15 President shall take such action as may be necessary to 16 ensure that imports of agricultural goods do not disrupt 17 the orderly marketing of commodities in the United 18 States. 19 SEC. 202. ADDITIONAL DUTIES ON CERTAIN AGRICUL20 TURAL GOODS. 21 (a) DEFINITIONS.—In this section: 22 (1) APPLICABLE NTR (MFN) RATE OF DUTY.— 23 The term ‘‘applicable NTR (MFN) rate of duty’’ 24 means, with respect to a safeguard good, a rate of 25 duty equal to the lowest of— cnoel on PROD1PC69 with BILLS 14 HR 3688 PCS 1 (A) the base rate in the Schedule of the 2 United States to Annex 2.3 of the Agreement; 3 (B) the column 1 general rate of duty that 4 would, on the day before the date on which the 5 Agreement enters into force, apply to a good 6 classifiable in the same 8-digit subheading of 7 the HTS as the safeguard good; or 8 (C) the column 1 general rate of duty that 9 would, at the time the additional duty is im10 posed under subsection (b), apply to a good 11 classifiable in the same 8-digit subheading of 12 the HTS as the safeguard good. 13 (2) SCHEDULE RATE OF DUTY.—The term 14 ‘‘schedule rate of duty’’ means, with respect to a 15 safeguard good, the rate of duty for that good that 16 is set forth in the Schedule of the United States to 17 Annex 2.3 of the Agreement. 18 (3) SAFEGUARD GOOD.—The term ‘‘safeguard 19 good’’ means a good— 20 (A) that is included in the Schedule of the 21 United States to Annex 2.18 of the Agreement; 22 (B) that qualifies as an originating good 23 under section 203, except that operations per24 formed in or material obtained from the United 25 States shall be considered as if the operations cnoel on PROD1PC69 with BILLS 15 HR 3688 PCS 1 were performed in, and the material was ob2 tained from, a country that is not a party to 3 the Agreement; and 4 (C) for which a claim for preferential tariff 5 treatment under the Agreement has been made. 6 (b) ADDITIONAL DUTIES ON SAFEGUARD GOODS.— 7 (1) IN GENERAL.—In addition to any duty pro8 claimed under subsection (a) or (b) of section 201, 9 the Secretary of the Treasury shall assess a duty, in 10 the amount determined under paragraph (2), on a 11 safeguard good imported into the United States in 12 a calendar year if the Secretary determines that, 13 prior to such importation, the total volume of that 14 safeguard good that is imported into the United 15 States in that calendar year exceeds 130 percent of 16 the volume that is provided for that safeguard good 17 in the corresponding year in the applicable table 18 contained in Appendix I of the General Notes to the 19 Schedule of the United States to Annex 2.3 of the 20 Agreement. For purposes of this subsection, year 1 21 in that table corresponds to the calendar year in 22 which the Agreement enters into force. 23 (2) CALCULATION OF ADDITIONAL DUTY.—The 24 additional duty on a safeguard good under this sub25 section shall be— cnoel on PROD1PC69 with BILLS 16 HR 3688 PCS 1 (A) in years 1 through 12, an amount 2 equal to 100 percent of the excess of the appli3 cable NTR (MFN) rate of duty over the sched4 ule rate of duty; and 5 (B) in years 13 through 16, an amount 6 equal to 50 percent of the excess of the applica7 ble NTR (MFN) rate of duty over the schedule 8 rate of duty. 9 (3) NOTICE.—Not later than 60 days after the 10 Secretary of the Treasury first assesses an addi11 tional duty in a calendar year on a good under this 12 subsection, the Secretary shall notify the Govern13 ment of Peru in writing of such action and shall pro14 vide to that Government data supporting the assess15 ment of the additional duty. 16 (c) EXCEPTIONS.—No additional duty shall be as17 sessed on a good under subsection (b) if, at the time of 18 entry, the good is subject to import relief under— 19 (1) subtitle A of title III of this Act; or 20 (2) chapter 1 of title II of the Trade Act of 21 1974 (19 U.S.C. 2251 et seq.). 22 (d) TERMINATION.—The assessment of an additional 23 duty on a good under subsection (b) shall cease to apply 24 to that good on the date on which duty-free treatment cnoel on PROD1PC69 with BILLS 17 HR 3688 PCS 1 must be provided to that good under the Schedule of the 2 United States to Annex 2.3 of the Agreement. 3 SEC. 203. RULES OF ORIGIN. 4 (a) APPLICATION AND INTERPRETATION.—In this 5 section: 6 (1) TARIFF CLASSIFICATION.—The basis for 7 any tariff classification is the HTS. 8 (2) REFERENCE TO HTS.—Whenever in this 9 section there is a reference to a chapter, heading, or 10 subheading, such reference shall be a reference to a 11 chapter, heading, or subheading of the HTS. 12 (3) COST OR VALUE.—Any cost or value re13 ferred to in this section shall be recorded and main14 tained in accordance with the generally accepted ac15 counting principles applicable in the territory of the 16 country in which the good is produced (whether 17 Peru or the United States). 18 (b) ORIGINATING GOODS.—For purposes of this Act 19 and for purposes of implementing the preferential tariff 20 treatment provided for under the Agreement, except as 21 otherwise provided in this section, a good is an originating 22 good if— 23 (1) the good is a good wholly obtained or pro24 duced entirely in the territory of Peru, the United 25 States, or both; cnoel on PROD1PC69 with BILLS 18 HR 3688 PCS 1 (2) the good— 2 (A) is produced entirely in the territory of 3 Peru, the United States, or both, and— 4 (i) each of the nonoriginating mate5 rials used in the production of the good 6 undergoes an applicable change in tariff 7 classification specified in Annex 3–A or 8 Annex 4.1 of the Agreement; or 9 (ii) the good otherwise satisfies any 10 applicable regional value-content or other 11 requirements specified in Annex 3–A or 12 Annex 4.1 of the Agreement; and 13 (B) satisfies all other applicable require14 ments of this section; or 15 (3) the good is produced entirely in the terri16 tory of Peru, the United States, or both, exclusively 17 from materials described in paragraph (1) or (2). 18 (c) REGIONAL VALUE-CONTENT.— 19 (1) IN GENERAL.—For purposes of subsection 20 (b)(2), the regional value-content of a good referred 21 to in Annex 4.1 of the Agreement, except for goods 22 to which paragraph (4) applies, shall be calculated 23 by the importer, exporter, or producer of the good, 24 on the basis of the build-down method described in cnoel on PROD1PC69 with BILLS 19 HR 3688 PCS 1 paragraph (2) or the build-up method described in 2 paragraph (3). 3 (2) BUILD-DOWN METHOD.— 4 (A) IN GENERAL.—The regional value-con5 tent of a good may be calculated on the basis 6 of the following build-down method: AV–VNM RVC = ———— × 100 AV 7 (B) DEFINITIONS.—In subparagraph (A): 8 (i) RVC.—The term ‘‘RVC’’ means 9 the regional value-content of the good, ex10 pressed as a percentage. 11 (ii) AV.—The term ‘‘AV’’ means the 12 adjusted value of the good. 13 (iii) VNM.—The term ‘‘VNM’’ means 14 the value of nonoriginating materials that 15 are acquired and used by the producer in 16 the production of the good, but does not 17 include the value of a material that is self18 produced. 19 (3) BUILD-UP METHOD.— 20 (A) IN GENERAL.—The regional value-con21 tent of a good may be calculated on the basis 22 of the following build-up method: cnoel on PROD1PC69 with BILLS 20 HR 3688 PCS VOM RVC = ———— × 100 AV 1 (B) DEFINITIONS.—In subparagraph (A): 2 (i) RVC.—The term ‘‘RVC’’ means 3 the regional value-content of the good, ex4 pressed as a percentage. 5 (ii) AV.—The term ‘‘AV’’ means the 6 adjusted value of the good. 7 (iii) VOM.—The term ‘‘VOM’’ means 8 the value of originating materials that are 9 acquired or self-produced, and used by the 10 producer in the production of the good. 11 (4) SPECIAL RULE FOR CERTAIN AUTOMOTIVE 12 GOODS.— 13 (A) IN GENERAL.—For purposes of sub14 section (b)(2), the regional value-content of an 15 automotive good referred to in Annex 4.1 of the 16 Agreement shall be calculated by the importer, 17 exporter, or producer of the good, on the basis 18 of the following net cost method: NC–VNM RVC = ———— × 100 NC 19 (B) DEFINITIONS.—In subparagraph (A): 20 (i) AUTOMOTIVE GOOD.—The term 21 ‘‘automotive good’’ means a good provided 22 for in any of subheadings 8407.31 through cnoel on PROD1PC69 with BILLS 21 HR 3688 PCS 1 8407.34, subheading 8408.20, heading 2 8409, or any of headings 8701 through 3 8708. 4 (ii) RVC.—The term ‘‘RVC’’ means 5 the regional value-content of the auto6 motive good, expressed as a percentage. 7 (iii) NC.—The term ‘‘NC’’ means the 8 net cost of the automotive good. 9 (iv) VNM.—The term ‘‘VNM’’ means 10 the value of nonoriginating materials that 11 are acquired and used by the producer in 12 the production of the automotive good, but 13 does not include the value of a material 14 that is self-produced. 15 (C) MOTOR VEHICLES.— 16 (i) BASIS OF CALCULATION.—For 17 purposes of determining the regional value18 content under subparagraph (A) for an 19 automotive good that is a motor vehicle 20 provided for in any of headings 8701 21 through 8705, an importer, exporter, or 22 producer may average the amounts cal23 culated under the formula contained in 24 subparagraph (A), over the producer’s fis25 cal year— cnoel on PROD1PC69 with BILLS 22 HR 3688 PCS 1 (I) with respect to all motor vehi2 cles in any one of the categories de3 scribed in clause (ii); or 4 (II) with respect to all motor ve5 hicles in any such category that are 6 exported to the territory of the United 7 States or Peru. 8 (ii) CATEGORIES.—A category is de9 scribed in this clause if it— 10 (I) is the same model line of 11 motor vehicles, is in the same class of 12 motor vehicles, and is produced in the 13 same plant in the territory of Peru or 14 the United States, as the good de15 scribed in clause (i) for which regional 16 value-content is being calculated; 17 (II) is the same class of motor 18 vehicles, and is produced in the same 19 plant in the territory of Peru or the 20 United States, as the good described 21 in clause (i) for which regional value22 content is being calculated; or 23 (III) is the same model line of 24 motor vehicles produced in the terri25 tory of Peru or the United States as cnoel on PROD1PC69 with BILLS 23 HR 3688 PCS 1 the good described in clause (i) for 2 which regional value-content is being 3 calculated. 4 (D) OTHER AUTOMOTIVE GOODS.—For 5 purposes of determining the regional value-con6 tent under subparagraph (A) for automotive 7 materials provided for in any of subheadings 8 8407.31 through 8407.34, in subheading 9 8408.20, or in heading 8409, 8706, 8707, or 10 8708, that are produced in the same plant, an 11 importer, exporter, or producer may— 12 (i) average the amounts calculated 13 under the formula contained in subpara14 graph (A) over— 15 (I) the fiscal year of the motor 16 vehicle producer to whom the auto17 motive goods are sold, 18 (II) any quarter or month, or 19 (III) the fiscal year of the pro20 ducer of such goods, 21 if the goods were produced during the fis22 cal year, quarter, or month that is the 23 basis for the calculation; cnoel on PROD1PC69 with BILLS 24 HR 3688 PCS 1 (ii) determine the average referred to 2 in clause (i) separately for such goods sold 3 to 1 or more motor vehicle producers; or 4 (iii) make a separate determination 5 under clause (i) or (ii) for such goods that 6 are exported to the territory of Peru or the 7 United States. 8 (E) CALCULATING NET COST.—The im9 porter, exporter, or producer of an automotive 10 good shall, consistent with the provisions re11 garding allocation of costs provided for in gen12 erally accepted accounting principles, determine 13 the net cost of the automotive good under sub14 paragraph (B) by— 15 (i) calculating the total cost incurred 16 with respect to all goods produced by the 17 producer of the automotive good, sub18 tracting any sales promotion, marketing, 19 and after-sales service costs, royalties, 20 shipping and packing costs, and nonallow21 able interest costs that are included in the 22 total cost of all such goods, and then rea23 sonably allocating the resulting net cost of 24 those goods to the automotive good; cnoel on PROD1PC69 with BILLS 25 HR 3688 PCS 1 (ii) calculating the total cost incurred 2 with respect to all goods produced by that 3 producer, reasonably allocating the total 4 cost to the automotive good, and then sub5 tracting any sales promotion, marketing, 6 and after-sales service costs, royalties, 7 shipping and packing costs, and nonallow8 able interest costs that are included in the 9 portion of the total cost allocated to the 10 automotive good; or 11 (iii) reasonably allocating each cost 12 that forms part of the total cost incurred 13 with respect to the automotive good so that 14 the aggregate of these costs does not in15 clude any sales promotion, marketing, and 16 after-sales service costs, royalties, shipping 17 and packing costs, or nonallowable interest 18 costs. 19 (d) VALUE OF MATERIALS.— 20 (1) IN GENERAL.—For the purpose of calcu21 lating the regional value-content of a good under 22 subsection (c), and for purposes of applying the de 23 minimis rules under subsection (f), the value of a 24 material is— cnoel on PROD1PC69 with BILLS 26 HR 3688 PCS 1 (A) in the case of a material that is im2 ported by the producer of the good, the ad3 justed value of the material; 4 (B) in the case of a material acquired in 5 the territory in which the good is produced, the 6 value, determined in accordance with Articles 1 7 through 8, Article 15, and the corresponding in8 terpretive notes, of the Agreement on Imple9 mentation of Article VII of the General Agree10 ment on Tariffs and Trade 1994 referred to in 11 section 101(d)(8) of the Uruguay Round Agree12 ments Act (19 U.S.C. 3511(d)(8)), as set forth 13 in regulations promulgated by the Secretary of 14 the Treasury providing for the application of 15 such Articles in the absence of an importation 16 by the producer; or 17 (C) in the case of a material that is self18 produced, the sum of— 19 (i) all expenses incurred in the pro20 duction of the material, including general 21 expenses; and 22 (ii) an amount for profit equivalent to 23 the profit added in the normal course of 24 trade. cnoel on PROD1PC69 with BILLS 27 HR 3688 PCS 1 (2) FURTHER ADJUSTMENTS TO THE VALUE OF 2 MATERIALS.— 3 (A) ORIGINATING MATERIAL.—The fol4 lowing expenses, if not included in the value of 5 an originating material calculated under para6 graph (1), may be added to the value of the 7 originating material: 8 (i) The costs of freight, insurance, 9 packing, and all other costs incurred in 10 transporting the material within or be11 tween the territory of Peru, the United 12 States, or both, to the location of the pro13 ducer. 14 (ii) Duties, taxes, and customs broker15 age fees on the material paid in the terri16 tory of Peru, the United States, or both, 17 other than duties or taxes that are waived, 18 refunded, refundable, or otherwise recover19 able, including credit against duty or tax 20 paid or payable. 21 (iii) The cost of waste and spoilage re22 sulting from the use of the material in the 23 production of the good, less the value of 24 renewable scrap or byproducts. cnoel on PROD1PC69 with BILLS 28 HR 3688 PCS 1 (B) NONORIGINATING MATERIAL.—The 2 following expenses, if included in the value of a 3 nonoriginating material calculated under para4 graph (1), may be deducted from the value of 5 the nonoriginating material: 6 (i) The costs of freight, insurance, 7 packing, and all other costs incurred in 8 transporting the material within or be9 tween the territory of Peru, the United 10 States, or both, to the location of the pro11 ducer. 12 (ii) Duties, taxes, and customs broker13 age fees on the material paid in the terri14 tory of Peru, the United States, or both, 15 other than duties or taxes that are waived, 16 refunded, refundable, or otherwise recover17 able, including credit against duty or tax 18 paid or payable. 19 (iii) The cost of waste and spoilage re20 sulting from the use of the material in the 21 production of the good, less the value of 22 renewable scrap or byproducts. 23 (iv) The cost of originating materials 24 used in the production of the nonorigiVerDate Aug 31 2005 03:50 Nov 14, 2007 Jkt 069200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\H3688.PCS H3688 cnoel on PROD1PC69 with BILLS 29 HR 3688 PCS 1 nating material in the territory of Peru, 2 the United States, or both. 3 (e) ACCUMULATION.— 4 (1) ORIGINATING MATERIALS USED IN PRODUC5 TION OF GOODS OF ANOTHER COUNTRY.—Origi6 nating materials from the territory of Peru or the 7 United States that are used in the production of a 8 good in the territory of the other country shall be 9 considered to originate in the territory of such other 10 country. 11 (2) MULTIPLE PRODUCERS.—A good that is 12 produced in the territory of Peru, the United States, 13 or both, by 1 or more producers, is an originating 14 good if the good satisfies the requirements of sub15 section (b) and all other applicable requirements of 16 this section. 17 (f) DE MINIMIS AMOUNTS OF NONORIGINATING MA18 TERIALS.— 19 (1) IN GENERAL.—Except as provided in para20 graphs (2) and (3), a good that does not undergo a 21 change in tariff classification pursuant to Annex 4.1 22 of the Agreement is an originating good if— 23 (A)(i) the value of all nonoriginating mate24 rials that— cnoel on PROD1PC69 with BILLS 30 HR 3688 PCS 1 (I) are used in the production of the 2 good, and 3 (II) do not undergo the applicable 4 change in tariff classification (set forth in 5 Annex 4.1 of the Agreement), 6 does not exceed 10 percent of the adjusted 7 value of the good; 8 (ii) the good meets all other applicable re9 quirements of this section; and 10 (iii) the value of such nonoriginating mate11 rials is included in the value of nonoriginating 12 materials for any applicable regional value-con13 tent requirement for the good; or 14 (B) the good meets the requirements set 15 forth in paragraph 2 of Annex 4.6 of the Agree16 ment. 17 (2) EXCEPTIONS.—Paragraph (1) does not 18 apply to the following: 19 (A) A nonoriginating material provided for 20 in chapter 4, or a nonoriginating dairy prepara21 tion containing over 10 percent by weight of 22 milk solids provided for in subheading 1901.90 23 or 2106.90, that is used in the production of a 24 good provided for in chapter 4. cnoel on PROD1PC69 with BILLS 31 HR 3688 PCS 1 (B) A nonoriginating material provided for 2 in chapter 4, or a nonoriginating dairy prepara3 tion containing over 10 percent by weight of 4 milk solids provided for in subheading 1901.90, 5 that is used in the production of any of the fol6 lowing goods: 7 (i) Infant preparations containing 8 over 10 percent by weight of milk solids 9 provided for in subheading 1901.10. 10 (ii) Mixes and doughs, containing over 11 25 percent by weight of butterfat, not put 12 up for retail sale, provided for in sub13 heading 1901.20. 14 (iii) Dairy preparations containing 15 over 10 percent by weight of milk solids 16 provided for in subheading 1901.90 or 17 2106.90. 18 (iv) Goods provided for in heading 19 2105. 20 (v) Beverages containing milk pro21 vided for in subheading 2202.90. 22 (vi) Animal feeds containing over 10 23 percent by weight of milk solids provided 24 for in subheading 2309.90. cnoel on PROD1PC69 with BILLS 32 HR 3688 PCS 1 (C) A nonoriginating material provided for 2 in heading 0805, or any of subheadings 3 2009.11 through 2009.39, that is used in the 4 production of a good provided for in any of sub5 headings 2009.11 through 2009.39, or in fruit 6 or vegetable juice of any single fruit or vege7 table, fortified with minerals or vitamins, con8 centrated or unconcentrated, provided for in 9 subheading 2106.90 or 2202.90. 10 (D) A nonoriginating material provided for 11 in heading 0901 or 2101 that is used in the 12 production of a good provided for in heading 13 0901 or 2101. 14 (E) A nonoriginating material provided for 15 in chapter 15 that is used in the production of 16 a good provided for in any of headings 1501 17 through 1508, or any of headings 1511 through 18 1515. 19 (F) A nonoriginating material provided for 20 in heading 1701 that is used in the production 21 of a good provided for in any of headings 1701 22 through 1703. 23 (G) A nonoriginating material provided for 24 in chapter 17 that is used in the production of 25 a good provided for in subheading 1806.10. cnoel on PROD1PC69 with BILLS 33 HR 3688 PCS 1 (H) Except as provided in subparagraphs 2 (A) through (G) and Annex 4.1 of the Agree3 ment, a nonoriginating material used in the 4 production of a good provided for in any of 5 chapters 1 through 24, unless the nonorigi6 nating material is provided for in a different 7 subheading than the good for which origin is 8 being determined under this section. 9 (I) A nonoriginating material that is a tex10 tile or apparel good. 11 (3) TEXTILE OR APPAREL GOODS.— 12 (A) IN GENERAL.—Except as provided in 13 subparagraph (B), a textile or apparel good 14 that is not an originating good because certain 15 fibers or yarns used in the production of the 16 component of the good that determines the tar17 iff classification of the good do not undergo an 18 applicable change in tariff classification, set 19 forth in Annex 3–A of the Agreement, shall be 20 considered to be an originating good if— 21 (i) the total weight of all such fibers 22 or yarns in that component is not more 23 than 10 percent of the total weight of that 24 component; or cnoel on PROD1PC69 with BILLS 34 HR 3688 PCS 1 (ii) the yarns are those described in 2 section 204(b)(3)(B)(vi)(IV) of the Andean 3 Trade Preference Act (19 U.S.C. 4 3203(b)(3)(B)(vi)(IV)) (as in effect on the 5 date of the enactment of this Act). 6 (B) CERTAIN TEXTILE OR APPAREL 7 GOODS.—A textile or apparel good containing 8 elastomeric yarns in the component of the good 9 that determines the tariff classification of the 10 good shall be considered to be an originating 11 good only if such yarns are wholly formed in 12 the territory of Peru, the United States, or 13 both. 14 (C) YARN, FABRIC, OR FIBER.—For pur15 poses of this paragraph, in the case of a good 16 that is a yarn, fabric, or fiber, the term ‘‘com17 ponent of the good that determines the tariff 18 classification of the good’’ means all of the fi19 bers in the good. 20 (g) FUNGIBLE GOODS AND MATERIALS.— 21 (1) IN GENERAL.— 22 (A) CLAIM FOR PREFERENTIAL TARIFF 23 TREATMENT.—A person claiming that a fun24 gible good or fungible material is an originating 25 good may base the claim either on the physical cnoel on PROD1PC69 with BILLS 35 HR 3688 PCS 1 segregation of the fungible good or fungible ma2 terial or by using an inventory management 3 method with respect to the fungible good or 4 fungible material. 5 (B) INVENTORY MANAGEMENT METHOD.— 6 In this subsection, the term ‘‘inventory manage7 ment method’’ means— 8 (i) averaging; 9 (ii) ‘‘last-in, first-out’’; 10 (iii) ‘‘first-in, first-out’’; or 11 (iv) any other method— 12 (I) recognized in the generally 13 accepted accounting principles of the 14 country in which the production is 15 performed (whether Peru or the 16 United States); or 17 (II) otherwise accepted by that 18 country. 19 (2) ELECTION OF INVENTORY METHOD.—A 20 person selecting an inventory management method 21 under paragraph (1) for a particular fungible good 22 or fungible material shall continue to use that meth23 od for that fungible good or fungible material 24 throughout the fiscal year of such person. 25 (h) ACCESSORIES, SPARE PARTS, OR TOOLS.— cnoel on PROD1PC69 with BILLS 36 HR 3688 PCS 1 (1) IN GENERAL.—Subject to paragraphs (2) 2 and (3), accessories, spare parts, or tools delivered 3 with a good that form part of the good’s standard 4 accessories, spare parts, or tools shall— 5 (A) be treated as originating goods if the 6 good is an originating good; and 7 (B) be disregarded in determining whether 8 all the nonoriginating materials used in the pro9 duction of the good undergo the applicable 10 change in tariff classification set forth in Annex 11 4.1 of the Agreement. 12 (2) CONDITIONS.—Paragraph (1) shall apply 13 only if— 14 (A) the accessories, spare parts, or tools 15 are classified with and not invoiced separately 16 from the good, regardless of whether such ac17 cessories, spare parts, or tools are specified or 18 are separately identified in the invoice for the 19 good; and 20 (B) the quantities and value of the acces21 sories, spare parts, or tools are customary for 22 the good. 23 (3) REGIONAL VALUE-CONTENT.—If the good is 24 subject to a regional value-content requirement, the 25 value of the accessories, spare parts, or tools shall cnoel on PROD1PC69 with BILLS 37 HR 3688 PCS 1 be taken into account as originating or nonorigi2 nating materials, as the case may be, in calculating 3 the regional value-content of the good. 4 (i) PACKAGING MATERIALS AND CONTAINERS FOR 5 RETAIL SALE.—Packaging materials and containers in 6 which a good is packaged for retail sale, if classified with 7 the good, shall be disregarded in determining whether all 8 the nonoriginating materials used in the production of the 9 good undergo the applicable change in tariff classification 10 set forth in Annex 3–A or Annex 4.1 of the Agreement, 11 and, if the good is subject to a regional value-content re12 quirement, the value of such packaging materials and con13 tainers shall be taken into account as originating or non14 originating materials, as the case may be, in calculating 15 the regional value-content of the good. 16 (j) PACKING MATERIALS AND CONTAINERS FOR 17 SHIPMENT.—Packing materials and containers for ship18 ment shall be disregarded in determining whether a good 19 is an originating good. 20 (k) INDIRECT MATERIALS.—An indirect material 21 shall be treated as an originating material without regard 22 to where it is produced. 23 (l) TRANSIT AND TRANSHIPMENT.—A good that has 24 undergone production necessary to qualify as an origi25 nating good under subsection (b) shall not be considered cnoel on PROD1PC69 with BILLS 38 HR 3688 PCS 1 to be an originating good if, subsequent to that produc2 tion, the good— 3 (1) undergoes further production or any other 4 operation outside the territory of Peru or the United 5 States, other than unloading, reloading, or any other 6 operation necessary to preserve the good in good 7 condition or to transport the good to the territory of 8 Peru or the United States; or 9 (2) does not remain under the control of cus10 toms authorities in the territory of a country other 11 than Peru or the United States. 12 (m) GOODS CLASSIFIABLE AS GOODS PUT UP IN 13 SETS.—Notwithstanding the rules set forth in Annex 3– 14 A and Annex 4.1 of the Agreement, goods classifiable as 15 goods put up in sets for retail sale as provided for in Gen16 eral Rule of Interpretation 3 of the HTS shall not be con17 sidered to be originating goods unless— 18 (1) each of the goods in the set is an origi19 nating good; or 20 (2) the total value of the nonoriginating goods 21 in the set does not exceed— 22 (A) in the case of textile or apparel goods, 23 10 percent of the adjusted value of the set; or cnoel on PROD1PC69 with BILLS 39 HR 3688 PCS 1 (B) in the case of a good, other than a tex2 tile or apparel good, 15 percent of the adjusted 3 value of the set. 4 (n) DEFINITIONS.—In this section: 5 (1) ADJUSTED VALUE.—The term ‘‘adjusted 6 value’’ means the value determined in accordance 7 with Articles 1 through 8, Article 15, and the cor8 responding interpretive notes, of the Agreement on 9 Implementation of Article VII of the General Agree10 ment on Tariffs and Trade 1994 referred to in sec11 tion 101(d)(8) of the Uruguay Round Agreements 12 Act (19 U.S.C. 3511(d)(8)), adjusted, if necessary, 13 to exclude any costs, charges, or expenses incurred 14 for transportation, insurance, and related services 15 incident to the international shipment of the mer16 chandise from the country of exportation to the 17 place of importation. 18 (2) CLASS OF MOTOR VEHICLES.—The term 19 ‘‘class of motor vehicles’’ means any one of the fol20 lowing categories of motor vehicles: 21 (A) Motor vehicles provided for in sub22 heading 8701.20, 8704.10, 8704.22, 8704.23, 23 8704.32, or 8704.90, or heading 8705 or 8706, 24 or motor vehicles for the transport of 16 or cnoel on PROD1PC69 with BILLS 40 HR 3688 PCS 1 more persons provided for in subheading 2 8702.10 or 8702.90. 3 (B) Motor vehicles provided for in sub4 heading 8701.10 or any of subheadings 5 8701.30 through 8701.90. 6 (C) Motor vehicles for the transport of 15 7 or fewer persons provided for in subheading 8 8702.10 or 8702.90, or motor vehicles provided 9 for in subheading 8704.21 or 8704.31. 10 (D) Motor vehicles provided for in any of 11 subheadings 8703.21 through 8703.90. 12 (3) FUNGIBLE GOOD OR FUNGIBLE MATE13 RIAL.—The term ‘‘fungible good’’ or ‘‘fungible mate14 rial’’ means a good or material, as the case may be, 15 that is interchangeable with another good or mate16 rial for commercial purposes and the properties of 17 which are essentially identical to such other good or 18 material. 19 (4) GENERALLY ACCEPTED ACCOUNTING PRIN20 CIPLES.—The term ‘‘generally accepted accounting 21 principles’’ means the recognized consensus or sub22 stantial authoritative support in the territory of 23 Peru or the United States, as the case may be, with 24 respect to the recording of revenues, expenses, costs, 25 assets, and liabilities, the disclosure of information, cnoel on PROD1PC69 with BILLS 41 HR 3688 PCS 1 and the preparation of financial statements. The 2 principles may encompass broad guidelines of gen3 eral application as well as detailed standards, prac4 tices, and procedures. 5 (5) GOOD WHOLLY OBTAINED OR PRODUCED 6 ENTIRELY IN THE TERRITORY OF PERU, THE 7 UNITED STATES, OR BOTH.—The term ‘‘good wholly 8 obtained or produced entirely in the territory of 9 Peru, the United States, or both’’ means any of the 10 following: 11 (A) Plants and plant products harvested or 12 gathered in the territory of Peru, the United 13 States, or both. 14 (B) Live animals born and raised in the 15 territory of Peru, the United States, or both. 16 (C) Goods obtained in the territory of 17 Peru, the United States, or both from live ani18 mals. 19 (D) Goods obtained from hunting, trap20 ping, fishing, or aquaculture conducted in the 21 territory of Peru, the United States, or both. 22 (E) Minerals and other natural resources 23 not included in subparagraphs (A) through (D) 24 that are extracted or taken from the territory 25 of Peru, the United States, or both. cnoel on PROD1PC69 with BILLS 42 HR 3688 PCS 1 (F) Fish, shellfish, and other marine life 2 taken from the sea, seabed, or subsoil outside 3 the territory of Peru or the United States by— 4 (i) a vessel that is registered or re5 corded with Peru and flying the flag of 6 Peru; or 7 (ii) a vessel that is documented under 8 the laws of the United States. 9 (G) Goods produced on board a factory 10 ship from goods referred to in subparagraph 11 (F), if such factory ship— 12 (i) is registered or recorded with Peru 13 and flies the flag of Peru; or 14 (ii) is a vessel that is documented 15 under the laws of the United States. 16 (H)(i) Goods taken by Peru or a person of 17 Peru from the seabed or subsoil outside the ter18 ritorial waters of Peru, if Peru has rights to ex19 ploit such seabed or subsoil. 20 (ii) Goods taken by the United States or a 21 person of the United States from the seabed or 22 subsoil outside the territorial waters of the 23 United States, if the United States has rights 24 to exploit such seabed or subsoil. cnoel on PROD1PC69 with BILLS 43 HR 3688 PCS 1 (I) Goods taken from outer space, if the 2 goods are obtained by Peru or the United 3 States or a person of Peru or the United States 4 and not processed in the territory of a country 5 other than Peru or the United States. 6 (J) Waste and scrap derived from— 7 (i) manufacturing or processing oper8 ations in the territory of Peru, the United 9 States, or both; or 10 (ii) used goods collected in the terri11 tory of Peru, the United States, or both, if 12 such goods are fit only for the recovery of 13 raw materials. 14 (K) Recovered goods derived in the terri15 tory of Peru, the United States, or both, from 16 used goods, and used in the territory of Peru, 17 the United States, or both, in the production of 18 remanufactured goods. 19 (L) Goods, at any stage of production, pro20 duced in the territory of Peru, the United 21 States, or both, exclusively from— 22 (i) goods referred to in any of sub23 paragraphs (A) through (J), or 24 (ii) the derivatives of goods referred 25 to in clause (i). cnoel on PROD1PC69 with BILLS 44 HR 3688 PCS 1 (6) IDENTICAL GOODS.—The term ‘‘identical 2 goods’’ means goods that are the same in all re3 spects relevant to the rule of origin that qualifies the 4 goods as originating goods. 5 (7) INDIRECT MATERIAL.—The term ‘‘indirect 6 material’’ means a good used in the production, test7 ing, or inspection of another good but not physically 8 incorporated into that other good, or a good used in 9 the maintenance of buildings or the operation of 10 equipment associated with the production of another 11 good, including— 12 (A) fuel and energy; 13 (B) tools, dies, and molds; 14 (C) spare parts and materials used in the 15 maintenance of equipment or buildings; 16 (D) lubricants, greases, compounding ma17 terials, and other materials used in production 18 or used to operate equipment or buildings; 19 (E) gloves, glasses, footwear, clothing, 20 safety equipment, and supplies; 21 (F) equipment, devices, and supplies used 22 for testing or inspecting the good; 23 (G) catalysts and solvents; and 24 (H) any other goods that are not incor25 porated into the other good but the use of cnoel on PROD1PC69 with BILLS 45 HR 3688 PCS 1 which in the production of the other good can 2 reasonably be demonstrated to be a part of that 3 production. 4 (8) MATERIAL.—The term ‘‘material’’ means a 5 good that is used in the production of another good, 6 including a part or an ingredient. 7 (9) MATERIAL THAT IS SELF-PRODUCED.—The 8 term ‘‘material that is self-produced’’ means an orig9 inating material that is produced by a producer of 10 a good and used in the production of that good. 11 (10) MODEL LINE OF MOTOR VEHICLES.—The 12 term ‘‘model line of motor vehicles’’ means a group 13 of motor vehicles having the same platform or model 14 name. 15 (11) NET COST.—The term ‘‘net cost’’ means 16 total cost minus sales promotion, marketing, and 17 after-sales service costs, royalties, shipping and 18 packing costs, and non-allowable interest costs that 19 are included in the total cost. 20 (12) NONALLOWABLE INTEREST COSTS.—The 21 term ‘‘nonallowable interest costs’’ means interest 22 costs incurred by a producer that exceed 700 basis 23 points above the applicable official interest rate for 24 comparable maturities of the country in which the 25 producer is located. cnoel on PROD1PC69 with BILLS 46 HR 3688 PCS 1 (13) NONORIGINATING GOOD OR NONORIGI2 NATING MATERIAL.—The terms ‘‘nonoriginating 3 good’’ and ‘‘nonoriginating material’’ mean a good 4 or material, as the case may be, that does not qual5 ify as originating under this section. 6 (14) PACKING MATERIALS AND CONTAINERS 7 FOR SHIPMENT.—The term ‘‘packing materials and 8 containers for shipment’’ means goods used to pro9 tect another good during its transportation and does 10 not include the packaging materials and containers 11 in which the other good is packaged for retail sale. 12 (15) PREFERENTIAL TARIFF TREATMENT.— 13 The term ‘‘preferential tariff treatment’’ means the 14 customs duty rate, and the treatment under article 15 2.10.4 of the Agreement, that are applicable to an 16 originating good pursuant to the Agreement. 17 (16) PRODUCER.—The term ‘‘producer’’ means 18 a person who engages in the production of a good 19 in the territory of Peru or the United States. 20 (17) PRODUCTION.—The term ‘‘production’’ 21 means growing, mining, harvesting, fishing, raising, 22 trapping, hunting, manufacturing, processing, as23 sembling, or disassembling a good. 24 (18) REASONABLY ALLOCATE.—The term ‘‘rea25 sonably allocate’’ means to apportion in a manner cnoel on PROD1PC69 with BILLS 47 HR 3688 PCS 1 that would be appropriate under generally accepted 2 accounting principles. 3 (19) RECOVERED GOODS.—The term ‘‘recov4 ered goods’’ means materials in the form of indi5 vidual parts that are the result of— 6 (A) the disassembly of used goods into in7 dividual parts; and 8 (B) the cleaning, inspecting, testing, or 9 other processing that is necessary for improve10 ment to sound working condition of such indi11 vidual parts. 12 (20) REMANUFACTURED GOOD.—The term ‘‘re13 manufactured good’’ means an industrial good as14 sembled in the territory of Peru or the United 15 States, or both, that is classified under chapter 84, 16 85, 87, or 90 or heading 9402, other than a good 17 classified under heading 8418 or 8516, and that— 18 (A) is entirely or partially comprised of re19 covered goods; and 20 (B) has a similar life expectancy and en21 joys a factory warranty similar to such a good 22 that is new. 23 (21) TOTAL COST.— 24 (A) IN GENERAL.—The term ‘‘total 25 cost’’— cnoel on PROD1PC69 with BILLS 48 HR 3688 PCS 1 (i) means all product costs, period 2 costs, and other costs for a good incurred 3 in the territory of Peru, the United States, 4 or both; and 5 (ii) does not include profits that are 6 earned by the producer, regardless of 7 whether they are retained by the producer 8 or paid out to other persons as dividends, 9 or taxes paid on those profits, including 10 capital gains taxes. 11 (B) OTHER DEFINITIONS.—In this para12 graph: 13 (i) PRODUCT COSTS.—The term 14 ‘‘product costs’’ means costs that are asso15 ciated with the production of a good and 16 include the value of materials, direct labor 17 costs, and direct overhead. 18 (ii) PERIOD COSTS.—The term ‘‘pe19 riod costs’’ means costs, other than prod20 uct costs, that are expensed in the period 21 in which they are incurred, such as selling 22 expenses and general and administrative 23 expenses. 24 (iii) OTHER COSTS.—The term ‘‘other 25 costs’’ means all costs recorded on the cnoel on PROD1PC69 with BILLS 49 HR 3688 PCS 1 books of the producer that are not product 2 costs or period costs, such as interest. 3 (22) USED.—The term ‘‘used’’ means utilized 4 or consumed in the production of goods. 5 (o) PRESIDENTIAL PROCLAMATION AUTHORITY.— 6 (1) IN GENERAL.—The President is authorized 7 to proclaim, as part of the HTS— 8 (A) the provisions set forth in Annex 3–A 9 and Annex 4.1 of the Agreement; and 10 (B) any additional subordinate category 11 that is necessary to carry out this title con12 sistent with the Agreement. 13 (2) FABRICS AND YARNS NOT AVAILABLE IN 14 COMMERCIAL QUANTITIES IN THE UNITED 15 STATES.—The President is authorized to proclaim 16 that a fabric or yarn is added to the list in Annex 17 3–B of the Agreement in an unrestricted quantity, 18 as provided in article 3.3.5(e) of the Agreement. 19 (3) MODIFICATIONS.— 20 (A) IN GENERAL.—Subject to the consulta21 tion and layover provisions of section 104, the 22 President may proclaim modifications to the 23 provisions proclaimed under the authority of 24 paragraph (1)(A), other than provisions of cnoel on PROD1PC69 with BILLS 50 HR 3688 PCS 1 chapters 50 through 63 (as included in Annex 2 3–A of the Agreement). 3 (B) ADDITIONAL PROCLAMATIONS.—Not4 withstanding subparagraph (A), and subject to 5 the consultation and layover provisions of sec6 tion 104, the President may proclaim before the 7 end of the 1-year period beginning on the date 8 of the enactment of this Act, modifications to 9 correct any typographical, clerical, or other non10 substantive technical error regarding the provi11 sions of chapters 50 through 63 (as included in 12 Annex 3–A of the Agreement). 13 (4) FABRICS, YARNS, OR FIBERS NOT AVAIL14 ABLE IN COMMERCIAL QUANTITIES IN PERU AND 15 THE UNITED STATES.— 16 (A) IN GENERAL.—Notwithstanding para17 graph (3)(A), the list of fabrics, yarns, and fi18 bers set forth in Annex 3–B of the Agreement 19 may be modified as provided for in this para20 graph. 21 (B) DEFINITIONS.—In this paragraph: 22 (i) The term ‘‘interested entity’’ 23 means the Government of Peru, a potential 24 or actual purchaser of a textile or apparel cnoel on PROD1PC69 with BILLS 51 HR 3688 PCS 1 good, or a potential or actual supplier of a 2 textile or apparel good. 3 (ii) All references to ‘‘day’’ and 4 ‘‘days’’ exclude Saturdays, Sundays, and 5 legal holidays observed by the Government 6 of the United States. 7 (C) REQUESTS TO ADD FABRICS, YARNS, 8 OR FIBERS.—(i) An interested entity may re9 quest the President to determine that a fabric, 10 yarn, or fiber is not available in commercial 11 quantities in a timely manner in Peru and the 12 United States and to add that fabric, yarn, or 13 fiber to the list in Annex 3–B of the Agreement 14 in a restricted or unrestricted quantity. 15 (ii) After receiving a request under clause 16 (i), the President may determine whether— 17 (I) the fabric, yarn, or fiber is avail18 able in commercial quantities in a timely 19 manner in Peru or the United States; or 20 (II) any interested entity objects to 21 the request. 22 (iii) The President may, within the time 23 periods specified in clause (iv), proclaim that 24 the fabric, yarn, or fiber that is the subject of 25 the request is added to the list in Annex 3–B cnoel on PROD1PC69 with BILLS 52 HR 3688 PCS 1 of the Agreement in an unrestricted quantity, 2 or in any restricted quantity that the President 3 may establish, if the President has determined 4 under clause (ii) that— 5 (I) the fabric, yarn, or fiber is not 6 available in commercial quantities in a 7 timely manner in Peru and the United 8 States; or 9 (II) no interested entity has objected 10 to the request. 11 (iv) The time periods within which the 12 President may issue a proclamation under 13 clause (iii) are— 14 (I) not later than 30 days after the 15 date on which a request is submitted under 16 clause (i); or 17 (II) not later than 44 days after the 18 request is submitted, if the President de19 termines, within 30 days after the date on 20 which the request is submitted, that the 21 President does not have sufficient informa22 tion to make a determination under clause 23 (ii). 24 (v) Notwithstanding section 103(a)(2), a 25 proclamation made under clause (iii) shall take cnoel on PROD1PC69 with BILLS 53 HR 3688 PCS 1 effect on the date on which the text of the proc2 lamation is published in the Federal Register. 3 (vi) Not later than 6 months after pro4 claiming under clause (iii) that a fabric, yarn, 5 or fiber is added to the list in Annex 3–B of the 6 Agreement in a restricted quantity, the Presi7 dent may eliminate the restriction if the Presi8 dent determines that the fabric, yarn, or fiber 9 is not available in commercial quantities in a 10 timely manner in Peru and the United States. 11 (D) DEEMED APPROVAL OF REQUEST.—If, 12 after an interested entity submits a request 13 under subparagraph (C)(i), the President does 14 not, within the applicable time period specified 15 in subparagraph (C)(iv), make a determination 16 under subparagraph (C)(ii) regarding the re17 quest, the fabric, yarn, or fiber that is the sub18 ject of the request shall be considered to be 19 added, in an unrestricted quantity, to the list in 20 Annex 3–B of the Agreement beginning— 21 (i) 45 days after the date on which 22 the request was submitted; or 23 (ii) 60 days after the date on which 24 the request was submitted, if the President cnoel on PROD1PC69 with BILLS 54 HR 3688 PCS 1 made a determination under subparagraph 2 (C)(iv)(II). 3 (E) REQUESTS TO RESTRICT OR REMOVE 4 FABRICS, YARNS, OR FIBERS.—(i) Subject to 5 clause (ii), an interested entity may request the 6 President to restrict the quantity of, or remove 7 from the list in Annex 3–B of the Agreement, 8 any fabric, yarn, or fiber— 9 (I) that has been added to that list in 10 an unrestricted quantity pursuant to para11 graph (2) or subparagraph (C)(iii) or (D) 12 of this paragraph; or 13 (II) with respect to which the Presi14 dent has eliminated a restriction under 15 subparagraph (C)(vi). 16 (ii) An interested entity may submit a re17 quest under clause (i) at any time beginning 6 18 months after the date of the action described in 19 subclause (I) or (II) of that clause. 20 (iii) Not later than 30 days after the date 21 on which a request under clause (i) is sub22 mitted, the President may proclaim an action 23 provided for under clause (i) if the President 24 determines that the fabric, yarn, or fiber that 25 is the subject of the request is available in comVerDate Aug 31 2005 03:50 Nov 14, 2007 Jkt 069200 PO 00000 Frm 00054 Fmt 6652 Sfmt 6201 E:\BILLS\H3688.PCS H3688 cnoel on PROD1PC69 with BILLS 55 HR 3688 PCS 1 mercial quantities in a timely manner in Peru 2 or the United States. 3 (iv) A proclamation under clause (iii) shall 4 take effect no earlier than the date that is 6 5 months after the date on which the text of the 6 proclamation is published in the Federal Reg7 ister. 8 (F) PROCEDURES.—The President shall 9 establish procedures— 10 (i) governing the submission of a re11 quest under subparagraphs (C) and (E); 12 and 13 (ii) providing an opportunity for inter14 ested entities to submit comments and sup15 porting evidence before the President 16 makes a determination under subpara17 graph (C) (ii) or (vi) or (E)(iii). 18 SEC. 204. CUSTOMS USER FEES. 19 Section 13031(b) of the Consolidated Omnibus Budg20 et Reconciliation Act of 1985 (19 U.S.C. 58c(b)) is 21 amended by adding after paragraph (17) the following: 22 ‘‘(18) No fee may be charged under subsection (a) 23 (9) or (10) with respect to goods that qualify as origi24 nating goods under section 203 of the United States-Peru 25 Trade Promotion Agreement Implementation Act. Any cnoel on PROD1PC69 with BILLS 56 HR 3688 PCS 1 service for which an exemption from such fee is provided 2 by reason of this paragraph may not be funded with 3 money contained in the Customs User Fee Account.’’. 4 SEC. 205. DISCLOSURE OF INCORRECT INFORMATION; 5 FALSE CERTIFICATIONS OF ORIGIN; DENIAL 6 OF PREFERENTIAL TARIFF TREATMENT. 7 (a) DISCLOSURE OF INCORRECT INFORMATION.— 8 Section 592 of the Tariff Act of 1930 (19 U.S.C. 1592) 9 is amended— 10 (1) in subsection (c)— 11 (A) by redesignating paragraph (10) as 12 paragraph (11); and 13 (B) by inserting after paragraph (9) the 14 following new paragraph: 15 ‘‘(10) PRIOR DISCLOSURE REGARDING CLAIMS 16 UNDER THE UNITED STATES-PERU TRADE PRO17 MOTION AGREEMENT.—An importer shall not be 18 subject to penalties under subsection (a) for making 19 an incorrect claim that a good qualifies as an origi20 nating good under section 203 of the United States21 Peru Trade Promotion Agreement Implementation 22 Act if the importer, in accordance with regulations 23 issued by the Secretary of the Treasury, promptly 24 and voluntarily makes a corrected declaration and cnoel on PROD1PC69 with BILLS 57 HR 3688 PCS 1 pays any duties owing with respect to that good.’’; 2 and 3 (2) by adding at the end the following new sub4 section: 5 ‘‘(i) FALSE CERTIFICATIONS OF ORIGIN UNDER THE 6 UNITED STATES-PERU TRADE PROMOTION AGREE7 MENT.— 8 ‘‘(1) IN GENERAL.—Subject to paragraph (2), 9 it is unlawful for any person to certify falsely, by 10 fraud, gross negligence, or negligence, in a PTPA 11 certification of origin (as defined in section 12 508(h)(1)(B) of this Act) that a good exported from 13 the United States qualifies as an originating good 14 under the rules of origin provided for in section 203 15 of the United States-Peru Trade Promotion Agree16 ment Implementation Act. The procedures and pen17 alties of this section that apply to a violation of sub18 section (a) also apply to a violation of this sub19 section. 20 ‘‘(2) PROMPT AND VOLUNTARY DISCLOSURE OF 21 INCORRECT INFORMATION.—No penalty shall be im22 posed under this subsection if, promptly after an ex23 porter or producer that issued a PTPA certification 24 of origin has reason to believe that such certification 25 contains or is based on incorrect information, the exVerDate Aug 31 2005 03:50 Nov 14, 2007 Jkt 069200 PO 00000 Frm 00057 Fmt 6652 Sfmt 6201 E:\BILLS\H3688.PCS H3688 cnoel on PROD1PC69 with BILLS 58 HR 3688 PCS 1 porter or producer voluntarily provides written no2 tice of such incorrect information to every person to 3 whom the certification was issued. 4 ‘‘(3) EXCEPTION.—A person shall not be con5 sidered to have violated paragraph (1) if— 6 ‘‘(A) the information was correct at the 7 time it was provided in a PTPA certification of 8 origin but was later rendered incorrect due to 9 a change in circumstances; and 10 ‘‘(B) the person promptly and voluntarily 11 provides written notice of the change in cir12 cumstances to all persons to whom the person 13 provided the certification.’’. 14 (b) DENIAL OF PREFERENTIAL TARIFF TREAT15 MENT.—Section 514 of the Tariff Act of 1930 (19 U.S.C. 16 1514) is amended by adding at the end the following new 17 subsection: 18 ‘‘(i) DENIAL OF PREFERENTIAL TARIFF TREATMENT 19 UNDER THE UNITED STATES-PERU TRADE PROMOTION 20 AGREEMENT.—If U.S. Customs and Border Protection or 21 U.S. Immigration and Customs Enforcement of the De22 partment of Homeland Security finds indications of a pat23 tern of conduct by an importer, exporter, or producer of 24 false or unsupported representations that goods qualify 25 under the rules of origin provided for in section 203 of cnoel on PROD1PC69 with BILLS 59 HR 3688 PCS 1 the United States-Peru Trade Promotion Agreement Im2 plementation Act, U.S. Customs and Border Protection, 3 in accordance with regulations issued by the Secretary of 4 the Treasury, may suspend preferential tariff treatment 5 under the United States-Peru Trade Promotion Agree6 ment to entries of identical goods covered by subsequent 7 representations by that importer, exporter, or producer 8 until U.S. Customs and Border Protection determines that 9 representations of that person are in conformity with such 10 section 203.’’. 11 SEC. 206. RELIQUIDATION OF ENTRIES. 12 Subsection (d) of section 520 of the Tariff Act of 13 1930 (19 U.S.C. 1520(d)) is amended in the matter pre14 ceding paragraph (1)— 15 (1) by striking ‘‘or’’; and 16 (2) by striking ‘‘for which’’ and inserting ‘‘, or 17 section 203 of the United States-Peru Trade Pro18 motion Agreement Implementation Act for which’’. 19 SEC. 207. RECORDKEEPING REQUIREMENTS. 20 Section 508 of the Tariff Act of 1930 (19 U.S.C. 21 1508) is amended— 22 (1) by redesignating subsection (h) as sub23 section (i); 24 (2) by inserting after subsection (g) the fol25 lowing new subsection: cnoel on PROD1PC69 with BILLS 60 HR 3688 PCS 1 ‘‘(h) CERTIFICATIONS OF ORIGIN FOR GOODS EX2 PORTED UNDER THE UNITED STATES-PERU TRADE PRO3 MOTION AGREEMENT.— 4 ‘‘(1) DEFINITIONS.—In this subsection: 5 ‘‘(A) RECORDS AND SUPPORTING DOCU6 MENTS.—The term ‘records and supporting 7 documents’ means, with respect to an exported 8 good under paragraph (2), records and docu9 ments related to the origin of the good, includ10 ing— 11 ‘‘(i) the purchase, cost, and value of, 12 and payment for, the good; 13 ‘‘(ii) the purchase, cost, and value of, 14 and payment for, all materials, including 15 indirect materials, used in the production 16 of the good; and 17 ‘‘(iii) the production of the good in 18 the form in which it was exported. 19 ‘‘(B) PTPA CERTIFICATION OF ORIGIN.— 20 The term ‘PTPA certification of origin’ means 21 the certification established under article 4.15 22 of the United States-Peru Trade Promotion 23 Agreement that a good qualifies as an origi24 nating good under such Agreement. cnoel on PROD1PC69 with BILLS 61 HR 3688 PCS 1 ‘‘(2) EXPORTS TO PERU.—Any person who 2 completes and issues a PTPA certification of origin 3 for a good exported from the United States shall 4 make, keep, and, pursuant to rules and regulations 5 promulgated by the Secretary of the Treasury, 6 render for examination and inspection all records 7 and supporting documents related to the origin of 8 the good (including the certification or copies there9 of). 10 ‘‘(3) RETENTION PERIOD.—The person who 11 issues a PTPA certification of origin shall keep the 12 records and supporting documents relating to that 13 certification of origin for a period of at least 5 years 14 after the date on which the certification is issued.’’; 15 and 16 (3) in subsection (i), as so redesignated— 17 (A) by striking ‘‘(f) or (g)’’ and inserting 18 ‘‘(f), (g), or (h)’’; and 19 (B) by striking ‘‘either such subsection’’ 20 and inserting ‘‘any such subsection’’. 21 SEC. 208. ENFORCEMENT RELATING TO TRADE IN TEXTILE 22 OR APPAREL GOODS. 23 (a) ACTION DURING VERIFICATION.— 24 (1) IN GENERAL.—If the Secretary of the 25 Treasury requests the Government of Peru to conVerDate Aug 31 2005 03:50 Nov 14, 2007 Jkt 069200 PO 00000 Frm 00061 Fmt 6652 Sfmt 6201 E:\BILLS\H3688.PCS H3688 cnoel on PROD1PC69 with BILLS 62 HR 3688 PCS 1 duct a verification pursuant to article 3.2 of the 2 Agreement for purposes of making a determination 3 under paragraph (2), the President may direct the 4 Secretary to take appropriate action described in 5 subsection (b) while the verification is being con6 ducted. 7 (2) DETERMINATION.—A determination under 8 this paragraph is a determination of the Secretary 9 that— 10 (A) an exporter or producer in Peru is 11 complying with applicable customs laws, regula12 tions, and procedures regarding trade in textile 13 or apparel goods; or 14 (B) a claim that a textile or apparel good 15 exported or produced by such exporter or pro16 ducer— 17 (i) qualifies as an originating good 18 under section 203, or 19 (ii) is a good of Peru, 20 is accurate. 21 (b) APPROPRIATE ACTION DESCRIBED.—Appropriate 22 action under subsection (a)(1) includes— 23 (1) suspension of preferential tariff treatment 24 under the Agreement with respect to— cnoel on PROD1PC69 with BILLS 63 HR 3688 PCS 1 (A) any textile or apparel good exported or 2 produced by the person that is the subject of a 3 verification under subsection (a)(1) regarding 4 compliance described in subsection (a)(2)(A), if 5 the Secretary determines that there is insuffi6 cient information to support any claim for pref7 erential tariff treatment that has been made 8 with respect to any such good; or 9 (B) the textile or apparel good for which a 10 claim of preferential tariff treatment has been 11 made that is the subject of a verification under 12 subsection (a)(1) regarding a claim described in 13 subsection (a)(2)(B), if the Secretary deter14 mines that there is insufficient information to 15 support that claim; 16 (2) denial of preferential tariff treatment under 17 the Agreement with respect to— 18 (A) any textile or apparel good exported or 19 produced by the person that is the subject of a 20 verification under subsection (a)(1) regarding 21 compliance described in subsection (a)(2)(A), if 22 the Secretary determines that the person has 23 provided incorrect information to support any 24 claim for preferential tariff treatment that has 25 been made with respect to any such good; or cnoel on PROD1PC69 with BILLS 64 HR 3688 PCS 1 (B) the textile or apparel good for which a 2 claim of preferential tariff treatment has been 3 made that is the subject of a verification under 4 subsection (a)(1) regarding a claim described in 5 subsection (a)(2)(B), if the Secretary deter6 mines that a person has provided incorrect in7 formation to support that claim; 8 (3) detention of any textile or apparel good ex9 ported or produced by the person that is the subject 10 of a verification under subsection (a)(1) regarding 11 compliance described in subsection (a)(2)(A) or a 12 claim described in subsection (a)(2)(B), if the Sec13 retary determines that there is insufficient informa14 tion to determine the country of origin of any such 15 good; and 16 (4) denial of entry into the United States of 17 any textile or apparel good exported or produced by 18 the person that is the subject of a verification under 19 subsection (a)(1) regarding compliance described in 20 subsection (a)(2)(A) or a claim described in sub21 section (a)(2)(B), if the Secretary determines that 22 the person has provided incorrect information as to 23 the country of origin of any such good. 24 (c) ACTION ON COMPLETION OF A VERIFICATION.— 25 On completion of a verification under subsection (a), the cnoel on PROD1PC69 with BILLS 65 HR 3688 PCS 1 President may direct the Secretary to take appropriate ac2 tion described in subsection (d) until such time as the Sec3 retary receives information sufficient to make the deter4 mination under subsection (a)(2) or until such earlier date 5 as the President may direct. 6 (d) APPROPRIATE ACTION DESCRIBED.—Appro7 priate action under subsection (c) includes— 8 (1) denial of preferential tariff treatment under 9 the Agreement with respect to— 10 (A) any textile or apparel good exported or 11 produced by the person that is the subject of a 12 verification under subsection (a)(1) regarding 13 compliance described in subsection (a)(2)(A), if 14 the Secretary determines that there is insuffi15 cient information to support, or that the person 16 has provided incorrect information to support, 17 any claim for preferential tariff treatment that 18 has been made with respect to any such good; 19 or 20 (B) the textile or apparel good for which a 21 claim of preferential tariff treatment has been 22 made that is the subject of a verification under 23 subsection (a)(1) regarding a claim described in 24 subsection (a)(2)(B), if the Secretary deter25 mines that there is insufficient information to cnoel on PROD1PC69 with BILLS 66 HR 3688 PCS 1 support, or that a person has provided incorrect 2 information to support, that claim; and 3 (2) denial of entry into the United States of 4 any textile or apparel good exported or produced by 5 the person that is the subject of a verification under 6 subsection (a)(1) regarding compliance described in 7 subsection (a)(2)(A) or a claim described in sub8 section (a)(2)(B), if the Secretary determines that 9 there is insufficient information to determine, or 10 that the person has provided incorrect information 11 as to, the country of origin of any such good. 12 (e) PUBLICATION OF NAME OF PERSON.—In accord13 ance with article 3.2.6 of the Agreement, the Secretary 14 may publish the name of any person that the Secretary 15 has determined— 16 (1) is engaged in circumvention of applicable 17 laws, regulations, or procedures affecting trade in 18 textile or apparel goods; or 19 (2) has failed to demonstrate that it produces, 20 or is capable of producing, textile or apparel goods. 21 SEC. 209. REGULATIONS. 22 The Secretary of the Treasury shall prescribe such 23 regulations as may be necessary to carry out— 24 (1) subsections (a) through (n) of section 203; 25 (2) the amendment made by section 204; and cnoel on PROD1PC69 with BILLS 67 HR 3688 PCS 1 (3) any proclamation issued under section 2 203(o). 3 TITLE III—RELIEF FROM 4 IMPORTS 5 SEC. 301. DEFINITIONS. 6 In this title: 7 (1) PERUVIAN ARTICLE.—The term ‘‘Peruvian 8 article’’ means an article that qualifies as an origi9 nating good under section 203(b). 10 (2) PERUVIAN TEXTILE OR APPAREL ARTI11 CLE.—The term ‘‘Peruvian textile or apparel arti12 cle’’ means a textile or apparel good (as defined in 13 section 3(4)) that is a Peruvian article. 14 Subtitle A—Relief From Imports 15 Benefiting From the Agreement 16 SEC. 311. COMMENCING OF ACTION FOR RELIEF. 17 (a) FILING OF PETITION.—A petition requesting ac18 tion under this subtitle for the purpose of adjusting to 19 the obligations of the United States under the Agreement 20 may be filed with the Commission by an entity, including 21 a trade association, firm, certified or recognized union, or 22 group of workers, that is representative of an industry. 23 The Commission shall transmit a copy of any petition filed 24 under this subsection to the United States Trade Rep25 resentative. cnoel on PROD1PC69 with BILLS 68 HR 3688 PCS 1 (b) INVESTIGATION AND DETERMINATION.—Upon 2 the filing of a petition under subsection (a), the Commis3 sion, unless subsection (d) applies, shall promptly initiate 4 an investigation to determine whether, as a result of the 5 reduction or elimination of a duty provided for under the 6 Agreement, a Peruvian article is being imported into the 7 United States in such increased quantities, in absolute 8 terms or relative to domestic production, and under such 9 conditions that imports of the Peruvian article constitute 10 a substantial cause of serious injury or threat thereof to 11 the domestic industry producing an article that is like, or 12 directly competitive with, the imported article. 13 (c) APPLICABLE PROVISIONS.—The following provi14 sions of section 202 of the Trade Act of 1974 (19 U.S.C. 15 2252) apply with respect to any investigation initiated 16 under subsection (b): 17 (1) Paragraphs (1)(B) and (3) of subsection 18 (b). 19 (2) Subsection (c). 20 (3) Subsection (i). 21 (d) ARTICLES EXEMPT FROM INVESTIGATION.—No 22 investigation may be initiated under this section with re23 spect to any Peruvian article if, after the date on which 24 the Agreement enters into force, import relief has been cnoel on PROD1PC69 with BILLS 69 HR 3688 PCS 1 provided with respect to that Peruvian article under this 2 subtitle. 3 SEC. 312. COMMISSION ACTION ON PETITION. 4 (a) DETERMINATION.—Not later than 120 days after 5 the date on which an investigation is initiated under sec6 tion 311(b) with respect to a petition, the Commission 7 shall make the determination required under that section. 8 (b) APPLICABLE PROVISIONS.—For purposes of this 9 subtitle, the provisions of paragraphs (1), (2), and (3) of 10 section 330(d) of the Tariff Act of 1930 (19 U.S.C. 11 1330(d) (1), (2), and (3)) shall be applied with respect 12 to determinations and findings made under this section 13 as if such determinations and findings were made under 14 section 202 of the Trade Act of 1974 (19 U.S.C. 2252). 15 (c) ADDITIONAL FINDING AND RECOMMENDATION IF 16 DETERMINATION AFFIRMATIVE.— 17 (1) IN GENERAL.—If the determination made 18 by the Commission under subsection (a) with respect 19 to imports of an article is affirmative, or if the 20 President may consider a determination of the Com21 mission to be an affirmative determination as pro22 vided for under paragraph (1) of section 330(d) of 23 the Tariff Act of 1930 (19 U.S.C. 1330(d)), the 24 Commission shall find, and recommend to the Presi25 dent in the report required under subsection (d), the cnoel on PROD1PC69 with BILLS 70 HR 3688 PCS 1 amount of import relief that is necessary to remedy 2 or prevent the injury found by the Commission in 3 the determination and to facilitate the efforts of the 4 domestic industry to make a positive adjustment to 5 import competition. 6 (2) LIMITATION ON RELIEF.—The import relief 7 recommended by the Commission under this sub8 section shall be limited to the relief described in sec9 tion 313(c). 10 (3) VOTING; SEPARATE VIEWS.—Only those 11 members of the Commission who voted in the af12 firmative under subsection (a) are eligible to vote on 13 the proposed action to remedy or prevent the injury 14 found by the Commission. Members of the Commis15 sion who did not vote in the affirmative may submit, 16 in the report required under subsection (d), separate 17 views regarding what action, if any, should be taken 18 to remedy or prevent the injury. 19 (d) REPORT TO PRESIDENT.—Not later than the 20 date that is 30 days after the date on which a determina21 tion is made under subsection (a) with respect to an inves22 tigation, the Commission shall submit to the President a 23 report that includes— cnoel on PROD1PC69 with BILLS 71 HR 3688 PCS 1 (1) the determination made under subsection 2 (a) and an explanation of the basis for the deter3 mination; 4 (2) if the determination under subsection (a) is 5 affirmative, any findings and recommendations for 6 import relief made under subsection (c) and an ex7 planation of the basis for each recommendation; and 8 (3) any dissenting or separate views by mem9 bers of the Commission regarding the determination 10 referred to in paragraph (1) and any finding or rec11 ommendation referred to in paragraph (2). 12 (e) PUBLIC NOTICE.—Upon submitting a report to 13 the President under subsection (d), the Commission shall 14 promptly make public the report (with the exception of 15 information which the Commission determines to be con16 fidential) and shall publish a summary of the report in 17 the Federal Register. 18 SEC. 313. PROVISION OF RELIEF. 19 (a) IN GENERAL.—Not later than the date that is 20 30 days after the date on which the President receives the 21 report of the Commission in which the Commission’s de22 termination under section 312(a) is affirmative, or which 23 contains a determination under section 312(a) that the 24 President considers to be affirmative under paragraph (1) 25 of section 330(d) of the Tariff Act of 1930 (19 U.S.C. cnoel on PROD1PC69 with BILLS 72 HR 3688 PCS 1 1330(d)(1)), the President, subject to subsection (b), shall 2 provide relief from imports of the article that is the subject 3 of such determination to the extent that the President de4 termines necessary to remedy or prevent the injury found 5 by the Commission and to facilitate the efforts of the do6 mestic industry to make a positive adjustment to import 7 competition. 8 (b) EXCEPTION.—The President is not required to 9 provide import relief under this section if the President 10 determines that the provision of the import relief will not 11 provide greater economic and social benefits than costs. 12 (c) NATURE OF RELIEF.— 13 (1) IN GENERAL.—The import relief that the 14 President is authorized to provide under this section 15 with respect to imports of an article is as follows: 16 (A) The suspension of any further reduc17 tion provided for under Annex 2.3 of the Agree18 ment in the duty imposed on the article. 19 (B) An increase in the rate of duty im20 posed on the article to a level that does not ex21 ceed the lesser of— 22 (i) the column 1 general rate of duty 23 imposed under the HTS on like articles at 24 the time the import relief is provided; or cnoel on PROD1PC69 with BILLS 73 HR 3688 PCS 1 (ii) the column 1 general rate of duty 2 imposed under the HTS on like articles on 3 the day before the date on which the 4 Agreement enters into force. 5 (2) PROGRESSIVE LIBERALIZATION.—If the pe6 riod for which import relief is provided under this 7 section is greater than 1 year, the President shall 8 provide for the progressive liberalization (described 9 in article 8.2.2 of the Agreement) of such relief at 10 regular intervals during the period of its application. 11 (d) PERIOD OF RELIEF.— 12 (1) IN GENERAL.—Subject to paragraph (2), 13 any import relief that the President provides under 14 this section may not be in effect for more than 2 15 years. 16 (2) EXTENSION.— 17 (A) IN GENERAL.—Subject to subpara18 graph (C), the President, after receiving a de19 termination from the Commission under sub20 paragraph (B) that is affirmative, or which the 21 President considers to be affirmative under 22 paragraph (1) of section 330(d) of the Tariff 23 Act of 1930 (19 U.S.C. 1330(d)(1)), may ex24 tend the effective period of any import relief cnoel on PROD1PC69 with BILLS 74 HR 3688 PCS 1 provided under this section by up to 2 years, if 2 the President determines that— 3 (i) the import relief continues to be 4 necessary to remedy or prevent serious in5 jury and to facilitate adjustment by the do6 mestic industry to import competition; and 7 (ii) there is evidence that the industry 8 is making a positive adjustment to import 9 competition. 10 (B) ACTION BY COMMISSION.— 11 (i) INVESTIGATION.—Upon a petition 12 on behalf of the industry concerned that is 13 filed with the Commission not earlier than 14 the date that is 9 months, and not later 15 than the date that is 6 months, before the 16 date on which any action taken under sub17 section (a) is to terminate, the Commission 18 shall conduct an investigation to determine 19 whether action under this section continues 20 to be necessary to remedy or prevent seri21 ous injury and whether there is evidence 22 that the industry is making a positive ad23 justment to import competition. 24 (ii) NOTICE AND HEARING.—The 25 Commission shall publish notice of the cnoel on PROD1PC69 with BILLS 75 HR 3688 PCS 1 commencement of any proceeding under 2 this subparagraph in the Federal Register 3 and shall, within a reasonable time there4 after, hold a public hearing at which the 5 Commission shall afford interested parties 6 and consumers an opportunity to be 7 present, to present evidence, and to re8 spond to the presentations of other parties 9 and consumers, and otherwise to be heard. 10 (iii) REPORT.—The Commission shall 11 submit to the President a report on its in12 vestigation and determination under this 13 subparagraph not later than 60 days be14 fore the action under subsection (a) is to 15 terminate, unless the President specifies a 16 different date. 17 (C) PERIOD OF IMPORT RELIEF.—Any im18 port relief provided under this section, including 19 any extensions thereof, may not, in the aggre20 gate, be in effect for more than 4 years. 21 (e) RATE AFTER TERMINATION OF IMPORT RE22 LIEF.—When import relief under this section is termi23 nated with respect to an article— 24 (1) the rate of duty on that article after such 25 termination and on or before December 31 of the cnoel on PROD1PC69 with BILLS 76 HR 3688 PCS 1 year in which such termination occurs shall be the 2 rate that, according to the Schedule of the United 3 States to Annex 2.3 of the Agreement, would have 4 been in effect 1 year after the provision of relief 5 under subsection (a); and 6 (2) the rate of duty for that article after De7 cember 31 of the year in which such termination oc8 curs shall be, at the discretion of the President, ei9 ther— 10 (A) the applicable rate of duty for that ar11 ticle set forth in the Schedule of the United 12 States to Annex 2.3 of the Agreement; or 13 (B) the rate of duty resulting from the 14 elimination of the tariff in equal annual stages 15 ending on the date set forth in the Schedule of 16 the United States to Annex 2.3 of the Agree17 ment for the elimination of the tariff. 18 (f) ARTICLES EXEMPT FROM RELIEF.—No import 19 relief may be provided under this section on— 20 (1) any article that is subject to import relief 21 under— 22 (A) subtitle B; or 23 (B) chapter 1 of title II of the Trade Act 24 of 1974 (19 U.S.C. 2251 et seq.); or cnoel on PROD1PC69 with BILLS 77 HR 3688 PCS 1 (2) any article on which an additional duty as2 sessed under section 202(b) is in effect. 3 SEC. 314. TERMINATION OF RELIEF AUTHORITY. 4 (a) GENERAL RULE.—Subject to subsection (b), no 5 import relief may be provided under this subtitle after the 6 date that is 10 years after the date on which the Agree7 ment enters into force. 8 (b) EXCEPTION.—If an article for which relief is pro9 vided under this subtitle is an article for which the period 10 for tariff elimination, set forth in the Schedule of the 11 United States to Annex 2.3 of the Agreement, is greater 12 than 10 years, no relief under this subtitle may be pro13 vided for that article after the date on which that period 14 ends. 15 SEC. 315. COMPENSATION AUTHORITY. 16 For purposes of section 123 of the Trade Act of 1974 17 (19 U.S.C. 2133), any import relief provided by the Presi18 dent under section 313 shall be treated as action taken 19 under chapter 1 of title II of such Act (19 U.S.C. 2251 20 et seq.). 21 SEC. 316. CONFIDENTIAL BUSINESS INFORMATION. 22 Section 202(a)(8) of the Trade Act of 1974 (19 23 U.S.C. 2252(a)(8)) is amended in the first sentence— 24 (1) by striking ‘‘and’’; and cnoel on PROD1PC69 with BILLS 78 HR 3688 PCS 1 (2) by inserting before the period at the end ‘‘, 2 and title III of the United States-Peru Trade Pro3 motion Agreement Implementation Act’’. 4 Subtitle B—Textile and Apparel 5 Safeguard Measures 6 SEC. 321. COMMENCEMENT OF ACTION FOR RELIEF. 7 (a) IN GENERAL.—A request for action under this 8 subtitle for the purpose of adjusting to the obligations of 9 the United States under the Agreement may be filed with 10 the President by an interested party. Upon the filing of 11 a request, the President shall review the request to deter12 mine, from information presented in the request, whether 13 to commence consideration of the request. 14 (b) PUBLICATION OF REQUEST.—If the President de15 termines that the request under subsection (a) provides 16 the information necessary for the request to be considered, 17 the President shall publish in the Federal Register a no18 tice of commencement of consideration of the request, and 19 notice seeking public comments regarding the request. The 20 notice shall include a summary of the request and the 21 dates by which comments and rebuttals must be received. 22 SEC. 322. DETERMINATION AND PROVISION OF RELIEF. 23 (a) DETERMINATION.— 24 (1) IN GENERAL.—If a positive determination is 25 made under section 321(b), the President shall deVerDate Aug 31 2005 03:50 Nov 14, 2007 Jkt 069200 PO 00000 Frm 00078 Fmt 6652 Sfmt 6201 E:\BILLS\H3688.PCS H3688 cnoel on PROD1PC69 with BILLS 79 HR 3688 PCS 1 termine whether, as a result of the elimination of a 2 duty under the Agreement, a Peruvian textile or ap3 parel article is being imported into the United States 4 in such increased quantities, in absolute terms or 5 relative to the domestic market for that article, and 6 under such conditions as to cause serious damage, 7 or actual threat thereof, to a domestic industry pro8 ducing an article that is like, or directly competitive 9 with, the imported article. 10 (2) SERIOUS DAMAGE.—In making a deter11 mination under paragraph (1), the President— 12 (A) shall examine the effect of increased 13 imports on the domestic industry, as reflected 14 in changes in such relevant economic factors as 15 output, productivity, utilization of capacity, in16 ventories, market share, exports, wages, em17 ployment, domestic prices, profits and losses, 18 and investment, no one of which is necessarily 19 decisive; and 20 (B) shall not consider changes in consumer 21 preference or changes in technology in the 22 United States as factors supporting a deter23 mination of serious damage or actual threat 24 thereof. 25 (b) PROVISION OF RELIEF.— cnoel on PROD1PC69 with BILLS 80 HR 3688 PCS 1 (1) IN GENERAL.—If a determination under 2 subsection (a) is affirmative, the President may pro3 vide relief from imports of the article that is the 4 subject of such determination, as provided in para5 graph (2), to the extent that the President deter6 mines necessary to remedy or prevent the serious 7 damage and to facilitate adjustment by the domestic 8 industry. 9 (2) NATURE OF RELIEF.—The relief that the 10 President is authorized to provide under this sub11 section with respect to imports of an article is an in12 crease in the rate of duty imposed on the article to 13 a level that does not exceed the lesser of— 14 (A) the column 1 general rate of duty im15 posed under the HTS on like articles at the 16 time the import relief is provided; or 17 (B) the column 1 general rate of duty im18 posed under the HTS on like articles on the 19 day before the date on which the Agreement en20 ters into force. 21 SEC. 323. PERIOD OF RELIEF. 22 (a) IN GENERAL.—Subject to subsection (b), the im23 port relief that the President provides under section 24 322(b) may not be in effect for more than 2 years. 25 (b) EXTENSION.— cnoel on PROD1PC69 with BILLS 81 HR 3688 PCS 1 (1) IN GENERAL.—Subject to paragraph (2), 2 the President may extend the effective period of any 3 import relief provided under this subtitle for a pe4 riod of not more than 1 year, if the President deter5 mines that— 6 (A) the import relief continues to be nec7 essary to remedy or prevent serious damage 8 and to facilitate adjustment by the domestic in9 dustry to import competition; and 10 (B) there is evidence that the industry is 11 making a positive adjustment to import com12 petition. 13 (2) LIMITATION.—Any relief provided under 14 this subtitle, including any extensions thereof, may 15 not, in the aggregate, be in effect for more than 3 16 years. 17 SEC. 324. ARTICLES EXEMPT FROM RELIEF. 18 The President may not provide import relief under 19 this subtitle with respect to an article if— 20 (1) import relief previously has been provided 21 under this subtitle with respect to that article; or 22 (2) the article is subject to import relief 23 under— 24 (A) subtitle A; or cnoel on PROD1PC69 with BILLS 82 HR 3688 PCS 1 (B) chapter 1 of title II of the Trade Act 2 of 1974 (19 U.S.C. 2251 et seq.). 3 SEC. 325. RATE AFTER TERMINATION OF IMPORT RELIEF. 4 On the date on which import relief under this subtitle 5 is terminated with respect to an article, the rate of duty 6 on that article shall be the rate that would have been in 7 effect, but for the provision of such relief. 8 SEC. 326. TERMINATION OF RELIEF AUTHORITY. 9 No import relief may be provided under this subtitle 10 with respect to any article after the date that is 5 years 11 after the date on which the Agreement enters into force. 12 SEC. 327. COMPENSATION AUTHORITY. 13 For purposes of section 123 of the Trade Act of 1974 14 (19 U.S.C. 2133), any import relief provided by the Presi15 dent under this subtitle shall be treated as action taken 16 under chapter 1 of title II of such Act (19 U.S.C. 2251 17 et seq.). 18 SEC. 328. CONFIDENTIAL BUSINESS INFORMATION. 19 The President may not release information received 20 in connection with an investigation or determination under 21 this subtitle which the President considers to be confiden22 tial business information unless the party submitting the 23 confidential business information had notice, at the time 24 of submission, that such information would be released by 25 the President, or such party subsequently consents to the cnoel on PROD1PC69 with BILLS 83 HR 3688 PCS 1 release of the information. To the extent a party submits 2 confidential business information, the party shall also pro3 vide a nonconfidential version of the information in which 4 the confidential business information is summarized or, if 5 necessary, deleted. 6 Subtitle C—Cases Under Title II of 7 the Trade Act of 1974 8 SEC. 331. FINDINGS AND ACTION ON GOODS OF PERU. 9 (a) EFFECT OF IMPORTS.—If, in any investigation 10 initiated under chapter 1 of title II of the Trade Act of 11 1974 (19 U.S.C. 2251 et seq.), the Commission makes an 12 affirmative determination (or a determination which the 13 President may treat as an affirmative determination under 14 such chapter by reason of section 330(d) of the Tariff Act 15 of 1930), the Commission shall also find (and report to 16 the President at the time such injury determination is sub17 mitted to the President) whether imports of the article of 18 Peru that qualify as originating goods under section 19 203(b) are a substantial cause of serious injury or threat 20 thereof. 21 (b) PRESIDENTIAL DETERMINATION REGARDING IM22 PORTS OF PERU.—In determining the nature and extent 23 of action to be taken under chapter 1 of title II of the 24 Trade Act of 1974 (19 U.S.C. 2251 et seq.), the President 25 may exclude from the action goods of Peru with respect cnoel on PROD1PC69 with BILLS 84 HR 3688 PCS 1 to which the Commission has made a negative finding 2 under subsection (a). 3 TITLE IV—PROCUREMENT 4 SEC. 401. ELIGIBLE PRODUCTS. 5 Section 308(4)(A) of the Trade Agreements Act of 6 1979 (19 U.S.C. 2518(4)(A)) is amended— 7 (1) by striking ‘‘or’’ at the end of clause (v); 8 (2) by striking the period at the end of clause 9 (vi) and inserting ‘‘; or’’; and 10 (3) by adding at the end the following new 11 clause: 12 ‘‘(vii) a party to the United States13 Peru Trade Promotion Agreement, a prod14 uct or service of that country or instru15 mentality which is covered under that 16 agreement for procurement by the United 17 States.’’. 18 TITLE V—TRADE IN TIMBER 19 PRODUCTS OF PERU 20 SEC. 501. ENFORCEMENT RELATING TO TRADE IN TIMBER 21 PRODUCTS OF PERU. 22 (a) ESTABLISHMENT OF INTERAGENCY COM23 MITTEE.—Not later than 90 days after the date on which 24 the Agreement enters into force, the President shall estab25 lish an Interagency Committee (in this section referred to cnoel on PROD1PC69 with BILLS 85 HR 3688 PCS 1 as the ‘‘Committee’’). The Committee shall be responsible 2 for overseeing the implementation of Annex 18.3.4 of the 3 Agreement, including by undertaking such actions and 4 making such determinations provided for in this section 5 that are not otherwise authorized under law. 6 (b) AUDIT.—The Committee may request that the 7 Government of Peru conduct an audit, pursuant to para8 graph 6(b) of Annex 18.3.4 of the Agreement, to deter9 mine whether a particular producer or exporter in Peru 10 is complying with all applicable laws, regulations, and 11 other measures of Peru governing the harvest of, and 12 trade in, timber products. 13 (c) VERIFICATION.— 14 (1) IN GENERAL.—The Committee may request 15 the Government of Peru to conduct a verification, 16 pursuant to paragraph 7 of Annex 18.3.4 of the 17 Agreement, for the purpose of determining whether, 18 with respect to a particular shipment of timber prod19 ucts from Peru to the United States, the producer 20 or exporter of the products has complied with appli21 cable laws, regulations, and other measures of Peru 22 governing the harvest of, and trade in, the products. 23 (2) ACTIONS OF COMMITTEE.—If the Com24 mittee requests a verification under paragraph (1), 25 the Committee shall— cnoel on PROD1PC69 with BILLS 86 HR 3688 PCS 1 (A) to the extent authorized under law, 2 provide the Government of Peru with trade and 3 transit documents and other information to as4 sist Peru in conducting the verification; and 5 (B) direct U.S. Customs and Border Pro6 tection to take any appropriate action described 7 in paragraph (4). 8 (3) REQUEST TO PARTICIPATE IN 9 VERIFICATION VISIT.—The Committee may request 10 the Government of Peru to permit officials of any 11 agency represented on the Committee to participate 12 in any visit conducted by Peru of the premises of a 13 person that is the subject of the verification re14 quested under paragraph (1) (in this section referred 15 to as a ‘‘verification visit’’). Such request shall be 16 submitted in writing not later than 10 days before 17 any scheduled verification visit and shall identify the 18 names and titles of the officials intending to partici19 pate. 20 (4) APPROPRIATE ACTION PENDING THE RE21 SULTS OF VERIFICATION.—While the results of a 22 verification requested under paragraph (1) are pend23 ing, the Committee may direct U.S. Customs and 24 Border Protection to— cnoel on PROD1PC69 with BILLS 87 HR 3688 PCS 1 (A) detain the shipment that is the subject 2 of the verification; or 3 (B) if the Committee has requested under 4 paragraph (3) to have an official of any agency 5 represented on the Committee participate in the 6 verification visit and the Government of Peru 7 has denied the request, deny entry to the ship8 ment that is the subject of the verification. 9 (5) DETERMINATION UPON RECEIPT OF RE10 PORT.— 11 (A) IN GENERAL.—Within a reasonable 12 time after the Government of Peru provides a 13 report to the Committee describing the results 14 of a verification requested under paragraph (1), 15 the Committee shall determine whether any ac16 tion is appropriate. 17 (B) DETERMINATION OF APPROPRIATE AC18 TION.—In determining the appropriate action 19 to take and the duration of the action, the 20 Committee shall consider any relevant factors, 21 including— 22 (i) the verification report issued by 23 the Government of Peru; 24 (ii) any information that officials of 25 the United States have obtained regarding cnoel on PROD1PC69 with BILLS 88 HR 3688 PCS 1 the shipment or person that is the subject 2 of the verification; and 3 (iii) any information that officials of 4 the United States have obtained during a 5 verification visit. 6 (6) NOTIFICATION.—Before directing that ac7 tion be taken under paragraph (7), the Committee 8 shall notify the Government of Peru in writing of 9 the action that will be taken and the duration of the 10 action. 11 (7) APPROPRIATE ACTION.—If the Committee 12 makes an affirmative determination under para13 graph (5), it may take any action with respect to the 14 shipment that was the subject of the verification, or 15 the products of the relevant producer or exporter, 16 that the Committee considers appropriate, including 17 directing U.S. Customs and Border Protection to— 18 (A) deny entry to the shipment; 19 (B) if a determination has been made that 20 a producer or exporter has knowingly provided 21 false information to officials of Peru or the 22 United States regarding a shipment, deny entry 23 to products of that producer or exporter derived 24 from any tree species listed in Appendices to 25 the Convention on International Trade in EnVerDate Aug 31 2005 03:50 Nov 14, 2007 Jkt 069200 PO 00000 Frm 00088 Fmt 6652 Sfmt 6201 E:\BILLS\H3688.PCS H3688 cnoel on PROD1PC69 with BILLS 89 HR 3688 PCS 1 dangered Species of Wild Fauna and Flora, 2 done at Washington March 3, 1973 (27 UST 3 1087; TIAS 8249); or 4 (C) take any other action the Committee 5 determines to be appropriate. 6 (8) TERMINATION OF APPROPRIATE ACTION.— 7 Any action under paragraph (7)(B) shall terminate 8 not later than the later of— 9 (A) the end of the period specified in the 10 written notification pursuant to paragraph (6); 11 or 12 (B) 15 days after the date on which the 13 Government of Peru submits to the United 14 States the results of an audit under paragraph 15 6 of Annex 18.3.4 of the Agreement that con16 cludes that the person has complied with all ap17 plicable laws, regulations, and other measures 18 of Peru governing the harvest of, and trade in, 19 timber products. 20 (9) FAILURE TO PROVIDE VERIFICATION RE21 PORT.—If the Committee determines that the Gov22 ernment of Peru has failed to provide a verification 23 report, as required by paragraph 12 of Annex 18.3.4 24 of the Agreement, the Committee may take such ac25 tion with respect to the relevant exporter’s timber cnoel on PROD1PC69 with BILLS 90 HR 3688 PCS 1 products as the Committee considers appropriate, in2 cluding any action described in paragraph (7). 3 (d) CONFIDENTIALITY OF INFORMATION.—The Com4 mittee and any agency represented on the Committee shall 5 not disclose to the public, except with the specific permis6 sion of the Government of Peru, any documents or infor7 mation received in the course of an audit under subsection 8 (b) or in the course of a verification under subsection (c). 9 (e) PUBLICLY AVAILABLE INFORMATION.—The Com10 mittee shall make any information exchanged with Peru 11 under paragraph 17 of Annex 18.3.4 of the Agreement 12 publicly available in a timely manner, in accordance with 13 paragraph 18 of Annex 18.3.4 of the Agreement. 14 (f) COORDINATION WITH OTHER LAWS.— 15 (1) ENDANGERED SPECIES ACT; LACEY ACT.— 16 In implementing this section, the Secretary of Agri17 culture, the Secretary of the Interior, the Secretary 18 of Homeland Security, and the Secretary of the 19 Treasury shall provide for appropriate coordination 20 with the administration of the Endangered Species 21 Act of 1973 (16 U.S.C. 1531 et seq.) and the Lacey 22 Act Amendments of 1981 (16 U.S.C. 3371 et seq.). 23 (2) OTHER LAWS.—Nothing in this section su24 persedes or limits in any manner the functions or 25 authority of the Secretary of Agriculture, the SecVerDate Aug 31 2005 03:50 Nov 14, 2007 Jkt 069200 PO 00000 Frm 00090 Fmt 6652 Sfmt 6201 E:\BILLS\H3688.PCS H3688 cnoel on PROD1PC69 with BILLS 91 HR 3688 PCS 1 retary of the Interior, the Secretary of Homeland 2 Security, or the Secretary of the Treasury under any 3 other law, including laws relating to prohibited or 4 restricted importations or possession of animals, 5 plants, or other articles. 6 (3) EFFECT OF DETERMINATION.—No deter7 mination under this section shall preclude any pro8 ceeding or be considered determinative of any issue 9 of fact or law in any proceeding under any law ad10 ministered by the Secretary of Agriculture, the Sec11 retary of the Interior, the Secretary of Homeland 12 Security, or the Secretary of the Treasury. 13 (g) FURTHER IMPLEMENTATION.—The Secretary of 14 Agriculture, the Secretary of the Interior, the Secretary 15 of Homeland Security, and the Secretary of the Treasury, 16 in consultation with the Committee, shall prescribe such 17 regulations as are necessary to carry out this section. 18 (h) RESOURCES FOR IMPLEMENTATION.—Not later 19 than 90 days after the date on which the Agreement en20 ters into force, and as appropriate thereafter, the Presi21 dent shall consult with the Committee on Finance of the 22 Senate and the Committee on Ways and Means of the 23 House of Representatives on the resources, including 24 staffing, needed to implement Annex 18.3.4 of the Agree25 ment. cnoel on PROD1PC69 with BILLS 92 HR 3688 PCS 1 SEC. 502. REPORT TO CONGRESS. 2 (a) IN GENERAL.—The United States Trade Rep3 resentative, in consultation with the appropriate agencies, 4 including U.S. Customs and Border Protection, the 5 United States Fish and Wildlife Service, the Animal and 6 Plant Health Inspection Service, the Forest Service, and 7 the Department of State, shall report to the Committee 8 on Finance of the Senate and the Committee on Ways and 9 Means of the House of Representatives on— 10 (1) steps the United States and Peru have 11 taken to carry out Annex 18.3.4 of the Agreement; 12 and 13 (2) activities related to forest sector governance 14 carried out under the Environmental Cooperation 15 Agreement entered into between the United States 16 and Peru on July 24, 2006. 17 (b) TIMING OF REPORT.—The United States Trade 18 Representative shall report to the Committee on Finance 19 of the Senate and the Committee on Ways and Means of 20 the House of Representatives under subsection (a)— 21 (1) not later than 1 year after the date on 22 which the Agreement enters into force; 23 (2) not later than 2 years after the date on 24 which the Agreement enters into force; and 25 (3) periodically thereafter. cnoel on PROD1PC69 with BILLS 93 HR 3688 PCS 1 TITLE VI—OFFSETS 2 SEC. 601. CUSTOMS USER FEES. 3 (a) Section 13031(j)(3)(A) of the Consolidated Omni4 bus Budget Reconciliation Act of 1985 (19 U.S.C. 5 58c(j)(3)(A)) is amended by striking ‘‘October 21, 2014’’ 6 and inserting ‘‘December 13, 2014’’. 7 (b) Section 13031(j)(3)(B)(i) of the Consolidated 8 Omnibus Budget Reconciliation Act of 1985 (19 U.S.C. 9 58c(j)(3)(B)(i)) is amended by striking ‘‘October 7, 2014’’ 10 and inserting ‘‘December 13, 2014’’. 11 SEC. 602. TIME FOR PAYMENT OF CORPORATE ESTIMATED 12 TAXES. 13 Subparagraph (B) of section 401(1) of the Tax In14 crease Prevention and Reconciliation Act of 2005 (26 15 U.S.C. 6655 note) is amended by striking ‘‘115 percent’’ 16 and inserting ‘‘115.75 percent’’. Passed the House of Representatives November 8, 2007. Attest: LORRAINE C. MILLER, Clerk. cnoel on PROD1PC69 with BILLS Calendar No. 480 110TH CONGRESS 1ST SESSION H. R. 3688 AN ACT To implement the United States-Peru Trade Promotion Agreement. NOVEMBER 13, 2007 Received; read twice and placed on the calendar cnoel on PROD1PC69 with BILLS
s3://data.kl3m.ai/documents/recap_docs/2013/08/15/dm_marine_inc._dba_phipps__company_homes_v._j._neal_turner_and_kerie_1.pdf.json	text/plain	COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-12-00399-CV D&M MARINE, INC. D/B/A PHIPPS & COMPANY HOMES APPELLANT V. J. NEAL TURNER AND KERIE B. TURNER APPELLEES ---------- FROM THE 431ST DISTRICT COURT OF DENTON COUNTY ---------- OPINION ---------- Appellant D&M Marine, Inc. d/b/a Phipps & Company Homes (D&M) appeals from the trial court’s turnover order entered to aid execution on a prior final judgment against D&M and in favor of appellees J. Neal Turner and Kerie B. Turner. We affirm the trial court’s order. 2 I. BACKGROUND The Turners filed a construction-defect action against D&M and others involved in building their home. D&M’s insurer, Mid-Continent Casualty Company, defended D&M against the Turners’ suit. A jury concluded that D&M solely was liable for the defect. On March 28, 2012, the trial court entered judgment on the jury’s verdict and awarded the Turners damages, including attorneys’ fees. D&M appealed the trial court’s judgment. The court of appeals affirmed the judgment in part but reversed the award of attorneys’ fees. D&M Marine, Inc. v. Turner, No. 01-12-00622-CV, 2013 WL 3483778, at 9 (Tex. App.—Houston [1st Dist.] July 11, 2013, no pet. h.).1 In June 2012, Mid-Continent filed a declaratory-judgment action in the United States District Court for the Northern District of Texas, Dallas division (the federal trial court),2 against D&M and the Turners, seeking a declaration that it had no duty either (1) to defend or indemnify D&M or (2) to pay the Turners’ damages under its policy with D&M. Shortly thereafter, the Turners discovered that D&M was no longer in business and had no assets that readily could be 1 The supreme court transferred the appeal from this court. See Tex. Gov’t Code Ann. § 73.001 (West 2013). 2 It is not clear why Mid-Continent filed its complaint in the United States District Court for the Northern District of Texas, Dallas division, instead of in the judicial district encompassing Denton County and Collin County—the United States District Court for the Eastern District of Texas, Sherman division. D&M is located in Denton County, and the Turners’ house is located in Collin County. See 28 U.S.C.A. § 1391(b) (West Supp. 2013) (setting venue in diversity cases filed in federal court). 3 attached to satisfy their judgment. The Turners, therefore, filed an application for turnover relief in the state trial court on July 31, 2012. See Tex. Civ. Prac. & Rem. Code Ann. § 31.002 (West 2008). The Turners specifically requested rights “to any insurance policies issued to or which may provide coverage” to D&M. In the federal trial court, D&M did not answer Mid-Continent’s complaint; thus, the federal trial court clerk entered D&M’s default followed by the federal trial court’s default judgment. Mid-Continent Cas. Co. v. D&M Marine, Inc., No. 3:12-CV-1963-K (N.D. Tex. Aug. 29, 2012); see Fed. R. Civ. P. 55(a), (b)(2). On August 31, 2012—two days after the federal trial court granted the default judgment against D&M—the state trial court held a hearing on the Turners’ turnover application. At the hearing, D&M did not dispute that it was no longer in business and had no assets that readily could be attached in satisfaction of the Turners’ judgment. See Tex. Civ. Prac. & Rem. Code Ann. § 31.002(a). Based on that evidence, the Turners submitted to the state trial court a proposed order that granted their requested turnover relief. D&M responded that “an unasserted claim against an insurance carrier is not subject to turnover relief.” D&M explained that it had failed to answer Mid-Continent’s federal complaint because D&M’s counsel had been hired and paid for by Mid-Continent, resulting in a conflict of interest. The state trial court granted the Turners’ application and ordered “that all ownership, rights, privileges, and interests relative to any 4 insurance policies issued to or which may provide coverage of any nature to [D&M] relative to the Judgment issued in this cause are hereby transferred and assigned to [the Turners].” It appears that the trial court signed the Turners’ proposed turnover order without making any changes. The Turners then moved to set aside the federal trial court’s default judgment. See Fed. R. Civ. P. 55(c). The federal trial court concluded that extraordinary circumstances—the fact that the Turners could not appear in MidContinent’s declaratory-judgment action as to D&M until they obtained the turnover order—warranted vacating the default judgment. See Fed. R. Civ. P. 60(b)(6); Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 393, 113 S. Ct. 1489, 1497 (1993). Mid-Continent’s declaratory-judgment action remains pending in the federal trial court. D&M now appeals from the state trial court’s turnover order. See Burns v. Miller, Hiersche, Martens & Hayward, P.C., 909 S.W.2d 505, 505 (Tex. 1995) (recognizing turnover order is final, appealable judgment). II. STANDARD OF REVIEW We review a trial court’s turnover order for an abuse of discretion. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). A trial court abuses its discretion if it acts in an unreasonable or arbitrary manner. Id. A trial court’s issuance of a turnover order, even if predicated on an erroneous conclusion of law, will not be reversed for an abuse of discretion if the judgment is sustainable for any reason. Id. A trial court does not abuse its discretion if 5 there is some evidence of a substantive and probative character to support the turnover order. Main Place Custom Homes, Inc. v. Honaker, 192 S.W.3d 604, 627 (Tex. App.—Fort Worth 2006, pet. denied). III. DISCUSSION A. THE APPELLATE RECORD D&M asserts in its reply brief that we may not consider the actions taken by the federal trial court in Mid-Continent’s declaratory-judgment action because they are outside the appellate record. D&M goes so far as to imply that the Turners, by including the federal trial court’s orders in their appendix, violated the supreme court’s Standards for Appellate Conduct. However, the Turners raised Mid-Continent’s declaratory-judgment action to the state trial court at the turnover hearing, and the trial court considered D&M’s failure to answer Mid-Continent’s federal complaint as part of the reason for entering the turnover order. Therefore, the declaratory-judgment action is not outside the appellate record. Further, we are allowed to take judicial notice of such adjudicative facts. See Tex. R. Evid. 201; Thomas v. Cook, 350 S.W.3d 382, 387 n.2 (Tex. App.— Houston [14th Dist.] 2011, pet. denied). It appears that D&M is concerned that the Turners’ references to the federal trial court action will result in detrimental speculation as to why D&M failed to appear in the federal trial court. We have made no assumptions as to D&M’s default other than what D&M stated on the record at the turnover hearing: 6 D&M’s counsel was paid by Mid-Continent, resulting in a conflict of interest in the federal trial court. B. PROPERTY PROPERLY SUBJECT TO TURNOVER ORDER In its first issue, D&M argues that its unasserted claims against MidContinent are not properly subject to a turnover order, rendering the trial court’s order an abuse of its discretion. The judgment-collection statute provides a method for court-ordered collection of judgments, authorizing the trial court to order the judgment debtor to turn over nonexempt property that readily cannot be attached or levied on by ordinary legal process. Tex. Civ. Prac. & Rem. Code Ann. § 31.002(a), (f). Section 31.002 is purely a procedural remedy and may not be used to adjudicate substantive rights. See Republic Ins. Co. v. Millard, 825 S.W.2d 780, 783 (Tex. App.—Houston [14th Dist.] 1992, orig. proceeding); Cravens, Dargan & Co. v. Peyton L. Travers Co., 770 S.W.2d 573, 576 (Tex. App.—Houston [1st Dist.] 1989, writ denied). “The purpose of the turnover proceeding is merely to ascertain whether or not an asset is in the possession of the judgment debtor or subject to the debtor’s control.” Beaumont Bank, 806 S.W.2d at 227. Generally, causes of action constitute property subject to turnover by a court. Honaker, 192 S.W.3d at 627; accord Great W. Cas. Co. v. Omniflight Helicopters, Inc., No. 4:05-CV-678-Y, 2006 WL 3281714, at 2–3 (N.D. Tex. Nov. 13, 2006). Specifically permitted as subjects of a turnover order are “causes of action against third parties to a judgment creditor who [has] the same interest in 7 pursuing them to maximum value as the judgment debtor.” Associated Ready Mix, Inc. v. Douglas, 843 S.W.2d 758, 762 (Tex. App.—Waco 1992, orig. proceeding). But the turnover statute should not be used to extinguish a cause of action. Id. at 762–63; Commerce Sav. Ass’n v. Welch, 783 S.W.2d 668, 671 (Tex. App.—San Antonio 1989, no writ). For example, a judgment debtor owing money to his attorney under a judgment cannot be ordered to surrender his asserted cause of action for legal malpractice against the same attorney under a turnover order. Criswell v. Ginsberg & Foreman, 843 S.W.2d 304, 306–07 (Tex. App.—Dallas 1992, no writ). Such a turnover order would violate public policy and the open-courts doctrine. Associated Ready Mix, 843 S.W.2d at 762; Criswell, 843 S.W.2d at 306–07. Likewise, an insured’s cause of action against its insurer for failure to settle is not subject to a turnover order when the insured is satisfied with its insurer’s representation. Charles v. Tamez, 878 S.W.2d 201, 208 (Tex. App.—Corpus Christi 1994, writ denied); accord Nationwide Mut. Ins. Co. v. Chaney, No. 3:00CV0628L, 2002 WL 31178068, at *4 n.5 (N.D. Tex. Sept. 30, 2002) (noting turnover to judgment creditor of failure-to-settle claim against insurer improper when insured—the judgment debtor—believed he was better off without settlement), aff’d sub nom., Nationwide Mut. Ins. Co. v. Haffley, 78 F. App’x 348 (5th Cir. 2003). In Charles, a judgment debtor of an insured sought turnover of a potential cause of action for failure to settle that could be brought by the insured against his insurance company. In that case, there was specific evidence that the 8 insured did not want to sue for malpractice based on an alleged failure to settle because “he had no complaint” with the representation. 878 S.W.2d at 208. Charles holds (contrary to D&M’s argument) that a cause of action for failure to settle is not “subject to involuntary assertion.” Id. Here, there is no evidence that D&M did not want to be indemnified through its insurance coverage. The Turners requested a turnover order regarding D&M’s insurance policies that possibly provided coverage for D&M against the Turners’ construction-defect suit. The Turners would have the same interest as D&M would to pursue any bad faith or failure-to-indemnify claims against Mid-Continent to maximum recovery. Cf. id. (holding failure-to-settle claim against insurer not subject to turnover order in favor of judgment creditor because, under the specific facts of the case, “the [judgment creditor] does not share or assume the insured’s interest in seeing that the insurer settle for policy limits,” and because turnover order would “drive a wedge between a satisfied client and his insurance company”). The public-policy and open-courts concerns that have doomed turnover orders in the past are not present in this case. Therefore, the trial court did not abuse its discretion by ordering D&M to transfer its unasserted claims against MidContinent that could have the possibility of satisfying the Turners’ judgment against D&M. See, e.g., Republic Ins., 825 S.W.2d at 784 (holding trial court “properly ordered a turnover to the [judgment creditor] of all causes of action [the judgment debtor] might have now, or in the future, against any liability insurance carriers” of the judgment debtor). We overrule D&M’s first issue. 9 C. APPROPRIATE EXECUTION OF TURNOVER In its second issue, D&M asserts that the trial court abused its discretion by ordering the turnover directly to the Turners and not to a designated sheriff, constable, or receiver. See Tex. Civ. Prac. & Rem. Code Ann. § 31.002(b)(1), (3); see also Ex parte Johnson, 654 S.W.2d 415, 418–19 (Tex. 1983) (orig. proceeding) (stating turnover may not be ordered directly to judgment creditors). D&M did not respond to the Turners’ application for a turnover order, did not raise a complaint addressed to the proper execution of the turnover order, and did not seek to modify the turnover order after it was entered. See Johnson, 654 S.W.2d at 418 (recognizing proper method to challenge turnover order is through motion to modify). Indeed, in summarizing its argument against the turnover order at the hearing, D&M did not in any way raise appropriate execution of such an order: So that’s basically - - number one, I don’t think [a] cause of action [against Mid-Continent] probably exists, or at least I think it’s called into question by the default order. Number two, an insurance claim isn’t subject to [a turnover order]. And, three, if it is, I don’t think that that means that they get to somehow or another overcome the work[-]product or attorney-client privilege. To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a). If a party fails to do this, error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d 10 711, 712 (Tex. 1991) (op. on reh’g). It is obvious here that the trial court was given no opportunity to remedy this voidable error. See Johnson, 654 S.W.2d at 419 (holding error in ordering direct turnover to judgment creditors voidable, not void, order). We cannot reverse a trial court on a voidable error in the absence of a timely objection or complaint. See Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 923 (Tex. 2011) (noting voidable trial court actions must be timely raised to avoid waiver); Davis v. Crist Indus., Inc., 98 S.W.3d 338, 342 (Tex. App.—Fort Worth 2003, pet. denied) (holding voidable error must be raised by objection or complaint to be preserved for appellate review); cf. Morton v. Hung Nguyen, 369 S.W.3d 659, 677 (Tex. App.—Houston [14th Dist.] 2012, pet. filed) (holding failure to file motion to amend or correct judgment that failed to award pre- and post-judgment interest waived complaint). D&M failed to preserve for our review the trial court’s voidable error, and we overrule issue two. IV. CONCLUSION Having overruled D&M’s two issues, we affirm the trial court’s turnover order. LEE GABRIEL JUSTICE PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ. DELIVERED: August 15, 2013
s3://data.kl3m.ai/documents/uspto/07415520.json	text/markdown	# Patent ## Title Method for establishing a connection with a predetermined service quality between communications networks with resource managers ## Abstract A method establishes a connection between a source network with a source network resource manager and a target network with a target network resource manager. According to the method, a connection control unit of the source network transmits a connection establishment signal to a connection control unit of the target network and—parallel to this—a reservation request to the target network resource manager. The target network resource reserves the requested resources and forwards the reservation request towards the target network resource manager, which also reserves the requested resources and transmits reservation information regarding the success of the resource reservations to the connection control unit of the target network. ## Background CROSS REFERENCE TO RELATED APPLICATIONS This application is based on and hereby claims priority to PCT Application No. PCT/DE01/02857 filed on 27 Jul. 2001 and German Application No. 100 38 878.7 filed on 9 Aug. 2000, the contents of which are hereby incorporated by reference. BACKGROUND OF THE INVENTION In many widely used packet-oriented communications networks, for example in the Internet, no Qualities of Service are guaranteed for connections between terminals in these communications networks unless additional precautions are taken. The Quality of Service (QoS) of a connection may cover various transmission and connection parameters, such as the transmission bandwidth, the transmission speed, the permissible error rate and/or the transmission duration. In present-day communications systems, which are frequently based on such packet-oriented communications networks, so-called resource managers are provided in order to ensure a predetermined Quality of Service. These resource managers are in each case associated with a communications network or a network element, and administer their respective transmission resources. A resource manager may in each case reserve transmission resources, which can be predetermined, on a connection-specific basis for connections which are to be set up. Once transmission resources have been successfully reserved, the resource manager then monitors the permanent availability of the reserved transmission resources for the respective connection. In many cases, the start point and end point of a connection are not in the same communications network or network element, so that the connection has to pass via a plurality of communications networks. In order to reserve predetermined transmission resources for such a connection, these resources must be reserved separately in each individual communications network or network element that is involved in the connection. According to known methods, this is done by transmitting a reservation request to the resource manager for that communications network which is closest to the connection destination on the route. This resource manager attempts to make an appropriate resource reservation in its communications network and, if successful, transmits the reservation request further to that resource manager which is responsible for the next communications network on the connection route. This resource manager carries out the same procedure, and the reservation request is passed on until either a corresponding resource reservation fails in one communications network or until the reservation request reaches the resource manager which is responsible for the destination communications network. If the resource reservation is successful, this last resource manager transmits an acknowledgement message via all the resource managers involved, back to the initiator of the connection in the first communications network. The initiator of the connection then causes the connection to be set up via the individual communications networks. One such method is described, by way of example, in the Internet draft “A Discussion of Bandwidth Broker Requirements for Internet2 Qbone Deployment”, Version 7, R. Neilson, J. Wheeler, F. Reichmeyer, S. Hares (Editors) dated August 1999, http://www.merit.edu/working.groups/i2-qbone-bb/doc/BB Req7.pdf, 10.7.2000, in particular on pages 12 and 13. In this known method, the process of setting up a connection via a plurality of communications networks is, however, delayed considerably owing to the complex signalling. Particularly in the case of connections via the Internet, which comprises a large number of individual communications networks, this has been found to be highly disadvantageous. SUMMARY OF THE INVENTION One possible object of the present invention is to specify a method which allows connections to be set up quickly with a guaranteed Quality of Service, even via a plurality of communications networks. The method according to one aspect of the invention may allow a connection which passes via a plurality of communications networks to be set up considerably more quickly than in the case of known methods, with a guaranteed Quality of Service. The Quality of Service may in this case relate to widely differing transmission resources, such as the transmission bandwidth, transmission speed, permissible error rate, transmission delay and/or any other desired Quality of Service parameter, possibly on a priority-class specific basis. Faster setting up of connections is dependent, inter alia, on reservation information relating to the success of the resource reservations being transmitted in the individual communications networks from a destination network resource manager directly to a connection controller in the destination network. Time-consuming backward transmission of this reservation information from the destination network resource manager via the source network resource manager to a connection controller for the source network and signalling for setting up connections that is not carried out until this has been done, by the connection controller in the source network—as in the known methods—are thus avoided. In the method, the resource reservation process is carried out by the resource managers in the individual communications networks, and the connection-setting-up signalling is carried by the connection controllers in the source network and in the destination network, to a certain extent in parallel. A so-called gatekeeper can be provided in each case as the connection controller in the source network and/or in the destination network, for logical connection control, connection inspection, connection monitoring and/or for logical setting up and clearing of connections. According to one advantageous embodiment, the connection controller for the destination network can be caused by the transmission of the connection setting-up message to check the reservation information relating to the success of the resource reservations by the destination network resource manager. If this reservation information is not yet available when first checked, the check may be carried out repeatedly, if necessary. In this case, a maximum number of repetitions and/or a maximum time interval can be specified, after which the further setting up of the connection is terminated. As soon as the reservation information is available in the destination network resource manager, the reservation information is stored by the destination network resource manager until it is checked by the connection controller in the destination network. There may be one or more further communications networks, which each have their own resource manager, between the source network and the destination network, via which the connection that is to be set up must be passed. In this case, the reservation request must be transmitted via all the further resource managers who are responsible for the intermediate communications networks, to the destination network resource manager. The route on which the reservation request is in this case transmitted may preferably be defined by the resource managers involved or else solely by the source network resource manager on the basis of transmitted address information which identifies a connection destination. The source network resource manager and/or the further resource managers may be provided with access to routing tables for this purpose. The address information which identifies the connection destination may preferably be transmitted by the connection controller in the source network to the source network resource manager in the course of the reservation request process. Furthermore, reservation information relating to the success of a resource reservation may also be transmitted back to the source network resource manager by the destination network resource manager, in addition to being transmitted to the connection controller in the destination network. In this way, the source network resource manager and possibly all the intermediate resource managers as well are informed of a successful resource reservation along the entire connection route. This information can be assessed by the resource managers in order to optimize their resource administration. BRIEF DESCRIPTION OF THE DRAWINGS These and other objects and advantages of the present invention will become more apparent and more readily appreciated from the following description of the preferred embodiments, taken in conjunction with the accompanying drawings of which: FIG. 1 shows a communications system having three network elements, which each have a resource manager and via which a connection with a guaranteed Quality of Service is set up, and FIG. 2 shows a flowchart in order to illustrate the signalling traffic when setting up the connection. DETAILED DESCRIPTION OF THE PREFERRED EMBODIMENT Reference will now be made in detail to the preferred embodiments of the present invention, examples of which are illustrated in the accompanying drawings, wherein like reference numerals refer to like elements throughout. FIG. 1 shows a schematic illustration of the communications system with three communications network elements UN, TN and ZN, which are preferably Internet-protocol based. The individual communications network elements are referred to in the following text as the source network UN, the transit network TN and the destination network ZN. The source network UN is coupled to the transit network TN, which is in turn coupled to the destination network ZN. In order to administer transmission resources, a source network resource manager RMU is arranged in the source network UN, the transit network resource manager RMT is arranged in the transit network TN, and a destination network resource manager RMZ is arranged in the destination network ZN. The resource managers RMU, RMT and RMZ are responsible in their respective communications network elements UN, TN and ZN, respectively, for the reservation of transmission resources for connections to be set up as well as for ensuring the Quality of Service of connections which have been set up. The transmission resources and the Qualities of Service may in this case relate to quite different transmission parameters, such as a maximum or mean transmission bandwidth, a transmission delay and/or transmission error rate. For all the connections which require a Quality of Service guarantee in one or more communications network elements UN, TN, ZN, the corresponding transmission resources must be requested from the respectively responsible resource manager UN, TN or ZN, and must be released once again once the connection has been cleared. Furthermore, a terminal EG1 is coupled to the source network UN, and a terminal EG2 is coupled to the destination network ZN. The terminals EG1 and EG2 may in this case be any desired communications terminals, for example for speech, video and/or data communication, or else may be in the form of a personnel computer. The source network UN furthermore has an associated so-called gatekeeper GKU, and the destination network ZN has a gatekeeper GKZ. The gatekeepers GKU and GKZ are responsible for logical control, that is to say for setting up and clearing as well as monitoring connections, in the respectively associated network element UN or ZN. In the present exemplary embodiment, the gatekeepers GKU and GKZ comply with the ITU T Standard H.323. According to a further embodiment, it is possible to provide for the gatekeepers GKU and GKZ to support the so-called SIP protocol CSIP: Session Initiation Protocol) in accordance with IETF Standard. In the present exemplary embodiment, the process of setting up a connection, for example for speech transmission (VoIP: Voice over Internet Protocol) is considered, with a guaranteed Quality of Service from the terminal EG1 to the terminal EG2. In the course of this process of setting up a connection, connection setting-up signalling takes place via the gatekeepers GKU and GKZ and, in parallel with this, a resource reservation is made via the resource managers RMU, RMT and RMZ. Logical signalling channels are set up for connection setting-up signalling between the terminal EG1 and the gatekeeper GKU, between the gatekeeper GKU and the gatekeeper GKZ, and between the gatekeeper GKZ and the terminal EG2. The logical signalling channels for connection setting-up signalling are illustrated by solid double arrows in FIG. 1. The connection setting-up signalling is preferably carried out in accordance with ITU-T Recommendation H.323v2. This type of connection setting-up signalling is frequently also referred to as “fast connect”. Furthermore, logical signalling channels are also set up for resource reservation between the gatekeeper GKU and the source network resource manager RMU, between the source network resource manager RMU and the transit network resource manager RMT, between the transit network resource manager RMT and the destination network resource manager RMZ, as well as between the destination network resource manager RMZ and the gatekeeper GKZ. The logical signalling channels for resource reservation are each indicated by dashed double arrows in FIG. 1. The sequence for the signalling traffic for setting up connections and for resource reservation will be explained in more detail in the following text with reference to FIG. 2. FIG. 2 shows a flowchart of the signalling traffic between the terminals EG1 and EG2, the gatekeepers GKU and GKZ, as well as the resource managers RMU, RMT and RMZ. By analogy with FIG. 1, the signalling messages which have to be transmitted in the course of connection setting-up signalling are indicated by solid arrows, and the signalling messages which have to be transmitted in the course of resource reservation are indicated by dashed arrows. In this case, the arrow direction in each case indicates the transmission direction. Mutually corresponding objects have the same reference symbols in FIG. 1 and FIG. 2. The time axis in FIG. 2 runs from top to bottom. The terminal EG1 initiates the setting up of a connection by transmitting an access request message ARQ (Admission Request) to the gatekeeper GKU. The access request message ARQ contains, inter alia, target address information which identifies the destination terminal EG2, for example its call number, as well as Quality of Service information which indicates the Quality of Service required for that connection. The gatekeeper GKU then initiates a reservation of transmission resources on the basis of the transmitted Quality of Service information. For this purpose, the gatekeeper GKU transmits an appropriate reservation request message RA to the source network resource manager RMU. The destination address information which identifies the destination terminal EG2 is transmitted to the source network resource manager RMU, inter alia together with the reservation request message RA. The source network resource manager RMU then acknowledges to the gatekeeper GKU that it has received the reservation request message RA, by transmitting a request acknowledgement message AB. However, the reservation itself is not acknowledged. In fact, the reservation is implemented only substantially, to be precise in parallel with the setting up of the connection via the gatekeepers GKU and GKZ. In the course of the reservation of the transmission resources, the source network resource manager RMU first of all checks whether the requested transmission resources are still available in the source network UN. If this is the case, these transmission resources are reserved for the connection that is to be set up. In addition, the source network resource manager RMU uses the transmitted destination address information to determine that or those communication network element or elements, in this case TN and ZN, via which the connection is to be set up to the destination terminal, in this case EG2. In the process, the respectively responsible resource managers, in this case RMT and RMZ, are also determined. If the resource reservation in the source network UN is successful, the source network resource manager RMU transmits a resource request message RA to the transit network resource manager RMT. The latter first of all checks whether the requested transmission resources are still available in the transit network TN. If this is the case, the requested transmission resources are reserved, and a reservation request message RA is transmitted to the destination network resource manager RMZ. The latter also first of all checks the availability of the requested transmission resources in the destination network ZN and, if successful, reserves the transmission resources. Since the resource request message RA is in each case passed on only if the resource reservation has been successful, it is possible to assume when the resource request message RA arrives at the destination network resource manager RMZ that the resource reservation has been successful along the route of the connection to be set up passing all the way to the destination network ZN. An alternative option for informing the destination network resource manager RMZ of the success of the resource reservation is to transmit separate reservation information to the destination network resource manager RMZ, indicating the respective success of a resource reservation process. In parallel with the resource reservation, the gatekeeper GKU continues the process of setting up the connection in that, after receiving the request acknowledgement message AB, it transmits an admission confirmation message ACF to the terminal EG1. This then transmits—still without any acknowledgement of successful resource reservation—a connection setting-up message VAM (set-up) to the gatekeeper GKU, which passes on the connection setting-up message GAM to that gatekeeper GKZ which is determined on the basis of the destination address information. In the process, the gatekeeper GKU also transmits information to the gatekeeper GKZ which indicates that a resource reservation is being made in parallel with the connection setting-up signalling. The connection setting-up message VAM is transmitted on from the gatekeeper GKZ to the terminal EG2. In consequence, the terminal EG2 transmits an access request message ARQ to the gatekeeper GKZ, which then sends a reservation checking message RF to the destination network resource manager RMZ, in order to confirm successful resource reservation. Provided that the resource reservation in the destination network resource manager RMZ—and hence also in the resource managers RMU and RMT—has been successful, the destination network resource manager RMZ transmits a reservation acknowledgement message RB to the gatekeeper GKZ and to the resource managers RMU and RMT. Once the gatekeeper GKZ has received the reservation acknowledgement message RB, it sends an admission confirmation message ACF to the terminal EG2, in response to which the terminal EG2 initiates the connection that is to be set up, by connection initiation messages VEM. The connection initiation messages VEM are transmitted via the gatekeepers GKZ and GKU to the terminal EG1, and preferably comprise a so-called call preceding message, a so-called alerting message and a so-called connect message. Once these connection initiation messages VEM have been transmitted, the connection is set up, so that pay load data DATA can be interchanged between the terminals EG1 and EG2 via the network elements UN, TN and ZN. This additional transmission of the reservation acknowledgement message RB to the resource managers RMU and RMT results in them being informed that the reserve resources are also actually being used. For the resource managers RMT and RMU, it is also preferable to pre-set a time interval for the arrival of the reservation acknowledgement message RB, with the reservation being cancelled if this time interval is exceeded. If, when the gatekeeper GKZ checks the resource reservation, the reservation has not yet been made in the destination network resource manager RMZ, the check may be repeated, if necessary, a number times, by transmitting further reservation request messages RF. Furthermore, a time interval can be pre-set, during which the gatekeeper GKZ waits for a reservation acknowledgement message RB to arrive. If no reservation acknowledgement message RB has been transmitted from the destination network resource manager RMZ to the gatekeeper GKZ for the connection to be set up, after repeated checking and/or after the pre-set time interval has elapsed, the gatekeeper GKZ ends the process of setting up this connection. The invention has been described in detail with particular reference to preferred embodiments thereof and examples, but it will be understood that variations and modifications can be effected within the spirit and scope of the invention. ## Claims 1. A method for setting up a connection with a predetermined Quality of Service from a source network with a source network resource manager to a destination network different from the source network, the destination network having a destination network resource manager, the method comprising: initializing the connection by transmitting both a connection setting-up message and a reservation request in the course of connection setting-up signaling, the connection setting-up message being transmitted from a connection controller in the source network to a connection controller in the destination network, and the reservation request being transmitted from the connection controller in the source network to the source network resource manager; initiating a resource reservation in the source network on the basis of the reservation request; transmitting the reservation request from the source network resource manager toward the destination network resource manager; initiating a resource reservation in the destination network on the basis of the reservation request transmitted from the source network, the resource reservation being initiated by the destination network resource manager; and transmitting reservation information relating to the success of the resource reservation, from the destination network resource manager to the connection controller in the destination network wherein the resource manager of the source network and the resource manager of the destination network both reserve transmission resources of their respective networks on a connection-specific basis and monitor the permanent availability of resources reserved, and the connection controller of the source network and the connection controller of the destination network both perform logical connection control and logical setting-up and clearing down of connections. 2. The method as claimed in claim 1, wherein the connection setting-up message causes the connection controller in the destination network to poll the reservation information relating to the success of the resource reservations. 3. The method as claimed in claim 1, wherein the connection controller in the destination network continues setting up the connection only if the reservation information indicates a successful resource reservation. 4. The method as claimed in claim 1, wherein the source network resource manager transmits reservation information in the direction of the destination network source manager relating to the success of the resource reservation in the source network. 5. The method as claimed in claim 1, wherein the reservation request is transmitted from the source network resource manager toward the destination network resource manager only in the event of a successful resource reservation in the source network. 6. The method as claimed in claim 1, wherein the reservation request is transmitted from the source network resource manager to the destination network resource manager via at least one further resource manager, which is responsible for a connecting path between the source network and the destination network. 7. The method as claimed in claim 1, wherein the source network resource manager identifies at least one other network resource manager, which is responsible for a connecting path between the source network and the destination network, on the basis of address information which identifies a connection destination. 8. The method as claimed in claim 1, wherein the connection controller in the source network signals to the connection controller in the destination network that a resource reservation is being made. 9. The method as claimed in claim 1, wherein the reservation information relating to the success of the resource reservations is transmitted by the destination network resource manager to the source network resource manager. 10. The method as claimed in claim 1, wherein ITU-T Standard H.323 is used for signalling between the connection controller in the source network and the connection controller in the destination network. 11. The method as claimed in claim 1, wherein the SIP protocol in accordance with the IETF Standard is used for signalling between the connection controller in the source network and the connection controller in the destination network. 12. The method as claimed in claim 2, wherein the connection controller in the destination network continues setting up the connection only if the reservation information indicates a successful resource reservation. 13. The method as claimed in claim 12, wherein the source network resource manager transmits reservation information in the direction of the destination network source manager relating to the success of the resource reservation in the source network. 14. The method as claimed in claim 13, wherein the reservation request is transmitted from the source network resource manager toward the destination network resource manager only in the event of a successful resource reservation in the source network. 15. The method as claimed in claim 14, wherein the reservation request is transmitted from the source network resource manager to the destination network resource manager via at least one further resource manager, which is responsible for a connecting path between the source network and the destination network. 16. The method as claimed in claim 15, wherein the source network resource manager identifies at least one other network resource manager, which is responsible for a connecting path between the source network and the destination network, on the basis of address information which identifies a connection destination. 17. The method as claimed in claim 16, wherein the connection controller in the source network signals to the connection controller in the destination network that a resource reservation is being made. 18. The method as claimed in claim 17, wherein the reservation information relating to the success of the resource reservations is transmitted by the destination network resource manager to the source network resource manager. 19. The method as claimed in claim 18, wherein ITU-T Standard H.323 is used for signalling between the connection controller in the source network and the connection controller in the destination network. 20. The method as claimed in claim 18, wherein the SIP protocol in accordance with the IETF Standard is used for signalling between the connection controller in the source network and the connection controller in the destination network.
s3://data.kl3m.ai/documents/recap/gov.uscourts.cand.223889/gov.uscourts.cand.223889.28.0.pdf.json	text/markdown	UNITEDSTATESDISTRICTCOURTFor the Northern District of California 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28UNITEDSTATESDISTRICTCOURTFor the Northern District of California ### UNITED STATES DISTRICT COURT Northern District of California San Jose Division GARY ARDEN, Plaintiff, v. SMARTE CARTE, et al., Defendants. _____________________________________/ No. C 10-0436 JL ORDER DENYING REQUEST FOR DEFENDANT’S INSURER REPRESENTATIVE TO ATTEND THE ENE TELEPHONICALLY Date: September 15, 2010 Evaluator: Randolph Hall IT IS HEREBY ORDERED that the request for defendant Smarte Carte’s insurer representative, Thomas Lookstein, to be excused from personally attending the September 15, 2010 ENE session before Randolph Hall is GRANTED. Mr. Lookstein shall be available by telephone at all times to participate in the ENE in accordance with ADR L.R. 5-10(f). IT IS SO ORDERED. September 3, 2010 By: Dated Elizabeth D. Laporte United States Magistrate Judge Case 3:10-cv-00436-NC Document 28 Filed 09/03/10 Page 1 of 1
s3://data.kl3m.ai/documents/uspto/07416340.json	text/markdown	# Patent ## Title Reclosable packaging having zipper with slider end stops ## Abstract A reclosable package comprising a receptacle and an assembly, the assembly comprising a plastic zipper joined to or integrally formed with the receptacle and a slider mounted to the zipper. The zipper comprises first and second interlockable profiled closure members, and a slider end stop projecting outward from a side of the first closure member for a distance sufficient to obstruct further travel of the slider in a closing direction. The slider end stop comprises a body of plastic material joined to the first closure member, the body being disposed near one end of the zipper and entirely within an elevational range bounded by top and bottom edges of the first closure member. ## Background RELATED PATENT APPLICATION This application is a divisional of and claims priority from U.S. patent application Ser. No. 10/291,883 filed on Nov. 8, 2002, which issued on Nov. 28, 2006 as U.S. Pat. No. 7,141,013. BACKGROUND OF THE INVENTION This invention generally relates to methods and apparatus for manufacturing slider-operated flexible zippers for use in reclosable pouches, bags or other packages of the type in which material, such as foodstuff and detergent, are stored. Reclosable bags are finding ever-growing acceptance as primary packaging, particularly as packaging for foodstuffs such as cereal, fresh vegetables, snacks and the like. Such bags provide the consumer with the ability to readily store, in a closed, if not sealed, package any unused portion of the packaged product even after the package is initially opened. To gain acceptance as a primary package for foodstuffs, it is virtually mandatory that the package exhibit some form of tamper evidence to protect the consumer and maintain the wholesomeness of the contained product. In addition, in many cases it is necessary that food product be hermetically packaged. Reclosable fastener assemblies are useful for sealing thermoplastic pouches or bags. Such fastener assemblies often include a plastic zipper and a slider. Typically, the plastic zippers include a pair of interlockable profiled members that form a closure. As the slider moves across the profiles, the profiles are opened or closed. The profiles in plastic zippers can take on various configurations, e.g. interlocking rib and groove elements having so-called male and female profiles, interlocking alternating hook-shaped closure members, etc. Reclosable bags having slider-operated zippers are generally more desirable to consumers than bags having zippers without sliders because the slider eliminates the need for the consumer to align the interlockable zipper profiles before causing those profiles to engage. In one type of slider-operated zipper assembly, the slider straddles the zipper and has a separating finger at one end that is inserted between the profiles to force them apart as the slider is moved along the zipper in an opening direction. The other end of the slider is sufficiently narrow to force the profiles into engagement and close the zipper when the slider is moved along the zipper in a closing direction. Other types of slider-operated zipper assemblies avoid the use of a separating finger. For example, U.S. Pat. No. 6,047,450 discloses a zipper comprising a pair of mutually interlockable profiled structures, portions of which form a fulcrum about which the profiled structures may be pivoted out of engagement when lower edges of the bases are forced towards each other. One of the important features of zipper assemblies operated by sliders without separating fingers is the end stop, which prevents the clipped-on slider from falling off when the slider reaches the end of the fastener. A slider end stop is provided on each end of the zipper. End stops have taken on various configurations, such as, for example, riveted end clamps such as those described in U.S. Pat. Nos. 5,067,208 and 5,161,286; transverse end stops made from molten material of the fastener strips, as described in U.S. Pat. No. 5,088,971; tubular end stops, as described in U.S. Pat. No. 5,405,478; a window structure combined with sealed zipper ends, as described in U.S. Pat. No. 5,442,837; plastic end clips fused to the zipper, as described in U.S. Pat. No. 5,448,807; posts with enlarged heads that pass through the ends of the zipper profiles, as described in U.S. Pat. No. 5,924,173; and plastic ribbon, monofilament or clip-shaped segments that conform to the outer shape of and are fused to the zipper profile, as described in U.S. Pat. No. 5,833,791. A slider end stop must be designed to withstand the forces applied by a consumer during normal use. More specifically, as the consumer pulls the slider to either end of the zipper, the end stop should not bend, fold, collapse or otherwise lose its ability to stop the slider when the slider is pressed against the end stop by the consumer. Preferably a slider end stop has relatively high slider pull-off resistance. There is a need for improvements in the manufacture and construction of slider end stops for slider-operated zippers. In particular, there is a need for an improved, yet economical method of making a slider end stop having high slider pull-off resistance. BRIEF DESCRIPTION OF THE INVENTION The invention is directed to methods of making slider end stops on zippers for reclosable packaging. The invention is further directed to various slider-zipper assemblies in which slider end stops are joined to a profiled closure member of the zipper and to reclosable packages incorporating such assemblies. One aspect of the invention is a method of manufacture comprising the following steps: extruding a zipper part comprising a plastic closure member that has an interlockable profile and that has a side opposite to the profile; and joining a piece of plastic material to the side of the closure member, the piece being disposed entirely within an elevational range bounded by top and bottom edges of the closure member. Another aspect of the invention is a method of making slider end stops on an end section of a plastic zipper, comprising the following steps: interlocking a pair of profiled closure members together along their length to form a zipper; cutting the zipper to form a generally transverse end face; making an elongated piece of plastic material having first and second bodies connected by a foldable strap in a central section; wrapping the elongated piece around the cut end with the strap confronting the generally transverse end face, and with the first and second bodies being disposed adjacent and exterior to opposing sides of the zipper; and joining the first and second bodies of plastic material to the respective sides of the zipper. A further aspect of the invention is an assembly comprising a plastic zipper and a slider mounted to the zipper, wherein the zipper comprises first and second interlockable profiled closure members that are joined at first and second ends of the zipper, and a slider end stop projecting outward from a side of the first closure member for a distance sufficient to obstruct further travel of the slider in one, wherein the slider end stop comprises a body of plastic material joined to the first closure member, the body being disposed near the first end of the zipper and entirely within an elevational range bounded by top and bottom edges of the first closure member. Another aspect of the invention is an assembly comprising a plastic zipper and a slider mounted to the zipper, wherein the zipper comprises first and second interlockable profiled closure members that are joined at first and second ends of the zipper, and a slider end stop projecting outward from a side of the first closure member for a distance sufficient to obstruct further travel in one direction by the slider, wherein the slider end stop is disposed near the first end of the zipper and entirely within an elevational range bounded by top and bottom edges of the first closure member, and the slider has a notch that receives a portion of the slider end stop before the slider end stop stops further travel by the slider, the notch being formed in part by a surface that is situated under a portion of the slider end stop when the slider abuts the slider end stop. Yet another aspect of the invention is an assembly comprising a plastic zipper and a slider mounted to the zipper, wherein the zipper comprises first and second interlockable profiled closure members, a slider end stop projecting outward from a side of the first closure member for a distance sufficient to obstruct further travel in one direction by the slider, and a fastener that fastens the slider end stop to one end of the zipper. The slider end stop comprises a body of plastic material disposed entirely within an elevational range bounded by top and bottom edges of the first closure member. Another aspect of the invention is an assembly comprising a plastic zipper and a slider mounted to the zipper, wherein the zipper comprises first and second interlockable profiled closure members having respective opposing ends, and an elongated piece of plastic material wrapped around one end of the zipper. The elongated piece comprises first and second bodies connected by a strap. The first body is joined to an exterior of the first closure member and the second body is joined to an exterior of the second closure member, while the strap confronts an endface of the zipper. The first and second bodies obstruct further travel of the slider toward the end of the zipper. Yet another aspect of the invention is an assembly comprising a plastic zipper and a slider mounted to the zipper, wherein the zipper comprises first and second interlockable profiled closure members, the first closure member comprising a hole, and a slider end stop comprising a toothed shaft that penetrates the hole in the first closure member and a head that projects outward from a side of the first closure member for a distance sufficient to obstruct further travel in one direction by the slider. Other aspects of the invention include reclosable packages comprising a receptacle and a slider-zipper assembly of any one of the types described in the preceding five paragraphs, wherein the zipper is joined to or integrally formed with the receptacle. Other aspects of the invention are disclosed and claimed below. BRIEF DESCRIPTION OF THE DRAWINGS FIG. 1 is a drawing showing a sectional view of one type of reclosable bag having a slider-operated zipper. FIG. 2 is a drawing showing an isometric view of a portion of a zipper with slider mounted thereon in accordance with one embodiment of the invention. FIG. 3 is a drawing showing an end view of a zipper having a riveted end stop in accordance with another embodiment of the invention. FIG. 4 is a drawing showing a side view of a rivet with teeth for use in the embodiment depicted in FIG. 3. FIG. 5 is a drawing showing a top view of an end portion of a zipper having a wraparound end stop in accordance with yet another embodiment of the invention. FIG. 6 is a drawing showing a sectional view of the embodiment depicted in FIG. 5, the section being taken along line 6-6 indicated in FIG. 5. DETAILED DESCRIPTION OF THE INVENTION Reference will now be made to the drawings, in which similar elements in different drawings bear the same reference numerals. For the purpose of illustration, some embodiments of the invention will be described with reference to a reclosable package of the type depicted in FIG. 1. However, application of the slider end stop formation techniques of the present invention is not limited to reclosable bags of the type shown in FIG. 1. For example, the reclosable bag may incorporate other types of slider-zipper assemblies. Also the zipper can be integrally formed with the bag making film, instead of having flanges that are joined to the bag making film, as is depicted in FIG. 1. Further, the reclosable package may be provided with a header that encloses the slider-zipper assembly and acts as a tamper-evident feature. Alternatively, the bag could be formed with side gussets, with or without a bottom panel. FIG. 1 is a general depiction of one type of conventional reclosable bag 2 incorporating a zipper 8 and a slider 10 mounted to the zipper. The bag 2 comprises a front wall 4 and a rear wall 6 integrally connected at a fold line situated at the bottom of the bag. Although not shown in FIG. 1, the walls 4 and 6 are also joined at the sides of the package, at least from the bottom to the zipper profile by respective side seals. Alternatively, the walls could be separate panels that are sealed together at their bottom edges as well as at their side edges. The bag walls 4 and 6 are formed of a suitable plastic film material for the product to be contained within the package. For example, the film may be a laminate or coextrusion comprising a gas barrier layer and/or a low-melting-point sealant layer. The zipper 8 comprises a closure member 12 having a female profile and a closure member 14 having a male profile that interlocks with the female profile in the zipper section being closed as the slider travels in the closing direction. The zipper 8 further comprises a zipper flange 16 having one end connected or joined to closure member 12 and a zipper flange 18 having one end connected or joined to closure member 14. As seen in FIG. 1, zipper flange 16 is secured to the bag front wall 4 by a permanent seal 20 proximal to the top of the bag, while zipper flange 18 is secured to the bag rear wall 6 by a permanent seal 22. The permanent seals 20 and 22 are indicated by ovals. It should be appreciated that each permanent seal is a band of joined, e.g., fused, material that extends from one side seal of the bag to the other side seal, thereby securing the zipper to the bag along the width of the bag. The permanent seals 20 and 22 are generally parallel to each other and may be formed by any conventional method, such as conduction heat sealing. It is known to apply a slider-operated zipper to a web of bag making film when advancement of the film toward a form-fill-seal (FFS) machine is temporarily halted. In one known system, a zipper tape is unwound from a spool and advanced to a device for forming slider end stops in accordance with one of the techniques disclosed hereinafter. The zipper tape is then advanced to a slider insertion device, which inserts a respective slider on each segment of zipper corresponding to the zipper length in the reclosable package. Then the zipper tape with inserted sliders is advanced toward the zipper tape application station, where one zipper length or segment will be severed from the remainder of the zipper tape and joined to bag making film that has been unwound from a roll and is being fed under tension to the FFS machine. FIG. 2 depicts one end of a slider-zipper assembly in accordance with one embodiment of the invention. The profiled closure members 12 and 14 are joined to each other at opposing ends of the zipper. One of the joined ends 24 is shown in FIG. 2. The slider-zipper assembly may be of the type wherein the profiled closure members contact each other at a fulcrum point, the section of the zipper inside the slider being acted on by the slider in a manner dependent upon the direction in which the slider is moving. If the slider is moving in the opening direction, then the engaged sections of the closure members that enter the slider are rotated about the fulcrum point in a direction that causes the engaged profiles to disengage from each other, thereby opening those zipper sections. Conversely, if the slider is moving in the closing direction, then the disengaged sections of the closure members that enter the slider are rotated about the fulcrum point in a direction that causes the disengaged profiles to engage each other, thereby closing those zipper sections. However, this is merely one example of one type of slider-zipper assembly for which the various aspects of the invention can be employed. Still referring to FIG. 2, the zipper is provided with at least one slider end stop 26 at each end of the zipper (the slider end stop at the other end is not shown). Optionally, the zipper may be provided with a respective pair of slider end stops at each end, the end stops of each pair having the same size and shape and having mirrored positions on opposing sides of the zipper. The slider end stop 26 shown in FIG. 2 is joined to the side of the profiled closure member 12 that is disposed opposite to the zipper profile of that closure member, i.e., the side of closure member 12 on the exterior of the zipper. The slider end stop 26 projects outward from the side of closure member 12 for a distance sufficient to obstruct further travel of the slider 10 in the opening direction. The slider end stop 26 comprises a body of plastic material joined to the closure member 12. The body 26 is disposed near the joined end 24 of the zipper and entirely within an elevational range bounded by the top and bottom edges of the closure member 12. In accordance with a further aspect of the invention, the slider 10 has a notch 28 that receives a portion of slider end stop 26 before the latter stops further travel of the slider. The portion of the end stop received in notch 28 is tapered. The notch 28 is formed in part by an oblique surface 29 that lodges under the tapered portion of slider end stop 26 when the slider is stopped by the latter. The latching of surface 29 under the tapered end of the slider end stop prevents the leading end of the slider from being lifted or tilted upward and off the zipper when the slider is in the fully open parked position. Although not necessary to practice of the invention, the notch 28 may have a profile that matches the profile of the tapered end of the slider end stop. Although not visible in FIG. 2, the zipper further comprises a second slider end stop projecting outward from the side of one of the closure members 12 or 14 for a distance sufficient to obstruct further travel of the slider 10 in the closing direction. The second slider end stop preferably has the same configuration and disposition as for the slider end stop 26. Likewise the slider 10 is provided with another notch 28′ for latching under the second slider end stop when the slider is in the fully closed park position. In accordance with one embodiment, the slider end stops are joined to the zipper by applying a layer of adhesive material between confronting surfaces of the end stop 26 and the closure member 12. In accordance with another embodiment, the plastic material in a portion of the closure member 12 is fused to a confronting portion or surface of the slider end stop. In accordance with yet another embodiment, the end stop could be formed on the closure member by injection molding, with or without preparation of the surface or shaping of the profile of the closure member in the area where the end stop will be located. In accordance with yet another embodiment, the slider end stop 26 is fastened to the zipper by means of a rivet 30, as shown in FIG. 3. In the illustrated example, the rivet 30 penetrates a throughhole in the end stop piece 26 and a hole formed in the joined end section of the zipper 8. The hole in the joined end of the zipper is generally transverse to the longitudinal axis of the zipper. The structure of the rivet is shown in FIG. 4. The rivet 30 comprises a shaft 32 and a head 34. A multiplicity of tooth-like projections 36 on the shaft are shaped to provide a self-locking feature, i.e., the tooth tips will not interfere when the rivet is inserted into the hole but will grip the surrounding plastic material of the zipper when an attempt is made to pull the rivet out of the hole. The throughhole in the end stop piece may be countersunk so that the rivet head will lie flush with or below the surface of the end stop. In accordance with a variation of the embodiment depicted in FIG. 3, instead of riveting the end stop to a joined end section of the zipper, the ends of the closure members 12 and 14 can be unjoined at the time when the rivet is inserted. In this case the rivet will join the end stop to the zipper and will further join the closure members to each other. The rivet may have the same configuration as is shown in FIG. 4. A hole that is closed at one end must be formed in the closure member furthest from the end stop, with throughholes being formed in the other closure member and the end stop itself. These holes are aligned to form a single passage in which the rivet 30 will be inserted. The teeth on the rivet shaft may be positioned so that both closure members are engaged by respective sets of teeth along respective portions of the shaft. The head of the rivet in conjunction with engagement by the teeth as well as surface friction will fasten the slider end stop and the ends of the closure members together in one step. In accordance with yet another embodiment of the invention depicted in FIGS. 5 and 6, an elongated piece 38 of plastic material is wrapped around the joined end 24 of the zipper. The elongated piece 38 comprises a pair of slider end stop bodies 40 and 42 connected by a strap or membrane 44. Each of bodies 40 and 42 may have a shape similar to the shape of the body 26 depicted in FIG. 2, with the difference that these bodies are connected by a continuous strap of membrane made of the same plastic material. As seen in FIG. 6, the end stop body 40 is joined to the side of closure member 14, while the end stop body 42 is joined to the side of closure member 12. The strap 44 is disposed adjacent to and overlapping an endface of the zipper. The end stop bodies can be joined to the closure members by gluing or by applying heat to soften portions of the closure members and pressing the bodies against the respective softened portions, the bodies being fused to the closure members when the softened material has cooled sufficiently. Optionally, the strap 38 can be joined (by gluing or welding) to the endfaces of the zipper closure members. Alternatively, the elongated piece could be formed on the end section of the zipper by injection molding, with or without preparation of the surface or shaping of the profiles of the closure members in the areas where injected molten plastic will contact the zipper. In addition to the above-described products, the invention is also directed to various methods for manufacturing those products. In accordance with one method of manufacture, a pair of plastic zipper parts, each comprising a profiled closure member and a connected zipper flange (e.g., having the structure generally depicted in FIG. 1), are extruded and interlocked together. Then a piece of compatible plastic material in the shape of a slider end stop is joined to the side of the closure member of the first zipper part opposite to its interlockable profile. The end stop piece is disposed entirely within an elevational range bounded by the top and bottom edges of the closure member. This process is repeated twice for each zipper segment of one package width. Optionally, end stop pieces can also be joined to the closure member of the second zipper part at identical positions as those for the first zipper part. After sliders are mounted to the zipper tape at spaced intervals therealong (one slider per zipper segment), the resulting slider-zipper assembly can be fed to a zipper application, where one zipper flange is attached to a web of bag making film. The bag making film with bag making film with slider-zipper assemblies attached at spaced intervals can then be fed to a form-fill-seal machine in conventional fashion. Alternatively, the end stop pieces can be joined to one or both closure members before the zipper parts have been interlocked. In one embodiment of the aforementioned joining step, the end stop piece is glued to the side of the closure member using quick-cure adhesive. Optionally, the surface of the closure member may be prepared, e.g., roughened or knurled, prior to gluing. Then a layer of adhesive is applied to the prepared surface or to the contacting surface on the end stop piece and the end stop piece is pressed against the prepared surface of the closure member with the layer of adhesive therebetween. The end stop piece is maintained in this state while the adhesive is allowed to cure. In another embodiment of the foregoing joining step, a portion of the closure member is heated to a softening temperature and optionally shaped, and then the end stop piece is pressed against the softened region of the closure member. The end stop piece is maintained in this state while the softened plastic of the closure member is allowed to cool, thereby fusing the end stop piece to the closure member. In yet another embodiment of the joining step, a hole (it need not be a throughhole) is formed in the closure member, the axis of the hole being generally transverse to the longitudinal axis of the zipper part. Also, a throughhole is formed in the end stop piece. Thereafter, the end stop piece is positioned so that its throughhole is aligned and in communication with the hole in the closure member. Then a self-locking rivet having a toothed shaft is inserted into the throughhole of the end stop piece and further into the hole in the closure member, thereby fastening, i.e., joining, the end stop piece to the closure member. In accordance with a further embodiment of the end stop joining step, a portion of the closure member is shaped or its surface is prepared. Then a mold is positioned adjacent to the shaped or otherwise prepared portion of the closure member. Conventional injection molding can then be used to form a slider end stop, the base of which will fuse to the shaped or prepared portion of the closure member. More specifically, compatible plastic material is heated to a liquefied state; the liquefied plastic material is injected into the mold; and then the injected plastic material is cooled under pressure and ejected from the mold, leaving a molded end stop joined to the closure member. Each of the foregoing slider end stop joining techniques can be performed on one or both profiled closure members after the closure members have been interlocked and after confronting sections of the closure members have been joined to each other at spaced intervals in anticipation of forming joined end sections later when successive zipper segments are cut off the end of the zipper tape. In this case, the end stops are preferably placed at positions that at least partially overlap the joined end section. In accordance with a further alternative method of manufacture, the slider end stops can be riveted to unjoined sections of interlocked closure members, with the rivets serving to not only join the end stop piece to the zipper, but also join the closure members to each, in anticipation of a subsequent cutting operation that will place the riveted sections at opposing ends of each zipper segment. In accordance with this embodiment of the joining step, a hole (it need not be a throughhole) is formed in the first closure member, the axis of the hole being generally transverse to the longitudinal axis of the zipper part. Also, a throughhole is formed in the second closure member, this throughhole being collinear with the hole in the first closure member. Lastly, a throughhole is made in the end stop piece. Thereafter, the end stop piece is positioned so that its throughhole is aligned and in communication with the throughhole in the second closure member. Then a self-locking rivet having a toothed shaft is inserted into the throughhole of the end stop piece, into the throughhole in the second closure member and further into the hole in the first closure member, thereby fastening, i.e., joining, the end stop piece and the closure members together. Alternatively, the rivet alone could be used as the stopping mechanism. In this, embodiment the toothed shaft would grip a hole in the zipper end, while the rivet head protruded from the side of the zipper to a height sufficient to block passage of the slider. Optionally, the toothed shaft of the rivet could also serve to fasten the ends of the closure members together. In accordance with yet another alternative method of manufacture, the slider end stops can be joined to the end of a zipper after cutting. In this embodiment, an elongated piece of plastic material, of the type described with reference to FIGS. 5 and 6, is wrapped around the cut end of a zipper tape or a zipper segment separated from the zipper tape and then joined by adhesion or fusion. This method can be applied to joined or unjoined ends of the zipper closure members. Alternatively, the elongated piece can be formed on the unjoined ends of the zipper closure members by injection molding. More specifically, the method of joining a wraparound elongated piece comprises the following steps: interlocking a pair of profiled closure members together along their length to form a zipper; cutting the zipper to form a generally transverse endface; making an elongated piece of plastic material having two bodies connected by a foldable strap in a central section; wrapping the elongated piece around the cut end with the strap confronting the generally transverse endface, and with the bodies respectively disposed adjacent and exterior to the opposing sides of the zipper; and joining the bodies of plastic material to the respective sides of the zipper. Optionally, the strap can be joined to the endface of the zipper. The bodies can be glued or fused to the sides of the zipper. Fusing can be accomplished by heating respective exterior portions on the zipper sides to a softening temperature, and then pressing the bodies against the respective softened exterior portions. As previously mentioned, the invention also encompasses reclosable bags in which bag making film and first and second interlockable profiled closure members are integrally formed, e.g., by extrusion. The bag making film is then folded in a manner that aligns the first and second closure members in opposition to each other. The slider end stops can be formed before or after folding. While the invention has been described with reference to various embodiments, it will be understood by those skilled in the art that various changes may be made and equivalents may be substituted for elements thereof without departing from the scope of the invention. In addition, many modifications may be made to adapt a particular situation to the teachings of the invention without departing from the essential scope thereof. Therefore it is intended that the invention not be limited to the particular embodiment disclosed as the best mode contemplated for carrying out this invention, but that the invention will include all embodiments falling within the scope of the appended claims. The listing of method steps in any annexed claim, in the absence of express limiting language in the claim, is not intended to limit the scope of that claim to mean that the method steps must be performed in the order in which they are listed. For example, the end stops can be joined to the closure members before or after the closure members have been interlocked to form a zipper. As used in the claims, the verb “joined” means fused, bonded, sealed, adhered, fastened, whether by application of heat and/or pressure, application of ultrasonic energy, application of a layer of adhesive material or bonding agent, interposition of an adhesive or bonding strip, insertion of a rivet, or other substantially equivalent means. ## Claims 1. A reclosable package comprising a receptacle and an assembly, said assembly comprising a plastic zipper joined to or integrally formed with said receptacle and a slider mounted to said zipper, wherein said zipper comprises first and second interlockable profiled closure members, and a first slider end stop projecting outward from a first surface area of a side of said first closure member for a distance sufficient to obstruct further travel of said slider in a first direction, said first surface area being surrounded by a second surface area of said side of said first closure member, wherein said first slider end stop comprises a first body of material joined to said first surface area of said first closure member and not in contact with said second surface area, said first body being disposed near one end of said zipper and entirely within an elevational range bounded by top and bottom edges of said first closure member, and wherein said slider comprises a sidewall having a first notch that starts at one end thereof for receiving a portion of said first body as said slider approaches during movement in said first direction, and wherein when said slider is stopped by said first body received in said first notch, said sidewall has a first portion disposed above said first body and a second portion disposed below said first body, and said first body is not disposed between said sidewall and said zipper. 2. The package as recited in claim 1, wherein said portion of said first body received in said notch of said slider is tapered. 3. The package as recited in claim 1, further comprising a layer of adhesive material between said first body and said first closure member. 4. The package as recited in claim 1, wherein material of said first closure member is fused to said first body at the juncture of said first body and said first closure member. 5. The package as recited in claim 1, further comprising first and second zipper flanges respectively connected to said first and second closure members. 6. The package as recited in claim 1, wherein said zipper further comprises a second slider end stop projecting outward from said side of said first closure member or a side of said second closure member for a distance sufficient to obstruct further travel of said slider in a second direction opposite to said first direction, wherein said second slider end stop comprises a second body of material joined to said first or second closure member, said second body being disposed near said second end of said zipper and entirely within said elevational range, and wherein said sidewall of said slider has a second notch that starts at an other end thereof for receiving a portion of said second body as said slider approaches during movement in said second direction, and wherein when said slider is stopped by said second body received in said second notch, said sidewall has a third portion disposed above said second body and a fourth portion disposed below said second body, and said second body is not disposed between said sidewall and said zipper. 7. The package as recited in claim 6, wherein said zipper further comprises a third slider end stop projecting outward from a side of said second closure member for a distance sufficient to obstruct further travel of said slider in said first direction, wherein said_third slider end stop comprises a third body of material joined to said second closure member, said third body being disposed near said first end of said zipper and entirely within said elevational range, further comprising a strap having one end connected to said first body and another end connected to said third body, said strap being adjacent to and overlapping an endface at said first end of said zipper. 8. A reclosable package comprising a receptacle and an assembly, said assembly comprising a plastic zipper joined to or integrally formed with said receptacle and a slider mounted to said zipper, wherein said zipper comprises first and second interlockable profiled closure members, a slider end stop projecting outward from a side of said first closure member for a distance sufficient to obstruct further travel in one direction by said slider, and a fastener that fastens said slider end stop to one end of said zipper, wherein said slider end stop comprises a body of material disposed entirely within an elevational range bounded by top and bottom edges of said first closure member, wherein said second closure member comprises a hole, said first closure member comprises a throughhole aligned with said hole and in communication therewith and said body comprises a throughhole aligned with said throughhole in said first closure member, and said fastener comprises a rivet that penetrates said hole and said throughholes and that engages at least said second closure member. 9. The package as recited in claim 8, wherein said rivet comprises teeth that engage said second closure member. 10. The package as recited in claim 8, wherein said rivet also engages said first closure member. 11. The package as recited in claim 8, wherein said rivet comprises a toothed shaft that penetrates said hole in said first closure member and has one end engaged with said second closure member.
s3://data.kl3m.ai/documents/edgar/0001020242/0001020242-15-000063/14.json	text/markdown	Report of Independent Registered Public Accounting Firm To the Board of Directors, PNC Financial Services Group, Inc.: We have examined management’s assertion, included in the accompanying Report on Assessment of Compliance with Regulation AB Servicing Criteria, that Midland Loan Services, a division of PNC Bank, National Association (“Midland” or the “Company”) complied with the servicing criteria set forth in Item 1122(d) of the Securities and Exchange Commission’s Regulation AB for the commercial mortgage-backed securities transactions (the “Platform”), as of December 31, 2014 and for the year then ended, excluding criteria 1122(d)(1)(iii), 1122(d)(3)(i)(B), 1122(d)(3)(i)(C), 1122(d)(3)(i)(D), 1122(d)(3)(ii), 1122(d)(3)(iii), 1122(d)(3)(iv), and 1122(d)(4)(xv), which the Company has determined are not applicable to the servicing activities performed by it with respect to the Platform. Management is responsible for the Company’s compliance with the servicing criteria. Our responsibility is to express an opinion on management’s assertion based on our examination. Our examination was conducted in accordance with attestation standards of the Public Company Accounting Oversight Board (United States) and, accordingly, included examining, on a test basis, evidence about the Company’s compliance with the applicable servicing criteria and performing such other procedures as we considered necessary in the circumstances. Our examination included testing of selected asset-backed transactions and securities that comprise the Platform, testing of selected servicing activities related to the Platform, and determining whether the Company processed those selected transactions and performed those selected activities in compliance with the applicable servicing criteria. Our procedures were limited to the selected transactions and servicing activities performed by the Company during the period covered by this report. Our procedures were not designed to detect noncompliance arising from errors that may have occurred prior to or subsequent to our tests that may have affected the balances or amounts calculated or reported by the Company during the period covered by this report. We believe that our examination provides a reasonable basis for our opinion. Our examination does not provide a legal determination on the Company’s compliance with the servicing criteria. In our opinion, management’s assertion that Midland complied with the aforementioned applicable servicing criteria as of and for the year ended December 31, 2014 for the Platform is fairly stated, in all material respects. February 25, 2015 PricewaterhouseCoopers LLP, 1100 Walnut Street, Suite 1300, Kansas City, MO 64106 T: (816) 472 7921, F: (816) 218 1890 www.pwc.com/us
s3://data.kl3m.ai/documents/recap_docs/1999/05/21/winfree_v._winfree.pdf.json	text/plain	FILED May 21, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE CHARLOTTE DIANA WINFREE, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9805-CH-00264 VS. ) ) Warren Chancery ) No. 6354 THOMAS SIDNEY WINFREE, ) ) Defendant/Appellee. ) APPEALED FROM THE CHANCERY COURT OF WARREN COUNTY AT MCMINNVILLE, TENNESSEE THE HONORABLE CHARLES D. HASTON, JUDGE H. THOMAS PARSONS PARSONS & NICHOLS 101 West Main Street Manchester, Tennessee 37355 Attorney for Plaintiff/Appellant MARGUERITE H. STEWART CAMP & STEWART 111 West Court Square McMinnville, Tennessee 37110 Attorney for Defendant/Appellee AFFIRMED AS MODIFIED AND REMANDED BEN H. CANTRELL PRESIDING JUDGE, M.S. CONCUR: KOCH, J. COTTRELL, J. - 2 - O P I N I O N This is an appeal of the division of marital property in a divorce case. We modify the judgment of the trial court. I. Charlotte Diana Winfree and Thomas Sidney Winfree marriedonAugust 28, 1982. They had two children, who were fourteen and twelve at the time of the divorce. Both parties had public employment; Mr. Winfree worked as a property appraiser for the State of Tennessee; Ms. Winfree taught school in the Warren County system. They separated in September of 1996. Mr. Winfree owned a home at the time of the marriage. It sat on approximately three acres of land given to him by his parents. Shortly before the parties separated, Mr. Winfree’s mother deeded another two acres to the parties jointly. At approximately the same time, Mr. Winfree converted the title to the home to a tenancy by the entireties. In addition to his regular employment, Mr. Winfree also raised cattle on his mother’s farm and on some rented acreage. In December of 1997 the parties announced to the court that they had agreed that the home be sold at auction and the net proceeds divided sixty-five percent to Mr. Winfree and thirty-five percent to Ms. Winfree. The proceeds of the cattle and equipment sale were to be divided equally. At the time of the final hearing, the parties had divided the proceeds from the house and the sale of some of the cattle and the farm equipment. Mr. Winfree got $72,150 from the house and $12,743 from the personal property. Ms. Winfree got $38,850 and $12,743 respectively. The proof showed that Mr. Winfree had a 401(k) retirement account at the time of the marriage. Between the marriage and the divorce, the fund had grown - 3 - by $69,748.54. Ms. Winfree earned a college degree during the marriage, began her teaching career, and had $8,746.00 in a retirement account. Early in 1996, Mr. Winfree borrowed $20,000 from his 401(k) account to pay on the parties’ credit card debt. He was able to reduce the debt to approximately $2,000. By the time of the separation, the debt had increased again, to approximately $20,000. Ms. Winfree was chiefly responsible for these charges, although she contended that the purchases were primarily for family purposes. Mr. Winfree still owed approximately $17,000 on his loan at the time of the hearing. The trial judge ordered the parties to be responsible for their respective debts. In addition to the property the parties had already divided, the trial judge ordered Mr. Winfree to pay Ms. Winfree $200 for a tool box Mr. Winfree removed from one of the trucks sold earlier, $1,500 as the value of five cows he retained, and $1,500 as one-half of the value of a front-end loader. The decree also awarded a Lumina automobile to Ms. Winfree, but the debt exceeded the value of the car by $2,000. Ms. Winfree also got the debt. In order to equalize the property division, the trial judge ordered Mr. Winfree to pay Ms. Winfree $7,500 as her share of the increase in his 401(k) plan. The final decree resulted in the following division of the marital property: Husband Wife House $ 72,150 $ 38,850 Personal Property 12,743 12,743 Retirement Accounts 69,748 8,746 Tool Box 200 Cattle 1,500 Front-end Loader 1,500 1,500 Debt (17,000) (20,000) Lumina (2,000) Other Personal Property -- -- Offsetting Payment ( 7,500) 7,500 ________ ________ Total $131,641 $ 49,039 In fairness to Mr. Winfree we should point out that he owned the home before the marriage, and the parties agreed that he should get sixty-five percent of it. That agreement can be construed as assigning $33,300 of the home to Mr. Winfree - 4 - as his separate property. If we make that adjustment, and subtract that amount from his total, his share of the marital estate comes to $98,341 and Ms. Winfree’s to $49,039. II. Ms. Winfree argues on appeal that during the marriage Mr. Winfree paid a $25,000 pre-marital debt to his parents, that he had a certificate of deposit of $12,842.27 in a local bank, and that he retained furniture and household effects after the separation worth $18,000. She insists that all should have been accounted for in the division. Mr. Winfree and his mother testified that the loan had been repaid prior to the marriage. Although Mr. Winfree admitted in his deposition that the loan was unpaid at the time of the marriage, he changed his testimony and the trial judge apparently accepted his explanation. Since this issue is primarily one of credibility, we accept the trial judge’s resolution of the conflicting testimony. Town of Alamo v. Forcum-James Co., 327 S.W.2d 47 (Tenn. 1959). The same can be said for the certificate of deposit. The trial judge heard Mr. Winfree deny having a certificate of deposit and made a finding that it did not exist. Based on the record before us we cannot say that the evidence preponderates against that finding. See Rule 13(d), Tenn. R. App. Proc. The final decree awarded each party the personal property they had in their possession at the time of the divorce. The record shows that Ms. Winfree took some of the household furniture and other goods when the parties separated. She estimated that what remained was worth $18,000. Mr. Winfree disputes that testimony. There is no proof of the value of what Ms. Winfree took. Therefore, we cannot say that the trial judge erred in leaving them where he found them on this issue. - 5 - Ms. Winfree also asserts that the proof showed that Mr. Winfree sold cattle in the months of October and November of 1996 and collected $5,556.98. The trial judge did not make any finding on that item. Mr. Winfree admitted the sales but asserted that he needed the money to pay expenses. He does not specify what expenses. In light of the fact that he was living in the marital home rent free and Ms. Winfree was having to pay rent at her new residence, we think she is entitled to have Mr. Winfree account for the money he collected. Finally, Ms. Winfree asserts that she is entitled to one-half of the amount Mr. Winfree’s retirement account increased during the marriage. She makes an error common to many divorce litigants by treating each asset individually when we are concerned with the equitable division of the overall marital estate. Tenn. Code Ann. § 36-4-121(c). There are many factors that affect the division of the marital property. See Tenn. Code Ann. § 36-4-121(c). Included in the list are the duration of the marriage, the contribution of one party to the education, training or increased earning power of the other party, and the contribution of each party to the acquisition, preservation, appreciation or dissipation of the marital property. In this case, Ms. Winfree earned a degree during the marriage and she has a history of living on credit. She insists that her debts should have been jointly shared, but we do not think the trial judge erred in concluding that the charges she made the last year of the marriage and after the separation could reasonably be assigned to her. We are also aware that the final decree is silent about another $10,000 loan on the farm equipment Mr. Winfree will have to repay. But the $17,000 remaining on the 401(k) loan, he owes to himself. As he repays that loan with interest the balance in his retirement account will rise accordingly. Taking all these factors into account, we think that Mr. Winfree should pay Ms. Winfree $25,000 instead of the $7,500 ordered by the trial judge. The division will then look like this: - 6 - Husband Wife House $38,850 $38,850 Personal Property 12,743 12,743 Retirement Accounts 69,748 8,746 Tool Box 200 Cattle 1,500 Front-end Loader 1,500 1,500 Cattle Sold in 1996 5,557 Debt (17,000) (20,000) Lumina ( 2,000) Offsetting Payment (25,000) 25,000 _______ _______ Total $86,398 $66,539 The $25,000 payment is in addition to the payments already ordered by the trial judge ($200, $1500 and $1500) but no further payment is due for the cattle sold in October and November of 1996 since we have taken that sale into account. The judgment of the court below is modified as indicated herein and as modified it is affirmed. Remand the case to the Chancery Court of Warren County for further proceedings. Tax the costs on appeal to Mr. Winfree. _____________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR: _____________________________ WILLIAM C. KOCH, JR., JUDGE _____________________________ PATRICIA J. COTTRELL, JUDGE
s3://data.kl3m.ai/documents/uspto/07415586.json	text/markdown	# Patent ## Title Data backup method and system ## Abstract A disk array has storage regions provided to store the management information for each disk volume of the backup data, and an interface is provided through which the management information for each disk volume is read from and written in by an external computer so that the backup data of disk volumes can be associated with the management information. The management information includes backup creation date and time, and content identifier, and it is set from the external computer, and updated according to the operations such as restore and tape copy based on the command from the external computer. ## Background The present application is a continuation of application Ser. No. 10/650,858, filed Aug. 29, 2003, now U.S. Pat. No. 7,013,373 the contents of which are incorporated herein by reference. BACKGROUND OF THE INVENTION The present invention generally relates to methods for backup of data stored in a computer system, and particularly to a method for backup of data by using the data copying function of a disk array system and its function to acquire frozen images of data (snapshot function), and to a system using this method. The computer system is now required to always make stable operation and to avoid the situations in which the computer system halts the service because of accident or maintenance. In addition, even if a trouble occurs on the computer system by any possibility, it is necessary to minimize the loss of data within the computer system, and to restore the system to its former state as soon as possible. In the prior art, data-updating operation is regularly frozen (freezing), and at this time data is copied (backed up) onto a storage medium such as inexpensive magnetic tape. Thus, if some data is lost by a fault, the data is recovered (restored) from the tape, thus full data being kept safe. On the tape are stored not only the data and control information necessary for the computer system, but also information necessary for the management for the data to be backed up by using part of the storage region of the tape. This management information includes codes for identifying the data contents and the dates on which the backup data was acquired as, for example, described in “File Structure and Labeling of Magnetic Tapes for Information Exchange”, 4th Edition, Standard ECMA-13, December, 1985, pp. 7-19. The software (backup software) for controlling the backup and restore processes usually manages the list (catalog) of the produced backup data, and when the externally produced backup data is added and managed, it adds necessary information to the catalog by referring to the management information recorded on the tape. Recently, use of “on-line backup” has advanced. This on-line backup uses “data mirror function” or “snapshot function” to generate a backup image (snapshot) quickly so that data can be copied onto the tape while a computer system is operating. The data mirror function duplicates data on a plurality of storage regions (disk volumes) and freeze one of the regions as a snapshot of data according to need. The snapshot function saves, at the time of data update, the data to be updated before update and provide a frozen image of the disk volume at a certain time point with both the current disk volume content and the before-update data. These functions are provided in the software on the computers or disk arrays. The data mirror function is disclosed in, for example, U.S. Pat. No. 5,845,295, and the snapshot function in, for example, U.S. Pat. No. 5,649,152. SUMMARY OF THE INVENTION Since the cost of the disk drive has much been reduced in these years, the trend to store backup data on the disk drive has been strengthened as compared with the case when it is stored on the tape. In the former case, the backup data is generated by the data mirror function or snapshot function within the disk array, and used as it is without being copied onto the tape, so that the backup and recovery operations can be speeded up. However, since the backup data produced by using the data mirror function or the snapshot function is the frozen image of the data to be backed up, it has only the same storage capacity as the data to be backed up, or has no extra storage capacity for recording the backup management information as on the tape media. If the storage capacity is expanded for the management information, the address space of the region in which the backup data is stored and which is recognized by the computer is changed enough to make it difficult to address the data. Therefore, it is difficult to move/copy the backup data that has data and management information combined as backup data or associated with each other. Since the backup data produced by use of the data mirror function or the snapshot function is supposed to use as it is in order that it is copied onto the tape, but not transferred to other media, there is no need to associate the backup data with the management information on the disk. Thus, the above problem is not caused, and any documents disclosed about this problem are not found. It is an object of the invention to provide a backup method capable of recording management information such as backup date in association with the backup data stored on the disk volumes, and making the same management as the backup data stored on the tape is managed, and a system using this method. The above problem can be solved by providing on the disk array the regions in which the management information for the backup is stored for each disk volume and the interface through which the management information of a particular disk volume is read and written from the external computer so that the data stored in the disk volumes can be used as the backup data. When the data within the disk array are backed up, the backup program on the computer orders the disk array to generate the snapshot of the data-stored disk volumes. The disk array produces the snapshot of the disk volumes by using the data mirror function or the snapshot function. The computer transmits the information about the backup program and such information as backup date and time and content identifiers pertaining to the snapshot to the disk array. The disk array causes these information to be recorded on the storage regions associated with the disk volumes of the snapshot. The backup program also causes these management information to be recorded on the catalog of the backup data, so that the generated snapshot can be added to manage as the backup data. Thus, the backup data are stored in the storage regions within the disk array, and the management information for the backup data are stored within the disk array in association with the storage regions of the backup data. The management information includes the information about the backed-up data, and the information about the regions in which the backup data have been stored. If the catalog that the backup program holds is lost, the management information corresponding to the disk volume of the disk array is read out and used to reproduce the catalog. Also, if the disk array has the function to copy the disk volumes, it copies not only the data recorded on the disk volumes but also the management information incidental to the disk volumes. By treating the data of the disk volumes and the accompanying management information in association with each other, it is possible to manage the disk volumes in the same way as the tape is managed on which the data and management information are stored together. Other objects, features and advantages of the invention will become apparent from the following description of the embodiments of the invention taken in conjunction with the accompanying drawings. BRIEF DESCRIPTION OF THE DRAWINGS FIG. 1 is a block diagram of an example of the construction of the system to which the invention is applied. FIGS. 2A and 2B show examples of the function of the backup program. FIG. 3 shows an example of a port correspondence table. FIG. 4 shows an example of a backup volume table. FIG. 5 shows an example of a backup definition table. FIG. 6 shows an example of a backup data table. FIG. 7 shows an example of a volume management table. FIG. 8 is a flowchart showing an example of the procedure for acquiring a copy-to-volume list. FIG. 9 is a flowchart showing an example of the backup process that the backup server makes. FIG. 10 is a flowchart showing an example of the backup process that the backup client makes. FIG. 11 shows an example of the structure of volume information. FIG. 12 is a flowchart showing an example of the volume restore process that the backup client makes. FIG. 13 is a flowchart showing an example of the file restore process that the backup client makes. FIG. 14 is a flowchart showing an example of the backup data delete process that the backup client makes. FIG. 15 is a flowchart showing an example of the procedure for acquiring the backup volume list. FIG. 16 is a flowchart showing an example of the tape copy process that the backup server makes. FIG. 17 is a flowchart showing an example of the backup process that the backup server makes. FIG. 18 is a flowchart showing an example of the backup process that the backup client makes. FIG. 19 is a flowchart showing an example of the inter-volume data copy process that the disk array makes. DESCRIPTION OF THE EMBODIMENTS Embodiments of the invention will be described with reference to the accompanying drawings. According to the first embodiment of the invention, in a computer system including a disk array that has the data mirror function and the function to record the backup information for each volume, and computers connected to the disk array through a fiber channel network, the backup data of a certain volume (hereafter, called primary volume) is stored in a mirror volume (that is the volume for storing the same data as in the primary volume, and hereafter referred to as secondary volume) by the data mirror function and backup information recording function that the disk array has, and the data stored in the secondary volume are managed and copied onto the magnetic tape by a backup server. (1) Construction of System FIG. 1 shows the whole construction of this embodiment. The whole construction of FIG. 1 has client computers 1, 1a (hereafter, represented by reference numeral 1), a backup server 2 and disk arrays 3, 3a (hereafter, represented by reference numeral 3). The client computer 1 and disk array 3 are connected through fiber channel (FC) cables 40 ̃44 (42a ̃44a) to a fiber channel switch 6. The client computer 1 reads/writes data from/in the disk volumes of the disk array 3 through a fiber channel network (hereafter, referred to as fiber channel network (FC network) 6) that is formed of the fiber channel (FC) cables 40 ̃44 and the fiber channel switch 6. The client computer 1, the backup server 2 and the disk array 3 can be communicated with each other through a local area network (LAN) 5. While the computer 1, 1a and disk array 3 are connected through the fiber channel network 6 in this embodiment, the present invention does not depend on the communication media and connection mode, but may be applied to a connection mode in which the fiber channel switch 6 is not used, communication media such as SCSI or IP network other than the fiber channel and a structure using protocol. Also, while the client computer 1 is called client by contrast with the backup server, it may be a normal server that makes work-related operations. The client computer 1 has a LAN interface (LAN I/F) 11 and a fiber channel interface (FC I/F) 12 for the communication through the LAN 5 and FC network 6. It also has a memory 13 for storing program and data, and a CPU 14 for execution of the program. The memory 13 has programs such as an application program 15 and a backup client program 16 previously stored therein. The application program 15 generates and utilizes the data stored within the disk array 3 that are to be backed up, so as to execute work-related processes. FIG. 2A shows the functions of the backup client program 16. These functions are a copy-to-volume list acquisition 160, a data mirror 161, a volume/restore 162, a file/restore 163, a backup data deletion 164, a snapshot 165 and an Inquiry issue 166. Most of these functions are achieved in cooperation with a backup server program 24 and a disk array control program 36 which will be described later. The client computer 1 has, though not shown, a correspondence table that correlatively lists devices ID38, 38a of disk array 3, 3a and LAN address for the communication with the disk array 3, 3a, and thus it can communicate with the disk array 3, 3a of desired device ID38, 38a through LAN 5. The client computer 1 also has, as shown, a port correspondence table 17 and a restore port table 18 in which necessary information for backup process and restore process is stored. The port correspondence table 17 has the information shown in FIG. 3 for each disk volume to be backed up. Referring to FIG. 3, the column of a mount point 171 shows the mount points of disk volumes, the column of a device file 172 shows the device files of disk volumes, and the column of an FC port address (FC Port Addr.) 173 shows the fiber channel port addresses of a fiber channel interface (FC I/F) 32 of the disk array 3 that are used when a disk volume is accessed to. The column of a LUN 174 shows the Logical Unit Numbers (LUN) given to the disk volumes within the disk array 3. On the restore port table 18 are recorded the FC port addresses and LUN that are previously determined in order that the backup data within the disk array 3 can be accessed to. The backup server 2 has a LAN interface (LAN I/F) 21, a memory 23 and a CPU 28. The backup server 2 is connected through a SCSI interface (SCSI I/F) 22 to a tape library device 8. The memory 23 has a backup server program 24 stored therein. FIG. 2B shows the functions of the backup server program 24. These functions include a data mirror 240, a restore 241, a backup data list acquisition 242, a tape copy 243, and a snapshot 244 in addition to general backup functions (for example, file backup function). Most of these functions are achieved in cooperation with the backup client program 16 and the disk array control program 36 which will be described later. It also has a user interface function for the user to be instructed from a backup manager (system manager), though not shown in FIG. 1. The memory 23 also has a backup volume table 25 that records the list of volumes in which the copy of data can be stored by using the data mirror function of disk array 3, a backup definition table 26 that records the backup sections defined by the user, and a backup data table 27 that manages the acquired backup data. The backup volume table 25 has the structure shown in FIG. 4, and stores a host computer name 251 as the denomination of the client computer 1 that uses the disk volumes to be backed up, its mount point 252, a device ID253 of the disk array 3 that provides the disk volumes, a volume number list 254 of the disk volumes in which the copy of data is stored by the data mirror function. The backup definition table 26 has the structure shown in FIG. 5. The column of host computer name 261 and mount point 262 show the names and mount points of the client computer 1 that uses the disk volumes to be backed up. The column of backup classification 263 indicates whether the backup data is stored or not in the secondary volume by using the data mirror function. If “disk backup” is indicated on this column, the backup data is stored in the secondary volume by the data mirror function. If “tape backup” is indicated on this column, backup process is made so that the data is stored on the magnetic tape. The backup to the magnetic tape is performed by the conventional backup process, and thus will not be described. The column of backup destination 264 indicates the device ID38 of the disk array 3 and the volume number of the secondary volume in which the backup data is stored when the backup classification 263 shows the use of the data mirror function. If “tape backup” is indicated on the column, the backup destination 264 shows the identifier of the tape on which the data is stored. The columns of preprocess 265 and postprocess 266 show the processes that are respectively to be executed before and after the backup process. If database is backed up, the preprocess is executed as a program to order the database management program to stop the update of data before the backup, and the postprocess is executed as a program to order the database management program to resume the data update process after the backup. Therefore, since data of the database is not updated during the backup process, the data stored in the primary volume can be assuredly matched with the backup data stored in the secondary volume. The column of label 267 indicates the text for the backup manager to identify the backup data. By storing the text for the content of data and the objective of backup, it is possible to help the manager look for the backup data with ease at the time of restoring. The column of schedule 268 indicates the date and time at which the backup process is executed. If the schedule is set to a particular date and time or every day or every week, the backup process is automatically executed at the predetermined date and time. The backup data table 27 has the structure shown in FIG. 6. The entries in the table are performed for each backup data. The column of host computer name 271 shows the name of the client computer 1 that uses backup data. The column of mount point 272 indicates its mount point, and that of the backup classification 273 indicates whether the backup data has been stored in the secondary volume by the data mirror function. If the backup classification 273 indicates that the backup data has been stored in the disk volume, the device ID38 of the disk array 3 having that data is indicated by the device ID274, and the volume number by the media ID275. When “tape backup” is specified, the identifier of the magnetic tape drive 6 on which the backup data has been stored, and the identifier of the media are indicated by the device ID274 and media ID275, respectively. The column of label 276 shows the same as the label 267 of the backup definition table 26, and the column of time stamp 277 indicates the date and time at which the backup has been achieved. The disk array 3 has interfaces LAN I/F31 (31a) and FC I/F32 (321, 322, and 32a, 321a, 322a) for the communication through LAN 5 and FC network 6. Each interface has its own number within the disk array in order to identify each of a plurality of FC interfaces (FC I/F). The disk array 3 also has disk volumes 39, 390 ̃393 (that include 39a, 390a ̃393a, and are represented by reference numeral 39) and a disk controller 34 for controlling data to be transferred to the disk volume 39. The disk volume 39 is the storage region from/in which data is read/written through the FC network 6 according to the application program 15 of the client computer 1. These disk volumes are constructed within one or more disk drives. Each disk volume 39 has its own number within the disk array, and is identified by its number. The memory 35 has a disk array control program 36 for controlling the operation of the disk array 3, a volume management table 37 for managing the disk volumes 39 within the disk array 3, and device ID38. The disk array control program 36 has the basic functions of disk array 3 such as the assignment of ports and LAN to the disk volumes 39 and the data input/output, and other functions such as volume management function 361 for the reference/recording of management information of the numbers of disk volumes 39 and backup date and time, and a data mirror function 362 for the data recorded in a particular volume to be copied into another volume. The disk control program 36 also has a function to return an answer including the device ID38 in response to the Inquiry command sent from the computer through the FC network. These processes are executed by a CPU 33. The data mirror function 362 is to copy the data of the copy source volume (primary volume) into one or more copy destination volumes (secondary volumes) that have the same storage capacity as the primary volume. The access to the primary volume from the computer is accepted even during the copying operation, but when the data of the primary volume is updated, the data of the region to be updated is copied into the second volume before the update operation. Thus, the content of the secondary volume at the time of the completion of the copying operation is the same as that of the primary volume at the time of the start of the copying operation. The data mirror function 362 includes a function to restore (recover) the content copied into the secondary volume so that it can be stored back in the primary volume. The method of achieving the data mirror function is described in, for example, U.S. Pat. No. 5,845,295 (pages 6 through 8, FIG. 3), and will not be described in detail because it is different from the main subject of this invention. The volume management table 37 has the structure shown in FIG. 7, and the entry in this table is performed for each disk volume. The structure of the volume management table 37 has columns of a volume number 371, an FC interface number 372 assigned to the access to the disk volume, an FC port address 373, a LUN 374 assigned to the disk volume, a disk volume number 375 assigned to the mirror destination (copy destination) of that volume, and volume information 376 of backup information. The column of mirror destination volume number 375 records the numbers of one and more volumes to which data is copied, but no data when the data mirror function is not used. The device ID38 within the disk array 3 has its own identifier for each disk array device. When a plurality of disk arrays 3, 3a are connected to the FC network 6, those arrays are identified by devices ID38, 38a. (2) Definition of Backup Session A description will be made of how to define the backup session for storing the backup data in the secondary volume by use of the data mirror function in this embodiment. In order to define the backup session of the disk volumes used by the client computer 1, entries for backup definition are made in the backup definition table 26 of the backup server 2. The backup manager specifies the entries in the columns of host computer name 261, mount point 262, preprocess 265, postprocess 266, label 267 and schedule 268 of the backup definition table shown in FIG. 5 through the user interface (though not shown, the terminal connected to the backup server 2). The manager also specifies “disk backup” that indicates the backup using the data mirror function on the column of backup classification 263 through the user interface, and specifies the volume number of the secondary volume in which the backup data is stored by use of the data mirror function on the column of backup destination 264. The disk volume number that can be used as the destination to which the disk volume specified by the host computer name 261 and mount point 262 is copied by the data mirror function is selected from the volume number list 254 of which the numbers are specified by the corresponding host computer name 251 and mount point 252 in the backup volume table 25 shown in FIG. 4. The selection of volume number from the volume number list 254 of the backup volume table 25 is made by supplying the content of the backup volume table 25 to the terminal connected to the server 2 in response to the order from the manager through the user interface. When the backup volume table 25 has no corresponding entries in the columns of host computer name 251 and mount point 252, the backup server program 24 orders the backup client program 16 of client computer 1 specified by the host computer name through LAN 5 to acquire the copy-to-volume list for the disk volume corresponding to the specified mount point. The operation of the backup client program 16 ordered to acquire will be described with reference to the flowchart of FIG. 8. When the order to acquire the copy-to-volume list with the mount point attached is received from the backup server 2 (step 1600), the program refers to the port correspondence table 17, looking for the FC port address 173 and LUN174 of the disk volume corresponding to the specified mount point 171 (step 1601). If there is no corresponding mount point on the port correspondence table 17 (step 1602), the program reports error to the backup server 2 (step 1606). If there is the corresponding mount point on the port correspondence table 17, the program sends the Inquiry command to the FC port address 173 and LUN174, thus acquiring the device ID included in the response to the Inquiry. If the operating system of the client computer 1 supports the function to send the Inquiry command by use of the device file, the Inquiry command can be transmitted by use of the device file 172. Since the client computer 1 has the correspondence table of the device ID and IP address of the disk array as described above, the IP address of disk array 3 can be obtained by referring to the table at the device ID. The order to acquire the copy-to-volume list with FC port address 173 and LUN174 attached is transmitted through LAN5 to the disk array 3 of the IP address (step 1603). The disk array control program 36 of disk array 3 ordered to acquire refers to the volume management table 37, and sends to the client computer 1 the copy destination volume number list 375 and device ID38 of the disk volume of the FC port address 373 and LUN374 corresponding to the specified FC port address 173 and LUN174. If there is no specified FC port address 173 and LUN174 on the volume management table 37, the program reports error to the client computer 1. When the backup client program 16 of the client computer 1 receives the report of error (step 1604), it reports error to the backup server 2 (step 1606). If the backup client program 16 receives the list of copy destination volume numbers, it sends the host computer name of client computer 1 and the mount point and device ID sent from the backup server 2 and the list of copy destination volume numbers to the backup server 2 so that the backup server 2 can cause them to be stored as the new entries in the backup volume table 37 (step 1605). The backup server program 24 records the received information on the backup volume table 25. (3) Acquisition of Backup Data Using Data Mirror Function The process for acquiring the backup data by use of the data mirror function 362 will be described with reference to the flowcharts of FIGS. 9 and 10. The backup server program 35 associated with the data mirror function 240 shown in FIG. 9 is started to execute according to the schedule 268 of the backup definition table 26 or to the instruction through the user interface from the manager of backup. The program refers to the backup classification 263 of the backup definition table 26 (step 2400). If the classification is “disk backup”, the program makes backup process using the data mirror function 362. If not so, it makes backup process using the normal magnetic tape (step 2405). When the backup process is executed by use of the data mirror function 362, the program deletes the entries in the backup data table 27 having the device ID274 and media ID275 (when the disk volume is used for storing the backup data, the volume number is stored in the media ID275) that match the device ID and volume number of the backup destination indicated by the backup destination 264 of the backup definition table 26 (step 2401). Then, the program sends, together with the backup order, the mount point 262, backup destination 264, the contents of preprocess 265 and postprocess 266, and the label 267 of backup data to the client computer 1 of computer name 261 stored in the backup definition table 26 (step 2402). If the status sent back from the client computer 1 is successful (step 2403), the program receives the volume information of backup data from the client computer 1, and records it on each item of the backup data table 27 (step 2404). The operation of the backup client program 16 will be described with reference to the flowchart of FIG. 10. When the program receives from the backup server program 24 the mount point 262 to be backed up, backup destination 264, the contents of preprocess 265 and postprocess 266, the label 267 of backup data and the order to backup (step 1610), it performs the specified preprocess 265 (step 1611). The program obtains the FC port address 173 and LUN174 of the mount point 171 corresponding to the mount point 262 specified by referring to the port correspondence table 17, and sends the FC port address 173 and LUN174, the volume number of backup destination 264, and the order to copy by use of the data mirror function 362 to the disk array 3 indicated by the device ID of the backup destination 264. The program waits for the report of status from the disk array 3 (step 1612). The disk array control program 36 of the disk array 3 that received the order to copy by the data mirror function 362 refers to the volume management table 37 so as to check if the volume number specified as the backup destination is recorded or not in the copy destination volume number list of the FC port address 373 and LUN374 disk volume corresponding to the FC port address 173 and LUN174 specified to be backed up. If it is recorded, the content of the disk volume is copied into the disk volume of the specified number by the data mirror function 362, and the successful status is sent back to the client computer 1. If it is not recorded, the failure status is sent back to the client computer 1. The backup client program 16, when the client computer 1 has received that status, executes the specified postprocess 266 (step 1613). If the failure status is sent back from the disk array 3 (step 1614), a status of backup error is transmitted back to the backup server 2 (step 1617). If the successful status is sent back, the backup client program generates volume information 50 of the backup destination volume, and sends it together with the number of the backup destination volume and the volume information record instruction to the disk array 3 (step 1615). The volume information is an arbitrary byte train, but in this embodiment it takes a structure of 512 bytes shown in FIG. 11. The format ID501 is an identifier for identifying the format of the volume information. The label 502 is the text sent as label 267 from the backup server program 24. The host 503 is the host name of the client computer 1. The mount point 504 is the mount point of the backup source volume (primary volume) in which the backup source data is stored. The time stamp 505 is the time at which the disk array 3 is instructed to make the backup by the data mirror function. The remaining blank region 506 is the reserved region for future expansion of the format. The disk array control program 36 that has received the volume information 50 records the volume information 50 in the entry of the specified-number volume on the volume management table 37, and sends back the recording-successful status. The backup client program 16 transmits the backup-successful status and the volume information 50 to the backup server (step 1616). (4) Restore of Backup Data stored in Disk Volume A description will be made of the process for restoring the backup data stored in the disk volume. The restore process is started when the backup manager selects the restored backup data from the backup data table 27 through the user interface of the backup server 2, and sends a restore command together with the preprocess and postprocess commands. If the backup classification 273 recorded in the backup data table 27 is “tape backup”, the process of restoring from the magnetic tape is executed. If it is “disk backup”, the restore process is carried out by using the backup data within the disk volume. The backup server program 24 sends a restore command including instructions of preprocess and postprocess that are accompanied by the volume number stored as the mount point 272, device ID274 and media ID275 to the client computer 1 of host computer name 271 recorded on the backup data table 27. The operation of the backup client program 16 will be described with reference to the flowchart of FIG. 12. When the program receives the command (step 1620), it executes the specified preprocess (step 1621). The preprocess is, for example, the process for unmounting the file system of the restore destination volume. Then, it refers to the port correspondence table 17, and sends to the disk array 3 the volume restore command involving the FC port address 173, LUN174 of the disk volume of the mount point 171 corresponding to the specified mount point 272 and the number of the restore source volume (backup volume)(step 1622). The disk array control program 36 that received the command refers to the volume management table 37, looking for the copy source volume (primary volume) corresponding to the disk volume of the specified volume number. It copies data from the specified backup volume to the primary volume, and sends back the successful status. If it fails for some reason, it sends back the failure status. If the program receives the failure status (step 1623), it sends a report of restore error to the backup server 2 (step 1626). If it receives the successful status, it carries out the specified postprocess (step 1624), and sends a report of restore achievement to the backup server 2 (step 1625). The postprocess is, for example, the check process or mount process for the file system of the restore destination volume. The above operations show the flow of operations for restoring the disk volume using the data mirror function 362 of the disk array 3. Some files of the volume contents are restored when the backup client program 16 copies the files. In this case, the command to the backup client program 16 involves the names of files that the manager has specified to restore. The flow of the processes of the backup client program will be described with reference to the flowchart of FIG. 13. When it receives a command from the backup server 2 (step 1630), it sends to the disk array the specified restore source volume (backup volume) number, and the FC port address and LUN recorded on the restore port table, thereby ordering the disk array to connect the restore source volume to the specified port (step 1631). The disk array control program 36 assigns the FC interface so that the restore source volume can be accessed to by use of the specified FC port address and LUN. The backup client program 16 carries out the specified preprocess (step 1632). In this preprocess, it makes inspection/repair (checking) of the file system of the restore source volume (backup volume) if necessary, and mounts at the mount point specified in the content of the preprocess. The backup client program 16 copies the specified file from the restore source to the mount point of the restore destination (step 1633), and after the end of the copy, it executes the postprocess such as unmounting of the restore source volume (step 1634). Also, it orders the disk array 3 to release the port from being assigned to the restore source volume (step 1635), and sends a report of restore achievement to the backup server 2 (step 1636). (5) Delete of Backup Data The delete of the backup data recorded in the disk volume is started when the backup manager selects the desired backup data from the backup data table 27 by using the user interface of the backup server 2, and orders to delete. The backup server program 24 sends to the client computer 1 the delete command accompanied by the device ID274 and volume number (the volume number indicated by the media ID275 of backup data table 27) of the disk array 3 in which the selected backup data is stored. The operation of the backup client program 16 will be described with reference to the flowchart of FIG. 14. When receiving the command from the backup server 2 (step 1640), the backup client program 16 sends the volume number and the delete command to the disk array 3 (step 1641). The disk array control program 36 refers to the volume management table 37, and deletes the volume information of the specified volume number. Then, the backup server program 24 deletes the corresponding entries of the backup data table 27. (6) Acquisition of List of Backup Data When the disk array 3 having the backup data is newly added onto the control of the backup server 2, it is necessary that the existing backup data be added to the backup data table by referring to the volume information of the volumes within the disk array 3 in which the backup data are stored. The operation of the backup server program in that case will be described with reference to the flowchart of FIG. 15. The backup server program 24 within the backup server 2 orders the disk array to acquire the list of volumes in order for the backup data to be added to the backup data table 27 (step 2420). The disk array control program 36 that has received the command sends the volume number list and device ID stored in the volume management table 37 back to the backup server 2. The backup server program 24 specifies the volume number of the returned list and orders the disk array 3 to acquire the volume information (step 2421). The ordered disk array control program 36 refers to the volume management table 37 and sends back the specified volume information. The backup server program 24 checks for the validity of the sent-back volume information (step 2422). The validity is decided positive if the format of the returned volume information coincides with the format shown in FIG. 11. The entries are created in the backup data table 27, and the respective items of the volume information are stored in those columns (step 2433). The processes beginning from the step 2421 are repeated for the volumes in which the backup data are stored (step 2424). (7) Copy of Backup Data to Tape The backup server program 24 within the backup server 2 makes the process for the backup data stored in the disk volume within the disk array 3 to be copied into the tape media of the tape library unit 8. This operation will be described with reference to the flowchart of FIG. 16. The backup server program 24 within the backup server 2 responds to the input operation by the backup manager to specify the copy source volume in which the backup data is stored, and the copy destination tape (step 2430). The backup server program 24 transmits a command to the client computer 1 of the computer name 271 of the backup data table 27 (step 2431). This command includes the instructions to specify the mount point 272 of the primary volume of the specified backup data, the number of the volume to which the backup is made, and the mount point of the backup volume, preprocess and post process including the mount process, and to perform data transfer. The backup client program 15, when receiving the command, reads data from the volume to which the backup is made (copy source volume) and transfers the data to the backup server through LAN according to the same procedure as in the restore process shown in FIG. 12. The backup server program 24 that has received the data writes the data in the specified tape to which the data is backed up (step 2432). In this case, the program writes data in the tape to which data is backed up after it has stored in the tape the management information including the information stored in the backup data table 27. Finally, it generates new entries in the backup data table 27, and records therein the device ID and media ID of the tape to which data is copied. The other items are copied from the entries of the copy source volume. In addition to the above copy process, the backup data can be moved from the disk volume to the tape by deleting the above-mentioned backup data within the disk volume. (8) Effect According to this embodiment, the data of the disk volume can be backed up by use of the data mirror function of the disk array. In this case, the management information of the backup data can also be stored as the information incidental on the disk volume without altering the address space of the disk volume as seen from the backup client. In addition, the backup data within the volume and the management information can be treated in association with each other when the volume units or file units of the backup data recorded in the disk volume are restored, deleted or copied to the external media such as the magnetic tape. Moreover, the catalog of the backup data can be produced by using the volume management information incidentally recorded in the disk volume. While this embodiment uses the volume number assigned within the disk array in order to identify the volume to which data is backed up, it may use other information than the volume number if the volume can be uniquely specified. Also, while the backup client program in this embodiment separately transmits a command to copy the disk volume and a command to store volume information to the disk array, it can transmit both commands in a mass, and the disk array control program can decide if data is successfully copied, in which case the volume information can be stored if it is successfully copied. In addition, while the volume management table is recorded in the memory of the disk array in this embodiment, it can be recorded in a storage region on the disk. In the second embodiment, the disk array has a snapshot function provided in place of the data mirror function 362 used in the first embodiment. The information about snapshot function is disclosed in, for example, U.S. Pat. No. 5,649,152 (pages 6 through 7, in FIG. 2). The whole construction of this embodiment is the case in which the disk array control program 36 in FIG. 1 has the snapshot function in parallel with the data mirror function (the snapshot function is not shown because it would make the diagram complicated). Unlike the data mirror function in which the identifier (volume number) of the volume to which data is copied (secondary volume) is previously selected, the snapshot function automatically assigns a volume number to a generated snapshot. The list of snapshot volume numbers is recorded in the volume management table 37 in place of the copy destination volume number list 375. When a snapshot volume is newly produced, an entry having an unused volume number is added to the volume management table 37, and the newly added volume number is recorded in the snapshot volume number list of the snapshot source volume. The points different from the first embodiment will be given below. (1) Definition of Backup Session This embodiment, since the backup source and the corresponding snapshot volume are not previously determined, cannot produce the volume number list 254 of the backup volume table 25. When the backup classification 263 of the backup definition table 26 is “disk backup”, the device ID38 of the disk array 3 is stored in the backup destination 264, but the volume number is not stored. (2) Acquisition of Backup using Snapshot Function The flow of backup process using the snapshot function will be described with reference to the flowcharts of FIGS. 17 and 18. The processes of the backup server program 24 will be mentioned first with reference to FIG. 17. Since the snapshot is not overwritten on the existing volume, the entry is not deleted (corresponding to the step 2401 in FIG. 9) from the backup data table 27. The program refers to the backup definition table 26 to acquire the device ID (included in the backup destination 264) of the disk array 3 that generates the snapshot (step 2440). This ID is recorded in the backup data table 27 in step 2443. The program orders the client 1 to backup by use of the snapshot accompanied by the mount point 262 to be backed up, preprocess 265, postprocess 266 and the device ID included in the backup destination 264 (step 2441). When the program orders to backup, it does not specify the backup destination volume. If a successful status is sent back (step 2442), the program receives the volume information and the volume number of snapshot from the client 1, and records them in the backup data table 27 (step 2443). The operation of the backup client program 16 will be described with reference to the flowchart of FIG. 18. The operation of the program is substantially the same as in FIG. 12. In step 1651, the program does not specify the number of the backup destination volume, and in step 1653, it receives the volume number of the snapshot from the disk array. In step 1657, the received volume number is sent to the backup server 2. (3) Effect This embodiment can achieve the same backup function as in the first embodiment by use of the snapshot function of the disk array. In general, the snapshot function can hold a large number of snapshots with a smaller capacity required as compared with the data mirror function that copies volumes because only the difference information of each snapshot to the source data is recorded. Therefore, even when multigenerational backup data are acquired, there is no need to move the backup data to the tape, and much backup data can be acquired at short intervals. The third embodiment has a function added to the first embodiment. This function is to copy the backup data stored in the disk volume to other volumes within the same disk array or in volumes within a different disk array. (1) Structure of System The whole structure of this embodiment is the case in which the disk array control program 36 in FIG. 1 has a volume copy function in parallel with the data mirror function (the volume copy function is not shown because it would make the diagram complicated). The points different from the first embodiment will be given below. The volume copy function is to copy the content of a certain disk volume into another disk volume of the same disk array or a different disk array, and to copy the volume information of the copy source into the volume information of the copy destination volume. The different disk array means that there is the disk array 3a other than the disk array 3. In addition, the backup server program 24 has a function to order the disk array to copy volumes through LAN. (2) Copy of Backup Data between Disk Volumes The flow of processes for copying backup data between disk volumes will be described. The manager selects the copy source backup data from the backup data table 27, and specifies the copy destination volume. The copy destination volume is specified by the volume number. When the disk array of the copy destination is different from that of the copy source, the manager specifies the LAN address of the disk array that has the copy destination volume, and the assigned port address of the FC interface and LUN of the disk volume. These information specified by the manager are transmitted together with the volume copy command to the disk array 3 that has the copy source volume by the volume copy instruction function of the backup server program 24. The operation of the disk array control program 36 that has received the command will be described with reference to the flowchart of FIG. 19. When receiving the command (step 3640), the program checks to see if the command contains the port address and LUN, and if the copy destination volume exists within the same disk array (step 3641). When data is copied to a different disk array, the program writes the content of the copy source volume in the volume of the specified port address and LUN through the fiber channel network (step 3642). This process is carried out by, for example, issuing a WRITE command of SCSI from any FC interface. Then, the program goes to step 3644. When data is copied within the same disk array, data is copied between the specified disk volumes (step 3643). If data is failed to copy for some reason (step 3644), a copy-error status is sent back to the backup server (step 3649). If data is successfully copied, and if data is copied to a different disk array (step 3645), the program refers to the volume management table 37 to acquire the volume information of the copy source volume, specifies the copy destination volume number, sends it to the copy destination disk array, orders to record the volume information (step 3646), and goes to step 3648, When data is copied within the same disk array, the volume information of the copy source volume is copied into the volume information of the copy destination volume in the volume management table 37 (step 3647). Finally, the successful status is sent back to the backup server (step 3648). The backup server program 24, when receiving the successful status from the disk array 3, adds the entry of copy destination volume to the backup data table. (3) Effect According to this embodiment, the backup data stored in the disk volume can be copied into another volume of the same disk array or different disk array. Thus, the portability of backup data can be provided without copying data on tape. It will be clear from the above embodiments that, if the backup data and its management information are stored in association with each other within the disk array, it is possible to avoid the situation in which the matching relation according to the replacement of the server cannot be maintained when the backup data is stored in the disk array and when its management information is stored in the server, or to prevent the backup data from being unavailable. Thus, according to the invention, the backup data stored in the disk volume by use of the data mirror function or snapshot function of the disk array can be managed in association with the management information of the backup data in the same way as the backup data stored on the tape. It should be further understood by those skilled in the art that although the foregoing description has been made on embodiments of the invention, the invention is not limited thereto and various changes and modifications may be made without departing from the spirit of the invention and the scope of the appended claims. ## Claims 1. A disk array for use in a computer system having a computer and said disk array comprising: a plurality of storage regions used by said computer as an external storage; and a processor which executes a disk array control program causing the disk array to perform the steps of: receiving from said computer a backup command accompanied by information about a first storage region having stored therein data to be backed up within said disk array and information about a second storage region into which said data to be backed up is to be stored as backup data within said disk array, backing up said data of said first storage region into said second storage region in response to said backup command, receiving from said computer at least said information about said second storage region and information about backup of said first storage region, storing at least said information about said second storage region and said information about backup of said first storage region sent as above into a storage region different from said second storage region within said disk array so that both said information can be stored as management information for said backup data, and to be associated with said backup data, and responding to an order from said computer to acquire a list of backup destinations accompanied by said information about said first storage region by sending to said computer said list of backup destinations information about storage regions available as a backup data region for said first storage region, and receiving from said computer said information about said second storage region determined based on said list of backup destinations. 2. A disk array for use in a computer system having a computer and said disk array comprising: a plurality of storage regions used by said computer as an external storage; and a processor which executes a disk array control program causing the disk array to perform the steps of: receiving from said computer a backup command accompanied by information about a first storage region having stored therein data to be backed up within said disk array and information about a second storage region into which said data to be backed up is to be stored as backup data within said disk array, backing up said data of said first storage region into said second storage region in response to said backup command, receiving from said computer at least said information about said second storage region and information about backup of said first storage region, storing at least said information about said second storage region and said information about backup of said first storage region sent as above into a storage region different from said second storage region within said disk array so that both said information can be stored as management information for said backup data, and to be associated with said backup data, and responding to an order from said computer to acquire said information about said backup stored in said different storage region, accompanied by information about said different storage region, by sending to said computer said information about said backup stored in said different storage region, wherein said computer stores said received information about said backup. 3. A disk array for use in a computer system having a computer and said disk array comprising: a plurality of storage regions used by said computer as an external storage; and a processor which executes a disk array control program causing the disk array to perform the steps of: receiving from said computer a backup command accompanied by information about a first storage region having stored therein data to be backed up within said disk array and information about a second storage region into which said data to be backed up is to be stored as backup data within said disk array, backing up said data of said first storage region into said second storage region in response to said backup command, receiving from said computer at least said information about said second storage region and information about backup of said first storage region, storing at least said information about said second storage region and said information about backup of said first storage region sent as above into a storage region different from said second storage region within said disk array so that both said information can be stored as management information for said backup data, and to be associated with said backup data, receiving from said computer a command to copy said backup data accompanied by information about a third storage region within a disk array different from said disk array, transmitting said data of said second storage region, said information about said third storage region and said management information to said different disk array in response to said command, and storing said data of said second storage region received in said third storage region, and said management information received in a storage region different from said third storage region within said different disk array by said different disk array based on said information about said third storage region so that said management information received can be stored in association with said data stored in said third storage region.
s3://data.kl3m.ai/documents/edgar/0001171843/0001171843-12-000439/	text/plain	exh_103.htm Exhibit 10.3 Seite/Side 1 von/of 3 ERGÄNZUNGSVEREINBARUNG AMENDMENT AGREEMENT zum Dienstvertrag vom 27. November 2008 to the Employment Agreement dated November 27, 2008 zwischen between Exide Technologies GmbH Thiergarten 63654 Büdingen - nachfolgend „GESELLSCHAFT“ genannt - Exide Technologies GmbH Thiergarten 63654 Büdingen - hereinafter referred to as “Company” und / and Herrn Michael Ostermann [Straße] [Stadt] - nachfolgend „Herr Ostermann“ genannt- Mr. Michael Ostermann [Street] [City] - hereinafter referred to as “Mr. Ostermann” - Herr Ostermann ist seit dem 1. Januar 2009 als Geschäftsführer der GESELLSCHAFT angestellt. In § 12 (7) des zwischen den Parteien bestehenden Dienstvertrages vom 27. November 2008 (nachfolgend „Dienstvertrag“) ist eine Abfindungsregelung enthalten. Die Konzernmuttergesellschaft EXIDE Technologies, USA, beabsichtigt, einen Change In Control Executive Severance Plan (nachfolgend „CIC Severance Plan“) zu implementieren, der zu Informationszwecken der vorliegenden Ergänzungsvereinbarung als ANLAGE beigefügt ist und von dem auch Herr Ostermann erfasst sein soll. Vor diesem Hintergrund vereinbaren die Parteien folgende klarstellende Regelungen: Mr. Ostermann is employed by the Company since January 1, 2009. Section 12 (7) of the employment contract, dated November 27, 2008 which exists between the parties (hereinafter referred to as “Employment Agreement”) includes a severance provision. The ultimate parent company EXIDE Technologies, USA, intends to implement a Change In Control Executive Severance Plan (hereinafter referred to as “CIC Severance Plan”) which is attached hereto as EXHIBIT for reasons of information and which shall cover Mr. Ostermann as well. Against this background the parties hereby agree the following clarifying provisions: 1. Es wird klargestellt, dass der unter bestimmten Umständen einschlägige Abfindungsanspruch von Herrn Ostermann gegen die GESELLSCHAFT gemäß § 12 (7) des Dienstvertrages von einem eventuellen Abfindungsanspruch gegenüber der EXIDE Technologies, USA, aus dem CIC Severance Plan unberührt bleibt. 1. It is clarified that the severance claim of Mr. Ostermann against the Company which applies under certain conditions in accordance with Section 12 (7) of the Employment Agreement shall remain unaffected besides a possibly applying severance claim against EXIDE Technologies, USA, pursuant to the CIC Severance Plan. Seite/Side 2 von/of 3 2. Es wird des Weiteren klargestellt, dass jegliche Abfindungszahlung durch die GESELLSCHAFT gemäß § 12 (7) des Dienstvertrages einen eventuellen Anspruch von Herrn Ostermann auf Abfindung gegenüber der EXIDE Technologies, USA, auf Grund des CIC Severance Plans im Wege der Anrechnung in vollem Umfang reduziert. 2. Furthermore, it is clarified that any severance payment by the Company in accordance with Section 12 (7) of the Employment Agreement shall - to its full extent - reduce by an offset mechanism the possibly applying severance claim of Mr. Ostermann against EXIDE Technologies, USA on the basis of the CIC Severance Plan. 3. Dieser Vertrag ist zweisprachig ausgefertigt. Rechtlich bindend ist ausschließlich die deutschsprachige Version. Der englische Text dient lediglich zur Information. 3. This agreement has been prepared in two languages. Only the German text is legally binding. The English version is for information purposes only. Ort/Place: [_________] Datum/Date: [________] 2012 ................................................ GESCHÄFTSFÜHRER Managing Director EXIDE TECHNOLOGIES GMBH represented by its shareholders’ assembly / vertreten durch die Gesellschafterversammlung ........................................................... EXIDE Transportation Holding Europe S.L. By/Durch: Title/Titel: Place/Ort, Date/Datum: ............, ............................................................ EXIDE Holding Europe S.A.S By/Durch: Title/Titel: Place/Ort, Date/Datum: ..........., Seite/Side 3 von/of 3 ANLAGE / EXHIBIT [Change In Control Executive Severance Plan]
s3://data.kl3m.ai/documents/uspto/07414092.json	text/markdown	# Patent ## Title Electrosterically stabilized aqueous polyurethane resins, method for the production thereof, and use thereof ## Abstract Stabilized polyurethane resins and methods for their preparation are disclosed. ## Background This is a §371 of PCT/EP2004/003480 filed Apr. 1, 2004, which claims priority from German Patent Application No. 103 15 175.3 filed Apr. 3, 2003. The present invention relates to electrosterically stabilized aqueous polyurethane dispersions, to a process for preparing them, and to their use for improving and modifying, inter alia, mineral binders. The binder class of the aqueous or water-based polyurethanes has been known for more than 40 years. The profile of properties of water-based polyurethanes has been continually improved over past decades, as forcefully demonstrated by a multiplicity of patents and publications in this subject area. Regarding the chemistry and technology of water-based polyurethanes, reference may be made to D. Dieterich, K. Uhlig in Ullmann's Encyclopedia of Industrial Chemistry, Sixth Edition 1999 Electronic Release. Wiley-VCH; D. Dieterich in Houben-Weyl, Methoden der Organischen Chemie, vol. E20, H. Bartl, J. Falbe (eds.), Georg Thieme Verlag, Stuttgart 1987, p. 1641 ff.; D. Dieterich, Prog. Org. Coat. 9 (1981) 281-330; J. W. Rosthauser, K. Nachtkamp, Journal of Coated Fabrics 16 (1986) 39-79; R. Arnoldus, Surf. Coat. 3 (Waterborne Coat.) (1990), 179-98. Emulsifier-free, self-emulsifying polyurethanes have been known for a considerable time. They contain chemically incorporated hydrophilic centers ensuring self-emulsifiability of the otherwise hydrophobic polyurethane backbone. In principle, a distinction is made between two different kinds of covalently bonded hydrophilic centers. These may on the one hand be ionic groups, such as carboxylate or sulfonate groups (electrostatic stabilization), or else, on the other hand, hydrophilic nonionic groups such as polyethylene oxides (steric stabilization). Depending on the nature of the hydrophilic center, the polyurethane dispersions possess different characteristic properties. Ionically stabilized polyurethane dispersions are extremely stable to temperature rise, since the solubility of the salt groups they contain is virtually independent of temperature. Nonionically stabilized polyurethane dispersions, in contrast, owing to the decreasing water-solubility of the polyurethane oxide side chains on heating, coagulate even at temperatures of around 60° C. In contrast to ionically stabilized polyurethane dispersions, they possess an extraordinary electrolyte stability and are stable even after freezing and thawing. The incorporated hydrophilic centers, however, naturally lower considerably the water resistance of dried polyurethane dispersion films. It is known, however, that through a combined incorporation of ionic and pendant nonionically hydrophilic groups it is possible to keep the overall number of hydrophilic centers substantially lower than would be possible using only one of the two, without detriment to good dispersing properties. Ionic and nonionic hydrophilic groups also act synergistically here; in other words, the polyurethane dispersion stabilized in this way is stable both to frost and to heating and, moreover, still possesses electrolyte stability. U.S. Pat. No. 3,905,929 B1 describes water-dispersible, purely nonionically stabilized polyurethanes having pendant polyalkylene oxide chains. The polyalkylene oxide side chains are incorporated via a diol component into the polyurethane main chain. Said component is prepared from a polyether itself prepared starting from monoalcohol, and consisting of predominantly ethylene oxide units and, where appropriate butylene oxide, styrene oxide or propylene oxide units, by reaction with a 3-10-fold excess of a diisocyanate and subsequent reaction with diethanolamine or comparable compounds. The excess diisocyanate is removed by distillation in order to suppress the formation of bisurethane before the final reaction step. The intention here is that the formation of bisurethane should be prevented solely by means of excess diisocyanate. A catalyst for increasing the selectivity of the addition of a hydroxyl group onto the isocyanate group, which is more reactive in each case, is not used here, however. According to U.S. Pat. No. 3,920,598 B1 a process is disclosed in which the polyethylene oxide chain is bonded covalently to a diisocyanate molecule via an allophanate or biuret bond. DE 25 51 094 A1 discloses water-dispersible, emulsifier-free polyurethanes having terminal or pendant polyalkylene oxide polyether chains (nonionic hydrophilic groups) in conjunction with ionic hydrophilic centers, the ionic centers being quaternary ammonium, carboxylate or sulfonate ions in association with appropriate salt-forming counterions. The combined incorporation allows the overall number of hydrophilic groups to be kept substantially lower than would be possible using ionic or nonionic groups alone. The pendant polyether units, which are synthesized essentially from ethylene oxide units, but may also include propylene oxide, butylene oxide, styrene oxide or polytetrahydrofuran, are incorporated into the prepolymer here via a diol or diisocyanate component. DE 26 51 505 C2 describes cationic water-dispersible polyurethane systems in conjunction with terminal or pendant polyalkylene oxide polyether chains, which are likewise incorporated into the prepolymer via a diol or diisocyanate component. In both patents the effectiveness of the hydrophilic groups is defined exclusively by way of their number, not by way of their distribution in the prepolymer. DE 23 14 512 A1 and DE 23 14 513 A1 disclose emulsifier-free aqueous polyurethanes which are stabilized exclusively nonionically via polyethylene oxide side chains, which are incorporated into the prepolymer via a diol component or diisocyanate component. DE 27 30 514 A1 discloses electrolyte-stable aqueous solutions of polyurethane ionomers. The incorporation of hydrophilic polyether segments within the polyurethane chain, terminally or pendantly, results in protection against electrolytes at high ionic charges. Owing to the relatively high fraction of hydrophilic groups, the water resistance properties of cured films of these polyurethane systems are not particularly good. DE 26 59 617 C2 discloses a process for preparing aqueous ionic polyurethane dispersions which are stable at room temperature, comprise water-soluble electrolytes, and have terminal or pendant ethylene oxide chains, and which as a result, although being less sensitive to frost and being less stable to electrolyte-containing additives such as pigments and fillers, for example, nevertheless have a high sensitivity to heat, owing to the dissolved electrolyte. An improvement to the process described in DE 25 51 094 A1 is presented in DE 28 16 815 A1. Here are water-dispersible or water-soluble polyurethanes having terminal or pendant hydrophilic synthesis components, and containing not only sulfonate groups but also ethylene oxide units arranged within a polyether chain. In all of the aforementioned patents or published patent applications, the two hydrophilic moieties (ionic and nonionic) were incorporated separately from one another into the polyurethane chain. Finally, DE 38 31 169 A1 and DE 38 31 170 A1 describe soluble or water-dispersible nonionic polyurethanes having polyethylene oxide side chains in combination with free, non-neutralized acid groups or free, non-neutralized tertiary amino groups, which is said to lead to increased storage stability. As potential applications for the aqueous polyurethane systems described in the abovementioned patents and published patent applications there are cited, in general, binders for thin coatings or impregnating systems for a variety of materials such as, for example, textiles, wood, leather, metal, ceramic, etc. In all cases, however, the required amount of incorporated hydrophilic ionic and nonionic components is relatively high if stable aqueous systems are to be obtained, which automatically entails a deterioration in water resistance and, in addition, has adverse consequences for the overall profile of properties of the polyurethane system. The reason for this is the uneven distribution of the hydrophilic polyalkylene oxide side chains along the polyurethane backbone, which is a consequence of the preparation process and which leads to an increased overall requirement for hydrophilic centers. The processing properties as well, with these polyurethane systems in which the proportion of ionic to nonionic stabilization has not been optimally adjusted, are unacceptable, particularly in systems with mineral binders, such as cement-based leveling components, for example. The object on which the present invention is based was therefore to develop electrosterically stabilized aqueous polyurethane dispersions having an optimized ratio between ionic and nonionic hydrophilic moieties and also even distribution along the polyurethane backbone for improving and modifying, primarily, mineral binders, said dispersions not having the stated disadvantages of the prior art but instead possessing improved material properties and application properties and at the same time being able to be prepared with due account taken of environmental, economic, and physiological aspects. This object has been achieved in accordance with the invention by the provision of electrosterically stabilized aqueous polyurethane resins, which are obtainable by a) preparing a hydrophilic and solvent-free macromonomer (A)(ii) with monomodal molecular mass distribution, wherein a1) 50 to 100 parts by weight of a hydrophilic alkyl- and/or arylpolyalkylene glycol (A)(i) having a primary and/or secondary hydroxyl group which is reactive toward isocyanate groups and having a molecular mass of 250 to 5000 daltons are reacted with 1 to 100 parts by weight of a polyisocyanate (B)(i), consisting of at least one diisocyanate, polyisocyanate, polyisocyanate derivative or polyisocyanate homolog having two or more aliphatic or aromatic isocyanate groups of identical or different reactivity, optionally in the presence of a catalyst, a2) the preadduct from stage a1) is reacted completely with 0.5 to 200 parts by weight of a compound (C) having two or more primary and/or secondary amino groups and/or hydroxyl groups which are reactive toward isocyanate groups and having a molecular mass of 50 to 500 daltons, and also b) by preparing the polyurethane dispersion, wherein b1) 2 to 50 parts by weight of the hydrophilic and solvent-free macromonomer (A)(ii) with monomodal molecular mass distribution, having two or more hydroxyl groups which are reactive toward isocyanate groups and having a molecular mass of 500 to 5500 daltons, are reacted with 25 to 250 parts by weight of a polyisocyanate component (B)(ii) consisting of at least one polyisocyanate, polyisocyanate derivative or polyisocyanate homolog having two or more (cyclo)aliphatic or aromatic isocyanate groups, optionally with the addition of 0 to 50 parts by weight of a solvent component (D) and optionally in the presence of a catalyst, b2) the polyurethane preadduct from stage b1) is reacted with 50 to 100 parts by weight of a polymeric polyol (A)(iii) having two or more hydroxyl groups which are reactive toward isocyanate groups and having a molecular mass of 500 to 5000 daltons and optionally with 0.5 to 10 parts by weight of a low molecular mass polyol component (A)(iv) having 2 or more hydroxyl groups and a molecular weight of 50 to 499 daltons, optionally in the presence of a catalyst, b3) the polyurethane preadduct from stage b2) is reacted with 2 to 20 parts by weight of a low molecular mass, anionically modifiable polyol component (A)(v) having one, two or more hydroxyl groups which are reactive toward isocyanate groups and having one or more inert carboxylic acid and/or sulfonic acid groups, which by means of bases can be converted fully or partly into carboxylate and/or sulfonate groups, respectively, or are already in the form of carboxylate and/or sulfonate groups, and having a molecular mass of 100 to 1000 daltons, optionally in the presence of a catalyst, b4) the polyurethane prepolymer from stage b3), before or during dispersion in water, is admixed, for the purpose of full or partial neutralization of the acid groups, with 2 to 20 parts by weight of a neutralizing component (E), b5) the optionally (partially) neutralized polyurethane prepolymer from stage b4) is dispersed in 50 to 1500 parts by weight of water, which optionally further contains 0 to 100 parts by weight of a formulating component (F), and finally b6) the (partially) neutralized polyurethane prepolymer dispersion from stage b5) is reacted with 3 to 60 parts by weight of a chain extender component (G) and also, subsequently or simultaneously, with 0 to 30 parts by weight of a chain stopper component (H). It has in fact surprisingly emerged that through the preparation and use of a hydrophilic and solvent-free macromonomer (A)(ii) with monomodal molecular mass distribution in accordance with reaction stages a1) to a2) in conjunction with a three-stage preparation process for the polyurethane prepolymer in accordance with reaction stages b1) to b3) the following advantages arise for the electrosterically stabilized polyurethane dispersions: no byproducts during the preparation of the macromonomer (A)(ii), owing to the specific composition of the hydrophilic alkyl- and/or arylpolyalkylene glycol (A)(i), which is selective toward polyisocyanates compatibility between nonionic stabilizer (macromonomer (A)(ii)) and polyurethane backbone even during the synthesis of the polyurethane prepolymer optimum arrangement/distribution of the nonionic stabilizer (macromonomer (A)(ii)) in the polyurethane polymer as a result of a three-stage preparation process for the polyurethane prepolymer overall very low stabilizer requirement (anionic+nonionic) and comparatively very low hydrophilicity no coagulation at pH 1-14 true dispersion: high solids contents at low viscosity, owing to very low stabilizer requirement (anionic+nonionic) (cf. prior art: solutions: high viscosities at high solids contents, owing to very high stabilizer requirement) completely VOC-free binders obtainable high long-term storage stability (cf. prior art: slow destabilization as a result of byproducts in nonionic stabilizers) resistance to hydrolysis, and low-temperature flexibility, in comparison with acrylate-based binders for similar applications profile of properties, material properties, and processing characteristics are influenced positively as a result of innovative polymer structure, as compared with the prior art The electrosterically stabilized polyurethane dispersion of the invention is defined by its multistage preparation process. In reaction stage a) first of all, a hydrophilic and solvent-free macromonomer (A)(ii) with monomodal molecular mass distribution is prepared, and is then reacted further, in reaction stage b), to give a low-solvent or solvent-free electrosterically stabilized polyurethane dispersion. This process is carried out, employing the techniques customary in polyurethane chemistry, by reacting, in reaction stage a1), 50 to 100 parts by weight of a hydrophilic alkyl- and/or arylpolyalkylene glycol (A)(i) having a primary and/or secondary and/or tertiary hydroxyl group which is reactive toward isocyanate groups and having a molecular mass of 250 to 5000 daltons with 1 to 100 parts by weight of a polyisocyanate (B)(i), consisting of at least one diisocyanate, polyisocyanate, polyisocyanate derivative or polyisocyanate homolog having two or more (cyclo)aliphatic or aromatic isocyanate groups of identical or different reactivity, optionally in the presence of a catalyst, in the absence of solvents, the reaction-conditions and the selectivities of components (A)(i) and (B)(i) being chosen such that only one isocyanate group of component (B)(i) reacts with component (A)(i). The preparation of the polyurethane preadduct in reaction stage a1) is preferably accomplished by adding or metering in component (A)(i) within a period of a few minutes to a few hours to component (B)(i) or, alternatively, by adding or metering in component (B)(i) within a period of a few minutes to a few hours to component (A)(i). In the subsequent reaction stage a2) the uniform preadduct from stage a1) is reacted completely with 0.5 to 200 parts by weight of a compound (C) having two or more primary and/or secondary amino groups and/or hydroxyl groups which are reactive toward isocyanate groups and having a molecular mass of 50 to 500 daltons in the absence of solvents, the reaction conditions and the selectivity of component (C) being chosen such that only one reactive group of component (C) reacts with the free isocyanate group(s) of the preadduct. Owing to the absence of unwanted byproducts, which might arise as a result of the addition of two or more molecules of (A)(i) to one molecule of (B)(i) in stage a1) and, accordingly, by addition of two or more molecules of (C) to one molecule of (B)(i) in stage a2), component (A)(ii) has a monomodal molecular mass distribution. This has been shown explicitly by means of MALDI-TOF investigations. In contrast to the prior art already cited, therefore, besides the desired macromonomer (A)(ii), there are no byproducts in the form of external emulsifiers and crosslinkers, which would lead to a distinct deterioration in the quality of the resultant polyurethane dispersion product. The former are not incorporated into the polyurethane polymer and so reduce the stability of the dispersion; the latter lead to excessive crosslinking in the polyurethane polymer and so likewise reduce the stability of the dispersion. Since both byproducts occur in each case, their effects undergo mutual intensification. Because of this fact, the prior art products are also of only limited suitability for chemical applications in the construction sector. Since the formation of byproducts is very heavily dependent on the operating regime, there must also be strong doubts with regard to reproducibility in the systems known from the literature. In terms of the reaction conditions, the conduct of reaction stages a1) and a2) is relatively uncritical. The reaction mixture in reaction stages a1) and a2) is stirred under an inert gas atmosphere, at 10 to 30° C., preferably at 15 to 25° C., utilizing the exothermic heat given off by the polyaddition reaction, until the calculated or theoretical NCO content is attained. The reaction times required are situated in the range from a few minutes to a few hours, and are critically influenced by reaction parameters such as the reactivity of the components, their stoichiometry, and the temperature. The NCO/OH equivalent ratio in stage a1) is set at 1.9 to 2.1 and the NCO/OH+NH equivalent ratio in stage a2) is set at 0.95 to 1.05. In the subsequent reaction stage b1) 2 to 50 parts by weight of the hydrophilic and solvent-free macromonomer (A)(ii) with monomodal molecular mass distribution, having two or more hydroxyl groups which are reactive toward isocyanate groups and having a molecular mass of 500 to 5500 daltons, are reacted with 25 to 250 parts by weight of a polyisocyanate component (B)(ii) consisting of at least one polyisocyanate, polyisocyanate derivative or polyisocyanate homolog having two or more (cyclo)aliphatic or aromatic isocyanate groups, with or without the addition of 0 to 50 parts by weight of a solvent component (D), and optionally in the presence of a catalyst. The polyurethane preadduct is preferably prepared in reaction stage b1) by adding or metering in component (A)(ii) within a period of a few minutes to a few hours to component (B)(ii) or, alternatively, by adding or metering in component (B)(ii) within a period of a few minutes to a few hours to component (A)(ii). In the subsequent reaction stage b2) the polyurethane preadduct from stage b1) is reacted with 50 to 100 parts by weight of a polymeric polyol (A)(iii) having two or more hydroxyl groups which are reactive toward isocyanate groups and having a molecular mass of 500 to 5000 daltons and, optionally, with 0.5 to 10 parts by weight of a low molecular mass polyol component (A)(iv) having 2 or more hydroxyl groups and a molecular weight of 50 to 499 daltons, optionally in the presence of a catalyst. Subsequently, in reaction stage b3), the polyurethane preadduct from stage b2) is reacted with 2 to 20 parts by weight of a low molecular mass, anionically modifiable polyol component (A)(v) having one, two or more hydroxyl groups which are reactive toward isocyanate groups and having one or more inert carboxylic acid and/or sulfonic acid group(s) which by means of bases can be converted fully or partly into carboxylate and/or sulfonate groups or are already in the form of carboxylate and/or sulfonate groups, and having a molecular mass of 100 to 1000 daltons, optionally in the presence of a catalyst. The polyurethane preadducts from reaction stages b1) and b2) that are used in reaction stages b2) and b3), respectively, may, given an appropriate operating regime or in the case of incomplete reaction, also contain free hydroxyl groups besides isocyanate groups and/or polyisocyanate monomers. The conduct of reaction stages b1), b2), and b3) is relatively uncritical with regard to the reaction conditions. In reaction stages b1), b2) and b3) the reaction mixture is stirred under an inert gas atmosphere at 60 to 120° C., preferably at 80 to 100° C., utilizing the exothermic heat given off by the polyaddition reaction, until the calculated or theoretical NCO content is attained. The required reaction times are situated in the range of a few hours and are critically influenced by reaction parameters such as the reactivity of the components, their stoichiometry, and the temperature. The NCO/OH equivalent ratio of components (A)(i), (A)(ii), (A)(iii), (A)(iv), (A)(v), and (B)(ii) in stage b) is set at a value of 1.25 to 2.5, preferably 1.4 to 2.0. The reaction of components (A), (B) and (C) in stages a1), b1) and b3) may take place in the presence of a catalyst which is customary for polyaddition reactions on polyisocyanates. Where needed, these catalysts are added in amounts of 0.01% to 1% by weight, based on components (A) and (B). Conventional catalysts for polyaddition reactions on polyisocyanates are, for example, dibutyltin oxide, dibutyltin dilaurate (DBTL), triethylamine, tin(II) octoate, 1,4-diazabicyclo[2.2.2]octane (DABCO), 1,4-diazabicyclo[3.2.0]-5-nonene (DBN), and 1,5-diazabicyclo[5.4.0]-7-undecene (DBU). Component (A)(i) is composed of a hydrophilic alkyl- and/or arylpolyalkylene glycol having a primary and/or secondary hydroxyl group which is reactive toward isocyanate groups and having a molecular mass of 250 to 5000 daltons. As suitable hydrophilic alkyl- and/or arylpolyalkylene glycols, it is possible to use hydrolysis-stable copolymers and/or random copolymers and/or block copolymers composed of 90% to 10% by weight of ethylene oxide and 10% to 90% by weight of further alkylene oxides having 4 to 30 carbon atoms per alkylene oxide, having a primary and/or secondary and/or tertiary hydroxyl group, preferably monofunctional alkyl poly(ethylene oxide-co/ran-alkylene oxide) and/or alkyl poly(ethylene oxide-block-alkylene oxide) and/or sodium sulfonatopropyl poly(ethylene oxide-co/ran-alkylene oxide) and/or sodium sulfonatopropyl poly(ethylene oxide-block-alkylene oxide) having a secondary or tertiary hydroxyl group, composed of 90% to 10% by weight of ethylene oxide and 10% to 90% by weight of a further alkylene oxide. Preferred alkylene oxides are propylene oxide, butylene oxide, dodecyl oxide, isoamyl oxide, oxetane, substituted oxetanes, α-pinene oxide, styrene oxide, tetrahydrofuran or further aliphatic or aromatic alkylene oxides having 4 to 30 carbon atoms per alkylene oxide, or mixtures thereof. Component (A)(iii) is composed of a polymeric polyol having 2 or more hydroxyl groups which are reactive toward polyisocyanates and having an average molecular mass (number average) of 500 to 5000 daltons. As suitable polymeric polyols it is possible to use linear and/or difunctional polyalkylene glycols, aliphatic or aromatic polyesters, polycaprolactones, polycarbonates, α,ω-polymethacrylatediols, α,ω-dihydroxyalkylpolydimethylsiloxanes, hydroxy-functional macromonomers, hydroxy-functional telecheles, hydroxy-functional epoxy resins or suitable mixtures thereof. Preference is given to using polyalkylene glycols. Examples of suitable polyalkylene glycols are polypropylene glycols, polytetramethylene glycols or polytetrahydrofurans, hydrophobically modified block copolymers composed of hydrolysis-stable block copolymers with ABA, BAB or (AB)n structure, A representing a polymer segment having hydrophobizing properties and B representing a polymer segment based on polypropylene oxide, having an average molecular mass (number average) of 1000 to 3000 daltons. Preferred polymer segments A are polybutylene oxide, polydodecyl oxide, polyisoamyl oxide, polyoxetane, substituted polyoxetanes, poly-α-pinene oxide, polystyrene oxide, polytetramethylene oxide, further aliphatic or aromatic polyoxyalkylenes having 4 to 30 carbon atoms per alkylene oxide, α,ω-polymethacrylatediols, α-ω-dihydroxyalkylpolydimethylsiloxanes, macromonomers, telecheles or mixtures thereof. Component (A)(iv) is composed of a low molecular mass polyol having two or more hydroxyl groups which are reactive toward polyisocyanates and having an average molecular mass of 50 to 499 daltons. As suitable polyols of low molecular mass it is possible for example to use 1,2-ethanediol or ethylene glycol, 1,2-propanediol or 1,2-propylene glycol, 1,3-propanediol or 1,3-propylene glycol, 1,4-butanediol or 1,4-butylene glycol, 1,6-hexanediol or 1,6-hexamethylene glycol, 2-methyl-1,3-propanediol, 2,2-dimethyl-1,3-propanediol or neopentyl glycol, 1,4-bis(hydroxymethyl)cyclohexane or cyclohexanedimethanol, 1,2,3-propanetriol or glycerol, 2-hydroxymethyl-2-methyl-1,3-propanol or trimethylolethane, 2-ethyl-2-hydroxymethyl-1,3-propanediol or trimethylolpropane, 2,2-bis(hydroxymethyl)-1,3-propanediol or pentaerythritol. Component (A)(v) is composed of a low molecular mass, anionically modifiable polyol having one, two or more hydroxyl groups which are reactive toward isocyanate groups and having one or more inert carboxylic acid and/or sulfonic acid groups, which by means of bases can be converted fully or partly into carboxylate or sulfonate groups or are already in the form of carboxylate and/or sulfonate groups, and having a molecular mass of 100 to 1000 daltons. As low molecular mass, anionically modifiable polyols it is possible for example to use 2-hydroxymethyl-3-hydroxypropanoic acid or dimethylolacetic acid, 2-hydroxymethyl-2-methyl-3-hydroxypropanoic acid or dimethylolpropionic acid, 2-hydroxymethyl-2-ethyl-3-hydroxypropanoic acid or dimethylolbutyric acid, 2-hydroxymethyl-2-propyl-3-hydroxypropanoic acid or dimethylolvaleric acid, citric acid, tartaric acid, [tris(hydroxymethyl)methyl]-3-aminopropanesulfonic acid (TAPS, Raschig GmbH), building blocks based on 1,3-propane sulfone (Raschig GmbH) and/or 3-mercaptopropanesulfonic acid, sodium salt (MPS, Raschig GmbH). These building blocks may optionally also contain amino groups instead of hydroxyl groups. Preference is given to using bishydroxyalkanecarboxylic acids having a molecular mass of 100 to 200 daltons and particularly to 2-hydroxymethyl-2-methyl-3-hydroxypropanoic acid or dimethylolpropionic acid (trade name DMPA? from Trimet Technical Products, Inc.). Components (B)(i) and B(ii) are composed of at least one polyisocyanate, polyisocyanate derivative or polyisocyanate homolog having two or more aliphatic or aromatic isocyanate groups. Particularly suitable are the polyisocyanates which are well known in polyurethane chemistry, or combinations thereof. As suitable aliphatic polyisocyanates it is possible for example to use 1,6-diisocyanatohexane (HDI), 1-isocyanato-5-isocyanatomethyl-3,3,5-trimethylcyclohexane or isophorone diisocyanate (IPDI), bis(4-isocyanatocyclohexyl)methane (H12MDI), 1,3-bis(1-isocyanato-1-methylethyl)benzene (m-TMXDI) or technical isomer mixtures of the individual aromatic polyisocyanates. As suitable aromatic polyisocyanates it is possible for example to use 2,4-diisocyanatotoluene or toluene diisocyanate (TDI), bis(4-isocyanatophenyl)methane (MDI) and, if desired, its higher homologs (polymeric MDI) or technical isomer mixtures of the individual aromatic polyisocyanates. Also suitable in principle, moreover, are the “paint polyisocyanates” based on bis(4-isocyanato-cyclohexyl)methane (H12MDI), 1,6-diisocyanatohexane (HDI) and/or 1-isocyanato-5-isocyanatomethyl-3,3,5-trimethylcyclohexane (IPDI). The term “paint polyisocyanates” characterizes derivatives of these diisocyanates which contain allophanate, biuret, carbodiimide, isocyanurate, uretdione or urethane groups and in which the residual monomer diisocyanate content has been reduced in accordance with the prior art to a minimum. In addition it is also possible to use modified polyisocyanates which are obtainable, for example, by hydrophilic modification of “paint polyisocyanates” based on 1,6-diisocyanatohexane (HDI). In the case of component (B)(i) the aliphatic polyisocyanates are preferred over the aromatic polyisocyanates. Furthermore, polyisocyanates having isocyanate groups of different reactivity are preferred. In the case of component (B)(ii), preference is given to toluene 2,4-diisocyanate, isomer mixtures of toluene 2,4-diisocyanate and toluene 2,6-diisocyanate, or isomer mixtures of isophorone diisocyanate. It is preferred to use polyisocyanates having isocyanate groups of different reactivity, in order to give narrower molecular mass distributions with reduced polydispersity. Accordingly, preference is given to polyurethane prepolymers with a linear structure which are composed of difunctional polyol and polyisocyanate components. According to one preferred embodiment a monofunctional polyalkylene glycol is used as component (A)(i) and an at least difunctional polyisocyanate is used as component (B)(i). Component (C) consists of a compound having two or more primary and/or secondary amino groups and/or hydroxyl groups which are reactive toward isocyanate groups and having a molecular mass of 50 to 500 daltons. Suitable compounds which can be used include, for example, ethanolamine, diethanolamine, ethylenediamine, diethylenetriamine, N-(2-aminoethyl)-2-aminoethanol, and trimethylolpropane. Preference is given to using diethanolamine. To reduce the viscosity of the polyurethane prepolymers or to improve the coalescence of the polyurethane dispersion it is possible to add organic solvents during or after the preparation in reaction stage b). Preferably the polyurethane dispersion contains less than 10% by weight of organic solvents. According to one particularly preferred embodiment the polyurethane dispersion is in solvent-free form. The solvent component (D) consists of an organic solvent which is inert toward polyisocyanates and is preferably fully or partly miscible with water, said solvent remaining in the polyurethane dispersion following the preparation or being wholly or partly removed again by distillation. Suitable solvents which can be used include, for example, high-boiling, hydrophilic organic solvents such as N-methylpyrrolidone, diethylene glycol dimethyl ether, dipropylene glycol dimethyl ether (Proglyde DMM® from Dow), low-boiling solvents such as acetone or butanone, or any desired mixtures thereof. It is preferred to use a high-boiling, hydrophilic solvent such as N-methylpyrrolidone which following the preparation remains in the dispersion and functions as a coalescence assistant. The viscosity of the polyurethane prepolymers is relatively low and largely independent of the structure of the polyol and polyisocyanate components used. There is generally no need to add solvents to reduce the viscosity or to improve the dispersing properties of the polyurethane prepolymers. The special structure of the prepolymers enables products to be prepared which have extraordinarily high solids contents. Moreover, owing to the even distribution of the carboxylate and/or sulfonate groups over the polyurethane polymer, only very low charge densities are required for stabilizing the corresponding polyurethane dispersions. In reaction stage b4), the polyurethane prepolymer from the preceding reaction stage b3), before or during its dispersion in 50 to 1500 parts by weight of water, is reacted with 2 to 20 parts by weight of a neutralizing component (E) for partial or complete neutralization of the carboxylic acid and/or sulfonic acid groups (direct or indirect neutralization). In the case of direct neutralization the neutralizing component (E) is introduced into the polyurethane prepolymer before it is dispersed in water; in the case of indirect neutralization the neutralizing component (E) is introduced in the water prior to dispersion. If necessary it is also possible to employ a combination of direct and indirect neutralization. Reaction stage b4) is carried out preferably at a temperature of 40 to 60° C., in particular at approximately 50° C. The neutralizing component (E) is composed of one or more bases which serve for complete or partial neutralization of the carboxylic acid and/or sulfonic acid groups. Where component (A)(v) is already in the form of its salts, there is no need for the neutralizing component (E). Suitable bases which can be used include, for example, tertiary amines such as N,N-dimethylethanolamine, N-methyldiethanolamine, triethanolamine, N,N-dimethylisopropanolamine, N-methyl-diisopropanolamine, triisopropylamine, N-methylmorpholine, N-ethylmorpholine, triethylamine, ammonia or alkali metal hydroxides such as lithium hydroxide, sodium hydroxide or potassium hydroxide. Preference is given to using alkali metal hydroxides, and especially sodium hydroxide. The neutralizing component (E) is added in an amount such that the degree of neutralization, based on the free carboxylic acid and/or sulfonic acid groups of the polyurethane prepolymer, is 25 to 100 equivalent %, preferably 50 to 100 equivalent %. In the course of the neutralization, from the carboxylic acid and/or sulfonic acid groups, carboxylate and/or sulfonate groups are formed which serve for anionic modification and/or stabilization of the polyurethane dispersion. The optionally (partially) neutralized polyurethane prepolymer from reaction stage b4) is dispersed in the subsequent reaction stage b5) in 50 to 1500 parts by weight of water, which optionally also contains 0 to 100 parts by weight of a formulating component (F) (in situ formulation). The formulating component (F) is composed of defoamers, devolatilizers, lubricity and flow additives, radiation-curing additives, dispersing additives, substrate wetting additives, hydrophobizers, rheological additives such as polyurethane thickeners, coalescence assistants, matting agents, adhesion promoters, antifreeze agents, antioxidants, UV stabilizers, bactericides, fungicides, other polymers and/or polymer dispersions, and also fillers, pigments, matting agents or an appropriate combination thereof. The individual formulating ingredients are to be regarded as being inert. The reaction stage b5) is carried out preferably at a temperature of 40 to 60° C., in particular at approximately 50° C. In the course of the dispersing procedure the polyurethane prepolymer is transferred to the dispersing medium and forms a polyurethane prepolymer dispersion. The neutralized polyurethane prepolymer forms micelles which on their surface have stabilizing carboxylate and/or sulfonate groups and also polyalkylene oxide chains and in their interior have reactive isocyanate groups. All cationic counterions to the anionic carboxylate and/or sulfonate groups are in solution in the dispersing medium. The terms “dispersing” and “dispersion” indicate that in addition to dispersed components with a micellar structure it is also possible for solvated and/or suspended components to be present. For the transfer of the polyurethane prepolymer to the aqueous phase it is possible either to stir the polyurethane prepolymer into the dispersing medium or to stir the dispersing medium into the polyurethane prepolymer (inverse method). The (partially) neutralized polyurethane prepolymer dispersion from reaction stage b5) is reacted in the subsequent reaction stage b6) with 3 to 60 parts by weight of a chain extender component (G) and also, subsequently or simultaneously, with 0 to 30 parts by weight of a chain stopper component (H). The reaction stage b6) is carried out preferably at a temperature of 30 to 50° C., in particular at approximately 40° C. The chain extender component (G) is composed of a polyamine having two or more amino groups which are reactive toward polyisocyanates. Suitable polyamines which can be used include, for example, adipic dihydrazide, ethylenediamine, diethylenetriamine, triethylenetetramine, tetraethylenepentamine, pentaethylenehexamine, dipropylenetriamine, hexamethylenediamine, hydrazine, isophoronediamine, N-(2-aminoethyl)-2-aminoethanol, Jeffamines® (polyoxy-alkylenamines) from Huntsman Corporation, adducts of salts of 2-acrylamido-2-methylpropane-1-sulfonic acid (AMPS) and ethylenediamine, adducts of salts of (meth)acrylic acid and ethylenediamine, adducts of 1,3-propane sulfone and ethylenediamine, or any desired combinations of these polyamines. Preference is given to using difunctional primary amines, and especially ethylenediamine. The chain extender component (G) is added in an amount such that the degree of chain extension, based on the free isocyanate groups of the polyurethane prepolymer, is 50 to 100 equivalent %, preferably 70 to 80 equivalent %. The chain extender component (G) can be diluted in fractions of the water withdrawn beforehand, in a weight ratio of 1:1 to 1:10, in order to suppress the additional exothermic heat given off by the hydration of the amines. The chain stopper (or chain terminator) component (H) is composed of a monoamine having one amino group which is reactive toward polyisocyanates. Suitable monoamines which can be used include ethylamine, diethylamine, n-propylamine, di-n-propylamine, isopropylamine, diisopropylamine, n-butylamine, di-n-butylamine, ethanolamine, diethanolamine, isopropanolamine, diisopropanolamine, morpholine, piperidine, pyrrolidine or any desired combination of these monoamines. Preference is given to using monofunctional primary amines, and especially isopropylamine. The chain stopper component (H) is added in an amount such that the degree of chain termination, based on the free isocyanate groups of the polyurethane prepolymer, is 0 to 50 equivalent %, preferably 20 to 30 equivalent %. The chain stopper component (H) can be diluted in fractions of the water withdrawn beforehand, in a weight ratio of 1:1 to 1:10, in order to suppress the additional exothermic heat given off by the hydration of the amines. The chain extension and chain termination of the polyurethane prepolymer dispersion leads to a buildup of molecular mass within the micelles and to the formation of a polyurethane-polyurea dispersion of high molecular mass. The chain extender component (G) and the chain stopper component (H) react with reactive isocyanate groups substantially more rapidly than water. Following the reaction stage b6), any free isocyanate groups still present are fully chain-extended with water. The amount of ethylene oxide groups in the polyurethane polymer formed from components (A), (B), (C), (E), (G), and (H) is set at 0.5% to 10% by weight, preferably at 2% to 5% by weight. The solids content of polyurethane polymer composed of components (A), (B), (C), (E), (G), and (H) is set at 30% to 70% by weight, preferably at 50% to 55% by weight, based on the total amount of the polyurethane dispersion. The amount of carboxylate and/or sulfonate groups in the polyurethane polymer formed from components (A), (B), (C), (E), (G), and (H) is set at 5 to 25 meq·(100 g)−1, preferably at 10 to 20 meq·(100 g)−1, and the acid number at 5 to 30 meq KOH·g−1, preferably at 10 to 25 meq KOH·g−1. The average particle size (AF-FFF) of the micelles of the polyurethane dispersion is 50 to 500 nm, preferably 100 to 400 nm. The average molar mass (number average) of the polyurethane polymers formed from components (A), (B), (C), (E), (G), and (H) is 25 000 to 500 000 daltons. In one particularly preferred embodiment the polyurethane dispersion is prepared by means of the High Solids Zero VOC Process (cf. WO 99/50 325 and DE 199 49 971). This process represents a universal method of producing custom-tailored polyurethane dispersions. The low level of technical requirements of the process and the complete renunciation of volatile and/or nonvolatile organic solvents permit high space/time yields in conjunction with low costs. The performance levels of the polyurethane dispersions of the invention in terms of absence of solvent, solids content, and material properties are remarkable. Also deserving of emphasis are the simplicity and reproducibility of the process and the storage stability of the products. The result of the ideally linearly segmented structure of the polyurethane polymers is, intermolecularly, a very pronounced and regular domain structure made up of hard segments and soft segments. Hard segments are composed of structural elements having rigid urethane and urea groups and also short-chain diols, which exert a strong interchenary interaction. Soft segments are composed of flexible structural elements with carbonate, ester, and ether groups, which exert a weak interchenary interaction. By virtue of their preparation process the polyurethane dispersions have an ideally linearly segmented structure. The expression “ideally linearly segmented structure” here indicates that the polyurethane polymers possess a linear structure and contain all structural components in a regular arrangement and sequence, resulting in the particular material properties of the polyurethane dispersions. Elongation and tensile strength can be varied almost arbitrarily over wide ranges. The present invention further provides for the use of electrosterically stabilized aqueous polyurethane resins in chemical products for the construction industry. The electrosterically stabilized aqueous polyurethane resins proposed in accordance with the invention are suitable for use as binders in liquid and pasty construction products, in the form of (a) synthetic resin plasters, (b) bitumen compounds and asphalt, and (c) individual components of external insulation and finishing systems, optionally with the addition of mineral binders. The electrosterically stabilized aqueous polyurethane resins proposed in accordance with the invention are additionally suitable for use as a modifying component for mineral construction products, in the form of (a) mortar additive dispersions for screeds, trowel-applied flooring compounds, and leveling components, (b) mortar additive dispersions for construction adhesives, tile adhesives and EIFS adhesives, (c) dispersions as mortar additives for 2-component grouts, (d) mortar additive dispersions for concrete repair systems, and (e) polymer dispersions as additives in concrete construction work. The electrosterically stabilized aqueous polyurethane resins proposed in accordance with the invention are likewise suitable for use as binders in formulations—optionally comprising mineral binders—for sport floor coverings and tennis court. surfacings, in the form of (a) binders for elastic layers, composed of rubber granules or of fibers with or without adjuvants, (b) adhesion promoters or primers for the base surfaces of sport floor coverings, (c) spray coatings, with or without texturing fillers, for application to rigid or elastic base surfaces, (d) leveling coatings for application to rigid or elastic base surfaces, (e) troweling compounds for sealing the pores of rigid or elastic base surfaces, (f) adhesives for bonding prefabricated elastic layers, (g) sealer coatings, with or without pigments, and (h) line paints. The electrosterically stabilized aqueous polyurethane resins proposed in accordance with the invention are suitable, furthermore, for use as binders in formulations—optionally comprising mineral binders—for crack-bridging coating systems, in the form of a) prime, float or top layers, and also spray coatings or sealer coatings on preferably primed surfaces of built structures, b) (optionally flame-retarded) roof coatings or roof-painting materials, and c) (optionally flame-retarded) seals for built-structures in opencast or underground mining. In the context of the stated applications the electrosterically stabilized aqueous polyurethane resins proposed in accordance with the invention are particularly suitable for use as binders for producing optionally cement-based, aqueous high-build coatings. The electrosterically stabilized aqueous polyurethane resins proposed in accordance with the invention can be used in the construction sector, additionally, as binders for coatings, sealants, printing inks, paints and varnishes, primers, adhesives, membranes for the surfaces of mineral building materials, such as concrete, gypsum, ceramic, clay, and cement, and also for the surfaces of glass, rubber, wood and woodbase materials, plastic, metal, paper, and composites. Furthermore, the electrosterically stabilized aqueous polyurethane resins proposed in accordance with the invention are suitable for use as binders for coating real and synthetic leathers and also paper and cardboard articles and for producing synthetic leathers. The electrosterically stabilized aqueous polyurethane resins proposed in accordance with the invention can be employed in one-, two- or multi-component form, it being possible for the further components to comprise formulating ingredients and/or hardeners. In this context it is possible to use the polyurethane resins of the invention in combination with formulating ingredients and, optionally, further polymers in the form of redispersible powders or as binders in amounts of 0.5% to 75% by weight, based on the fully formulated end product. It is in principle also possible, within formulations, to combine the electrosterically stabilized aqueous polyurethane resins of the invention with aqueous or nonaqueous binders and/or formulations based on the polyurethane resins of the invention with formulations based on aqueous or nonaqueous binders. The term “aqueous or nonaqueous binders” here denotes water-based polyurethanes, polymer dispersions, redispersible polymer powders or nonaqueous, solvent-containing or solvent-free and optionally reactive polymers. The individual formulating ingredients are fillers, pigments, plasticizers, fiber materials, defoamers, devolatilizers, lubricity and flow additives, dispersing additives, substrate wetting additives, hydrophobizers, rheological assistants, adhesion promoters, flame retardants, antifreeze agents, antioxidants, UV stabilizers, and preservatives. The formulating ingredients can be introduced during and/or after the preparation of the polyurethane dispersions. In the case of a polyurethane dispersion formulated in situ the formulating step is integrated into the preparation process of the binder, i.e., the (inert) formulating ingredients are already included, in whole or in part, in the initial charge in the dispersing medium. The electrosterically stabilized aqueous polyurethane resins proposed in accordance with the invention are applied using the known methods, such as flow coating, casting, knife coating, spraying, brushing, dipping, and rolling, for example. The examples which follow are intended to illustrate the invention in more detail. EXAMPLES Example A.1 A.1.1 Methylpoly(ethylene oxide-co/ran-propylene oxide) 102.2 g (1 mol) of methyldiglycol and 7.0 g (0.1 mol) of potassium methoxide were charged to a reactor. Following thorough flushing with ultrapure nitrogen, the initial charge was heated to 115° C. and a mixture of 437 g (9.93 mol) of ethylene oxide and 173 g (2.98 mol) of propylene oxide was added over the course of 20 minutes. After a subsequent reaction period until constant pressure, again a mixture of 437 g (9.93 mol) of ethylene oxide and 173 g (2.98 mol) of propylene oxide was metered in over the course of 20 minutes. Following complete introduction of the monomer mixture, the temperature was held at 115° C. until a constant manometer pressure indicated the end of the subsequent reaction. Finally, at 80 to 90° C., the unreacted residual monomers were removed under reduced pressure. The product obtained was neutralized using phosphoric acid and the water was removed by distillation, the potassium phosphate formed being removed by filtration together with a filter aid. The molecular weight from the determination of the hydroxyl number, with an assumed functionality of 1, was M=1140 g/mol. A.1.2 Building Block Synthesis (“dispersing diol”) A four-neck flask equipped with KPG stirrer, reflux condenser, internal thermometer and nitrogen blanketing was charged with 0.1 mol of pure tolylene 2,4-diisocyanate (TDI) (Desmodur T 100, Bayer AG) under nitrogen and this initial charge was cooled to approximately 15-20° C. Crystallization of tolylene 2,4-diisocyanate (TDI) should absolutely be prevented. Following the addition of two drops of dibutyltin dilaurate (DBTL) as catalyst an equimolar amount of methylpoly(ethylene oxide-co/ran-propylene oxide) was slowly added dropwise over the course of approximately two hours, with cooling. After the end of the dropwise addition the batch was stirred at the same temperature for a further two hours until the desired NCO value was reached. The preadduct was then slowly added dropwise, with cooling, to an equimolar amount of diethanolamine (DEA). The reaction is at an end when the NCO value has dropped to zero. Example A.2 Preparation took place in analogy to example A.1.2. The hydrophilic alkylpolyalkylene glycol used was sodium sulfonatopropylpoly(ethylene oxide-co/ran-propylene oxide) (Tego Chemie Service GmbH) having a molecular weight of M=1275 g/mol. Example B.1 Solvent-free Electrosterically Stabilized Polyurethane Dispersion Based on PPG 2000 and Building Block (“dispersing diol”) from Example A.1 In a four-neck flask equipped with KPG stirrer, reflux condenser, thermometer and nitrogen blanketing first of all a mixture of 9.02 g of building block (from example A.1) and 41.52 g of isophorone diisocyanate (Vestanat® IPDI, Degussa AG) is stirred at 45° C. for about 30 minutes under nitrogen blanketing in the presence of 0.1 g of dibutyltin dilaurate (DBTL) as catalyst. Following the addition of 100.00 g of polypropylene glycol having a hydroxyl number of 56.1 mg KOH·g−1 (Arco Arcol PPG 2000 from Arco Chemical) and 0.58 g of 1,4-butanediol to the preadduct the mixture is stirred at 80-90° C. for a further 1.5 h under nitrogen blanketing. Subsequently 4.11 g of finely ground dimethylolpropionic acid (trade name DMPA® from Mallinckrodt) are added and the mixture is stirred at unchanged temperature for a further 2.5 h until the calculated NCO content is reached (theoretical: 5.06% by weight, NCO/OH=2.00). The course of the reaction is monitored by acidimetry. After cooling to 70° C., the prepolymer is then dispersed with vigorous stirring in 130.59 g of water to which, beforehand, 21.44 g (70 equivalent % neutralization) of aqueous sodium hydroxide solution (4% by weight) have been added, and this mixture is subsequently stirred for approximately 15 minutes. Thereafter, to construct the polyurethane dispersion, chain extension takes place with 18.83 g (70 equivalent %) of an 80% by weight solution of Jeffamine® D-230 (from Huntsman) in water. This gives a stable polyurethane dispersion having the following characteristics: Appearance milky white Solids content 52.5% by weight Charge density 18.0 meq · (100 g)−1 EO content of prepolymer 3.5% by weight pH 6.8 Viscosity - Brookfield 170 mPa · s (20° C.) Average particle diameter 120-160 nm Example B.2 Solvent-free Electrosterically Stabilized Polyurethane Dispersion Based on a Hydrophobicized Polyalkylene Oxide (poly(propylene oxide)-block-poly(butylene oxide)-block-poly(propylene oxide)) and Building Block (“dispersing diol”) from Example A.1 Preparation took place in the same way as for example B.1 but replacing the polypropylene glycol by a hydrophobicized polypropylene glycol containing 42% by weight of a polybutylene oxide middle block and having a hydroxyl number of 53.1 mg KOH·g−1 (Tego Chemie Service GmbH). Appearance milky white Solids content 52.5% by weight Charge density 18.2 meq · (100 g)−1 EO content of prepolymer 3.5% by weight pH 6.8 Viscosity - Brookfield 175 mPa · s (20° C.) Average particle diameter 120-160 nm Example B.3 Solvent-free Electrosterically Stabilized Polyurethane Dispersion Based on PPG 2000 and Building Block (“dispersing diol”) from Example A.2 In a four-neck flask equipped with KPG stirrer, reflux condenser, thermometer and nitrogen blanketing first of all a mixture of 10.18 g of building block (from example A.2) and 37.77 g of isophorone diisocyanate (Vestanat® IPDI, Degussa AG) is stirred at 45° C. for about 30 minutes under nitrogen blanketing in the presence of 0.1 g of dibutyltin dilaurate (DBTL) as catalyst. Following the addition of 100.00 g of polypropylene glycol having a hydroxyl number of 56.1 mg KOH·g−1 (Arco Arcol PPG 2000 from Arco Chemical) and 0.58 g of 1,4-butanediol to the preadduct the mixture is stirred at 80-90° C. for a further 1.5 h under nitrogen blanketing. Subsequently 2.98 g of finely ground dimethylolpropionic acid (trade name DMPA® from Mallinckrodt) are added and the mixture is stirred at unchanged temperature for a further 2.5 h until the calculated NCO content is reached (theoretical: 4.71% by weight, NCO/OH=2.00). The course of the reaction is monitored by acidimetry. After cooling to 70° C., the prepolymer is then dispersed with vigorous stirring in 139.27 g of water to which, beforehand, 13.42 g (60 equivalent % neutralization, based on DMPA) of aqueous sodium hydroxide solution (4% by weight) have been added, and this mixture is subsequently stirred for approximately 15 minutes. Thereafter, to construct the polyurethane dispersion, chain extension takes place with 7.15 g (70 equivalent %) of a 50% by weight solution of ethylenediamine in water. This gives a stable polyurethane dispersion having the following characteristics: Appearance milky white Solids content 50.0% by weight Charge density 18.4 meq · (100 g)−1 EO content of prepolymer 4.1% by weight pH 6.9 Viscosity - Brookfield 190 mPa · s (20° C.) Average particle diameter 140-180 nm Example B.4 Solvent-free Electrosterically Stabilized Polyurethane Dispersion Based on Polytetrahydrofuran (PTHF) and Building Block (“dispersing diol”) from Example A.1 Preparation took place in the same way as in examples B.1 and B.2 but replacing the polypropylene glycol by a polytetrahydrofuran diol (PTHF) having a hydroxyl number of 56.1 mg KOH·g−1 (BASF AG). Appearance milky white Solids content 50.0% by weight Charge density 17.7 meq · (100 g)−1 EO content of prepolymer 3.5% by weight pH 6.8 Viscosity - Brookfield 195 mPa · s (20° C.) Average particle diameter 140-180 nm Solvent-free electrosterically stabilized polyurethane dispersion from examples B.1 to B.4 using building blocks A.1 and A.2 (overview) Preparation took place in the same way as in examples B.1 and B.3, but using: Solvent-free electrosterically stabilized polyurethane dispersion from examples B.1 to B.4 using building blocks A.1 and A.2 (overview) Preparation took place in the same way as in examples B.1 and B.3, but using: Example B.1 B.2 B.3 B.4 Building block 9.02 g A.1 8.95 g A.1 10.18 g A.2 8.67 g A.1 (“dispersing diol”) Polymeric diol PPG 2000 Poly(propylene oxide)- PPG 2000 PTHF 2000 (100 g in each case) block-poly(butylene oxide)-block- poly(propylene oxide) 1,4-Butanediol 0.58 g 0.58 g 0.58 g — DMPA ® 4.11 g 4.11 g 2.98 g 3.63 g IPDI 41.52 g 40.31 g 37.77 g 36.96 g NaOH (4% by weight) 21.45 g (70% 21.45 g (70% neutr.) 13.42 g (60% 16.24 g (60% neutr.) neutr.) neutr.) EDA (50% by weight) — — 7.15 g 7.00 g Jeffamine D-230 18.83 g 18.26 g — — (80% by weight) H2O 130.59 g 129.13 g 139.27 g 134.42 NCO (theoretical) 5.06% by weight 4.95% by weight 4.71% by weight 4.68% by weight Characteristics milky white liquid Solids content 52.5 52.5 50.0 50.0 [% by weight] EO content of PP 3.5 3.5 4.1 3.5 [% by weight] Charge density 18.0 18.2 Total 18.4 17.7 [meq · (100 g)−1] Profile of Properties of the Solvent-free Electrosterically Stabilized Polyurethane Dispersions from Examples B.1 to B.4 Example B.1 B.2 B.3 B.4 Tensile strength σM 25.1 MPa 25.8 MPa 24.6 MPa 23.0 MPa Elongation at tensile 786% 710% 698% 701% strength εM Material properties according to EN ISO 527 ## Claims 1. A process for preparing an electrosterically stabilized polyurethane dispersion comprising a) preparing a hydrophilic and solvent-free macromonomer (A)(ii) with monomodal molecular mass distribution by a1) reacting 50 to 100 parts by weight of a hydrophilic alkyl- or arylpolyalkylene glycol (A)(i) with 1 to 100 parts by weight of a polyisocyanate component (B)(i), optionally in the presence of a catalyst, in the absence of solvents, the reaction conditions and the selectivities of components (A)(i) and (B)(i) being chosen such that only one isocyanate group of component (B)(i) reacts with component (A)(i), and subsequently a2) reacting the uniform preadduct from stage a1) completely with 0.5 to 200 parts by weight of a compound (C) having two or more primary amino groups, secondary amino groups or hydroxyl groups which are reactive toward isocyanate groups and having a molecular mass of 50 to 500 daltons, in the absence of solvents, the reaction conditions and the selectivity of component (C) being chosen such that only one reactive group of component (C) reacts with the free isocyanate group(s) of the preadduct, and b) preparing the polyurethane dispersion by b1) reacting 2 to 50 parts by weight of the hydrophilic and solvent-free macromonomer (A)(ii) with 25 to 250 parts by weight of the polyisocyanate component (B)(i), optionally in the presence of 0 to 50 parts by weight of a solvent component (D) and also of a catalyst, b2) reacting the polyurethane preadduct from stage b1) with 50 to 100 parts by weight of a polymeric polyol (A)(iii) and optionally with 0.5 to 10 parts by weight of a low molecular mass polyol component (A)(iv), optionally in the presence of a catalyst, b3) reacting the homogeneous polyurethane preadduct from stage b2) with 2 to 20 parts by weight of a polyol component (A)(v), optionally in the presence of a catalyst, b4) admixing the homogeneous polyurethane prepolymer from stage b3), before or during dispersion in 50 to 1500 parts by weight of water, with 2 to 20 parts by weight of a neutralizing component (E), b5) dispersing the optionally (partially) neutralized polyurethane prepolymer from stage b4) in 50 to 1500 parts by weight of water, which optionally further contains 0 to 100 parts by weight of a formulating component (F), and finally b6) reacting the (partially) neutralized polyurethane prepolymer dispersion from stage b5) with 3 to 60 parts by weight of a chain extender component (G) and also, subsequently or simultaneously, with 0 to 30 parts by weight of a chain stopper component (H). 2. The process of claim 1, wherein in reaction stage a1) component (B)(i) is metered into component (A)(i), or component (A)(i) is metered into component (B)(i). 3. The process of claim 1, wherein reaction stages a1) and a2) are carried out at a temperature of 10 to 30° C. 4. The process of claim 1, wherein reaction stages b1), b2) and b3) are carried out at a temperature 60 to 120° C. 5. The process of claim 1, wherein reaction stages b4) and b5) are carried out at a temperature of 40 to 60° C. 6. The process of claim 1, wherein reaction stage b6) is carried out at 30 to 50° C. 7. The process of claim 1, wherein following reaction stage b6) any free NCO groups still present are completely chain-extended with water.
s3://data.kl3m.ai/documents/edgar/0000892251/0000892251-08-000205/5.json	text/markdown	EXHIBIT 32.2 CERTIFICATION OF CHIEF FINANCIAL OFFICER Pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002 In connection with the filing with the Securities and Exchange Commission of the Report of Cintas Corporation (the “Company”) on Form 10-Q for the period ending August 31, 2008 (the “Report”), I, William C. Gale, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that to the best of my knowledge: (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 results of operations of the Company. _/s/ William C. Gale_____ William C. Gale Principal Financial Officer October 7, 2008 35
s3://data.kl3m.ai/documents/edgar/0000950133/0000950133-05-003988/	text/plain	exv4w1 Exhibit 4.1 CAT FINANCIAL POWERINVESTMENT PLAN This Cat Financial PowerInvestment Plan (the “Plan”) established by Caterpillar Financial Services Corporation (the “Company”), dated as of ___, 2005, amends and restates the Caterpillar Money Market Account Plan. The name of the Caterpillar Money Market Account Plan is hereby changed to “Cat Financial PowerInvestment Plan.” The Plan was established to provide such persons as from time to time are designated by the Company with a convenient means of making investments in Variable Denomination Floating Rate Demand Notes of the Company. I. Definitions As hereinafter used: “Application” shall have the meaning set forth in paragraph IV hereof. “Agent Bank” shall have the meaning set forth in paragraph IX hereof. “Business Day” shall mean any day other than a Saturday or a Sunday or a day on which the Agent Bank is authorized or obligated by law to close. “Caterpillar” shall mean Caterpillar Inc., a Delaware corporation. “Committee” shall mean the Cat Financial PowerInvestment Committee created by the Company pursuant to paragraph X hereof. “Company” shall mean Caterpillar Financial Services Corporation, a Delaware corporation. “Eligible Investor” shall mean any person designated by the Committee as eligible to invest in the Notes pursuant to paragraph II hereof. “Immediate Family Member” shall mean, with respect to any person, such person’s spouse and dependent children (as defined for Federal income tax purposes). “Indenture” shall have the meaning set forth in paragraph VIII hereof. “Note Register” shall have the meaning set forth in paragraph IV hereof. “Notes” shall mean the nontransferable Variable Denomination Floating Rate Demand Notes of the Company issued pursuant to and in accordance with the terms, conditions and provisions of the Indenture, as in effect from time to time. “Investor” shall mean any Eligible Investor having established a Plan Investment. “Participating Company” shall mean and include the Company and Caterpillar and each subsidiary of the Company or Caterpillar incorporated in the United States. “Subsidiary of the Company or Caterpillar” shall mean a corporation not less than a majority of the voting stock of which is owned directly or indirectly by the Company or Caterpillar. 1 “Plan” shall mean the Cat Financial PowerInvestment Plan. “Plan Investment” shall mean an investment established and maintained pursuant to the Plan and recorded on the Note Register. “Plan Investment Note Balance” shall have the meaning set forth in paragraph IV hereof. “Registered Investment Address” shall have the meaning set forth in paragraph IV hereof. “Registered Investment Owner” shall mean (a) in the case of an individual Plan Investment, the Investor or (b) in the case of a joint Plan Investment, the Investor and the Immediate Family Members who have been designated by the Investor as having a joint interest in the Plan Investment, (c) in the case of a custodial Plan Investment, the Investor, as custodian, or (d) in the case of a trust Plan Investment established for the benefit of an Investor or for the benefit of an Immediate Family Member of an Investor, the trust, or, if such Investor is a joint owner of the Plan Investment with the trust, the Investor and the trust, all as recorded on the Note Register. “Trustee” shall have the meaning set forth in paragraph VIII hereof. II. Eligibility (a) Except as hereinafter provided, any person may invest in the Notes issued pursuant to the Plan, provided such person is a citizen of the United States or, except as provided in applicable United States Treasury Regulations, a partnership, a corporation incorporated or established in or under the laws of the United States or a Trust or estate that is treated as a United States person under Section 7701 of the Internal Revenue Code, as amended. (b) The Committee may from time to time in its sole discretion limit or expand the categories of persons who shall be eligible to invest in the Notes subject to such limitations or regulations as the Committee from time to time may prescribe. III. Participation Participation in the Plan shall be entirely voluntary. An Eligible Investor may elect to participate in the Plan by delivering to the Company, to a Participating Company or to the Agent Bank, as designated by the Committee from time to time, a properly completed Application, and delivering to the Company, to a Participating Company and to the Agent Bank such other forms and undertakings as may be designated by the Committee from time to time. IV. Establishment of Plan Investments — Note Register Plan Investments shall be established by the Eligible Investor delivering to the Company, to a Participating Company or to the Agent Bank, as the Committee from time to time may designate, a properly executed application (the “Application”), which shall require such information and provide such elections as the Committee from time to time may determine, 2 together with such other forms and undertakings as may be designated by the Committee from time to time. Subject to such limitations or regulations as the Committee from time to time may prescribe, each Eligible Investor may establish and maintain one or more of the following types of investments: individual investments, joint investments with Immediate Family Members, trust investments established for the benefit of an Eligible Investor, trust investments established for the benefit of an Immediate Family Member, and custodial investments for an Immediate Family Member pursuant to the applicable Uniform Gifts to Minors Act of the state in which the Eligible Investor resides. In the case of any trust investment, the income of such trust must be subject to U.S. Federal income taxation regardless of its source. The Agent Bank shall maintain a listing (the “Note Register”) setting forth such information regarding each Plan Investment as the Committee from time to time may determine, including but not limited to the name of the Investor, such Investor’s social security number or taxpayer identification number, the names of other Registered Investment Owners, if any, the address to which notices under the Plan are to be sent (the “Registered Investment Address”), the amounts credited to the Plan Investment and the amount of Notes redeemed by such Investor from time to time (the “Plan Investment Note Balance”) and accrued and unpaid interest on the Plan Investment Note Balance. V. Investment Under the Plan — Issuance of Notes The Notes shall be issued under the Indenture between the Company and the Trustee, as amended or supplemented from time to time in accordance with the terms thereof. The principal amount of each Note issued to an Investor under the Plan shall at all times be equal to the Plan Investment Note Balance in such Investor’s Plan Investment and shall bear interest from time to time at the rate provided for in paragraph VI hereof. The Committee may designate from time to time methods of making investments under the Plan which shall be subject to such limitations and requirements as the Committee may determine. VI. Interest Rate Each Note shall bear interest from time to time at a floating rate per annum to be determined by the Committee on a weekly basis to be effective on the following Monday. Such rate of interest will be determined by the Committee in the manner and on the basis chosen by the Committee in its sole discretion. The Committee may delegate the authority to set the interest rate on the Notes to the appropriate Funding Manager in the Treasury Department of the Company or such other person or persons as the Committee determines in its sole discretion. Interest on each Note shall accrue and be compounded daily based on a 365-day year. Accrued interest shall be automatically reinvested in the Notes as of the fifteenth day of each calendar month. VII. Redemption of Notes — Termination of Plan Investments 3 (a) Subject to the provisions of this paragraph VII, Registered Investment Owners may redeem all or part of the principal amount of the Note evidencing amounts invested by the Registered Investment Owner in the Notes at any time and from time to time by written request for redemption by check. The Committee may designate from time to time other methods of redemption of the Notes by the Registered Investment Owners under the Plan which shall be subject to such limitations and requirements as the Committee may determine. A Registered Investment Owner may elect voluntarily to terminate participation in the Plan and close such Registered Investment Owner’s Plan Investment by written notice to the Agent Bank. Upon election by the Registered Investment Owner to terminate participation in the Plan, all amounts credited to the principal amount of the Note held by such Registered Investment Owner, together with accrued and unpaid interest to but not including the Business Day next following the effective date of such termination, shall be paid by check to the Registered Investment Owner as such Owner’s interests shall appear at the Registered Investment Address. (b) The Company shall have the right to redeem, at any time at its option, all or any part of the Notes. Any partial redemption of the Notes will be effected by lot or pro rata or by any other method that is deemed fair and appropriate by the Trustee. (c) With respect to any Plan Investment which shall have a Plan Investment Note Balance of less than $250 (or such other amount as the Committee from time to time may determine) (the “Minimum Investment Note Balance”) and to which no investment shall have been made (other than the crediting of interest thereto pursuant to the provisions of paragraph VI hereof) for a continuing period of three calendar months immediately preceding determination thereof (or such other period as the Committee from time to time may determine), the Company shall have the right, after 30 days following the mailing of a written notice to the Investor (provided that the Plan Investment Note Balance shall not have been restored to the Minimum Investment Note Balance during such 30-day period), to terminate such Investor’s investment in the Notes, to redeem the principal amount of the Notes together with accrued and unpaid interest thereon, to mail the proceeds thereof to the Registered Investment Owner as such Registered Investment Owner’s registered interests shall appear at the Registered Investment Address and to terminate the Plan Investment. Interest on the redeemed amount shall cease to accrue on and after the effective date on which the redeemed amount shall have become due and payable. The Company shall have the right to redeem immediately any Notes of an Investor who the Company believes in its sole judgment and discretion, is abusing or misusing the investment or redemption provisions applicable to the Notes or whose investments are otherwise inconsistent with the objectives of the Plan. In such circumstances, the Company shall notify the Investor of its intention to redeem in full the Notes on the third Business Day following the date of the Company’s notice. A final redemption check (less a service fee) will be sent to the Investor in an amount equal to the principal amount of the redeemed Notes, including accrued and unpaid interest. The Company also shall have the right to redeem any Note, together with accrued and unpaid interest thereon, and to terminate the related Plan Investment upon determination by the Company that the Investor holding the Note is not eligible to invest in the Notes or in the event the Plan is suspended or terminated pursuant to paragraph XIII hereof. Interest on the redeemed 4 amount shall cease to accrue on and after the effective date the redeemed amount shall have become due and payable. VIII. Trustee The Company shall appoint one or more corporations to act as trustee (the “Trustee”) for Notes issued pursuant to the Plan and shall enter into an indenture (the “Indenture”) with such corporation or corporations which meets the requirements of the Trust Indenture Act of 1939. Subject to the requirements of the Indenture, the Company and the Trustee may amend or supplement the Indenture from time to time. IX. Agent Bank The Company shall appoint one or more banks or corporations to act as agent under the Plan (the “Agent Bank”) and at any time may remove the Agent Bank and appoint a successor Agent Bank. The Committee may, without reference to or any action by any Investor or other Registered Investment Owner, enter into such agreement or further agreements and take such other steps and execute such other instruments as the Company in its sole discretion may deem necessary or desirable to carry the Plan into effect or to facilitate its administration. X. Committee The Company’s Board of Directors shall create a Cat Financial PowerInvestment Committee (the “Committee”) consisting of at least three persons. The Board of Directors initially designates the Committee to consist of the person elected from time to time as the President, the Executive Vice President and the Treasurer of the Company. The President of the Company shall from time to time designate an alternate for each of such members, who shall have full power to act in the absence or inability to act of such member. The Committee shall act by a majority of its members, with or without a meeting. The Committee shall have full power and authority to administer the Plan, to interpret its provisions, to adopt forms for use thereunder, to adopt rules and regulations in connection therewith and to make the determinations thereunder provided for it to be made. Any interpretation of the provisions of the Plan by the Committee shall be final and conclusive, and shall bind and may be relied on by all parties in interest to the Plan. No member of the Committee or alternate for a member or a director, officer or employee of any Participating Company shall be liable for any action or failure to act under or in connection with the Plan, except for his own bad faith. Each director, officer or employee of the Company or a Participating Company who is or shall have been designated to act on behalf of the Company or a Participating Company and each person who is or shall have been a member of the Committee or an alternate for a member or a director, officer or employee of any Participating Company, as such, shall be indemnified and held harmless by the Company against and from any and all loss, cost, liability or expense that may be imposed upon or reasonably incurred by him in connection with or resulting from any claim, action, suit or proceeding to which he may be a party or in which he may be involved by reason of any action taken or failure to act under the Plan and against and from any and all amounts paid by him in settlement thereof (with the Company’s written approval) or paid by him in satisfaction of a judgment in any such 5 action, suit or proceeding, except a judgment in favor of the Company based upon a finding of his bad fait subject, however, to the condition that, upon the assertion or institution of any such claim, action, suit or proceeding against him, he shall in writing give the Company an opportunity, at its own expense, to handle and defend the same before he undertakes to handle and defend it on his own behalf. The foregoing right of indemnification shall not be exclusive of any other right to which such person may be entitled as a matter of law or otherwise, or any power that a Participating Company may have to indemnify him or hold him harmless. XI. Plan Investment Statements On approximately the 15th day of each calendar month, there shall be furnished with respect to each Plan Investment a statement setting forth a summary of all transactions in such Plan Investment during the previous month, including beginning and ending Plan Investment Balances, interest credited, and such additional information as the Committee from time to time may determine. Such statements shall be deemed to have been accepted by the Investor and other Registered Investment Owners as correct unless written notice to the contrary shall be received by the Agent Bank within 30 days after the mailing of such statement to the Registered Investment Address. XII. Notices, etc. All notices, statements and other communications from the Agent Bank or a Participating Company to an Investor, other Registered Investment Owner or designated beneficiary shall be deemed to have been duly given, furnished, delivered or transmitted, as the case may be, when delivered to (or when mailed to) the most recent Registered Investment Address. All notices, instructions and other communications from an Investor or other Registered Investment Owner to the Company or Participating Company or Agent Bank required or permitted hereunder (including without limitation Applications and redemption requests) shall be in the respective forms from time to time prescribed therefor by the Committee, shall be mailed by first-class mail or delivered to such location as shall be specified by and upon forms prescribed by the Committee and shall be deemed to have been duly given and delivered upon receipt by the Company or a Participating Company or the Agent Bank, as the case may be, at such location. From time to time as necessary to facilitate the administration of the Plan, the Company, Participating Companies, the Agent Bank, the Trustee and the Committee shall deliver to each other copies or consolidations of such notices, instructions or other communications in respect of the Plan as it may receive from Investors or Registered Investment Owners. XIII. Termination, Suspension and Modification The Company may terminate the Plan at any time or from time to time suspend or modify the Plan, in part, in its entirety or in respect of the employees of one or more Participating Companies or in respect of any person or persons designated as Eligible Investors. The Company may at any time or from time to time terminate or modify the Plan or suspend for any period the operation of any provision thereof in respect of any Investors located in one or more jurisdictions. Any such termination, modification or suspension of the Plan may affect Investors 6 in the Plan at the time thereof, as well as future Investors, but may not affect the rights of an Investor unless such proposed action shall have been communicated to such Investor in sufficient time prior to the effective date thereof to permit such Investor to redeem amounts credited to his or her Plan Investment together with accrued and unpaid interest in accordance with the terms of the Plan in effect prior to the effective date of such termination, modification or suspension. The Company shall notify the Trustee promptly after any such termination, modification or suspension of the Plan. Any modification that affects the rights or duties of the Trustee may be made only with the consent of the Trustee. Anything herein to the contrary notwithstanding, no such termination or modification of the Plan or suspension or any provision thereof may diminish the principal amount of any Note, or such Investor’s unpaid interest thereon. XIV. Rights Not Transferable Except in the case of (i) Note redemptions in accordance with paragraph VII hereof, and (ii) the establishment and subsequent termination of joint, custodial and trust Plan Investments, no right or interest of any Investor or other Registered Investment Owner under the Plan or in such Investor’s Plan Investment or the Note issued in connection therewith shall be assignable or transferable, in whole or in part, either directly or by operation of law or otherwise, including without limitation by execution, levy, garnishment, attachment, pledge or in any other manner, but excluding devolution by death or mental incompetency; no attempted assignment or transfer thereof shall be effective; and no right or interest of any Investor, other Registered Investment Owner or designated beneficiary under the Plan or in a Plan Investment or the Note issued in connection therewith shall be liable for, or subject to, any obligation or liability of such Investor or other Registered Investment Owner. Notwithstanding the provisions of this paragraph XIV, a Plan Investment may be debited for all amounts which a Participating Company or the Agent Bank shall have caused, in error, to be credited to such Plan Investment. XV. Fees There will be no maintenance fees or charges to Investors for checks or check redemptions. There will be a $15.00 processing charge (or such other amount as may be designated from time to time by the Committee) for each returned check. Stop payment requests will incur a $12.00 processing charge (or such other amount as may be designated from time to time by the Committee) per request. Redemptions by wire transfer may result in an additional charge by the institutions handling the transfer. The Committee may designate from time to time other fees in connection with investments or redemptions in the Notes or otherwise in connection with the Notes, provided the Committee shall communicate such fees to the Investors in sufficient time prior to the effective date thereof to permit the Investors to redeem amounts credited to their respective Plan Investments together with accrued and unpaid interest in accordance with the terms of the Plan in effect prior to the effective date of such fees. 7 XVI. Miscellaneous The records of the Company, the Agent Bank, the Trustee, the Committee and the several Participating Companies shall be conclusive in respect of all matters involved in the administration of the Plan. Except as specified in paragraph XV, all expenses of administering the Plan, including without limitation the fees of the Agent Bank and the Trustee and other expenses charged or incurred by the Agent Bank and the Trustee, shall be borne by the Company, and no charge or penalty shall be imposed by a Participating Company, the Agent Bank or the Trustee against any Plan Investment or Registered Investment Owner by reason of participation in the Plan; provided, however, that no Participating Company, the Agent Bank or the Trustee shall have any liability for any cost incurred by a Registered Investment Owner including, but not limited to, costs incurred in connection with the wiring of funds to make investments under the Plan. The Plan shall be governed by and construed in accordance with the laws of the State of New York. 8
s3://data.kl3m.ai/documents/fr/02-25234/html.json	text/markdown	Document Headings Document headings vary by document type but may contain the following: - the agency or agencies that issued and signed a document - the number of the CFR title and the number of each part the document amends, proposes to amend, or is directly related to - the agency docket number / agency internal file number - the RIN which identifies each regulatory action listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions See the Document Drafting Handbook for more details. ###### Department of Health and Human Services ###### National Institutes of Health ( print page 62255) Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting. The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. Name of Committee: National Eye Institute Special Emphasis Panel R03 Small Grants for Pilot Research. Date: November 14-15, 2002. Time: 8 a.m. to 5 p.m. Agenda: To review and evaluate grant applications. Place: Hyatt Regency Bethesda, One Bethesda Metro Center, Bethesda, MD 20814. Contact Person: Jeanette M. Hosseini, PhD, Scientific Review Administrator, Division of Extramural Research, National Eye Institute, Bethesda, MD 20892, (301) 451-2020. (Catalogue of Federal Domestic Assistance Program Nos. 93.867, Vision Research, National Institute of Health, HHS) Dated: September 27, 2002. LaVerne Y. Stringfield, Director, Office of Federal Advisory Committee Policy. [FR Doc. 02-25234 Filed 10-3-02; 8:45 am] BILLING CODE 4140-01-M
s3://data.kl3m.ai/documents/edgar/0000950132/0000950132-98-000629/1.json	text/plain	<PAGE> UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D. C., 20549 FORM 10-Q [X] Quarterly Report Pursuant to Section 13 or 15 (d) of the Securities Exchange Act of 1934 For the quarterly period ended: June 30, 1998 or [ ] 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: 0-11671 POCAHONTAS BANKSHARES CORPORATION (Exact name of registrant as specified in its charter) West Virginia 55-0628089 ------------- ---------- (State or other jurisdiction of (IRS Employer incorporation or organization) Identification No.) 500 Federal Street, Bluefield, WV 24701 --------------------------------- ----- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (304) 325-8181 -------------- 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. Yes X No --------- -------- The number of shares outstanding of the registrant's $1.25 par value common stock, as of August 11, 1998, was 2,000,000 shares. 1 <PAGE> POCAHONTAS BANKSHARES CORPORATION AND SUBSIDIARIES INDEX Page PART I. FINANCIAL INFORMATION Financial Statements Consolidated Statements of Financial Condition.............. 3 Consolidated Statements of Income........................... 4 Consolidated Statements of Cash Flows....................... 5 Consolidated Statements of Changes in Stockholders' Equity.. 6 Notes to Consolidated Financial Statements.................... 6 - 7 Management's Discussion and Analysis of Financial Condition and Results of Operations................................... 7 - 8 PART II. OTHER INFORMATION Submission of Matters to a Vote of Security Holders........... 9 Other Information............................................. 9 Exhibits and Reports on Form 8-K.............................. 10 SIGNATURES.................................................... 10 The total number of pages of the Form 10-Q Quarterly Report is ten (10) pages. 2 <PAGE> POCAHONTAS BANKSHARES CORPORATION AND SUBSIDIARIES PART I. FINANCIAL INFORMATION CONSOLIDATED STATEMENTS OF FINANCIAL CONDITION <TABLE> <CAPTION> (Dollars in thousands, except per share data) June 30, December 31, 1998 1997 ASSETS (Unaudited) (Audited) --------------- ----------------- <S> <C> <C> Cash and due from banks $ 10,620 $ 8,883 Interest-bearing balances with banks 10,497 2,013 Securities available for sale: (cost approximated $41,817 at June 30, 1998, and $36,024 at December 31, 1997) 42,004 36,177 Securities held to maturity: (market value approximated $13,190 at June 30, 1998 and $17,516 at December 31, 1997) 13,000 17,334 Federal funds sold 10,000 3,400 Loans 205,605 197,094 Less allowance for loan losses 2,520 2,370 ------------- ------------- Net loans 203,085 194,724 Premises and equipment 9,225 8,660 Real estate owned other than bank premises 702 993 Other assets 4,546 4,213 Goodwill and other intangible assets 1,824 350 ------------- ------------- TOTAL ASSETS $ 305,503 $ 276,747 ============= ============= LIABILITIES AND STOCKHOLDERS' EQUITY Deposits: Noninterest-bearing $ 31,448 $ 27,923 Interest-bearing 222,714 204,414 ------------- ------------- Total deposits 254,162 232,337 Federal funds purchased and securities sold under agreements to repurchase 18,148 12,838 Demand notes to U. S. Treasury and other liabilities for borrowed money 4,010 4,200 Other liabilities 1,578 783 ------------- ------------- TOTAL LIABILITIES 277,898 250,158 ------------- ------------- STOCKHOLDERS' EQUITY Common stock - par value per share $1.25 Shares authorized: 10,000,000 Shares issued and outstanding: 2,000,000 2,500 2,500 Paid-in capital 785 785 Retained earnings 24,212 23,223 Accumulated other comprehensive income 108 81 ------------- ------------- TOTAL STOCKHOLDERS' EQUITY 27,605 26,589 ------------- ------------- TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 305,503 $ 276,747 ============= ============= See accompanying notes to consolidated financial statements </TABLE> 3 <PAGE> POCAHONTAS BANKSHARES CORPORATION AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF INCOME (Unaudited) <TABLE> <CAPTION> Three Months Ended Six Months Ended June 30, June 30, -------- -------- (Dollars in thousands, except per share data) INTEREST INCOME 1998 1997 1998 1997 ------ ------ ------- ------- <S> <C> <C> <C> <C> Interest and fees on loans $4,770 $4,346 $9,333 $8,516 Interest on balances with banks 45 16 62 41 Interest and dividends from securities available for sale: Taxable 645 562 1,225 1,034 Interest and dividends from securities held to maturity: Taxable 97 357 238 811 Tax-exempt 82 104 159 205 Interest on federal funds sold 127 57 170 104 ------ ------ ------- ------- TOTAL INTEREST INCOME 5,766 5,442 11,187 10,711 INTEREST EXPENSE Interest on time certificates of $100,000 or 321 270 601 562 more Interest on other deposits 2,034 1,857 3,891 3,823 Interest on federal funds purchased and securities sold under agreements to repurchase 146 131 288 252 Interest on demand notes to U. S. Treasury and other liabilities for borrowed money 17 23 39 39 ------ ------ ------- ------- TOTAL INTEREST EXPENSE 2,518 2,281 4,819 4,676 ------ ------ ------- ------- Net interest income 3,248 3,161 6,368 6,035 Provision for loan losses 133 238 321 379 ------ ------ ------- ------- Net interest income after provision for loan losses 3,115 2,923 6,047 5,656 NONINTEREST INCOME Income from fiduciary activities 330 280 510 460 Other operating income 374 369 709 678 Gains (losses) on sale of securities -- (59) (14) (59) ------ ------ ------- ------- TOTAL NONINTEREST INCOME 704 590 1,205 1,079 NONINTEREST EXPENSE Salaries, wages, and other employee benefits 1,181 1,103 2,320 2,206 Premises and equipment expense 326 298 629 599 Other noninterest expense 958 850 1,819 1,766 ------ ------ ------- ------- TOTAL NONINTEREST EXPENSE 2,465 2,251 4,768 4,571 ------ ------ ------- ------- Income before income taxes 1,354 1,262 2,484 2,164 Provision for income taxes 490 463 895 760 ------ ------ ------- ------- NET INCOME $ 864 $ 799 $ 1,589 $ 1,404 ====== ======= ======== ======== NET INCOME PER COMMON SHARE $ 0.43 $ 0.40 $ 0.79 $ 0.70 </TABLE> See accompanying notes to consolidated financial statements 4 <PAGE> POCAHONTAS BANKSHARES CORPORATION AND SUBSIDIARIES <TABLE> <CAPTION> CONSOLIDATED STATEMENTS OF CASH FLOWS (Unaudited) Six Months Ended June 30, ---------------- (Dollars in thousands) CASH FLOWS FROM OPERATING ACTIVITIES 1998 1997 ------- -------- <S> <C> <C> Net income $ 1,589 $ 1,404 Adjustments to reconcile net income to net cash provided by operating activities: Provision for loan losses 321 379 Depreciation and amortization 354 310 Securities losses 14 59 Net investment amortization and accretion 63 143 (Increase) decrease in interest receivable and other assets (341) 587 Increase in interest payable and other liabilities 616 386 ------- -------- NET CASH PROVIDED BY OPERATING ACTIVITIES 2,678 3,268 CASH FLOWS FROM INVESTING ACTIVITIES Net (increase) decrease in federal funds sold (6,600) 1,850 Purchases of securities held to maturity (1,430) (325) Purchases of securities available for sale (10,003) (11,057) Proceeds from maturities and calls of securities held to maturity 5,739 13,157 Proceeds from maturities and calls of securities available for sale 3,274 -- Proceeds from sales of securities available for sale 883 1,751 Net increase in loans (5,272) (3,581) Net cash received from branch acquisition 8,510 -- Acquisition of fixed assets (638) (893) ------- -------- NET CASH PROVIDED (USED) BY INVESTING ACTIVITIES (5,537) 902 CASH FLOWS FROM FINANCING ACTIVITIES Net increase in demand and savings deposits 6,896 740 Net increase (decrease) in time deposits 1,664 (4,726) Net increase (decrease) in short-term borrowings 5,120 (1,685) Cash dividends paid (600) (600) ------- -------- NET CASH PROVIDED (USED) BY FINANCING ACTIVITIES 13,080 (6,271) ------- -------- NET INCREASE (DECREASE) IN CASH AND DUE FROM BANKS $10,221 $ (2,101) CASH AND DUE FROM BANKS AT JANUARY 1, 10,896 14,403 ------- -------- CASH AND DUE FROM BANKS AT JUNE 30, $21,117 $ 12,302 ======= ======== Supplemental disclosures of cash flow information: Cash paid during the period for: Interest $ 4,508 $ 4,473 Income taxes 929 414 See accompanying notes to consolidated financial statements </TABLE> 5 <PAGE> POCAHONTAS BANKSHARES CORPORATION AND SUBSIDIARIES <TABLE> <CAPTION> CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY (Unaudited) Six Months Ended June 30, -------- (Dollars in thousands) 1998 1997 ---------- ---------- <S> <C> <C> BALANCE, JANUARY 1, $ 26,589 $ 24,629 Net income 1,589 1,404 Cash dividends declared - $0.30 per share in 1998 and 1997 600 600 Other comprehensive income 27 69 --------- ---------- BALANCE, JUNE 30, $ 27,018 $ 25,502 ========= ========== </TABLE> See accompanying notes to consolidated financial statements NOTES TO CONSOLIDATED FINANCIAL STATEMENTS June 30, 1998 NOTE A - BASIS OF PRESENTATION The accompanying unaudited consolidated financial statements have been prepared in accordance with generally accepted accounting principles for interim financial information and with the instructions to Form 10-Q and Rule 10-01 of Rule S-X. Accordingly, they do not include all of the information and footnotes required by generally accepted accounting principles for complete financial statements. In the opinion of management, all adjustments considered necessary for a fair presentation have been included. All such adjustments were of a normal recurring nature. Certain reclassifications have been made to the prior period's financial statements to place them on a comparable basis with the current period's financial statements. Operating results are for the six-month period ended June 30, 1998, and are not necessarily indicative of the results that may be expected for the year ending December 31, 1998. For further information refer to the financial statements and footnotes thereto included as Exhibit 13 to Corporation's annual report on Form 10-K for the year ended December 31, 1997. NOTE B - EARNINGS PER SHARE Earnings per common share are computed on the weighted average number of shares of common stock outstanding during the period. As of June 30, 1998, there were no stock options or other capital items that would dilute the Corporation's earnings per share. NOTE C - COMPREHENSIVE INCOME On January 1, 1998, the Corporation adopted Statement of Financial Accounting Standards No. 130, Reporting Comprehensive Income. As required by SFAS No. 130, prior year information has been modified to conform with the new presentation. Comprehensive income includes net income and all other changes to the Corporation's equity, with the exception of transactions with shareholders ("other comprehensive income"). The Corporation's only component of other comprehensive income is the change in unrealized gains and losses on available for sale securities. The Corporation's total comprehensive income for the six-month periods ended June 30, 1998 and 1997 was $1,616,000 and $1,473,000, respectively. Information concerning the Corporation's other comprehensive income for the six-month periods ended June 30, 1998 and 1997 is as follows: <TABLE> <CAPTION> 1998 1997 ------ ------ <S> <C> <C> Unrealized gains on available for sale securities $ 34 $ 81 Income tax liability relating to unrealized gains on available for sale securities (7) (12) ----- ----- Other comprehensive income (loss) $ 27 $ 69 ===== ===== </TABLE> 6 <PAGE> POCAHONTAS BANKSHARES CORPORATION AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued) June 30, 1998 NOTE D - ACCOUNTING PRONOUNCEMENTS On June 15, 1998, the Financial Accounting Standards Board (FASB) issued Statement of Financial Accounting Standards No. 133, Accounting for Derivative Instruments and Hedging Activities (FAS 133). FAS 133 requires that all derivative instruments be recorded on the balance sheet at their fair value. Changes in the fair value of derivatives are recorded each period in current earnings or other comprehensive income, depending on whether a derivative is designated as part of a hedge transaction and, if it is, the type of hedge transaction. Management of the Corporation has determined that FAS 133 will have no effect on the Corporation's results of operations or its financial position as the Corporation does not engage in these types of activities. NOTE E - REGULATORY CAPITAL REQUIREMENTS Regulators of the Corporation and its subsidiaries have implemented risk-based capital guidelines which require the maintenance of certain minimum capital as a percent of assets and certain off-balance sheet items adjusted for predefined credit risk factors. The regulatory minimums as defined by regulation for Tier 1 and combined Tier 1 and Tier 2 capital ratios were 4.0% and 8.0% respectively. Tier 1 capital includes tangible common shareholders' equity reduced by goodwill and certain other intangibles. Tier 2 capital includes portions of the allowance for loan losses, not to exceed Tier 1 capital. In addition to the risk-based guidelines, a minimum leverage ratio (Tier 1 capital as a percentage of average total consolidated assets) of 4% is required. The following table contains the capital ratios for the Corporation and each subsidiary as of June 30, 1998 and 1997. <TABLE> <CAPTION> 1998 1997 ------------------------------------------------- ------------------------------ Combined Capital Combined Capital Entity Tier 1 (Tier 1 and Tier 2) Leverage Tier 1 (Tier 1 and Tier 2) Leverage <S> <C> <C> <C> <C> <C> <C> Consolidated.............. 11.99% 13.16% 8.88% 13.17% 14.37% 9.12% First Century Bank, N.A... 11.62% 12.79% 8.43% 12.91% 14.11% 8.92% First Century Bank........ 12.22% 13.42% 9.36% 12.45% 13.68% 8.75% </TABLE> MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS During the second quarter of 1998 net income increased $65,000 or 8.1% from the $799,000 earned during the second three months of 1997, to $864,000 earned during the same period in 1998. This improvement was primarily the result of increases in the interest margin of $87,000, or 2.8%, and in noninterest income of $114,000, or 19.3%. The increase in noninterest income was attributable to an increase in trust fees of approximately $50,000. Also, approximately $59,000 in losses on securities for the second quarter of 1997 were not incurred in 1998. Additionally, the provision for loan losses decreased $105,000, or 44.1%, all attributed to a reduction in net charge-offs for the quarter. These improvements were offset by an increase in noninterest expenses of $214,000. Earnings per share for the second quarter of 1998 were $0.43 compared to $0.40 per share for the second quarter of 1997. When compared to the first quarter of 1998, net income increased $139,000, from $725,000 for the quarter ended March 31, 1998, to $864,000 for the quarter ended June 30, 1998. This was attributable to increases in the interest margin of $128,000, and in noninterest income of $203,000, along with a reduction in the provision for loan losses of $55,000 which helped offset an increase in noninterest expenses of $162,000 when compared with the first quarter of 1998. Earnings per share increased $0.07 per share from $0.36 per share for the quarter ended March 31, 1998, to $0.43 per share for the quarter ended June 30, 1998. 7 <PAGE> POCAHONTAS BANKSHARES CORPORATION AND SUBSIDIARIES MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued) The improved performance during the second quarter enhanced the earnings for the six-month period ended June 30, 1998. Net income was $1,589,000 for the first six months of 1998 which was an increase of $185,000, or 13.2%, over the 1997 level of $1,404,000. Increases in the interest margin of $333,000, or 5.5%, attributable to increased loan volume, contributed to the improved earnings. Also, noninterest income increased $126,000, or 11.7%. Trust fees were a contributing factor in improved noninterest income, reflecting growth in and enhanced pricing for fiduciary activities. Noninterest expenses increased $197,000, or 4.3%, to $4,768,000 for the six months ended June 30, 1998, from $4,571,000 for the same period in 1997. Earnings per share for the six-month period ended June 30, 1998 were $0.79 compared to $0.70 per share for 1997. The Corporation's performance through June 30, 1998 reflects an annualized return on average assets of 1.11% and a return on average equity of 11.70%. Total assets increased approximately $28.8 million from December 31, 1997 to June 30, 1998. Approximately $15 million of this growth was the result of the completion of an acquisition of the Bluefield, Virginia branch of First American Federal Savings Bank, Roanoke, Virginia, during the second quarter of 1998. Additionally, approximately $10 million was attributable to short-term deposits and repurchase agreements at June 30, 1998, resulting from seasonal fluctuations by some of the Corporation's larger customers. Total assets at June 30, 1998 were $305.5 million as compared to $276.7 million at December 31, 1997. The loan portfolio continued to grow during this six-month period, increasing to $205.6 million or an increase of $8.5 million or 4.3%. The investment portfolio remained essentially unchanged during the first six months of 1998. As previously discussed, total deposits increased approximately $21.8 million during the first half of 1998, with most of this increase occurring in the interest-bearing category. The Year 2000 (Y2K) problem continues to be a major focus of the financial services industry. The Corporation has been working diligently on this problem for many months. Internal reviews of all software and hardware have now been completed. Internal test and contingency plans have been developed for all mission critical applications and actual testing on these systems should be completed by December 31, 1998. Externally, the Corporation is also continuing its undertaking to inform and assist key customers in their Y2K compliance efforts. 8 <PAGE> POCAHONTAS BANKSHARES CORPORATION AND SUBSIDIARIES PART II. OTHER INFORMATION Item 4 - Submission of Matters to a Vote of Security Holders. The Annual Meeting of Stockholders was held on April 21, 1998. Total outstanding shares were 2,000,000 at April 21, 1998. Matters brought before the stockholders and the voting results are as follows: (1) To elect fifteen (14) nominees for director to serve for a term of one year. <TABLE> <CAPTION> Nominee Shares For Shares Against Abstentions ------- ---------- -------------- ----------- <S> <C> <C> <C> Paul Cole, Jr. 1,553,003 1,548 5,460 Eustace Frederick 1,551,803 2,748 5,460 B. L. Jackson, Jr. 1,554,547 4 5,460 Robert M. Jones, Jr., M.D. 1,548,803 5,748 5,460 Harold L. Miller 1,554,551 -- 5,460 Charles A. Peters 1,554,547 4 5,460 C. E. Richner 1,554,547 4 5,460 Byron K. Satterfield 1,554,547 4 5,460 John C. Shott 1,552,281 2,270 5,460 Scott H. Shott 1,549,333 5,218 5,460 Walter L. Sowers 1,554,551 -- 5,460 J. Brookins Taylor, M.D. 1,554,551 -- 5,460 Frank W. Wilkinson 1,554,547 4 5,460 R. W. Wilkinson 1,554,547 4 5,460 </TABLE> (2) To ratify the selection of Coopers & Lybrand, Certified Public Accountants, to serve as independent auditors for the registrant for the year ending December 31, 1998. Shares for: 1,696,442; Shares against: 400; Abstentions: 3,000. (3) To approve the 1998 Director Stock Option Plan. Shares for: 1,464,563; Shares against: 95,468; Abstentions: 31,060. (4) To approve the 1998 Officer Stock Option Plan. Shares for: 1,469,007; Shares against: 100,876; Abstentions: 21,208. The text for the matters listed in this Item 4 is set forth in the definitive proxy solicitation materials which were filed with the Commission on or about March 30, 1998, and are incorporated herein by reference. Item 5 - Other Information On July 31, 1998, the Corporation's board of directors unanimously approved an agreement in principle to acquire First National Bankshares Corporation, the parent company of First National Bank, which has offices in Ronceverte, Lewisburg and Charleston, West Virginia. The board of directors of First National has also unanimously approved this agreement. The transaction, currently set forth in a non-binding letter of intent, will be structured as a tax-free stock exchange to give First National shareholders approximately 3.6 shares of common stock of the Corporation for each share of First National common stock. First National Bank will be merged into the Corporation's lead affiliate, First Century Bank, N.A., and its offices will thereafter operate as branches of First Century under the First Century name. The transaction is subject to, among other conditions, the negotiation and execution of a definitive and legally binding merger agreement, approval of the transaction by shareholders and various regulatory authorities, completion by both companies of satisfactory due diligence reviews of the other organization, and other conditions standard to transactions of this type. 9 <PAGE> POCAHONTAS BANKSHARES CORPORATION AND SUBSIDIARIES PART II. OTHER INFORMATION (Continued) Item 6 - Exhibits and Reports on Form 8-K. (a.) Exhibit 27 - Financial Data Schedule (b.) None SIGNATURES Pursuant to the requirements of Section 13 or 15 (d) of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. (Registrant) Pocahontas Bankshares Corporation --------------------------------- By: /s/ J. Ronald Hypes ------------------------- J. Ronald Hypes, Treasurer (Principal Accounting and Financial Officer) Date: August 12, 1998 ------------------------- 10
s3://data.kl3m.ai/documents/recap_docs/2015/08/26/phillips_v._state.pdf.json	text/plain	Cite as 2015 Ark. App. 419 ARKANSAS COURT OF APPEALS DIVISION III No. CR-14-499 LESTER PHILLIPS APPELLANT V. STATE OF ARKANSAS APPELLEE Opinion Delivered August 26, 2015 APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. CR-12-379] HONORABLE BERLIN C. JONES, JUDGE AFFIRMED RAYMOND R. ABRAMSON, Judge On October 30, 2013, a Jefferson County jury convicted Lester Phillips of murder in the second degree, and he was sentenced as a habitual offender to forty years in the Arkansas Department of Correction. Phillips’s sole argument on appeal is that the circuit court abused its discretion when it denied his timely motion for mistrial.1 For the following reasons, we affirm. Evidence presented at trial reflected that on June 12, 2012, Mark Sykes and Lester Phillips went to LeRoy Collins’s home to purchase drugs. Phillips stayed at Collins’s home while Collins and Sykes went to buy drugs. While attempting to purchase the drugs, Collins and Sykes were robbed. When Collins tried to explain to Phillips what happened with the botched drug deal, Phillips fatally shot him in the head execution style. 1This appeal reaches us for the second time after rebriefing was ordered due to inadequacies in the record and in appellant’s addendum, which have now been corrected. Phillips v. State, 2015 Ark. App. 138. Cite as 2015 Ark. App. 419 Appellant moved for a directed verdict arguing that the State had not introduced sufficient evidence to establish premeditated purpose in causing Collins’s death. The court found that premeditation did exist, stating, “There was a drug deal going on, allegedly. There was money displaced. And it would appear that that was reason for the shooting.” The court then denied the motion for directed verdict. After Phillips testified and corroborated the events that took place the day in question —except for his testimony that someone else shot Collins—he moved for a directed verdict a second time. Again, the court denied the motion. The jury then retired to deliberate. During the course of the jury deliberations in the guilt phase, the jury sent several written notes to the court. On October 29, 2013, the jury sent two notes, and the court brought the jurors into the courtroom to respond. The transcript, in part, reads as follows: THE COURT: Basically, what you have said, it really asks a question rather than – that was difficult for me to respond because the note that came said, “If we become a hung jury, what happens?” something to that effect. And there is no response I can give to that under the law. And then the second note indicated that you were split. But, now, a hung jury normally implies there is no more movement once you’ve gotten whatever it is that you have further negotiated to try to bring everybody together, and to whatever the decision is. But we need all 12, and there should be efforts to get all 12 to reach a decision, whatever that decision may be. And you—factually, in that situation, you are to tell me that you have reached an impasse and won’t anybody move from where they are, and therefore, we have a hopeless situation. That wasn’t exactly what I got. But I got enough, I thought, to bring you back in the courtroom, to this. And this is the way I can – the only way, under the law, I can answer your question is I’m going to read to you another instruction. First thing we would suggest is that you read those instructions and just remember your job there and then—be seated—be seated—that’s Ms. Clegg (the foreperson), correct? [The Court then proceeded with the Allen instruction] 2 Cite as 2015 Ark. App. 419 THE COURT: All right. Be seated, Ms. Clegg, the foreperson. Ladies and gentlemens [sic] of the jury, if you would give me your attention, I would read this instruction to you. It is in the interest of the state of Arkansas and of the defendant for you to reach an agreement in this case if at all possible. A hung jury means a continuation of the case and a delay in the administration of justice. You should consider that this case will have to be decided by some jury, in all probability upon the same testimony and evidence. It is unlikely that the case will ever be submitted to 12 people more intelligent, more impartial, or more competent to decide it. Under your oath as jurors, you have obligated yourselves to render verdicts in accordance with the law and the evidence. In your deliberation, you should weigh and discuss the evidence and make every reasonable effort to harmonize your individual views on the merits of the case. Each of you should give due consideration to the views and opinions of others. No juror should surrender his sincere beliefs in order to reach a verdict. To the contrary, this verdict should be the result of each juror’s free and voluntary opinion. By what I have said as to the importance of the jury reaching a verdict, I do not intend to suggest or require that you surrender your conscientious convictions, only that each of you make every sincere effort to reach a proper verdict. Therefore, I request that the jury retire for further deliberations for a reasonable time in an attempt to reach a verdict.2 The jury continued deliberations, and at 5:44 p.m. on October 29, 2013, the court sent the jury home for the night and ordered them to return the next morning at 9:00 a.m. to deliberate further. Nothing in the record indicates that either side objected to the Allen instruction or to dismissing the jury on the evening of October 29. On October 30, the jury returned, and the court reread all of the jury instructions—including the Allen instruction. Neither party objected to the rereading of the instructions. The jury began to deliberate at 9:52 a.m., had lunch from 12:00 p.m.-1:00 p.m., and returned a verdict of guilty of second-degree murder around 2:10 p.m. At 2:25 p.m., 2Though the appellant does not argue this point on appeal, it is well settled that a trial court may give the Allen instruction rather than granting a mistrial. Walker v. State, 276 Ark. 434, 637 S.W.2d 528, cert. denied, 459 U.S. 975 (1982). 3 Cite as 2015 Ark. App. 419 appellant’s counsel requested that the jury be excused so that he could make a record, outside of its presence, concerning other notes the jury had sent that morning. The jury was excused. Appellant’s counsel requested the court to specify the sequence of the notes that came in after the jury had started deliberations around 10:00 a.m. on October 30. The jury sent a total of five notes; it is uncontested that the trial court did not respond to any of them. Three notes were sent before the lunch break. The first note was sent around 10:32 a.m. or 10:34 a.m., and read “9- G, 2 – Not G, 1- Not Sure. We are done. Please proceed.” The second note which was written and signed by one of the jurors read: “I voted not guilty. So do we need to stay in here, because I’m not going to change my mind.” The third note, sent before the lunch break, was unsigned and read “Judge Jones, [...] is one of the jurors that has voted not guilty and she states that, ‘she is not going to change her mind.’” During the lunch break, a fourth note came back that read, “The jurors are requesting that you come in the room with us, that we can ask you some questions.” The fifth and final note, signed by Ms. Clegg, the foreperson, was sent shortly after lunch, indicating that an aunt of one of the jurors had died and that juror needed to be excused. After receiving the last note, the trial court and both counsel agreed that the jury had probably reached an impasse. The court prepared to dismiss the jury following lunch and to declare a mistrial. When the court sent the bailiff to retrieve the jury, the jurors instructed the bailiff to leave and indicated they were still deliberating. The court was prepared to declare a mistrial, as had been discussed with counsel in chambers. However, when the jury returned to the 4 Cite as 2015 Ark. App. 419 courtroom, and the court inquired of the foreperson, Ms. Clegg, to confirm that the jury remained deadlocked, she responded that, in fact, a verdict of guilty had been reached. Appellant admitted that he was not concerned about the two notes that came in during the lunch break, but argued that the jury should have been brought back out and counsel should have been notified at the time the court received the note from the juror stating that she voted not guilty and asking how much longer the jury had to “stay in here” because she was not going to change her mind. In his motion for a mistrial, appellant argued that the court should have notified the attorneys when it received the first three notes and allowed them an opportunity to discuss how to proceed. He also alleged that keeping the juror in the jury room another two and a half hours past the time she declared she had reached her decision of not guilty was improper and also resulted in her coercion. The court denied the motion for a mistrial because, to the court’s knowledge, there was no undue pressure because there were no outside influences imposed upon the jurors. The court further explained that there had not been any abuse of discretion and denied the motion. Counsel attempted to make one final point that the court should have notified the attorneys and addressed the note as soon as it was received. The court responded that the note was of no legitimacy because it had come from a juror rather than the foreperson; as such, it was not acceptable and was considered to be a “nonentity.” The jury was polled, and all twelve responded “Yes sir” when asked by the court individually, “[Person’s name], is this your well, true and just decision?” This timely appeal follows. Phillips contends that the trial court abused its discretion 5 Cite as 2015 Ark. App. 419 in failing to declare a mistrial on the grounds that the jury was deadlocked. A mistrial is an extreme and drastic remedy which will be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial. King v. State, 298 Ark. 476, 769 S.W.2d 407 (1989). The decision whether to grant a new trial is left to the sound discretion of the trial judge and will not be reversed in the absence of an abuse of discretion or manifest prejudice to the complaining party. Richmond v. State, 302 Ark. 498, 501, 791 S.W.2d 691, 693 (1990). Our standard of review for appeals of an order denying a mistrial motion is well established, and a trial court’s refusal to grant a mistrial is difficult to overcome. Glenn v. State, 2014 Ark. App. 642, 448 S.W.3d 228. The appellant cites Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991), arguing “a deadlocked jury is an overruling necessity that compels the granting of a mistrial.” Contrary to appellant’s argument, however, Shaw does not mandate that a mistrial be declared in every case where the jury indicates it is deadlocked. Further, this argument fails in the instant case because the jury actually reached a verdict, after deliberating a total of only six to seven hours over the course of two days. Here, the jury was polled, and every juror agreed that the guilty verdict was in fact his or her verdict. Appellant’s arguments are based on nothing more than speculation, and they are not supported by the answers given during the polling of the jury, which confirmed the conclusive nature of the verdict. There is no evidence in the record to support the argument that any of the jurors were “worn down by the situation” or changed his or her vote as a result of the death of a juror’s aunt. Similarly, there is no evidence to support the allegation 6 Cite as 2015 Ark. App. 419 of coercion. Further, there is no mechanical formula for determining when discharging the jury and declaring a mistrial is proper. See Beard v. State, 277 Ark. 35, 639 S.W.2d 52 (1982). Here, the jury ultimately reached a verdict; consequently, there was no reason for granting the motion for mistrial. The trial court has wide discretion in granting or denying a mistrial motion, and absent an abuse of that discretion, the trial court’s decision will not be disturbed on appeal. Burks v. State, 2009 Ark. 598, 359 S.W.3d 402. Likewise, there is no manifest prejudice here. Having been given the Allen instruction on the first day of deliberations, which was reread the second day along with all the other instructions, the jury returned a unanimous verdict of guilty after no more than seven hours of deliberations. The trial court did not abuse its discretion by denying Phillips’s motion for a mistrial. Accordingly, we affirm. Affirmed. GRUBER and HOOFMAN, JJ., agree. Potts Law Office, by: Gary W. Potts, for appellant. Dustin McDaniel, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee. 7
s3://data.kl3m.ai/documents/cap/1169906.json	text/markdown	[No. 56388-8. En Banc. June 14, 1990.] #### Ray H. Kunkel, et al, Petitioners,v. Meridian Oil, Inc., et al, Respondents. 897The Dano Law Firm,by Harrison K. Dañoand Jill Irene Lunn,for petitioners. Foreman & Arch,by Dale M. Foremanand Thomas E. Janisch,for respondents Meridian Oil, et al. 898Perkins Coie,by David E. Wagonerand Michael Rosen-berger,for respondent Delaware Coastal Oil. Smith, J. — Petitioners seek reinstatement of a declaratory judgment of the Grant County Superior Court holding that a deed reservation of "all minerals of any nature whatsoever upon or in [the] land, including coal and iron" did not include oil and natural gas because oil and natural gas are not unambiguously "minerals" under Washington law. The Court of Appeals, Division Three, reversed the trial court and concluded that the deed reservation clause unambiguously includes oil and natural gas and awarded to respondents the rights to "any material which could be extracted for profit." We reverse the Court of Appeals and reinstate the decision of the trial court which reformed the deed to reserve only iron and coal. On March 1, 1902, Tacoma attorney John A. Parker entered into a contract to purchase real estate from the Northern Pacific Railway Company. The railroad was to convey the land > reserving and excepting from said lands however, such as are now known, or shall hereafter be ascertained, to contain coal or iron and also the use of such surface ground as may be necessary for mining operations; and the right to access to such reserved and excepted coal and iron lands, for the purpose of exploring, developing and working the same . . .. On or about March 15, 1902, Northern Pacific's sales agent unilaterally interlineated the contract in red script, modifying the first reference to coal and iron to state "coal or iron or other mineral."The agent modified the access provision to state "such reserved and excepted coal and iron or minerallands." Mr. Parker never learned of the interlineation, which was made without his assent and without additional consideration. On May 3, 1907, the railroad issued a fulfillment deed to Francis A. Ogden, successor in interest to Mr. Parker. The deed contained this reservation: > 899[Excepting and reserving unto the party of the first part, its successors and assigns, forever, all minerals of any nature whatsoever upon or in said land,including coal and iron, and also the use of such surface ground as may be necessary for exploring for and mining or otherwise extracting and carrying away the same . . .. (Italics ours.) Subsequent deeds conveying the land referred only to reservations of record. By intervening conveyances, the land1 was ultimately purchased in 1974 and is now owned by Petitioners Ray H. Kunkel, his spouse, Lola M. Kunkel, and their children, Sharon M. Kunkel and Larry R. Kunkel, plaintiffs in the trial court (the Kunkels). The mineral reservation is now held by Burlington Northern, Inc., and Milestone Petroleum, Inc. The oil and natural gas rights, if the reservation clause is effective, are now held by Respondent Meridian Oil, Inc., defendant2 in the trial court (Meridian). The Kunkels filed a declaratory judgment action in the Grant County Superior Court to determine their interest in the property. They claimed title to oil and natural gas rights in the land, arguing that the unmodified 1902 contract reserved only coal and iron, the contract did not merge into the 1907 fulfillment deed, and even if it did, the phrase "all minerals of any nature whatsoever upon or in said land" did not include oil and natural gas within the contemplation of the parties. Meridian defended, asserting that the interlineation by the sales agent accurately reflected the bargain entered into by Northern Pacific and Parker, that the contract reservation merged into the deed, and that the phrase "all minerals . . ." includes oil and natural gas as a matter of lawand policy. 900The trial court agreed with the Kunkels. In his memorandum opinion dated April 18, 1988, the Honorable Clinton J. Merritt, Grant County Superior Court, stated: > After hearing testimony from some of the foremost experts on the subject the Court can only conclude that there exists a division of opinions among the authorities at this time as to whether gas and oil were considered minerals by the experts in 1902. Certainly, it is difficult to contemplate whether Parker and the railroad thought gas and oil were considered a mineral in 1902. > Certainly the evidence does not establish the necessary objective manifestation of mutual assent between the parties to the reservation in question that the reservation included the right to extract gas or oil. The court concluded that the interlineations did not become part of the 1902 real estate contract, that the contract reservation of coal and iron did not merge into the 1907 deed, and that the reservation of "all minerals" was void. The court then reformed the reservation and limited it to coal and iron. Meridian appealed. The Court of Appeals, Division Three, reversed the trial court, holding that the contract had merged into the deed.3 But in reaching its determination, the Court of Appeals concluded that the phrase "all minerals of any nature whatsoever upon or in [the] land ...” unambiguously includes oil and natural gas. The Court of Appeals awarded to Meridian the rights to "any material which could be extracted for profit."4 The Kunkels petitioned this court for review, which we granted.5 Petitioners raise the single question whether, as a matter of law, oil and natural gas are unambiguously included in a 9011907 deed reservation of "all minerals of any nature whatsoever upon or in [the] land." In Washington, the term "minerals" is susceptible of different constructions.6 It is therefore ambiguous.7 In construing ambiguous language in a deed, any doubt is resolved against the grantor.8 The Court of Appeals relied upon State ex rel. Atkinson v. Evans,46 Wash. 219, 89 P. 565 (1907), for its determination in this case that in a reservation clause "all minerals" is defined as "any material which could be extracted for profit". The Court of Appeals found the rule in Atkinson"more appropriate" than this court's superseding rule announced in Puget Mill Co. v. Duecy,1 Wn.2d 421, 96 P.2d 571 (1939). Puget Millconstrued a deed reservation which provided: > "The Seller hereby reserves unto itself, and unto its successors and assigns, the full, complete and absolute rights to all oils, gases, coal, minerals, metals and fossils of every name and nature which may be in or upon said land, or any part thereof, with the right of entry upon said land to prospect and explore for oils, gases, coal, minerals, metals, and fossils of every name and nature, and also to take, mine and remove the same[9] The holder of the reservation sought title to sand and gravel under the clause. The court stated: > The word "minerals," standing alone, might by itsélf, under a broad, general, popular definition, embrace the soil, hence include sand and gravel, and all that is to be found beneath the surface. . . . > 902... [I] f it did, it would include the soil itself. The better rule is that each case must be decided on the language of the grant or reservation, the surrounding circumstances, and the intention of the grantor if it can be ascertained.[10] As noted by the Court of Appeals, Puget Millspecifically rejected the rationale of Atkinson11 as too liberal and stated that "the better rule is that each case must be decided on its own facts"12*Yet the Court of Appeals nevertheless relied upon Atkinsonas its authority for reversing the trial court's determination that a reservation of "all minerals" does not unambiguously include oil and natural gas. This reliance is apparently based upon a conclusion that the rule in Puget Millis limited to cases involving surface minerals.13 However, Puget Millis not so limited. It states: > [I]t is clear that the term "minerals" does not include everything embraced in the mineral kingdom as distinguished from what belongs to the animal and vegetable kingdoms . . .. The better rule is that each case must be decided on the language of the grant or reservation, the surrounding circumstances, and the intention of the grantor if it can be ascertained. . . . > . . . The term "minerals" is susceptible of different constructions. . ..[14] 903The Court of Appeals, Division One, in analyzing Puget Mill,has stated that " [o]ne interpretation of [Puget Mill]is that the term 'minerals' is ambiguous as a matter of [Washington] law.”15 In Puget Millthis court emphasized that "the real point is: What was the intention of theparties?"16 The rule for interpretation of language in mineral reservations in Washington is that what is reserved is what the parties intended to be reserved, and nothing more. "[E]ach case must be decided on the language of the grant or reservation, the surrounding circumstances, and the intention of the grantor if it can be ascertained."17 Thus, upon occasion, resort to extrinsic evidence will be necessary. Here, the trial court was unable to interpret the reservation clause without resort to parol evidence. After evaluation of considerable extrinsic evidence, the court found that in this case the phrase "all minerals ..." did not include oil and natural gas. An appellate court cannot substitute its judgment for that of the trial court in resolving factual issues.18 Statements of fact included within conclusions of law will be treated as findings of fact.19 The Court of Appeals in this case erred in relying upon Atkinsonbecause Puget Millrejected the rule in Atkinson.The trial court found that the phrase, "all minerals . . .", as used by the parties in this case, did not include oil and natural gas. We will not disturb that determination on review. 904There should arise no apprehension that applying in this instance a case-by-case determination as required under Puget Millwill create a flood of litigation. The facts in this case are rather unique. As noted by the trial court, the Parker contract was formed during a two week period in March 1902 when land contracts were being interlineated by Northern Pacific's sales agent after their execution.By December 1902 the railroad was specifically reserving oil and natural gas in its sales contracts. There would thus remain few contracts requiring determination. Moreover, our decision in this case mitigates against any future claims contrary to its holding. Meridian argues that it is the "majority rule" that oil and natural gas are "minerals" as a matter of law for the purposes of a reservation clause, citing a law review article, G. Reeves, The Meaning of the Word "Minerals",54 N.D.L. Rev. 419 (1978). None of the cases cited by the author of the article as establishing the "rule" are Washington cases. Despite Puget Mill,Meridian urges this court to adopt the "majority rule" in this case. Only one of the "majority rule" cases was published before the 1902-1907 time period relevant to determining the intentions of the parties in this case: Murray v. Allred,100 Tenn. 100, 43 S.W. 355 (1897) (Murray v."Allard" in the Southwestern Reporter). Murrayis counterbalanced by the only other "all mineral" reservation case published at the time, the leading "minority" or "Pennsylvania" rule case: Dunham & Shortt v. Kirkpatrick,101 Pa. 36 (1882). Murrayrelied for its decision, in part,20 on Hext v. Gill,7 Ch.App. 699 (1872), [1866-73] All E.R. 388, for the proposition that "minerals" comprise ''[e]very substance which can be got from underneath the surface of the earth for the 905purpose of profit."21 By its decision in Puget Mill,this court rejected the rationale of Hext,22 thus also rejecting the rationale of Murray. In contrast, Dunhamparallels the rationale of this court's decision in Puget Mill.The Pennsylvania court stated: > It is true that petroleum is a mineral; no discussion is needed to prove this fact. But salt and other waters, impregnated or combined with mineral substances, are minerals; so are rocks, clays and sand; anything dug from mines or quarries; in fine, all inorganic substances are classed under the general name [of] minerals .... But if the reservation embraces all these things, it is as extensive as the grant, and therefore void.[23] After noting that "in popular estimation petroleum is not regarded as a mineral substance", the court in Dunhamasked, "How, then, did the parties to the contract . . . think and write?"24 This is essentially the same as Puget Mill'squestion: "What was the intention of the parties?"25 Dunhamhas been interpreted as creating a rebuttable presumptionthat the word "minerals" or its equivalent, without specific mention of oil or natural gas, is not intended by transacting parties to include oil and natural 906gas.26 This is the equivalent of Puget Mill'ssuggestion that each case must be decided on evidence proving the word "minerals" to include the substance in question. Washington is aligned with the "minority" rule. Put simply, a party relying merely upon the language of a reservation of "all minerals" attempts to prove more than the plain language of the clause permits. While we may be persuaded that such a clause embraces, etymologically, all substances which are "mined," such as coal and metallif-erous ores, we are not persuaded that it embraces fluids such as oil and natural gas any more than we are persuaded that it embraces, for example, water.27 Under Washington law, "all minerals of any nature whatsoever upon or in [the] land," does not mean what it appears to say.28 It is capable of more than one interpretation.29 A reservation of "all minerals ..." is therefore ambiguous.30 Although the meaning of the reservation clause is ambiguous, construction of the reservation clause is certain. n[A]mbiguous language in a deed should be construed to 907resolve the doubt against the grantor."31 Since Meridian, the successor in interest to the grantor, did not persuade the trial court that "all minerals of any nature whatsoever upon or in [the] land" includes oil and natural gas, the rights to those substances belong to the Kunkels by virtue of their fee title. The trial court, after examining considerable extrinsic evidence, concluded that the parties intended only iron and coal to be reserved by the "all mineral ..." language, and ordered the deed reformed accordingly. The successors in interest to Northern Pacific thus retain title only to any iron and coal "upon or in" the land. Oil and natural gas are not unambiguously included in a reservation of "all minerals" as a matter of law. Meridian failed to sustain its burden of proving that it was the intention of the parties, as evidenced by the language used in the 1907 deed, that oil and natural gas be reserved. We reverse the Court of Appeals and reinstate the decision of the trial court which reformed the deed to reserve only iron and coal. Callow, C.J., and Utter, Brachtenbach, Dolliver, Dore, Andersen, Durham, and Guy, JJ., concur. 1 The legal description of the land is: "Units 13, 14, 15 and 16, Irrigation Block 81, Columbia Basin Project as per plat thereof filed March 30, 1964 records of Grant County, Washington." 2 Delaware Coastal Oil & Gas Corporation, and ELF Aquitane, Inc., are foreign corporations and claim an interest in the land by virtue of an oil and gas lease with Burlington Northern, Inc. 3 Kunkel v. Meridian Oil, Inc.,54 Wn. App. 675, 681, 775 P.2d 470 (1989). 4 Kunkel v. Meridian Oil, Inc.,54 Wn. App. 675, 682, 775 P.2d 470 (1989). 5 113 Wn.2d 1016 (1989). 6 Puget Mill Co. v. Duecy,1 Wn.2d 421, 96 P.2d 571 (1939). 7 Ladum v. Utility Cartage, Inc.,68 Wn.2d 109, 116, 411 P.2d 868 (1966) (statement capable of being understood in either of two or more possible senses is ambiguous). See also Murray v. Western Pac. Ins. Co.,2 Wn. App. 985, 989, 472 P.2d 611 (1970). 8 Weyerhaeuser Co. v. Burlington Northern, Inc.,15 Wn. App. 314, 549 P.2d 54 (1976). 9 Puget Mill Co. v. Duecy,1 Wn.2d 421, 422, 96 P.2d 571 (1939). 10 (Citation omitted.) Puget Mill Co. v. Duecy,1 Wn.2d 421, 425-27, 96 P.2d 571 (1939). 11 See Puget Mill Co. v. Duecy,1 Wn.2d 421, 96 P.2d 571 (1939). 12 (ltalics ours.) Kunkel v. Meridian Oil, Inc.,54 Wn. App. 675, 681, 775 P.2d 470 (1989). 13 The court also stated that: "The authority to explore and extract distinguishes this deed from one which must be construed as it pertains to surface materials." Kunkel,at 682. This not only ignores the fact that the access reservation includes "mining or otherwise extracting and carryingaway" any minerals, which is consistent with surface mineral removal, but also begs the initial question of what minerals may be extracted. 14 (Citation omitted. Italics ours.) Puget Mill Co. v. Duecy,1 Wn.2d 421, 427-29, 96 P.2d 571 (1939). 15 (Citation omitted. Italics ours.) Weyerhaeuser Co. v. Burlington Northern, Inc.,15 Wn. App. 314, 320 n.4, 549 P.2d 54 (1976). 16 (Italics ours.) Puget Mill Co. v. Duecy,1 Wn.2d 421, 429, 96 P.2d 571 (1939). 17 Puget Mill Co. v. Duecy,1 Wn.2d 421, 427, 96 P.2d 571 (1939). 18 Thomdike v. Hesperian Orchards, Inc.,54 Wn.2d 570, 343 P.2d 183 (1959). 19 Ferree v. Doric Co.,62 Wn.2d 561, 567, 383 P.2d 900 (1963). 20 Murrayalso relied in part upon Gill v. Weston,110 Pa. St. 312, 1 A. 921 (1885) to reject the rule in Dunham.However, Westonconstrued the Pennsylvania mining statutes and did not involve a reservation clause in a deed. It is inapposite. 21 Murray v. Allred,100 Term. 100, 114-15, 43 S.W. 355 (1897) (quoting Hext). 22 Puget Millspecifically rejected the reasoning of State ex rel. Atkinson v. Evans,46 Wash. 219, 89 P. 565 (1907). Puget Mill Co. v. Duecy,1 Wn.2d 421, 427, 96 P.2d 571 (1939). Atkinsonbased its decision in part on Northern Pac. Ry. v. Soderberg,188 U.S. 526, 47 L. Ed. 575, 23 S. Ct. 365 (1903), which in turn cites Hextin the text quoted by the Atkinsoncourt. See State ex rel. Atkinson v. Evans,46 Wash. 219, 223, 89 P. 565 (1907). Further, Puget Milltargets for rejection the "all substances which may be extracted from the earth for profit" definition of minerals approved by the Tennessee court in Murray. See Puget Mill,at 427. 23 (Citations omitted.) Dunham & Shortt v. Kirkpatrick,101 Pa. 36, 43 (1882). 24 Dunham & Shortt v. Kirkpatrick,101 Pa. 36, 44 (1882). 25 Puget Mill Co. v. Duecy,1 Wn.2d 421, 429, 96 P.2d 571 (1939). 26 SeeG. Reeves, The Meaning of the Word"Minerals", 54 N.D.L. Rev. 419, 466 (1978). 27 Water, of course, is a "mineral" substance "upon or in" land and may be of considerable economic value. Water is not, however, reasonably included within a blanket reservation of "all minerals" unless that was the intention of the parties. 28 See Puget Mill Co. v. Duecy,1 Wn.2d 421, 96 P.2d 571 (1939); cf. Kunkel v. Meridian Oil, Inc.,54 Wn. App. 675, 681, 775 P.2d 470 (1989) (phrase is ambiguous as applied to surface minerals). 29 Puget Mill Co. v. Duecy,1 Wn.2d 421, 429, 96 P.2d 571 (1939). 30 Accord, Weyerhaeuser Co. v. Burlington Northern, Inc.,15 Wn. App. 314, 320 n.4, 549 P.2d 54 (1976). See also Ladum v. Utility Cartage, Inc.,68 Wn.2d 109, 116, 411 P.2d 868 (1966) (statement "[c]apable of being understood in either of two or more possible senses" is ambiguous); Murray v. Western Pac. Ins. Co.,2 Wn. App. 985, 989, 472 P.2d 611 (1970) (written instrument ambiguous if terms are uncertain or capable of being understood as having more than one meaning). 31 Weyerhaeuser Co. v. Burlington Northern, Inc.,15 Wn. App. 314, 320, 549 P.2d 54 (1976) (citing Hodgins v. State,9 Wn. App. 486, 513 P.2d 304 (1973)).
s3://data.kl3m.ai/documents/uspto/07414233.json	text/markdown	# Patent ## Title Pixel circuit with surface doped region between multiple transfer transistors and image sensor including the same ## Abstract A pixel circuit of an image sensor includes a photo-converting unit such as a photo-diode for generating charge from incident light. The pixel circuit also includes a charge storing capacitor for storing the charge generated by the photo-converting unit. The pixel circuit further includes a floating diffusion node that receives the charge from the charge storing unit after being reset. Thus, an image signal VSIG is generated after a reset signal VRES is generated from the pixel circuit. ## Background BACKGROUND OF THE INVENTION This application claims priority to Korean Patent Application No. 2005-53017, filed on Jun. 20, 2005 in the Korean Intellectual Property Office, the disclosure of which is incorporated herein in its entirety by reference. 1. Field of the Invention The present invention relates generally to image sensors, and more particularly, to a pixel circuit with low noise for a global shutter operation in a CMOS image sensor. 2. Description of the Related Art A CMOS image sensor (CIS) in a cellular phone camera, a digital still camera, etc., converts images into electrical signals, and converts the electrical signals into digital signals. A digital image signal output from the CMOS image sensor is color (Red, Green, or Blue) image data. The digital image signal is further processed for driving a display, such as a LCD. FIG. 1 is a block diagram of a conventional CMOS image sensor 100. Referring to FIG. 1, the image sensor 100 includes an Active Pixel Sensor (APS) array 110, a row driver 120, and an analog to digital converter (ADC) 130. The row driver 120 receives control signals from a row decoder (not shown), and the ADC 130 receives control signals from a column decoder (not shown). FIG. 2 is an example of a color filter pattern of the APS array 110 of FIG. 1 when the image sensor 100 is a color image sensor. Each pixel in the APS array 110 has a respective color filter that passes through a certain color of light to be sensed by the pixel. FIG. 2 shows a Bayer color filter pattern having two colors, red (R) and green (G), and another two colors, green (G) and blue (B), alternately arranged in respective rows. In addition, the G color associated with a brightness signal is assigned to all the rows, and the R color and the B color are alternately assigned to the respective rows so that brightness resolution is enhanced. Typical electronic devices such as digital still cameras use a CIS with millions of pixels for increased resolution. The APS array 110 senses light using photodiodes that convert light into an electrical signal, thus generating image signals. The analog image signals output from the APS array 110 are for three colors, R, G, and B. The ADC 130 receives the analog image signals from the pixel array 110 for conversion into digital signals using a Correlated Double Sampling (CDS) method. The CDS method is known to those of ordinary skill in the art, and therefore a detailed description thereof is omitted. FIG. 3 is a circuit diagram of an example pixel circuit 300 within the APS array 110 of FIG. 1. Each pixel in the APS array 100 has a respective pixel circuit that is similar to the pixel circuit 300 of FIG. 3 including a respective photodiode PD and respective four transistors. Such a configuration of the pixel circuit 300 of FIG. 3 is well known to one of ordinary skill in the art. The pixel circuit 300 performs a rolling shutter operation or a global shutter operation depending on control/supply signals RX, TX, SEL, and VDD. In a rolling shutter operation, rows in a frame are sequentially selected one by one such that signals photo-electrically generated by photodiodes of the selected row are transferred to floating diffusion (FD) nodes to be output as image signals. In a global shutter operation, signals photo-electrically transformed by all photodiodes of all rows in a frame are transferred simultaneously to FD nodes. Subsequently, rows are sequentially selected for outputting image signals from each selected row at a time. In either of the rolling or global shutter operations, for each pixel in a row selected by a row selection signal SEL, a reset control signal RX is activated. In that case, a supply voltage VDD is coupled to the FD node for being output as a reset signal VRES. In addition, a signal generated by a photodiode PD is transferred to the FD node for being output as an image signal VSIG when a transfer control signal TX is activated. Generally, in the rolling shutter operation, after the reset signal VRES is output, the image signal VSIG is output. However, in the global shutter operation, after the image signal VSIG is output, the reset signal VRES is output. Referring to FIG. 1, the ADC 130 performs A/D (analog to digital) conversion on the difference between the reset signal VRES and the image signal VSIG for correlated double sampling. The row selection signal SEL, the reset control signal RX, and the transfer control signal TX may be generated by the row driver 120. FIG. 4 is a cross-sectional view of a silicon (Si) substrate in which the photodiode PD and the transistors of FIG. 3 are formed according to the prior art. When a transfer control signal TX is activated, a corresponding transistor is turned on for connecting the photodiode PD to the FD node. For the global shutter operation in FIG. 4, respective charges generated by photodiodes of all rows in a frame are transferred simultaneously to the respective FD nodes. Subsequently, corresponding image signals VSIG are output from a selected row at a time. In such a global shutter operation, a reset signal VRES may not be sampled right before the image signal VSIG is sampled for the pixel circuit 300. Rather, a reset signal VRES may be sampled after the image signal VSIG is sampled, which results in increased noise in the global shutter operation. Also in the circuit structure of FIG. 4, dark current may flow in the surface region of the Si substrate corresponding to the FD node. In the global shutter operation, respective charges from all photodiodes of all rows in a frame are transferred simultaneously to FD nodes. Such charges are held by each FD node in a standby state until the corresponding pixel is selected for signal output. Thus, in rows having long standby times, the amount of charge stored within the FD nodes may vary from dark current. In the rolling shutter operation, a standby time period between the charge being transferred to the FD node to being read out as a signal is equal for all rows, and the standby time is short. Thus, the influence of dark current is insignificant. However, in the global shutter operation, dark current may result in picture-quality deterioration. SUMMARY OF THE INVENTION Accordingly, a pixel circuit in an image sensor includes an additional charge storing unit for generating a reset signal VRES before each image signal VSIG. In addition, a surface-doped region is formed in the charge storing unit for preventing dark current in the charge storing unit. A pixel circuit of an image sensor according to an aspect of the present invention includes a photo-converting unit such as a photo-diode for generating charge from incident light. The pixel circuit also includes a charge storing unit for storing the charge generated by the photo-converting unit. The pixel circuit further includes a floating diffusion node that receives the charge from the charge storing unit after being reset. In an embodiment of the present invention, the pixel circuit further includes first and second transfer transistors. The first transfer transistor is disposed between the photo-converting unit and the charge storing unit, and the second transfer transistor is disposed between the charge storing unit and the floating diffusion node. In a further embodiment of the present invention, the charge storing unit is a capacitor having a first node formed with a gate structure of the first transfer transistor. For example, the capacitor includes a capacitor diffusion region formed in a semiconductor substrate. In another embodiment of the present invention, a surface-doped region is formed within the capacitor diffusion region, and disposed between gate structures of the first and second transfer transistors. The surface-doped region is oppositely doped from the capacitor diffusion region that forms a source/drain for the first and second transistors, for reducing dark-current while the capacitor holds the charge from the photo-converting unit. In a further embodiment of the present invention, a driver generates control signals with a first set of levels to the first and second transfer transistors such that the charge storing unit is first reset for generating a reset signal before the charge generated from the photodiode is transferred to the charge storing unit. In addition, the driver generates the control signals with a second set of levels to the first and second transfer transistors such that the charge from the charge storing unit is transferred to the floating diffusion node for generating an image signal after the reset signal is output from the pixel circuit. In another embodiment of the present invention, the pixel circuit includes a reset transistor coupled to the floating diffusion node for resetting the floating diffusion node. The pixel circuit also includes a source follower transistor and a selection transistor coupled to the floating diffusion node for outputting a signal corresponding to an amount of charge stored at the floating diffusion node. The present invention may be used to particular advantage when the image sensor is a CMOS (complementary metal oxide semiconductor) image sensor. However, the present invention may also be advantageously applied for other types of image sensors. In this manner, the reset signal is generated immediately before the image signal for reduced noise in subsequent CDS (correlated double sampling). In addition, the surface-doped region prevents dark current from the charge storing unit such that rows with long stand-by times do not lose charge in the global shutter operation. Thus, picture-quality is preserved even for an active pixel sensor array having a large number of rows in the global shutter operation. BRIEF DESCRIPTION OF THE DRAWINGS The above and other features and advantages of the present invention will become more apparent when described in detailed exemplary embodiments thereof with reference to the attached drawings in which: FIG. 1 is a block diagram of a conventional image sensor; FIG. 2 is an example of a color filter pattern of an Active Pixel Sensor (APS) array of FIG. 1, as known in the prior art; FIG. 3 is a circuit diagram of a pixel driving circuit in the APS array of FIG. 1, as known in the prior art; FIG. 4 is a cross-sectional view of a silicon (Si) substrate having a photodiode and transistors of FIG. 3 formed therein, according to the prior art; FIG. 5 is a circuit diagram of a pixel driving circuit of an image sensor, according to an embodiment of the present invention; FIG. 6 is a cross-sectional view of a photodiode and transistors of FIG. 5 formed in a semiconductor substrate, according to an embodiment of the present invention; FIG. 7 is a timing diagram of signals used in a pixel circuit of FIG. 5, according to an embodiment of the present invention; FIGS. 8A, 8B, 8C, and 8D are energy band diagrams of transistor channels in the pixel circuit of FIG. 5 for various driving conditions, according to an embodiment of the present invention; and FIG. 9 shows a block diagram of an image sensor having an array of pixel circuits, with each pixel circuit similar to that illustrated in FIG. 5, according to an embodiment of the present invention. The figures referred to herein are drawn for clarity of illustration and are not necessarily drawn to scale. Elements having the same reference number in FIGS. 1, 2, 3, 4, 5, 6, 7, 8A, 8B, 8C, 8D, and 9 refer to elements having similar structure and/or function. DETAILED DESCRIPTION OF THE INVENTION FIG. 5 is a circuit diagram of a pixel driving circuit 500 of a CMOS (complementary metal oxide semiconductor) image sensor 600 in FIG. 9, according to an embodiment of the present invention. Referring to FIG. 5, the pixel driving circuit 500 includes a pixel circuit 510 and a bias circuit 520 for biasing an output node generating a reset signal VRES and an image signal VSIG. Referring to FIGS. 5 and 9, the CMOS image sensor 600 includes an APS (active pixel sensor) array 602 of a plurality of pixel circuits. FIG. 9 shows a first pixel circuit 604, a second pixel circuit 606, a third pixel circuit 608, and a fourth pixel circuit 610. Four pixel circuits are illustrated in FIG. 9, but a typical CMOS image sensor has more numerous pixel circuits for high resolution of the image sensor. Each of the pixel circuits 604, 606, 608, and 610 in the APS array 602 is implemented similarly to the pixel circuit 510 of FIG. 5. In addition, a column of pixel circuits is coupled to a respective output node. For example, the first column of pixel circuits 604 and 606 is coupled to a first output node having a first bias circuit 612, and the second column of pixel circuits 608 and 610 is coupled to a second output node having a second bias circuit 614. The bias circuits 612 and 614 may be disposed above or below the APS array 602. The CMOS image sensor 600 also includes a row driver 616 and an ADC (analog to digital converter) 618. The row driver 616 generates a respective set of control signals RX, TX1, TX2, and SEL for driving each of the pixel circuits 604, 606, 608, and 610 in the APS array 602. The ADC 618 receives a respective reset signal VRES and a respective image signal VSIG from each of the pixel circuits for converting such analog signals to a digital signal with correlated double sampling. Referring back to FIG. 5, the example pixel circuit 510 includes a row selection transistor SG, a reset transistor RG, a source-follower transistor SF, a first transfer transistor TG1, a second transfer transistor TG2, a charge storing unit such as a capacitor OLC, and a photo-converting unit such as a photodiode PD. All transistors in FIG. 5 are NMOSFETs (N-channel metal oxide semiconductor field effect transistors) in one embodiment of the present invention. However, the present invention may also be practiced with other types of transistors. A gate electrode of the reset transistor RG has a reset control signal RX applied thereon. A first supply voltage VDD is applied to one of the source/drain of the reset transistor RG, and the other of the source/drain of the reset transistor RG is coupled to a FD node. A gate electrode of the source-follower transistor SF is coupled to the FD node. The first supply voltage VDD is applied to one of the source/drain of the source-follower transistor SF, and the other of the source/drain of the source-follower transistor SF is coupled to one of the source/drain of the row selection transistor SG. The other of the source/drain of the row selection transistor SG is coupled to the output node VRES/VSIG. A row selection signal SEL is applied to a gate of the row selection transistor SG. A first transfer control signal TX1 is applied to a gate of the first transfer transistor TG1. One of the source/drain of the first transfer transistor TG1 is coupled to the charge storing unit OLC, and the other of the source/drain of the first transfer transistor TG1 is coupled to the photo-diode PD. A second transfer control signal TX2 is applied to a gate of the second transfer transistor TG2. One of the source/drain of the second transfer transistor TG2 is coupled to the FD node, and the other of the source/drain of the second transfer transistor TG2 is coupled to the charge storing unit OLC. The photo-diode PD is coupled between the first transfer transistor TG1 and a second supply voltage VSS. The pixel circuit 510 may also be implemented without including the row selection transistor SG. In that case, the pixel circuit 510 may still perform a rolling shutter operation and a global shutter operation by slightly modifying the reset control signal RX, the first transfer control signal TX1, the second transfer control signal TX2, and the first source voltage VDD. FIG. 6 shows a cross-sectional view of a silicon (Si) substrate in which the photodiode PD and the transistors TG1, TG2 and RG of FIG. 5 are formed according to an embodiment of the present invention. Referring to FIGS. 5 and 6, the capacitor OLC is formed as a capacitor diffusion region doped with an N-type dopant. Such a region OLC also acts as a shared source/drain of the transfer transistors TG1 and TG2. In addition, a surface-doped region DCPR is formed within the capacitor diffusion region OLC. Furthermore, the surface-doped region DCPR is formed within the Si-substrate between the gate structures of the first and second transfer transistors TG1 and TG2. In one embodiment of the present invention, the capacitor diffusion region OLC is doped with an N-type dopant, and the surface-doped region DCPR is doped with a P-type dopant. The surface-doped region DCPR prevents dark current from being generated when the surface of the Si substrate is exposed to light. A portion of the capacitor diffusion region OLC is formed to be disposed under the gate structure of the first transfer transistor TG1 which forms an electrode of the capacitor OLC. With such a capacitor OCL, a reset signal VRES may be sampled just before an image signal VSIG is sampled as will be described herein. FIG. 7 is a timing diagram of signals during operation of the pixel circuit 510 according to an embodiment of the present invention. FIGS. 8A, 8B, 8C, and 8D are energy band diagrams of the transistor channels of the pixel circuit 510 when driven with the signals of FIG. 7, according to an embodiment of the present invention. Referring to FIGS. 5, 7, and 9, the control signals SEL, RX, TX2, and TX1 are generated by the row driver 616 in one embodiment of the present invention. The row selection signal SEL is activated to a logic high state once in each horizontal scan period to select a corresponding row. The reset control signal RX is activated to a logic low state for a predetermined time period within the time period when the row selection signal SEL is activated to the logic high state. The first transfer control signal TX1 has a negative level, a zero level, and a positive level. The first transfer control signal TX1 is at the negative level twice during a charge accumulating interval 710 so as to reset the charge storing capacitor OLC. In addition, the first transfer control signal TX1 is at the positive level (active) for an entire charge transfer interval 720 during which charge generated from the photodiode PD is transferred to the charge storing capacitor OLC. The present invention may be practiced with the first transfer control signal TX1 having only negative (low) and positive (high) levels and without having a zero level. However, the size or the thickness of a gate insulation film of the first transfer transistor TG1 may be reduced more efficiently when the first transfer control signal TX1 has the three (positive, negative, and zero) levels. The second transfer control signal TX2 becomes high (active) twice in the charge accumulating interval 710 so as to reset the charge storing capacitor OLC. Then, the second transfer control signal TX2 becomes high (active) once during a predetermined time during the following horizontal scan period while the reset control signal RX is low. Further referring to FIG. 7, initially, the row selection signal SEL is set to the logic low state, the reset control signal RX is activated to the logic high state, and the second transfer control signal TX2 is activated to the logic high state. In addition, the first transfer control signal TX1 is set to the positive level. Thus, the first supply voltage VDD is applied up to the photo-diode PD through the reset transistor RG and the transfer transistors TG1 and TG2 for resetting the photo-diode PD (as indicated by PD RESET in FIG. 7). Subsequently, the first transfer control signal TX1 is set to the negative level for turning off the first transfer transistor TG1. The first supply voltage VDD is applied up to the charge storing capacitor OLC for resetting the charge storing capacitor OLC (as indicated by STORAGE RESET in FIG. 7). Thereafter, the charge accumulating interval 710 for the photodiode PD is started when the first transfer control signal TX1 is set to the zero level, and the second transfer control signal TX2 is set to the logic low state. As the photodiode PD begins to accumulate charge (e), the photodiode PD, the first transfer transistor TG1, the storage capacitor OLC, the surface-doped region DCPR, the second transfer transistor TG2, and the reset transistor RG have the energy distribution as illustrated in FIG. 8A. Subsequently, the charge storing capacitor OLC is reset once more toward the end of the charge accumulating interval 710 when the first transfer control signal TX1 is set to the negative level and the second transfer control signal TX2 is set to the logic high state. After the charge accumulating interval 710, the TX2 is set to the logic low state, and the first transfer control signal TX1 is set to the positive level. In that case, the charge generated at the photodiode PD is transferred to the charge storing capacitor OLC during a charge transfer interval 720. FIG. 8B illustrates the energy distribution across the photodiode PD, the first transfer transistor TG1, the storage capacitor OLC, the surface-doped region DCPR, the second transfer transistor TG2, and the reset transistor RG during the charge transfer interval 720. Referring to FIG. 8B, the channel barrier of the first transfer transistor TG1 is lowered and the N-type doped capacitor diffusion region OLC has lower potential. Such energy distribution is amenable for transfer of the charge generated at the photodiode PD to the charge storing capacitor OLC. Referring to FIGS. 5 and 9, each of the pixel circuits 604, 606, 608, and 610 in the APS array 602 in FIG. 9 is implemented similarly to the pixel circuit 510 of FIG. 5. Thus, each of the pixel circuits 604, 606, 608, and 610 has a respective set of components PD, TG1, OLC, DCPR, TG2, FD, RG, SF, and SG configured as shown in FIG. 5. Referring to FIGS. 7 and 9, the row driver 616 generates a respective set of control signals SEL, RX, TX2, and TX1 for each of the pixel circuits 604, 606, 608, and 610 in the APS array 602. For the global shutter operation, the row driver 616 generates such respective sets of control signals to all of the pixels of the APS array 602 such that the charge accumulating interval 710 and the subsequent charge transfer interval 720 occur simultaneously for all rows of the pixel circuits in the APS array 602. Thus, respective charge is generated in each photo-diode of the pixel circuits of the whole APS array 602 simultaneously. In addition, such respective charge is transferred to each charge storing capacitor OLC of the pixel circuits of the whole APS array 602 simultaneously. Referring back to FIG. 7, after the charge transfer interval 720, the first transfer control signal TX1 is set to the zero level while the first transfer control signal TX2 remains set to the logic low level. Thereafter, reset and image signals VRES and VSIG are read out sequentially for a selected row at a time. Until a row selection signal SEL for selecting a corresponding row is activated to the logic state, respective charges within pixels circuits of the unselected rows remains stored in the charge storing capacitor OLC in a standby interval 730 with the energy distribution as illustrated in FIG. 8C. In the APS array 602, the last selected row is in the standby state for a longest time. A higher number of rows increases a total time of the standby interval 730. For preventing dark current from being generated in rows having long standby intervals, the region DCPR is doped with a dopant of opposite conductivity type from the dopant of the capacitor diffusion region OLC. After the standby interval 730, a row is selected when the corresponding row selection signal SEL is activated to the logic high state while the reset control signal RX is set to the logic high state. Thereafter the reset control signal RX is activated to the logic low state for coupling the first supply voltage VDD to the floating diffusion node FD. The source follower transistor SF and the selection transistor SG operate to output a reset signal VRES corresponding to respective charge stored at the floating diffusion node FD at that point for a reset level read out in FIG. 7. Such a reset signal VRES is input by the ADC 618 in FIG. 9. Thereafter, the second transfer control signal TX2 is activated to the logic high state, and the first transfer control signal TX1 is set to the negative level. With such controls signals TX2 and TX1 during a timer interval 740, the charge stored in the charge storing capacitor OLC is transferred to the floating diffusion node FD. FIG. 8D illustrates the energy distribution during such transfer of charge from the charge storing capacitor OLC to the floating diffusion node FD. Subsequently, the second transfer control signal TX2 is set to the logic low state, and the first transfer control signal TX1 is set to the zero level, after the charge stored in the charge storing capacitor OLC has been completely transferred to floating diffusion node FD. The source follower transistor SF and the row selection transistor SG output an image signal VSIG corresponding to the respective charge at the floating diffusion node FD at that point for a signal level read out in FIG. 7. Such an image signal VSIG is input by the ADC 618 in FIG. 9. The ADC 618 uses the analog reset and image signals VRES and VSIG for generating a digital signal of a difference between such signals VRES and VSIG in the correlated double sampling technique. In this manner, the reset signal VRES corresponding to the image signal VSIG is read out immediately prior to the image signal VSIG even in the global shutter operation, similar to the rolling shutter operation. Thus, noise is minimized in the digital signal of the difference between the reset and image signals VRES and VSIG. Such low noise advantageously enhances image quality. The converted digital signal is output to a digital signal processor (not shown) and interpolated for further processing. The digital signal processor generates driving signals appropriate to a resolution of a display, such as a LCD, for displaying the image captured by the APS array 602 on the display. In this manner, the reset signal VRES is generated immediately before the image signal VSIG for reduced noise in the subsequent CDS (correlated double sampling). In addition, the surface-doped region DCPR prevents dark current from the charge storing capacitor OLC such that rows with long stand-by times do not lose charge in the global shutter operation. Thus, picture-quality is preserved in the global shutter operation even when the active pixel sensor array 602 has a large number of rows. The foregoing is by way of example only and is not intended to be limiting. For example, any numbers or number of elements described and illustrated herein is by way of example only. In addition, any type of device or any type of material as described and illustrated herein is by way of example only. Furthermore, the present invention has been described for use within a CMOS image sensor. However, the present invention may be used in any other type of image sensor. The present invention is limited only as defined in the following claims and equivalents thereof. ## Claims 1. A pixel circuit of an image sensor, comprising: a photo-converting unit for generating charge from incident light; a charge storing unit for storing the charge generated by the photo-converting unit; a floating diffusion node that receives the charge from the charge storing unit after being reset; a first transfer transistor disposed between the photo-converting unit and the charge storing unit; a second transfer transistor disposed between the charge storing unit and the floating diffusion node; wherein the first and second transfer transistors each have a respective source/drain region of a first conductivity type formed in a semiconductor substrate; and a surface doped region of a second conductivity type that is opposite of said first conductivity type, wherein the surface doped region is formed in a portion of the semiconductor substrate separating gate structures of the transfer transistors, and wherein the surface doped region abuts only the charge storing unit within the semiconductor substrate. 2. The pixel circuit of claim 1, wherein the first conductivity type is N-type, and wherein the second conductivity type is P-type. 3. The pixel circuit of claim 1, wherein the charge storing unit is a capacitor having a first node formed with the gate structure of the first transfer transistor. 4. The pixel circuit of claim 3, wherein the capacitor includes a capacitor diffusion region formed in the semiconductor substrate. 5. The pixel circuit of claim 4, wherein the surface-doped region is formed within a portion of the capacitor diffusion region that is disposed between the gate structures of the first and second transfer transistors. 6. The pixel circuit of claim 5, wherein the surface-doped region is oppositely doped from the capacitor diffusion region that forms a source/drain for the first and second transfer transistors, for reducing dark-current while the capacitor holds the charge from the photo-converting unit. 7. The pixel circuit of claim 1, wherein a driver generates control signals with a first set of levels to the first and second transfer transistors such that the charge storing unit is first reset for generating a reset signal before the charge generated from the photo-converting unit is transferred to the charge storing unit, and for generating the control signals with a second set of levels to the first and second transfer transistors such that the charge from the charge storing unit is transferred to the floating diffusion node for generating an image signal after the reset signal is generated. 8. The pixel circuit of claim 1, further comprising: a reset transistor coupled to the floating diffusion node for resetting the floating diffusion node; and a source follower transistor and a selection transistor coupled to the floating diffusion node for outputting a signal corresponding to an amount of charge stored at the floating diffusion node. 9. The pixel circuit of claim 1, wherein the photo-converting unit is a photo-diode, and wherein the image sensor is a CMOS (complementary metal oxide semiconductor) image sensor. 10. An image sensor comprising: an active pixel sensor array of a plurality of pixel circuits, each pixel circuit including: a respective photo-converting unit for generating respective charge from incident light; a respective charge storing unit for storing the respective charge generated by the respective photo-converting unit; a respective floating diffusion node that receives the respective charge from the respective charge storing unit after being reset; a respective first transfer transistor disposed between the respective photo-converting unit and the respective charge storing unit; a respective second transfer transistor disposed between the respective charge storing unit and the respective floating diffusion node; wherein the respective first and second transfer transistors each have a respective source/drain region of a first conductivity type formed in a semiconductor substrate; and a respective surface doped region of a second conductivity type that is opposite of said first conductivity type, wherein the respective surface doped region is formed in a respective portion of the semiconductor substrate separating gate structures of the respective transfer transistors, and wherein the surface doped region abuts only the charge storing unit within the semiconductor substrate; and a driver for generating control signals for timing transfer of the respective charge. 11. The image sensor of claim 10, wherein the first conductivity type is N-type, and wherein the second conductivity type is P-type. 12. The image sensor of claim 10, wherein the driver generates control signals with a first set of levels to the respective first and second transfer transistors such that the respective charge storing unit is first reset for generating a respective reset signal before the respective charge generated from the respective photo-converting unit is transferred to the respective charge storing unit, and for generating the control signals with a second set of levels to the respective first and second transfer transistors such that the respective charge from the respective charge storing unit is transferred to the respective floating diffusion node for generating a respective image signal after the respective reset signal is generated. 13. The image sensor of claim 10, wherein the driver generates control signals with a first set of levels to the respective first and second transfer transistors such that respective charges are transferred to the respective charge storing units from the respective photo-converting units simultaneously for the array of pixel circuits in a global shutter operation, and for generating the control signals with a second set of levels such that respective charges are transferred from the respective charge storing units to the respective floating diffusion nodes for a selected row of the array at a time. 14. The image sensor of claim 13, wherein the respective charges remain stored in the respective charge storing units for any unselected row of the array. 15. The image sensor of claim 14, wherein the respective charge storing unit is a capacitor having a first node formed with the gate structure of the respective first transfer transistor. 16. The image sensor of claim 15, wherein the capacitor includes a capacitor diffusion region formed in the semiconductor substrate. 17. The image sensor of claim 16, wherein the surface-doped region is formed within a portion of the capacitor diffusion region that is disposed between the gate structures of the respective first and second transfer transistors. 18. The image sensor of claim 17, wherein the surface-doped region is oppositely doped from the capacitor diffusion region that forms a source/drain for the respective first and second transistors, for reducing dark-current while the capacitor holds the respective charge in the unselected row. 19. The image sensor of claim 10, wherein each pixel circuit further includes: a respective reset transistor coupled to the respective floating diffusion node for resetting the respective floating diffusion node; and a respective source follower transistor and a respective selection transistor coupled to the respective floating diffusion node for outputting a respective signal corresponding to a respective amount of charge stored at the respective floating diffusion node. 20. The image sensor of claim 10, wherein the respective photo-converting unit is a photo-diode, and wherein the image sensor is a CMOS (complementary metal oxide semiconductor) image sensor.
s3://data.kl3m.ai/documents/recap/gov.uscourts.caed.173166/gov.uscourts.caed.173166.12.0.pdf.json	text/plain	1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA FRANK COCKRELL, Plaintiff, 1:08 CV 0259 AWI WMW PC vs. ORDER FINDING COMPLAINT STATES A COLORABLE CLAIM AND DIRECTING PLAINTIFF TO COMPLETE USM 285 FORMS W. J. SULLIVAN, et al., Defendants. Plaintiff George T. Taitano (“plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on August 11, 2003. The court has screened plaintiff’s complaint pursuant to 28 U.S.C. § 1915A and finds that it appears to state cognizable claims for relief under 42 U.S.C. § 1983 against defendants Avalos for retaliation in violation of the First Amendment Lewis, Austin, and Biggs for failing to protect him, in violation of the Eighth Amendment. Accordingly, it is HEREBY ORDERED that: 1. Service is appropriate for the following defendants: CORRECTIONAL COUNSELOR AVALOS 2. The Clerk of the Court shall send to plaintiff one USM-285 form, one summons, Case 1:08-cv-00259-AWI-SKO Document 12 Filed 02/03/09 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 a Notice of Submission of Documents form, an instruction sheet and a copy of the complaint filed February 21, 2008. 3. Within thirty (30) days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the completed Notice to the court with the following documents: a. Completed summons; b. One completed USM-285 form for each defendant listed above; and c. Two copies of the endorsed complaint filed February 21, 2008. 4. Plaintiff need not attempt service on defendants and need not request waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs. 5. The failure to comply with this order will result in a recommendation that this action be dismissed. IT IS SO ORDERED. Dated: February 3, 2009 /s/ William M. Wunderlich mmkd34 UNITED STATES MAGISTRATE JUDGE Case 1:08-cv-00259-AWI-SKO Document 12 Filed 02/03/09 Page 2 of 2
s3://data.kl3m.ai/documents/edgar/0001193125/0001193125-07-042063/10.json	text/markdown	Exhibit 32.2 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Annual Report of Highland Hospitality Corporation (the “Company”) on Form 10-K for the period ended December 31, 2006, as filed withthe Securities and Exchange Commission on the date hereof (the “Report”), I, Douglas W. Vicari, Executive Vice President and Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant toSection 906 of the Sarbanes-Oxley Act of 2002, that to the best of my knowledge: (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 fairlypresents, in all material respects, the financial condition and results of operations of the Company. Date: February 27, 2007
s3://data.kl3m.ai/documents/govinfo/BILLS/BILLS-110hr3720eh/pdf.json	text/plain	110TH CONGRESS 2D SESSION H. R. 3720 AN ACT To designate the facility of the United States Postal Service located at 424 Clay Avenue in Waco, Texas, as the ‘‘Army PFC Juan Alonso Covarrubias Post Office Building’’. 1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 2 •HR 3720 EH 1 SECTION 1. ARMY PFC JUAN ALONSO COVARRUBIAS POST 2 OFFICE BUILDING. 3 (a) DESIGNATION.—The facility of the United States 4 Postal Service located at 424 Clay Avenue in Waco, Texas, 5 shall be known and designated as the ‘‘Army PFC Juan 6 Alonso Covarrubias Post Office Building’’. 7 (b) REFERENCES.—Any reference in a law, map, reg8 ulation, document, paper, or other record of the United 9 States to the facility referred to in subsection (a) shall 10 be deemed to be a reference to the ‘‘Army PFC Juan 11 Alonso Covarrubias Post Office Building’’. Passed the House of Representatives January 22, 2008. Attest: Clerk. 110TH CONGRESS 2D SESSION H. R. 3720 AN ACT To designate the facility of the United States PostCovarrubias Post Office Building’’. Texas, as the ‘‘Army PFC Juan Alonso al Service located at 424 Clay Avenue in Waco,
s3://data.kl3m.ai/documents/recap/gov.uscourts.caed.196501.30.0.pdf.json	text/plain	1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA GUILLERMO GARCIA, Plaintiff, v. M. MIX, et al., Defendants. / CASE NO. 1:10-cv-02097-BAM PC ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TOSTATE A CLAIM (ECF No. 1) THIRTY-DAY DEADLINE I. Screening Requirement Plaintiff Guillermo Garcia (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Defendant McCue removed this action from Tuolumne County Superior Court on November 9, 2010. On November 10, 2010, Defendants Mix and Saylor joined in the removal. Plaintiff’s motion to remand was denied on October 4, 2011. 1 The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks Defendants Paugh, Mendoza, and Pate did not join in the notice of removal and there is no evidence that 1 they were served with the complaint during the pendency of the action in Tuolumne County Superior Court. Additionally, Plaintiff’s complaint states that Defendants Lacey, Ruiz, Johnston, Bick, Dean, Vasquez, Navarro, Chavez, and Grannis are joined pursuant to California Code of Civil Procedure section 382, however there is no evidence any of these defendants were served, nor does the complaint contain any factual allegations against them. The Court notes that section 382 provides for joinder of a party as a defendant who should have been joined as a plaintiff when his consent is unable to be obtained. 1 Case 1:09-cv-01476-AWI -GSA Document 30 Filed 02/10/12 Page 1 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955 (2007)). II. Complaint Allegations Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is currently housed at the Correctional Training Facility in Soledad. Plaintiff alleges that, while he was confined at Sierra Conservation Center, Defendant Mix conducted a cell search and took Plaintiff’s property without giving him a receipt, and the property was “taken lost, stolen, damaged or destroyed.” Plaintiff states he was threatened by Defendant Mix. Plaintiff claims that Defendant Paugh conspired with Defendant Mix to take possession of Plaintiff’s personal property and that the search was for the purpose of retaliation and was cruel and unusual punishment in violation of the Eighth Amendment to punish and harass Plaintiff. Defendant Mendoza, as the tower officer, conspired with Defendants Mix and Paugh, and opened the cell door to allow them to enter Plaintiff’s cell when they were not assigned to his building. Plaintiff states that he was deprived of his right to access the courts by Defendant McCue when he requested a court call to make a telephonic appearance in Los Angeles Superior Court on August 22, 2008. Defendant McCue did not respond to Plaintiff’s request so he was unable to appear for his telephonic conference and case No. BC-356199 was dismissed. Plaintiff alleges that Defendants Saylor and Pate conspired with Defendant McCue to prevent him from appearing at the telephonic conference in violation of the First and Fourteenth Amendments. Plaintiff is seeking compensatory and punitive damages. For the reasons set forth below Plaintiff has failed to state a cognizable claim for relief. Plaintiff shall be given the opportunity to file an amended complaint curing the deficiencies 2 Case 1:09-cv-01476-AWI -GSA Document 30 Filed 02/10/12 Page 2 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 described by the Court in this order. In the paragraphs that follow, the Court will provide Plaintiff with the legal standards that appear to apply to his claims. Plaintiff should carefully review the standards and amend only those claims that he believes, in good faith, are cognizable. III. Discussion A. Retaliation A plaintiff may state a claim for a violation of his First Amendment rights due to retaliation under section 1983. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). A viable claim of retaliation in violation of the First Amendment consists of five elements: “(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonable advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005); accord Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). Although Plaintiff alleges that Defendant Mix searched his cell and his property was taken as a retaliatory act, Plaintiff’s complaint is devoid of any allegation that the cell search was because he had engaged in protected conduct. While Plaintiff alleges that Defendants Paugh and Mendoza conspired with Plaintiff in the cell search, Plaintiff has not alleged any specific facts linking their participation to an improper motive. The bare fact that they participated or assisted in the cell search is insufficient to support a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss, 572 F.3d at 969. Accordingly, Plaintiff has failed to state a cognizable claim for retaliation. B. Access to the Court Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996); Hebbe v. Pliler, 611 F.3d 1202, 1206 (9th Cir. 2010). The right is merely the right to bring to court a grievance the inmate wishes to present, and is limited to direct criminal appeals, habeas petitions, and civil rights actions. Lewis, 518 U.S. at 354. To bring a claim, the plaintiff must have suffered an actual injury by being shut out of court. Christopher v. Harbury, 536 U.S. 403, 415 (2002); Lewis, 518 U.S. at 351. To state a claim for denial of access to court, “the complaint should state the underlying claim in accordance with Federal Rule of Civil Procedure 8(a) just as if it were being independently 3 Case 1:09-cv-01476-AWI -GSA Document 30 Filed 02/10/12 Page 3 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pursued, and a like plain statement should describe any remedy available under the access claim and presently unique to it.” Christopher v. Harbury, 536 U.S. 403, 418 (2002). Plaintiff has failed to allege facts sufficient to show that Los Angeles Superior Court case No. BC-356199 was a direct criminal appeal, habeas petition, or civil rights action, Lewis, 518 U.S. at 354, and therefore fails to state a cognizable claim for denial of access to the courts. C. Eighth Amendment 1. Conditions of Confinement To prove a violation of the Eighth Amendment the plaintiff must “objectively show that he was deprived of something ‘sufficientlyserious,’ and make a subjective showing that the deprivation occurred with deliberate indifference to the inmate’s health or safety.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (citations omitted). Deliberate indifference requires a showing that “prison officials were aware of a “substantial risk of serious harm” to an inmate’s health or safety and that there was no “reasonable justification for the deprivation, in spite of that risk.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837, 844 (1994)). The circumstances, nature, and duration of the deprivations are critical in determining whether the conditions complained of are grave enough to form the basis of a viable Eighth Amendment claim.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006). Plaintiff fails to set forth facts to show that he was at a substantial risk of serious harm to support a deliberate indifference claim. Thomas, 611 F.3d at 1150. Additionally, although Plaintiff alleges that on a single occasion his cell was searched as a form of harassment and he did not receive a property receipt for the property taken, this is insufficient to establish a sufficiently serious deprivation that would violate the Eighth Amendment. Vigliotto v. Terry, 873 F.2d 1201, 1203 (9th Cir. 1989); Dixon v. LaRosa, No. 2:10-cv-1441 GEB KJN P, 2011 WL 3875806, * 17 (E.D. Cal. Aug. 31, 2011). Nor is the failure to arrange a court call a sufficiently serious deprivation that would violate the Eighth Amendment. See Clark v. Plummer, No. 3:95-cv-00046 CAL, 1995 WL 317015, * 2 (N.D. Cal. May 18, 1995) (“Courts have held that even a total denial of telephone access for convicted prisoners is not cruel and unusual punishment under the Eighth Amendment”). The complaint fails to state a cognizable claim based on the cell search or failure to arrange a court call. 4 Case 1:09-cv-01476-AWI -GSA Document 30 Filed 02/10/12 Page 4 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Harassment or Threats Prison conditions that are restrictive or harsh do not necessarily violate the Eighth Amendment. Farmer, 511 U.S. at 833. Verbal harassment does not constitute a violation of the Eighth Amendment. Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996); Oltarzewski v. Ruggiero, 830 F.2d 136, 138 (9th Cir. 1987). A verbal threat does not state a cause of action under the Eighth Amendment. Gaut v. Sunn, 810 F.2d 923, 925 (9th 1987). Plaintiff’s allegations that Defendant Mix threatened him during a cell search fails to state a cognizable claim. D. Destruction of Property While an authorized, intentional deprivation of property is actionable under the Due Process Clause, neither a negligent nor intentional unauthorized deprivation of property by a prison official is actionable if a meaningful postdeprivation remedy is available for the loss. Hudson v. Palmer, 468 U.S. 517, 533 (1984); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1984). Plaintiff alleges that his property was taken without providing a property receipt. Whether the cause of the property loss or damage was intentional and unauthorized or negligent, Due Process is satisfied if there is a meaningful postdeprivation remedy available to Plaintiff. Hudson, 468 U.S. at 533. Plaintiff has an adequate post-deprivation remedy available under California law. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (citing Cal. Gov’t Code §§ 810-895). Therefore, Plaintiff has failed to state a cognizable claim for the loss of his property. E. Conspiracy A conspiracy claim brought under section 1983 requires proof of “‘an agreement or meeting of the minds to violate constitutional rights,’” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001) (quoting United Steel Workers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir. 1989) (citation omitted)), and an actual deprivation of constitutional right, Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) (quoting Woodrum v. Woodward County, Oklahoma, 866 F.2d 1121, 1126 (9th Cir. 1989)). “‘To be liable, each participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy.’” Franklin, 312 F.3d at 441 (quoting United Steel Workers, 865 F.2d at 1541). Although, for pleading purposes, the Court accepts as true the allegations in the complaint, 5 Case 1:09-cv-01476-AWI -GSA Document 30 Filed 02/10/12 Page 5 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 127 S. Ct. at 1965 (citations omitted). A plaintiff must set forth “the grounds of his entitlement to relief[,]” which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action . . . .” Id. at 1964-65 (internal quotations and citations omitted). Plaintiff has not alleged any facts supporting the existence of a conspiracy between Defendants. Further, Plaintiff has not alleged facts demonstrating that Defendants violated his constitutional rights. In order to state a cognizable claim for relief for conspiracy, Plaintiff must establish that Defendants conspired to violate an underlying constitutional right. F. Defendant Liability Plaintiff’s allegations that Defendant McCue is responsible for all inmate accommodations or that Defendant Saylor, as a counselor, would provide access to the telephone are insufficient to state a claim based upon the failure to provide a phone call. While Plaintiff states that Defendants refused to provide a phone call, he fails to allege fact sufficient to show that any defendant personally participated in failing to arrange the phone call. Undersection 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “[A] complaint [that] pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops short of the line between possibility and plausibility of entitlement to relief.’” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 129 S. Ct. at 1949. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (quoting Twombly, 550 U.S. at 555). Additionally, Plaintiff may not bring suit against Defendants in their official capacity. “The Eleventh Amendment bars suits for money damages in federal court against a state, its agencies, and state officials acting in their official capacities.” Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). 6 Case 1:09-cv-01476-AWI -GSA Document 30 Filed 02/10/12 Page 6 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Further, Plaintiff is attempting to bring suit against Defendant Pate stating that he is responsible for supervising the other counselors. Government officials may not be held liable for the actions of their subordinates under a theory of respondeat superior. Iqbal, 129 S. Ct. at 1948. Since a government official cannot be held liable under a theory of vicarious liability for section 1983 actions, Plaintiff must plead that the official has violated the Constitution through his own individual actions. Id. at 1948. In other words, to state a claim for relief under section 1983, Plaintiff must link each named defendant with some affirmative act or omission that demonstrates a violation of Plaintiff’s federal rights. G. Rule 18 Finally, Plaintiff may not pursue multiple, unrelated claims in this action. Pursuant to the Federal Rules of Civil Procedure, [a] partyasserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternate claims, as many claims as it has against an opposing party.” Fed. R. Civ. P. 18(a). “Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in different suits, not only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees-for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g).” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff’s claims regarding the cell search are unrelated to the failure to arrange the court call. Plaintiff will not be permitted to proceed with a “mishmash of a complaint,” id., and is cautioned that if his amended complaint fails to comply with Rule 18(a), and he states a cognizable claim, the Court will choose which claims will proceed and will dismiss out all unrelated claims. IV. Conclusion and Order For the reasons stated, Plaintiff’s complaint does not state a cognizable claim for relief for a violation of his constitutional rights. Plaintiff is granted leave to file an amended complaint within thirty days. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended complaint. George, 507 F.3d at 7 Case 1:09-cv-01476-AWI -GSA Document 30 Filed 02/10/12 Page 7 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 607 (no “buckshot” complaints). Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights, Iqbal, 129 S. Ct. at 1948-49. “The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). Finally, an amended complaint supercedes the original complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be “complete in itself without reference to the prior or superceded pleading,” Local Rule 220. “All causes of action alleged in an original complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474. Based on the foregoing, it is HEREBY ORDERED that: 1. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 2. Plaintiff’s complaint, removed on November 9, 2010, is dismissed for failure to state a claim upon which relief may be granted under section 1983; 3. Within thirty (30) days from the date of service of this order, Plaintiff shall file an amended complaint; and 4. If Plaintiff fails to file an amended complaint in compliance with this order, this action will be dismissed, with prejudice, for failure to state a claim. IT IS SO ORDERED. Dated: February 9, 2012 /s/ Barbara A. McAuliffe 10c20k UNITED STATES MAGISTRATE JUDGE 8 Case 1:09-cv-01476-AWI -GSA Document 30 Filed 02/10/12 Page 8 of 8
s3://data.kl3m.ai/documents/recap/gov.uscourts.cand.197502.21.0.pdf.json	text/markdown	Case 3:07-cv-05661-PJH Document 21 Filed 07/14/2008 Page 1 of 1
s3://data.kl3m.ai/documents/uspto/07414416.json	text/markdown	# Patent ## Title Electrical condition monitoring method for polymers ## Abstract An electrical condition monitoring method utilizes measurement of electrical resistivity of an age sensor made of a conductive matrix or composite disposed in a polymeric structure such as an electrical cable. The conductive matrix comprises a base polymer and conductive filler. The method includes communicating the resistivity to a measuring instrument and correlating resistivity of the conductive matrix of the polymeric structure with resistivity of an accelerated-aged conductive composite. ## Background This application claims priority for U.S. Provisional Application No. 60/362,157 filed Mar. 6, 2002. This application resulted, in part, from research funded by the U.S. Department of Energy. Certain rights for any intellectual property resulting from this application may apply to the Government of the United States. FIELD OF THE INVENTION The present invention relates to methods and apparatus for determining deterioration and remaining life of polymeric material utilizing measured electrical quantities, and, more particularly, for determining mechanical properties and remaining life of a polymeric material by measurement of electrical resistivity of a conductive composite of the polymer. BACKGROUND OF THE INVENTION The polymeric materials used in wire and cable insulation and jacketing (and other polymers) degrade with age, especially in severe environmental conditions. The safe operation of existing and future plants such as nuclear power plants requires monitoring of the insulation materials in order to anticipate degradation before performance of the wire and cable is adversely affected. Age related wire and cable failure is primarily a mechanical mechanism. As the insulation ages, it becomes embrittled and eventually fails mechanically by cracking and exposing bare conductors. The industry has spent considerable time and effort to develop condition monitoring methods which monitor installed wire and cable and ensure that the materials have not degraded excessively. These methods are also used to predict safe operating lifetime of wire and cable insulation materials for anticipated environmental conditions. Presently, cable condition monitoring (CCM) methods are categorized as mechanical methods, chemical methods and electrical methods. Elongation-at-break (EAB) has traditionally been one of the most common and well-documented CCM methods. This mechanical method measures the elongation of a sample of insulation material just prior to break and is normally expressed as a ratio of the break length divided by the original length of the sample. Since elongation measured in the test is analogous to elongation occurring when bending wire and cable, the results can be easily correlated to actual wire and cable insulation condition. Arrhenius methods described by others are normally used to predict material lifetime at a target ambient temperature from acceleration-aged data. A serious disadvantage of the EAB method is that a relatively large sample portion is required to perform the test. This makes the test essentially destructive since the cable is rendered inoperative when the sample is removed. Even if a cable is sacrificed in order to run a test, some portions of the cable may be difficult or nearly impossible to access for sample removal, as would be the case if the area of interest is within a cable bundle, wire tray, or internal to a penetration. The equipment needed for measurement is relatively expensive and requires specialized skills. Indenter modulus test is a relatively new mechanical test that utilizes a machine to press a small anvil at constant velocity against the outer surface of the cable or insulated conductor while measuring the force exerted on the anvil. The indenter modulus is defined as the slope of the force-position curve. A major advantage of the indenter modulus test is that the test itself is non-destructive. However, the test is of limited use on conductor insulation since access to a sufficient length of individual conductors is often restricted. Also, the test is not practical on cable within cable bundles or trays, or in other confined spaces. Oxidation Induction Time (OIT) is a chemical condition monitoring method that utilizes small (8-10 mg) samples removed from cable insulation materials. The method utilizes a differential scanning calorimeter (DSC) to provide an indication of the rapid oxidation of the sample when anti-oxidants, normally present in the insulation material, are exhausted. Short induction times indicate exhaustion of the anti-oxidant and anticipate rapid degradation of the material. Sample collection requires access to the cable which limits testable portions of the cable. Measurement requires expensive laboratory equipment and specialized training. Electrical condition monitoring methods include insulation resistance, high potential tests, tan-delta tests, and ionized gas medium tests. These tests are essentially “go-no-go” tests (do not predict the remaining life of the sample) since no well-established methods reliably predict insulation lifetime based on the results. Several of these tests require high electrical potentials to be connected to cables, requiring removal of connected equipment and loads in order for the tests to be performed. SUMMARY OF THE INVENTION Therefore an object of the present invention is to provide a condition monitoring method for polymers which provides the ability to measure an electrical property of a conductive composite of the polymer in a non-destructive manner. Another object of the invention is to provide a condition monitoring method which allows correlation of an electrical property of a conductive composite of the polymer with a mechanical property. Another object of the invention is to provide a condition monitoring method which allows correlation of an electrical property of a conductive composite of the polymer with remaining life of the polymer. Still another object of the invention is to provide a condition monitoring method which utilizes a conductive polymer tracer to monitor the aging conditions in any environment. The methodology of the proposed condition monitoring method utilizes the electrical resistivity of a conductive composite formed from a candidate polymer material as a highly sensitive measurement of a mechanical property (volume shrinkage). Volume shrinkage, in turn, will be correlated as a mechanical indicator of insulation material aging. The method eliminates disadvantages of current methods and provides a condition monitoring method which improves safety and reduces condition monitoring costs. The incorporation of inert conductive particles into the polymer to form a conductive composite provides several significant advantages for condition monitoring: (1) A small change in volume of the conductive composite results in a large change in electrical resistivity. A few percent change in volume fraction of the insulation material provides a potential of 3-5 orders of magnitude or more change in the resistivity of the composite. This high measurement sensitivity provides an opportunity to detect and monitor small aging effects which current condition monitoring methods are insensitive to; and (2) Measurement of the electrical resistivity is a simple measurement requiring no special equipment, expertise or removal from service. The conductive composite sensor may be distributed within a polymeric product such as electrical cables as a separate filament, or it could be co-extruded as a filament in the product. BRIEF DESCRIPTION OF THE DRAWINGS These and other features, aspects and advantages of the present invention will become better understood with regard to the following description, appended claims and accompanying drawings where: FIGS. 1A is a plot of elongation at break for a conductive composite sample of ethylene propylene rubber vs. age time at 125C. FIG. 1B is a plot of volume change (shrinkage) for a conductive composite sample of ethylene propylene rubber vs. age time at 125C. FIG. 1C is a plot of density of a conductive composite sample of ethylene propylene rubber vs. age time at 125C. FIG. 1D is a plot of electrical resistivity of a conductive composite sample of ethylene propylene rubber vs. age time at 125C. FIG. 2A is a cross section of an electrical cable comprising an age sensor filament made of a conductive composite; FIG. 2B is a cross section of an electrical cable comprising an age sensor filament co-extruded in an insulated conductor insulation and a cable jacket; FIG. 3 is a schematic diagram of a means for measuring the resistivity of a conductive age sensor filament; FIG. 4 is a perspective drawing of an electrical cable comprising a plurality of age sensors disposed in the cable jacket; FIG. 5 is a perspective drawing of an electrical cable comprising an age sensor strip disposed in the cable jacket; FIG. 6 is a perspective drawing of a plurality of age sensor assemblies utilizing an RFID to communicate resistivity to an external instrument; and FIG. 7 is a perspective drawing of a polymeric structure comprising a plurality of conductive composite age sensors disposed in the structure. DESCRIPTION OF THE PREFERRED EMBODIMENTS The following is a description of the preferred embodiments of a method for determining the degradation of a polymeric material by use of an electrical measurement. Definitions: Although the term resistivity (electrical) is used throughout the specification, it is understood that conductivity, as the reciprocal of resistivity, can be substituted as a measurable electrical property by those skilled in the art. The term conductive composite polymer, as used in this specification, is generally meant to include any conductive composite comprising a mixture of conductive particles in a polymer matrix or base, and may include additional fillers, additives and binders. This composite type conductive polymer is differentiated from intrinsically conductive polymers which posses electrically conductive properties without addition of conductive particles. The method of the present invention utilizes measurement of an electrical property of a conductive composite to indirectly measure the aging or degradation effects on a polymeric material. In the preferred embodiments, the conductive composite comprises conductive particles such as carbon black particles or metallic particles evenly dispersed or mixed in the polymeric material of interest. Degradation and aging effects which include chain scission and additional cross-linking will result in volumetric changes to the polymeric portion of the composite and will affect electrical properties such as the resistivity or conductivity of the composite. Degradation and aging mechanisms of polymers are numerous and complex, but cross-linking of polymer chains, caused by thermal exposure, radiation exposure, and thermal-oxidative mechanisms has been shown in the literature to result in increased packing density of the polymer chains, resulting in densification and volumetric shrinkage. If conductive fillers are chosen which are relatively inert for the environments in which the composites are used and tested, the volume fraction of the filler will remain constant with degradation of the polymer matrix. The resulting volumetric shrinkage of the polymer matrix of a conductive composite results in an increase in the volume fraction of the conductive filler particles in the composite. Changes in the volume fraction of conductive fillers can be detected by electrical measurements of the conductive composite. Specifically, the resistivity (or conductivity) provides a measure of the volume fraction of the conductive filler. Resistivity measurements of conductive composites affords very high sensitivity to conductive filler volume fraction changes in conductive polymer composites as a result of polymer matrix shrinkage and densification. For example, the volumetric shrinkage of a polymer due to age-related cross-linking may be on the order of only a few percent over the useful life of the polymer. Selection of the conductive filler type and loading may result in several orders of magnitude of resistivity change due to the volumetric shrinkage. This is especially the case if the conductive filler loading is chosen to be in the percolation zone of the conductive composite. Other aging mechanisms, such as loss of volatile components of the polymer during aging also result in an increase in the volume fraction of the conductive filler. The high sensitivity of resistivity of a conductive polymer composite to volumetric shrinkage (or expansion) of the polymer matrix provides an amplified method useful in detecting an measuring the small changes in polymer volume fraction as a result of age-related degradation such as cross-linking of the matrix due to thermal, radiation, and thermal oxidative mechanisms. While direct measurements of volumetric shrinkage of the polymers would provide a quantitative means to detect degradation, this method is usually destructive for many applications, and requires laboratory analysis. Measurement of resistivity, although an indirect measurement of the volumetric shrinkage, provides a non-destructive, in-situ, measurement that is much more sensitive than can be done by normal laboratory measurements of volumetric shrinkage or density, and can be carried out with simple field equipment such as an ohmmeter or multimeter. The amplifying effect of the conductive composite resistivity measurement approach allows measurement of volumetric or density changes smaller than that afforded by direct mechanical measurements. For example physical aging effects, such as relaxation of polymer chain networks of polymers below the glass transition temperature, and creep effects can be detected over short time intervals by resistivity measurements of conductive composites of the polymer. Detection of natural aging effects over short time periods, such as days or weeks is possible by this method, where months or years would be required by conventional mechanical or chemical measurements such as elongation to break, and oxygen induction time (OIT) measurements. EXAMPLES FIGS. 1A, 1B, and 1C show elongation at break, volume change and density of ethylene propylene rubber (EPR) under accelerated thermal aging at 125C. FIG. 1D shows resistivity change for EPR samples under the same aging conditions. Use of resistivity data of polymeric composite materials could be used in several ways. For example, accelerated aging of a composite comprising a specific polymer and a given volume fraction of a conductive filler would result in a resistivity vs. time for the test temperature. Measurement of mechanical properties such as elongation at break or hardness as the composite is aged, would provide a relationship of the mechanical property to the resistivity for the composite. This relationship could be determined by the aging curves, such as that of FIGS. 1A, 1B, 1C and 1D showing the value of the mechanical property vs. resistivity. Or, the relationship could be expressed by a mathematical algorithm by curve fitting methods known in the art. By inclusion of base polymer samples (without conductive fillers) during the aging trial, the mechanical properties of the base polymer could be predicted by measurement of a representative sample of the conductive composite having the same base polymer. By incorporating aging trials of a conductive composite at several temperatures, measuring resistivity and mechanical properties vs. aging time, Arrhenius methodology and/or time/temperature superposition known in the art could be used to predict remaining lifetime of the composite (or base polymer) as a function of aging temperature. In-situ measurement of the resistivity of a test or trial portion of the polymer having conductive filler could be used to verify the remaining life of the polymer and act as an indirect measurement of desired mechanical properties. Physical aging affects of polymers could be modeled in a similar means by thermal processing a conductive composite, optionally in an inert gas environment, and measuring resistivity vs. mechanical properties such as volumetric shrinkage, density and creep properties. FIG. 2A is a cross section of a multi-conductor cable 201 having three insulated conductors 203, an outer cable jacket 205, and an age sensor filament 207 disposed in the cabled conductors. In the preferred embodiments, the age sensor filament “tracer” is a conductive composite comprising the conductor insulator polymer as the base polymer and conductive filler such as carbon black. In other embodiments, the conductive composite utilizes a second polymer as the base polymer. In still other embodiments, the conductive composite utilizes metallic or metallic oxides as the conductive filler. The sensor filament may be positioned at other locations in the cable such as outside the insulated conductors and inside the cable jacket. FIG. 2B is an alternative embodiment 202 of the cable of FIG. 1 utilizing a co-extruded age sensor tracer 209 in the insulated portion of the insulated conductor, or an alternative age tracer 211 co-extruded in the cable jacket. In the preferred embodiments, the base polymer of the senor tracers is the same polymer as the insulated conductor or jacket. In other embodiments, a different base polymer is utilized. FIG. 3 is a schematic of a method of monitoring the resistivity of the age sensor 303 of cable 301. Age sensor filament 303 is distributed along the cable and disposed, for example, along the insulated conductors 305. A second element 303A, is disposed along the length of cable 301 inside jacket 307. Second element 303A may be another age sensor filament similar to age sensor filament 303, or it may be an insulated or non-insulated conductor such as a metallic conductor. Shunt 309 connects age sensor 303 and second element 303A to form a series-connected loop 311 which functions as an electrical age sensor for the cable. Conductors 313 connect age sensor loop 311 to terminal box 315. A resistance-measuring instrument, such as ohmmeter 317 measures the resistance of age sensor loop 311 at terminal box 315. By monitoring resistance (or resistivity calculated from the sensor dimensions) changes in age sensor loop 311 and comparing the results to accelerated aged conductive composites and insulation base polymers, the material properties such as elongation-at-break of the insulation polymers may be determined. In other embodiments ohmmeter 317 connects directly to age sensor 303 and second element 303A. FIG. 4 is a perspective drawing of an alternative method of monitoring cable condition. Cable 401 comprises a plurality of condition or age sensors 403 embedded in cable jacket 405. Age sensors 403 may be a conductive composite of cable jacket 405 or insulated conductor 407 polymers co-extruded in jacket 405. In other embodiments, conductive composites utilized in age sensors 403 may be made of other polymers designed to degrade in a manner similar to insulated conductors 407 or jacket 405. A composite condition or age sensing instrument such as ohmmeter 409 may comprise a probe 411 having terminals 413 spaced to provide a resistivity measurement of age sensors 403 when contacted with age sensor 403. Terminals 413 comprise a predetermined spacing 415 to provide a resistivity reading of age sensors 403 which comprise a predetermined width 417 and predetermined thickness 419. FIG. 5 is an alternative embodiment 501 of the cable of FIG. 4 having a continuous condition/age sensor strip 503. Sensor strip 503 comprises a predetermined width and thickness similar to age sensors 403 of FIG. 4. FIG. 6 is an embodiment of another method of monitoring age sensors 603 of cable 601 by utilizing radio frequency identification (RFID) tag assemblies 605. Tag assemblies 605 comprise age sensors 603 made from a conductive composite connected to an RFID chip 607. RFID chip 607 may comprise an antenna 607A for active or passive communication with a reader 609. A plurality of tag assemblies 605 may disposed in cable 601, for example by attaching assemblies 605 to tape 611 and wrapping tape 611 around insulated conductors 613. Tape 611 may comprise an adhesive surface 615 for retaining tag assemblies 605. In still other embodiments, a RFID tag assembly 605 may be connected to sensor loop 311 of cable 301 of FIG. 3 and embedded in cable 301. FIG. 7 shows the method of FIG. 4 applied to other extruded or cast polymer products 701 such as extruded or cast polymer siding, extruded or cast polymer pipe or tube, extruded, cast or laid-up composite structures such as aircraft structural parts and boat hulls. Age/condition sensors 703 are made from conductive composites as discussed in previous examples, and may be co-extruded, cast, or they may be applied as conductive hot-melt or adhesive composites. Continuous age sensor strips such as strip 503 of FIG. 5 may be substituted for age sensors 703. In the preferred embodiments, age sensor conductive composites utilize the base polymer of the structure they are monitoring, such as the insulation polymer for wire and cable age sensors, or PVC for house siding. In some embodiments, the age sensor composite may be “designed” to age at the same, or in some cases faster than the base polymer by altering the filler content, adding or deleting anti-oxidants to the age sensor, or “pre-aging” the age sensor by accelerated aging techniques to match aging performance with the polymeric structure being monitored. These techniques may also be used to alter the response of the age sensor to more nearly follow natural aging of the polymer. Although the description above contains many specifications, these should not be construed as limiting the scope of the invention but merely providing illustrations of some of the presently preferred embodiments of this invention. Thus the scope of the invention should be determined by the appended claims and their legal equivalents, rather than by the examples given. ## Claims 1. A method of determining environmentally induced degradation of a polymer, the method comprising the steps of: adding conductive particles to the polymer to form a conductive composite comprising a preselected weight percent of conductive particles; making an electrical connection with the conductive composite and measuring an electrical property of the conductive composite; and equating a change in the electrical property of the conductive composite, with the same electrical property of a previously environmentally degraded sample of the conductive composite to determine the degradation of the polymer, the change in the electrical property consistent with a decrease in electrical resistivity. 2. The method of claim 1 wherein the measured electrical property is electrical resistivity. 3. The method of claim 1 wherein the measured electrical property is electrical conductivity. 4. The method of claim 1 wherein the degradation of the polymer is mechanical degradation of the polymer. 5. The method of claim 4 wherein the mechanical property comprises a durometer of the polymer. 6. The method of claim 4 wherein the mechanical property comprises an elongation property of the polymer. 7. The method of claim 4 wherein the mechanical property comprises a hardness of the polymer. 8. The method of claim 4 wherein the mechanical property comprises a tensile strength of the polymer. 9. The method of claim 4 wherein the mechanical property comprises a toughness of the polymer. 10. The method of claim 1 wherein the degradation of the polymer is a chemical degradation. 11. The method of claim 10 wherein the chemical degradation comprises a measure of oxidation of the polymer. 12. The method of claim 10 wherein the chemical degradation comprises a measure of a remaining amount of anti-oxidant added to the polymer. 13. The method of claim 1 wherein the previously degraded sample was degraded by an accelerated aging means. 14. The method of claim 13 wherein the accelerated aging means comprises aging in an environment elevated in temperature as compared to the normal operating temperature of the polymer. 15. The method of claim 13 wherein the accelerated aging means comprises aging in an elevated radiation environment. 16. The method of claim 13 wherein the accelerated aging means comprises aging in an elevated humidity environment. 17. A degradation sensor for a polymeric structure, the sensor comprising: a first quantity of conductive particles dispersed in a first portion of the polymeric structure to define a conductive composite portion, the first portion comprising less than a total polymer in the structure; and a means for communicating an electrical measurement of the conductive composite to an electrical measurement apparatus; and a means for correlating a decrease in said electrical measurement consistent with a decrease in resistivity to an environmentally induced degraded condition of said polymeric structure. 18. The degradation sensor of claim 17 wherein the means for communicating an electrical measurement of the conductive composite comprises a portion of the conductive composite disposed on an outside surface of the polymeric structure. 19. The degradation sensor of claim 17 wherein the means for communicating an electrical measurement of the conductive composite comprises a metallic conductor communicating with the conductive composite. 20. The degradation sensor of claim 17 wherein the means for communicating an electrical measurement of the conductive composite comprises an electromagnetic emitter. 21. The degradation sensor of claim 20 wherein the electromagnetic emitter is a radio frequency identification tag. 22. The degradation sensor of claim 17 wherein the conductive composite defines a filament disposed in the polymeric structure. 23. The degradation sensor of claim 17 wherein the conductive composite defines an extruded strip in the polymeric structure. 24. The degradation sensor of claim 17 wherein the conductive composite defines a plurality of portions of conductive composite, said plurality of portions of conductive composite being separated from each other by portions of polymer without said conductive particles. 25. A polymeric structure comprising: a degradation sensor for the polymeric structure, the sensor comprising: a first quantity of conductive particles dispersed in a first portion of the polymeric structure to define a conductive composite portion, the first portion comprising less than a total polymer in the structure; and a means for communicating an electrical measurement of the conductive composite to an electrical measurement apparatus; and a means for correlating a decrease in said electrical measurement consistent with a decrease in resistivity to an environmentally induced degraded condition of said polymeric structure. 26. The polymeric structure of claim 25 wherein the polymeric structure is the insulation of an electrical wire. 27. The polymeric structure of claim 25 wherein the polymeric structure is an electrical cable. 28. The polymeric structure of claim 25 wherein the polymeric structure is a pipe. 29. The polymeric structure of claim 25 wherein the polymeric structure is a building siding portion. 30. The polymeric structure of claim 25 wherein the polymeric structure is an aircraft composite structure. 31. The polymeric structure of claim 25 wherein the polymeric structure is a boat hull. 32. A method of determining environmentally induced degradation of a polymer, the method comprising the steps of: adding conductive particles to the polymer to form a conductive composite comprising a preselected weight percent of conductive particles; making an electrical connection with the conductive composite and measuring a resistivity of the conductive composite; and equating the resistivity of the conductive composite with the resistivity of a previously environmentally degraded sample of the conductive composite to determine the degradation of the polymer; wherein a decrease in a resistivity correlates to an age degraded state of the polymer. 33. The method of claim 32 wherein said degraded state of the polymer is a decrease in specific volume with age. 34. The method of claim 32 wherein said degraded state of the polymer is an increase in density of the polymer with age. 35. The method of claim 32 wherein said degraded state of the polymer is a reduction of elongation at break with age. 36. The method of claim 32 wherein said degraded state of the polymer is a loss of volatile fractions with age. 37. The method of claim 32 wherein said equating the resistivity of the conductive composite with the resistivity of a previously-degraded sample of the conductive composite is performed at several temperatures and Arrhenius methodology is used to predict the remaining life of the polymer. 38. A method of determining environmentally induced degradation of a polymer, the method comprising the steps of: measuring the resistivity of a composite sensor made of said polymer and a conductive filler; equating a reduction of resistivity of said composite sensor to an environmentally degraded state of said polymer wherein said reduction of resistivity results from volumetric shrinkage of said polymer from aging. 39. The method of determining degradation of a polymer of claim 38 wherein said degraded state is a reduction of elongation of said polymer. 40. The method of determining degradation of a polymer of claim 38 wherein said degraded state is a densification of said polymer. 41. The method of determining degradation of a polymer of claim 38 wherein said degraded state is a loss of volatile components of said polymer. 42. The method of determining degradation of a polymer of claim 38 wherein said sensor is disposed in a product made of said polymer. 43. The method of determining degradation of a polymer of claim 42 wherein said sensor is disposed on a surface of a product made of said polymer. 44. The method of determining degradation of a polymer of claim 42 wherein said product is electrical insulation. 45. The method of determining degradation of a polymer of claim 42 wherein said product is a polymeric aircraft structural part.
s3://data.kl3m.ai/documents/recap_docs/1999/06/17/USA_vs._Contreras.pdf.json	text/plain	F I L E D United States Court of Appeals Tenth Circuit JUN 17 1999 PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS TENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellant, v. DOLORES CONTRERAS, Defendant-Appellee. No. 97-2224 Appeal from the United States District Court for the District of New Mexico (D.C. No. CR-92-486 LB) Thomas L. English, Assistant United States Attorney (John J. Kelly, United States Attorney, and Charles L. Barth, Assistant United States Attorney, Albuquerque, New Mexico, on the briefs), Albuquerque, New Mexico for Plaintiff-Appellant. Vicki Mandell-King, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender with her on the briefs), Denver, Colorado for DefendantAppellee. Before ANDERSON, McKAY and EBEL, Circuit Judges. EBEL, Circuit Judge. From 1986 until 1992, Dolores Contreras participated in a drug conspiracy, run by her father, which sold more than 20,000 pounds of marijuana and more than - 2 - 20,000 pounds of cocaine throughout the United States. After a mistrial Ms. Contreras was re-indicted, and late in 1994 she was convicted on four counts — conspiracy, investment of illicit drug profits, and two counts of money laundering. At sentencing, the district court granted Ms. Contreras’ motion for a downward departure and sentenced her to 120 months imprisonment. On appeal, this court reversed the district court’s decision to depart downward and remanded the case for resentencing. At resentencing, the district court again departed downward, reaching the same sentence of 120 months imprisonment. The government challenges the departure pursuant to 18 U.S.C. § 3742(b). We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and again we reverse. I. Background The history of this case up through the first appeal is well documented in United States v. Contreras, 108 F.3d 1255, 1258-61 (10th Cir. 1997). Therefore, we only briefly recount some early background for context and focus on events since our remand. Dolores Contreras is one of twenty-two people charged by the government with participating in an extensive drug conspiracy run by her father, Gabriel Rodriguez-Aguirre. Mr. Rodriguez-Aguirre’s family-run organization accounted - 3 - for the sale of over 20,000 pounds of marijuana and 20,000 pounds of cocaine throughout the United States between 1984 and 1992. From December 1986 until October 1992, Ms. Contreras’ role in her father’s illicit business consisted primarily of storing large amounts of drugs at her Phoenix, Arizona home and using profits from drug sales. Ms. Contreras started assisting her father in this illegal enterprise when she was 17, but tellingly, she remained active in the criminal enterprise until she was 24, and even then, her participation stopped only because she and her father were arrested. On October 20, 1992, the United States charged Ms. Contreras with conspiracy to distribute more than 100 grams of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and three counts of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(I). Ms. Contreras pled not guilty, and after one mistrial, the United States obtained a superseding indictment which charged Ms. Contreras with conspiracy to possess with the intent to distribute cocaine, conspiracy to distribute cocaine, receiving income from the distribution of controlled substances, and investing the ill-gotten gains, in violation of 21 U.S.C. § 854. On December 15, 1994, after a one-month trial, the jury convicted Ms. Contreras on four counts — conspiracy, investment of illicit drug profits, and two counts of money laundering. At sentencing, the district court adopted the factual findings and guideline application in Ms. Contreras’ presentence report, which assessed her base offense - 4 - level at 38, her criminal history category at I, and her guideline range at 235 to 293 months imprisonment. Nevertheless, the court granted Ms. Contreras’ motion for a downward departure and sentenced her to 120 months in prison “to avoid [an] unwarranted disparity of sentences” between Ms. Contreras and coconspirator Paula Denogean. The government appealed Ms. Contreras’ original sentence, and this court held that a disparity in sentences between Ms. Contreras and Ms. Denogean was an inappropriate ground for departure because the two were not similarly situated — “Ms. Contreras was convicted by a jury of four separate offenses, while Ms. Denogean pled guilty to one offense.” Contreras, 108 F.3d at 1272. Accordingly, we held that the district court had abused its discretion and reversed Ms. Contreras’ sentence and remanded the case to the district court. At resentencing, the district court again departed downward from the applicable guideline range of 235 to 293 months imprisonment. Again the district court sentenced Ms. Contreras to 120 months in prison (the statutorily required minimum) — on the basis of parental influence, and, once again, on the disparity of sentences. Again the government appeals the sentence, claiming the district court relied on impermissible grounds for departure. And again we reverse the district court and remand for resentencing. - 5 - II. Discussion A. Standard of Review After the Supreme Court’s decision in Koon v. United States, 518 U.S. 81 (1996), departures from the Sentencing Guidelines must be reviewed under a unitary abuse-of-discretion standard. See United States v. Collins, 122 F.3d 1297, 1302 (10th Cir. 1997). In Collins, this court articulated the four-part inquiry a reviewing court must undertake in determining whether a district court abused its discretion in departing from the Guidelines. First, the court must determine “whether the factual circumstances supporting a departure are permissible departure factors.” Id. at 1303. Second, the court must assess “whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure.” Id. Third, the court must decide whether the record provides a sufficient factual basis for the departure. See id. Finally, the court must examine the degree of departure to assure it is reasonable. See id. Collins explained that the first inquiry — whether the factual circumstances supporting departure are permissible departure factors — is a legal one, as to which we owe no deference to the district court, while the next three inquiries are more factual in nature, and accordingly are due more deference on review. See id. at 1302-03. In particular, “substantial deference” is given to the district court in - 6 - our review of the second factor — whether a particular defendant is within the heartland given all the facts of the case. See id.; United States v. Whiteskunk , 162 F.3d 1244, 1249 (10th Cir. 1998); United States v. Jones , 158 F.3d 492, 497 (10th Cir. 1998). In Koon, the Supreme Court stated: [W]hether a discouraged factor nonetheless justifies departure because it is present in some unusual or exceptional way, are matters determined in large part by comparison with the facts of other Guidelines cases. District courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do. 518 U.S. at 98. While the Court acknowledged that “whether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court’s resolution of the point,” the Court clearly stated that considerations of “whether [a factor] in the particular instance suffices to make the case atypical” is a “factual matter[].” Id. at 100. However, this is not to say that a district court’s decision to depart because the defendant’s situation is outside the heartland is unreviewable. To the contrary, such decisions are reviewable under an abuse of discretion standard. And, an important consideration in evaluating whether the district court abused its discretion to depart will be whether the factor or factors relied upon are prohibited, discouraged, encouraged, or not discussed in the Guidelines. See id. at 98 (“The deference that is due depends on the nature of the question presented.”). - 7 - For example, if the district court relied on an impermissible factor — an inquiry that we make de novo, see id. at 100 — the decision to depart would, as a matter of law, constitute an abuse of discretion. See United States v. DominguezCarmona, 166 F.3d 1052, 1056-57 (10th Cir. 1999); Whiteskunk, 162 F.3d at 1249-50 (if a departure decision is based on an impermissible factor it is error). Similarly, if the district court relied upon a permissible, but discouraged, factor our review of a decision to depart must take cognizance of the discouraged status of the factor relied upon in evaluating whether the district court abused its discretion. In short, the district court’s exercise of discretion to depart in such circumstances must be measured against the backdrop that “[t]he Supreme Court has made it clear that when a factor is discouraged . . . ‘the court should depart only if the factor is present to an exceptional degree . . . .’” United States v. Archuleta, 128 F.3d 1446, 1449 (10th Cir. 1997) (quoting Koon, 518 U.S. at 96); see also Dominguez-Carmona, 166 F.3d at 1057. In such circumstances “courts should depart downward only in rare cases.” Archuleta, 128 F.3d at 1452 (reversing a district court’s decision to depart downward based upon the discouraged factor of a defendant’s family responsibilities); see also Jones, 158 F.3d at 499 (disapproving use of the discouraged factor of family responsibilities, but affirming downward departure on the basis of other supporting factors); United States v. Rodriguez-Velarde, 127 F.3d 966, 968-69 (10th Cir. 1997). - 8 - B. Analysis At Contreras’ resentencing, the district court identified two reasons for its downward departure. First, the court focused on the influence exerted on Ms. Contreras by her father, Gabriel Aguirre. Second, the court alluded to the disparity between the sentence range the Guidelines dictates for Ms. Contreras and the actual sentences that two of her co-conspirators received. Because neither factor individually, nor the two in combination, justify a departure from the Guideline range, we reverse. 1. Sentencing Disparity — We examine the second reason for departure first. At resentencing, the district court stated: My reasons for departure are because that others that were involved in this conspiracy either became ill or became a fugitive and then plead [sic] guilty later on all received considerably less sentences, less time than the 235 months which is the minimum allowed by the guidelines. Because of this disparity, although that’s not the only reason, I am going to depart downward. The record of the hearing indicates that the “others that were involved in this conspiracy” were co-defendants Paula Denogean and Maria Villalba. Due to unique circumstances, neither of them stood trial in the large, multiple-defendant prosecution in which Ms. Contreras was convicted. Ms. Denogean took ill before trial and was severed from the case. Ms. Villalba fled and was a fugitive at the - 9 - time of trial. When each became available for prosecution, instead of retrying its complicated case, the government reached an agreement with each co-conspirator that resulted in a sentence of significantly less time than the range the Guidelines dictate for Ms. Contreras. While we recognize that Ms. Contreras’ situation is unfortunate as compared to her co-conspirators, it was an abuse of discretion to predicate a downward departure on this basis. First, with regard to the comparison to Ms. Denogean, this court has already condemned a departure for Ms. Contreras based on a disparity of sentences. As we said the last time we reviewed this case: “The record reveals that Ms. Contreras went to trial and was convicted on four counts . . . . Ms. Denogean, on the other hand, accepted responsibility for her criminal conduct and pled guilty to a lesser charge . . . . Given their distinct situations, we conclude the trial court abused its discretion in concluding an ‘unwarranted disparity’ existed justifying downward departure.” Contreras, 108 F.3d at 1271-72. Thus, it is the rule of this case from the previous appeal that the sentencing disparity factor with respect to Ms. Denogean will not support a downward departure. See Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183 (10th Cir. 1995). Moreover, the same principles that support our conclusion with regard to Ms. Denogean, convince us that the district court abused its discretion in departing downward in Ms. Contreras’ case based on a disparity between her sentence and - 10 - that of Ms. Villalba. In United States v. Gallegos, 129 F.3d 1140 (10th Cir. 1997), while we recognized that “the district court should consider . . . ‘the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” id. at 1143 (quoting 18 U.S.C. § 3553(a)(6)), we explained that “the purpose of the guidelines is to eliminate disparities in sentencing nationwide, not to eliminate disparity between codefendants.” Id. (quotation, alteration and citation omitted). “This circuit has stated that ‘neither Congress nor the [Sentencing] Commission could have expected that the mere fact of a difference between the applicable guideline range for a defendant [and] that of his co-defendant would permit a departure, either because the difference was too large or too small.’” Id. (quoting United States v. Joyner, 924 F.2d 454, 460-61 (2d Cir. 1991)). Observing that the Sentencing Reform Act, 18 U.S.C. § 3553(a)(6), seeks to eliminate not all sentencing disparities, but only “unwarranted” disparities, our cases establish that sentencing disparity between co-defendants is an impermissible departure factor when the defendants being compared either (1) pled to or were convicted of different offenses or (2) played significantly different roles in the commission of the same offense. See also United States v. McMutuary, Nos. 98-1150, 98-1151, 1999 WL 274542, at 6 (7th Cir. May 5, 1999) (“justified disparities [can] never serve as a basis for a departure from the Guidelines - 11 - sentencing range”). While the issue of whether a departure factor is permissible or not is a legal question, we recognize that the necessary conclusions to resolve that question with regard to the sentencing disparity factor involve factual inquiries which we review for an abuse of discretion. As noted above, the district court departed on the basis of the disparity in sentences without reference to either the co-conspirators’ offense of conviction or role in the offense. Here, Ms. Villalba, like Ms. Denogean, was not situated similarly to Ms. Contreras. Thus, any disparity in their sentences was not “unwarranted,” and the district court abused its discretion in departing downward on this basis. Most simply, after her capture, Ms. Villalba pled guilty to a lesser charge and was in a different situation from Ms. Contreras on sentencing. (Ms. Villalba’s Plea Agreement indicates that she pled guilty to “Maintaining a Place for Distribution of Marijuana and Aiding and Abetting, in violation of 21 U.S.C. § 856(a)(1), 21 U.S.C. § 856(b), and 18 U.S.C. § 2.) Accordingly, the two were not similarly situated and we are in no position to second-guess the prosecutorial decisions of the United States Attorney’s Office. See Contreras, 108 F.3d at 1272. In sum, the district court impermissibly relied on a sentencing disparity in granting Ms. Contreras’ motion for a downward departure. 1 Incorporating 18 U.S.C. § 3553(b), U.S.S.G. § 5K2.0 states: Under 18 U.S.C. § 3553(b) the sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds “that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 2The district court found support for its “parental influence is different” argument in two pre-Koon cases from other circuits. In United States v. Ledesma, 979 F.2d 816 (11th Cir. 1992) and United States v. Locklear, Nos. 93-5490, 93- 5535, 1994 WL 642196 (4th Cir. Nov. 15, 1994) (unpublished disposition), the Eleventh and the Fourth Circuits, respectively, held that upward departures could be justified for parents who involved their children in criminal activity. See Ledesma, 979 F.2d at 822, Locklear, 1994 WL 642196, at 3-4. This circuit recently affirmed the same position in an unpublished disposition. See United States v. Forsythe, No. 97-6250, 1998 WL 539462, at 3 (10th Cir. Aug. 24, 1998). Nevertheless, we do not find the district court’s logic persuasive — just because the Guidelines will tolerate an upward departure based on a parent (continued...) - 12 - 2. Parental Influence — At resentencing, the district court recognized the high standard that must be met to justify a departure under 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0.1 Nevertheless the court concluded that “in this case a downward departure is warranted in connection with the influence that was [w]ielded by [Ms. Contreras’ father,] Mr. Gabriel Aguirre.” Our first task is to classify the factor of parental influence in order to assess whether it provides a permissible basis for departure. The district court proceeded as if influence was different from other forms of coercion when exerted by a parent.2 We disagree. While a parent’s unique position vis-a-vis his or her child 2 (...continued) involving his or her child in criminal activity does not mean that the Guidelines will permit a downward departure for a child who was brought into a life of crime by his or her parent. The Guidelines require no such zero-sum analysis. Accordingly, we analyze the parental influence exerted over Ms. Contreras under the recognized heading of coercion. 3Section 5K2.12 reads: Coercion and Duress (Policy Statement) If the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense, the court may decrease the sentence below the applicable guideline range. The extent of the decrease ordinarily should depend on the reasonableness of the defendant’s actions and on the extent to which the conduct would have been less harmful under the circumstances as the defendant believed them to be. Ordinarily coercion will be sufficiently serious to warrant departure only when it involves a threat of physical injury, substantial damage to property or similar injury resulting from the unlawful action of a third party or from a natural emergency. The Commission considered the relevance of economic hardship and determined that personal financial difficulties and economic pressures upon a trade or business do not warrant a decrease in sentence. - 13 - may result in an ability to wield significant influence over that child, we believe such influence is most appropriately analyzed under the “Coercion and Duress” factor recognized in § 5K2.12.3 Before the district court, Ms. Contreras argued that there were two components to her father’s coercive influence over her — a financial dependance and an emotional dependance. To the extent that the district court relied on any coercion stemming from her financial dependance on her father — or economic - 14 - coercion — the court relied on an impermissible factor. As the § 5K2.12 policy statement makes clear: “The Commission considered the relevance of economic hardship and determined that personal financial difficulties . . . do not warrant a decrease in sentence.” See also Gallegos, 129 F.3d at 1145 n.7 (explicitly condemning use of this factor in assessing coercion, stating “[t]he district court also mentioned the fact that Maden ‘provided for all of [Gallegos’] daily needs. . . .’ As such, to the extent the district court may have relied on [personal financial difficulties and economic pressures], the district court erred.” (citations omitted)). Turning to potential emotional coercion, we note that while the Guidelines recognize “serious coercion, blackmail or duress” as a potential ground for departing below the applicable guideline range, they also caution that “[o]rdinarily coercion will be sufficiently serious to warrant departure only when it involves a threat of physical injury, substantial damage to property or similar injury resulting from the unlawful action of a third party or from a natural emergency.” U.S.S.G. § 5K2.12 (policy statement). Based on the Commission’s affirmative statement of when a departure would “ordinarily” be warranted, this court has concluded that coercion in the absence of evidence of such enumerated serious threats is a discouraged basis for departure. See Gallegos, 129 F.3d at 1145 (in order to justify a departure based on coercion, the Guidelines ordinarily require evidence of 4On appeal, in a pro se supplemental brief, Ms. Contreras urges this court to consider her unusually high susceptibility to her father’s influence due to her culture and religion. Ms. Contreras explains that “parental subservience is . . . fundamental to traditional Hispanic/Mexican-American culture. Its basis goes (continued...) - 15 - (1) a fear of a third party, that (2) “caused the defendant to commit the criminal act”). Here, Ms. Contreras acknowledges that “there was no evidence that Aguirre threatened Contreras with physical harm.” Accordingly, we examine closely the evidence the district court relied on in concluding that Contreras’ situation falls outside the ordinary, run-of-the-mill cases that the heartland encompasses. At resentencing, the district court realized that “in all likelihood Dolores could have exercised her option and said, ‘Dad, I’m not going to have any part of this dope operation.’” The court observed further: She could have gone to live with her mother. The fact is she didn’t. Whether or not a 17- or 18-year-old girl who doesn’t have much education, who has one child when she’s 15, and a couple later by a different father is going to take this upon herself and leave this organization. . . . I don’t really think that Dolores Contreras had all these options. She had little children that needed feeding. She wanted to be close to those children. Here is a lot of free money floating around from whatever the source might be that allowed her to feed those children and not have to go back to school and get a job at a minimum wage. Thus, the district court apparently departed downward based on the influence exerted on Ms. Contreras by her father in light of her youth and economic needs.4 4 (...continued) beyond mere cultural norms and principles, however, with its genesis in the very heart of the Catholic/Christian Religion, specifically in the 5th Commandment’s dictate ‘[h]onor your father and your mother.’” While we do not doubt the sincerity of Ms. Contreras’ argument, the Sentencing Guidelines prohibit us from considering race, national origin, creed, and religion. See U.S.S.G. § 5H1.10. - 16 - The court thereby modified an already discouraged basis for departure (coercion in the absence of serious threats) by another discouraged consideration (age, specifically youth) and one altogether prohibited by the Guidelines (economic need), see supra. As to the age factor, while youth, in and of itself, “is not ordinarily relevant in determining whether” to depart from the Guidelines, see U.S.S.G. § 5H1.1 (Age policy statement), we acknowledge that age may be relevant in determining whether one has been coerced. The very young are likely to be dependant on elders, and thus may be more susceptible to threats or deception, especially by parents. Because Ms. Contreras understands the difficulty in arguing that 24-yearolds are so youthful that they are unusually prone to coercion, she directs our attention to her age when she first entered the conspiracy. Ms. Contreras argues that when she began working for her father’s drug operation she was only 17 years-old and very susceptible to influence. Without deciding at what age a person garners enough strength to withstand the coercive pressures of a parent, we note that everyone has the obligation to cease criminal activity once the coercion - 17 - subsides. Moreover, no one can rely on the fact that he or she was coerced when young to continue indefinitely in criminal activity without legal consequence. With regard to whether Ms. Contreras’ father exerted a sufficient level of influence over her to place her case outside the heartland, we find most instructive this court’s decision in Gallegos, 129 F.3d at 1140. In Gallegos, we held that the influence exerted over the defendant (a young woman with a child who was living with a much older man upon whom she was economically dependant) by her older, live-in boyfriend to deal drugs was “not extraordinary and does not rise to a level of coercion which the guidelines countenance,” despite the fact that the district court had found that the defendant had been subjected to “‘significant influence, domination, and manipulation’” by her boyfriend. Id. at 1145 (quoting the district court). After careful review of the record, construing the findings below in the light most favorable to Ms. Contreras, we see no evidence that her case involved an exceptional degree of coercion. On these facts, we hold that the district court abused its discretion in departing downward. 3. Combination of factors — Apparently recognizing the inappropriateness of grounding a departure in any of the factors discussed above, Ms. Contreras argues that “the Court may depart even if the factors considered individually would not - 18 - warrant departure if, taken in their totality, a departure is warranted.” In support of her combination argument, Ms. Contreras quotes from the Commentary on § 5K2.0: The Commission does not foreclose the possibility of an extraordinary case that, because of a combination of such characteristics or circumstances, differs significantly from the “heartland” cases covered by the guidelines in a way that is important to the statutory purposes of sentencing, even though none of the characteristics or circumstances individually distinguishes the case. Ms. Contreras stopped short of quoting the last sentence of the paragraph, which reads: “However, the Commission believes that such cases will be extremely rare.” U.S.S.G. § 5K2.0 (commentary). This is not one of those extremely rare cases. As we have stated, neither disparity of sentences nor coercion was an appropriate ground for departure. The former was impermissible because the defendants compared were not similarly situated. The latter was inappropriate in this case because any coercion exerted on Ms. Contreras was not present to an exceptional degree taking her case outside the heartland of the Guidelines. Combining the legally impermissible and factually inappropriate grounds for departure cannot make this case one of the “extremely rare” cases contemplated by § 5K2.0. Ms. Contreras attempts to rehabilitate the sentencing court’s departure by adding to the two inappropriate factors Ms. Contreras’ family responsibilities. While she acknowledges that family ties and responsibilities are disfavored bases - 19 - for departure, Ms. Contreras argues that in combination with other grounds, family responsibilities can be a proper consideration. In support of her position she cites two pre-Koon cases, United States v. Peña, 930 F.2d 1486 (10th Cir. 1991) and United States v. Tsosie, 14 F.3d 1438 (10th Cir. 1994). Neither of those cases are availing to Ms. Contreras. Both cases support only the proposition that family responsibilities can justify a departure (1) by informing a court’s consideration of whether a defendant’s criminal activity were aberrational — an encouraged factor for departure, see United States v. Talk, 158 F.3d 1064, 1072 (10th Cir. 1998), cert. denied, 119 S. Ct. 1079 (1999) — or (2) in combination with a finding of aberrational behavior, see Tsosie, 14 F.3d at 1441-42; Peña, 930 F.2d at 1495. Ms. Contreras has no claim to a departure based on aberrant behavior. Her sixyear involvement in her father’s large drug conspiracy stands in stark contrast to cases involving a “single act[] of aberrant behavior” that can justify a departure. See Peña, F.2d at 1495 (quoting U.S.S.G. ch. I, pt. A § 4(d) p.s., at p. 1.9 (1988)). While we share the sentencing court’s sympathy for Ms. Contreras based on the fact that the Guideline range will separate her from her three children for a prolonged period, this fact, neither alone nor in combination with the other impermissible grounds, can justify the downward departure. “Because family ties and responsibilities are a discouraged factor under the Guidelines, a district court may depart based on this factor ‘only if the factor is present to an exceptional - 20 - degree . . . .’” United States v. Rodriguez-Velarde, 127 F.3d 966, 968 (10th Cir. 1997) (quoting Koon, 518 U.S. at 96); see also United States v. Gauvin, 173 F.3d 798, 807 (10th Cir. 1999). “Even considered as one factor supporting a composite mitigating circumstance,” we have required a defendant’s family circumstances to be “unusual” in order to justify a departure. See United States v. Jones, 158 F.3d 492, 499 (10th Cir. 1998). In Jones, where the court considered the defendant’s “family responsibilities not as the sole basis for departure, but in conjunction with ten other factors,” the court concluded that “Mr. Jones’ family responsibilities [were] not sufficiently unusual to render this discouraged factor a permissible basis for departure.” Id. The court arrived at this conclusion, despite the fact that Mr. Jones’ imprisonment deprived his three children of “substantial child support.” See id. Similarly, in Rodriquez-Velarde, the court concluded the facts did not support a downward departure where the defendant’s imprisonment left his three children, aged six, eight, and eleven, without a parent to care for or provide for them. See 127 F.3d at 968-69. Here, the sentencing judge recognized the unremarkable situation presented by Ms. Contreras’ case: I realize that the fact that somebody has three children, in and of itself, is no reason to depart downward. God only knows how many hundreds of parents it’s been my misfortune to sentence. I realize every time I do it that that is breaking up a family, that it’s - 21 - going to work to a disadvantage to those children. And as the government points out, if I took that into consideration, I wouldn’t sentence people, I’d retire right now so I wouldn’t have [to] do this again, or I’d depart downward and get reversed every time, because I realize that is not a reason. At the time of resentencing, Ms. Contreras’ three children were age 11, age 7, and age 6. Two of them were living with their father and the third was living with her grandmother. The children visited their mother only infrequently. Despite the personal tragedy of Ms. Contreras’ family, we agree with the sentencing court that her family circumstances were not sufficiently unusual to warrant a departure. See Jones, 158 F.3d at 499. Consequently, we conclude that the totality of the inappropriate bases cannot support the downward departure. Accordingly, we REVERSE the district court’s decision to depart downward, and we REMAND for sentencing in conformity with this opinion. No. 97-2224, United States v. Contreras McKAY, Circuit Judge, dissenting: I respectfully must dissent. I am not persuaded that U.S.S.G. § 5K2.12, “Coercion and Duress,” is the proper framework for analyzing a claim of parental influence. In this case, the district court partly justified its downward departure on “the influence that was [w]ielded by [Ms. Contreras’ father,] Mr. Gabriel Aguirre.” The court presumably based this determination on the following facts: Mr. Gabriel Rodriguez-Aguirre managed a family-run organization specializing in the sale and distribution of large amounts of marijuana and cocaine, see United States v. Contreras, 108 F.3d 1255, 1258 (10th Cir. 1997), and he influenced his daughter, the defendant in this case, to join his criminal enterprise. In analogizing “Coercion and Duress” to “parental influence,” the majority tacitly concedes that the Sentencing Guidelines do not directly address the notion of parental influence. I think the analogy is an odd one that does not coincide with my experience. In my view, a parent’s unique position vis-a-vis his or her child is substantially different from the traditional notion of coercion. For several reasons, I believe that the concept of parental influence does not fall within the rubric of coercion and duress but is a distinct type of influence that was not considered by the Guidelines. - 2 - First, coercion analysis is inappropriate in all cases of parental influence. While evidence of a threat of physical injury or damage to person or property may exist in some cases, requiring such evidence in all cases asserting parental influence ignores the nature of the filial relationship in which a child loves and obeys a parent. Indeed, filial piety has been recognized as underlying a permissible basis for a downward departure. See United States v. Monaco, 23 F.3d 793, 800 (3d Cir. 1994) (determining that defendant-father’s anguish over bringing child into criminal activity was proper basis for downward departure, especially where adult child had “dutifully and unquestioningly honor[ed] his father’s request”). Additionally, I find it equally odd that conduct which justifies upward departures does not justify downward departures for the victims of the conduct. Circuit decisions which have sanctioned upward departures for a parent based on the parent’s influencing a child to join the criminal activity are instructive. For example, the Fourth Circuit held that an upward departure was warranted even absent coercion where “the parent exposes the child to a drug business environment and thereby facilitates the child’s ability to obtain illegal drugs.” United States v. Locklear, 41 F.3d 1504, 1994 WL 642196, at 3 (4th Cir. 1994) (Table). This court, as well as the First, Eighth, and Eleventh Circuits, have also analyzed the parental-influence question without relying on coercion. See United - 3 - States v. Forsythe, 156 F.3d 1244, 1998 WL 539462, at 4 (10th Cir. 1998) (holding that the use of parental influence to induce one’s child to join in criminal activity may provide a basis for upward departure); United States v. Ledesma, 979 F.2d 816, 822 (11th Cir. 1992) (affirming sentence enhancement under U.S.S.G. § 3B1.3 because defendant, as mother, held a position of trust which she abused when she involved her daughter in the drug conspiracy); United States v. Jagim, 978 F.2d 1032, 1042 (8th Cir. 1992) (affirming upward departure partly based on fact that defendant’s “nephew, while perhaps not a ‘vulnerable victim’ within the meaning of U.S.S.G. § 3A1.1 . . . , nevertheless was dragged into the [tax shelter fraud] conspiracy by his uncle in part because of the familial relationship”); United States v. Porter, 924 F.2d 395, 399 (1st Cir. 1991) (upholding upward departure based on finding that defendant had urged his son to rob another bank to obtain money for his (defendant’s) bail); United States v. Christopher, 923 F.2d 1545, 1556 (11th Cir. 1991) (affirming upward departure that was premised in part on the defendant’s “apparent willingness to corrupt members of his family, including his own children, by involving them in criminal activities”); United States v. Shuman, 902 F.2d 873, 875-76 (11th Cir. 1990) (affirming upward departure under 18 U.S.C. § 3553(b) for defendant’s willful incorporation of her son into the drug-trafficking business and his resulting chemical dependency and easy access to drugs). Each of these cases recognized the unique ability of a 1 In fact, I could find only one case in which the parent-child relationship was analyzed in this context, based upon the defendant’s raising § 5K2.12 as a claim of error. See United States v. Vela, 927 F.2d 197, 200 (5th Cir. 1991). In that case, the Fifth Circuit rejected the defendant’s claim that the district court erred in refusing to depart downward on the basis of parental coercion. The court stated that no threat of violence to person or property occurred, and, “moreover, any improper influence that may be attributed to [defendant’s] mother did not amount to coercion so serious that, even without threats, it justified a downward departure.” Id. - 4 - parent, or parental figure, to influence a child. Cf. Jagim, 978 F.2d 1032 (unclenephew relationship). I cannot see how the essence of that relationship would change depending on whether the court is examining it for an upward or a downward departure. It is also significant that nothing in the Guidelines indicates that § 5K2.12, the coercion and duress factor, was intended to cover the parent-child relationship.1 Moreover, all of the cases mentioned above addressing whether parental influence is a permissible basis for an upward departure sanctioned the departures based on U.S.S.G. § 5K2.0 or 18 U.S.C. § 3553(a) and (b), after finding that the Guidelines do not specifically discuss “the abuse of parental authority in a criminal enterprise.” Forsythe, 1998 WL 539462, at 3; see, e.g., Shuman, 902 F.2d at 876 (stating that parental influence factor was not taken into consideration by the Sentencing Commission in drafting the Guidelines and concluding that the use of a custodial relationship to force child to engage in criminal conduct is a valid aggravating factor); see also Locklear, 1994 WL 642196, at 3 (analyzing - 5 - propriety of upward departure based on parental influence under § 5K2.0); Jagim, 978 F.2d at 1042 (evaluating upward departure for parental influence under § 5K2.0 and 18 U.S.C. § 3553(b)); Porter, 924 F.2d at 399 (same). Likewise, no section of the Guidelines, including § 5H1.6 (“Family Ties and Responsibilities”), specifically addresses a parent’s influence over a child in the context of a downward departure. In other words, no Guideline provision expressly prohibits or discourages the consideration of parental influence in downward departure decisions. At the same time, the Guidelines have aimed to provide special protection to minors and others in custodial care, albeit in other contexts. See, e.g., U.S.S.G. § 2D1.2 (prescribing sentence enhancement for distributing drugs to a minor); § 2A3.1 (increasing sentence for sexual abuse if the victim was a minor or in the custody, care, or supervisory control of the defendant). Finally, I think parental influence constitutes a mitigating circumstance under 18 U.S.C. § 3553 which, under the right facts, could sustain a downward departure. One kind of mitigating circumstance that would justify a downward departure is one which “somehow reduces a defendant’s guilt or culpability. It is a circumstance that ‘in fairness and mercy[] may be considered as extenuating or reducing the degree of moral culpability.’” United States v. Newby, 11 F.3d 1143, 1148 (3d Cir. 1993) (citation omitted), limited as dicta by Monaco, 23 F.3d at 802- 03 (listing other circumstances which are relevant to and have justified downward - 6 - departures even though not indicative of reduced guilt or culpability). I am of the view that parental influence is exactly the type of mitigating circumstance which may reduce a defendant’s guilt because it speaks directly to her personal responsibility in entering the criminal enterprise. I therefore would hold that parental influence is a “‘mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.’” U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). Accordingly, where the facts of a case take it outside the “heartland” of cases considered by the Guidelines, parental influence may warrant a downward departure. See Koon v. United States, 518 U.S. 81, 96 (1996). For these reasons, I would analyze Ms. Contreras’ claim of parental influence in its own right, unconstrained by a § 5K2.12 analysis. Admittedly, the evidence from which the sentencing court concluded that parental influence provided a basis for a downward departure is not overwhelming. However, in light of the great deference we owe to the sentencing court’s findings that a particular defendant is within or outside the Guidelines’ heartland of cases given all the facts of the case, see United States v. Collins, 122 F.3d 1297, 1302- 03 (10th Cir. 1997), and the alacrity with which we routinely sustain “enhancements,” “upward departures,” and findings of “relevant conduct” on 2Although I agree with the majority’s determination that the sentencing court improperly based the downward departure on a disparity in sentences, I would not remand this case because I think that the district court “‘would have imposed the same sentence absent reliance on the invalid factor[].’” Collins, 122 F.3d at 1303 n.5 (quoting Koon, 518 U.S. at 113). - 7 - equally thin evidentiary support, I would have no trouble affirming the decision to depart downward in this case.2
s3://data.kl3m.ai/documents/govinfo/BILLS/BILLS-110hr3719ih/txt.json	text/markdown	``` [Congressional Bills 110th Congress] [From the U.S. Government Publishing Office] [H.R. 3719 Introduced in House (IH)] 110th CONGRESS 1st Session H. R. 3719 To prohibit implementation of a guidance letter proposing rules relating to the Federal-State financial partnerships under Medicaid and the State Children's Health Insurance Program. _______________________________________________________________________ IN THE HOUSE OF REPRESENTATIVES October 2, 2007 Ms. Castor introduced the following bill; which was referred to the Committee on Energy and Commerce _______________________________________________________________________ A BILL To prohibit implementation of a guidance letter proposing rules relating to the Federal-State financial partnerships under Medicaid and the State Children's Health Insurance Program. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. PROHIBITION ON IMPLEMENTATION OF A GUIDANCE LETTER PROPOSING RULES RELATING TO THE FEDERAL-STATE FINANCIAL PARTNERSHIPS UNDER MEDICAID AND SCHIP. (a) Findings.--Congress makes the following findings: (1) The August 17, 2007, letter to State Health Officials from the Director of the Center for Medicaid and State Operations in the Centers for Medicare & Medicaid Services would significantly change the Federal-State financial partnership under the Medicaid and the State Children's Health Insurance Programs by-- (A) limiting SCHIP eligibility to children in families with incomes greater than 250 percent of the poverty level by requiring States to demonstrate that they have ``enrolled at least 95 percent of children in the state below 200% of the Federal poverty level''; (B) establishing a minimum of a one year period of uninsurance for individuals in families with incomes greater than 250 percent of the poverty level; (C) imposing co-payments and premiums similar to the cost of private health insurance on middle-income families; (D) imposing regulations that insure children in families with annual incomes greater than 250 percent of the poverty level must prove that the number of children in the target population insured through private employers has not decreased by more than two percentage points over the prior five-year period; and (E) requiring States to adopt policies preventing employers from changing dependent-coverage policies that would favor a shift to public coverage. (2) Permitting the proposed policy to take effect will have a negative impact for States, particularly States with Medicaid or State Children's Health Insurance Programs operating under financing arrangements that would be affected by such policy and that have been approved by the Secretary of Health and Human Services through the section 1115 waiver process. (b) Prohibition on Implementation.--Notwithstanding any other provision of law, the Secretary of Health and Human Services shall not apply any requirement under the letter referred to in subsection (a), or any similar requirement, to any State health plan amendment or waiver expanding the income eligibility level for children under the State children's health insurance program under title XXI of the Social Security Act. <all> ```
s3://data.kl3m.ai/documents/fr/02-25045/pdf.json	text/plain	Federal Register / Vol. 67, No. 191 / Wednesday, October 2, 2002 / Notices 61951 Background 49 U.S.C. section 5334(g) provides guidance on the transfer of capital assets. Specifically, if a recipient of FTA assistance decides an asset acquired under this chapter at least in part with that assistance is not longer needed for the purpose for which it was acquired, the Secretary of Transportation may authorize the recipient to transfer the asset to a local government authority to be used for a public purpose with no further obligation to the Government. 49 U.S.C. section 5334(g)(1). Determinations The Secretary may authorize a transfer for a public purpose other than mass transportation only if the Secretary decides: (A) The asset will remain in public use for at least 5 years after the date the asset is transferred; (B) There is no purpose eligible for assistance under this chapter for which the asset should be used; (C) The overall benefit of allowing the transfer is greater than the interest of the Government in liquidation and return of the financial interest of the Government in the asset, after considering fair market value and other factors; and (D) Through an appropriate screening or survey process, that there is no interest in acquiring the asset for Government use if the asset is a facility or land. Federal Interest in Acquiring Land or Facility This document implements the requirements of 49 U.S.C. section 5334(G)(1)(D) of the Federal Transit Laws. Accordingly, FTA hereby provides notice of the availability of the land or facility further described below. Any Federal agency interested in acquiring the affected land or facility should promptly notify the FTA. If no Federal agency is interested in acquiring the existing land or facility, FTA will make certain that the other requirements specified in 49 U.S.C. section 5334(g)(1)(A) through (C) are met before permitting the asset to be transferred. Additional Description of Land or Facility The property is an unused, vacant but terminus, consisting of an approximately 12,800 square foot parcel of land fronting Umi Street in Honolulu, Hawaii. The property is situated within an area zoned IMX–1 for industrialcommercial mixed use. The parcel is located across the street from the Kalihi Shopping Center and a one-family housing unit. A one-family housing unit to the north and Verizon Hawaii’s property to the east and south border it. Office buildings are on Verizon Hawaii’s site. The Umi Street property was previously used as a municipal transit bus terminus. It is presently vacant without any building structures. An existing concrete pavement bus turnaround driveway is situated on the front half of the property. The concrete pavement is in good condition. The rear portion of the parcel does not have any improvements and is overgrown with vegetation. The property frontage along Umi Street is open. A concrete block wall and chain link fence separates the property’s perimeter adjoining the residential and Verizon Hawaii properties. Issued on: September 16, 2002. Leslie T. Rogers, Regional Administrator. [FR Doc. 02–25046 Filed 10–1–02; 8:45 am] BILLING CODE 4910–57–M DEPARTMENT OF TRANSPORTATION [Docket: RSPA–98–4957] Request for Extension of Existing Information Collection AGENCY: Research and Special Programs Administration, DOT. ACTION: Notice and request for public comments. SUMMARY: In accordance with the Paperwork Reduction Act of 1995, this notice announces the Research and Special Programs Administration’s (RSPA) intention to request extension of an information collection in support of the Office of Pipeline Safety (OPS) for Response Plans for Onshore Oil Pipelines. (approval number 2137– 0589.) Operators are invited to submit comments on whether collecting information on response plans for onshore oil pipelines is burdensome, and other factors explained in the body of this notice. DATES: Comments on this notice must be received by December 2, 2002 to be assured of consideration. ADDRESSES: Copies of this information collection can be reviewed at the Dockets Facility, Plaza 401, U.S. Department of Transportation, 400 Seventh St., SW., Washington, DC 20590, Monday to Friday from 10 a.m. to 4 p.m. excluding Federal holidays. Comments can be reviewed electronically on the worldwide web at dms.dot.gov. FOR FURTHER INFORMATION CONTACT: Marvin Fell, Office of Pipeline Safety, Research and Special Programs Administration, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20950, (202) 366– 6205 or by electronic mail at [email protected]. SUPPLEMENTARY INFORMATION: Title: Response Plans for Onshore Oil Pipelines. OMB Number: 2137–0589. Type of Request: Extension of an existing information collection. Abstract: The Oil Pollution Act of 1990 (OPA 90) requires that operators of onshore oil pipelines develop response plans to minimize the impact of an oil discharge in the case of an accident. These response plans enhance the spill response capability of pipeline operators. Operators may submit their plan electronically or in hard copy. Respondents: Oil Pipeline operators. Estimated Number of Respondents: 233. Hours per Operator or Respondent: 127.8. Estimated Total Annual Burden on Respondents: 29,780 hours annually. Frequency: Every five years. Use: To enhance response capability in the event of an oil spill. Regulation or Subpart: 49 CFR part 194. Comments are invited on: (a) The need for the proposed collection of information for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency’s estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques. Send written comments in duplicate to Dockets Facility, Plaza 401, U.S. Department of Transportation, 400 Seventh St., SW., Washington, DC 20590. Please include the docket number in your comments. Comments can also be sent electronically to dms.dot.gov. All responses to this notice will be summarized and included in the request for OMB approval. All comments will also be a matter of public record. 61952 Federal Register / Vol. 67, No. 191 / Wednesday, October 2, 2002 / Notices 1Almono states that Mon Con is a wholly owned subsidiary of LTV Steel Corporation (LTV), which is in bankruptcy and is liquidating its assets. Almono indicates that it is acquiring Mon Con’s assets as well as adjoining LTV property with court approval. 2Almono states that it intends to seek abandonment of the acquired line shortly after consummation of the transaction. It adds that, although its primary interest is in the underlying real estate and not the railroad operation, it has reached an agreement with MetalTech under which the shipper would continue to receive rail service following abandonment. Acquisitions of active rail lines under 49 U.S.C. 10901 are supposed to be for continued rail use. See, e.g., Land Conservancy— Acq. and Oper.—Burlington Northern, 2 S.T.B. 673 (1997), reconsideration denied, STB Finance Docket No. 33389 (STB served May 13, 1998), pet. for judicial review dismissed sub nom. The Land Conservancy of Seattle and King County v. S.T.B., 238 F.3d 429 (9th Cir. 2000). If Almono elects to file for abandonment authority, it must submit evidence showing that abandonment of the line is warranted under the Board’s statutory authority and rules, and must, under these circumstances, demonstrate (e.g., by providing the parties’ agreement or a statement from MetalTech) that the interests of the shipper here will be protected. Issued in Washington, DC, on September 26, 2002. Jeffrey D. Wiese, Manager, Program Development, Office of Pipeline Safety. [FR Doc. 02–25045 Filed 10–1–02; 8:45 am] BILLING CODE 4910–60–P DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 34250] Almono LP—Acquisition and Operation Exemption—Line of Monongahela Connecting Railroad Company Almono LP (Almono), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to acquire and operate approximately 2 miles of rail line of the Monongahela Connecting Railroad Company (Mon Con) in Allegheny County, PA.1 The line extends between the plant of the sole shipper on the line (MetalTech) on the north side of the Monongahela River and an interchange point with CSX Transportation, Inc. (CSXT) north of CSXT’s Glenwood Yard in Hazelwood, PA. Almono states that the line does not have milepost designations.2 The transaction was expected to be consummated on or shortly after September 12, 2002. Almond certifies that its projected annual revenues do not exceed those that would qualify it as a Class III carrier. If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to reopen the proceeding to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the transaction. An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34250, must be filed with the Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423– 0001. In addition, a copy of each pleading must be served on Linda B. McClintock, Two Gateway Center, Pittsburgh, PA 15222, Robert D. Rosenberg, 1224 17th Street, NW., Washington, DC 20036, and Frank Brooks Robinson, 425 Sixth Avenue, Suite 500, Pittsburgh, PA 15219. Board decisions and notices are available on our Web site at www.stb.dot.gov. Decided: September 25, 2002. By the Board, David M. Konschnik, Director, Office of Proceedings. Vernon A. Williams, Secretary. [FR Doc. 02–24865 Filed 10–1–02; 8:45 am] BILLING CODE 4915–00–P DEPARTMENT OF THE TREASURY Submission for OMB Review; Comment Request September 16, 2002. The Department of Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwor Reduction Act of 1995, Pub. L. 104–13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 2110, 1425 New York Avenue, NW., Washington DC 20220. DATES: Written comments should be received on or before November 1, 2002 to be assured of consideration. Bureau of Alcohol, Tobacco and Firearms (BATF) OMB Number: 1512–0398. Form Number: ATF Forms 2093 (5200.3), 2098 (5200.16) 5230.4 and 5230.5. Type of Review: Revision. Title: Applciations for Tobacco Products and for Cigarette papers and Tubes. Description: The forms are used by the tobacco industry members to obtain and amend permits necessary to engage in business as a manufacturer of tobacco products, importer of tobacco products, or proprietor of a export warehouse. Respondents: Business or other forprofit, State, Local or Tribal Government. Estimated Number of Respondents: 630. Estimated Burden Hours Per Respondent: Hours ATF F 2093 (5200.3) ........................ 2 ATF F 2098 (5200.16) ...................... 1 ATF F 5230.4 ................................... 2 ATF F 5230.5 ................................... 1 Frequency of Response: On occassion. Estimated Total Reporting Burden: 1,130 hours. Clearance Officer: Jacqueline White (202) 927–8930, Bureau of Alcohol, Tobacco and Firearms, Room 3200, 650 Massachusetts Avenue, NW., Washington, DC 20226. OMB Reviewer: Joseph F. Lackey, Jr. (202) 395–7316, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503. Lois K. Holland, Departmental Reports, Management Officer. [FR Doc. 02–24974 Filed 10–1–02; 8:45 am] BILLING CODE 4810–31–M DEPARTMENT OF THE TREASURY Submission for OMB Review; Comment Request September 20, 2002. The Department of Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 2110, 1425 New York Avenue, NW, Washington, D.C. 20220. DATES: Written comments should be received on or before November 1, 2002 to be assured of consideration. Bureau of Engraving and Printing (BEP) OMB Number: 1520–0001. Form Number: BEP 5283. Type of Review: Extension. Title: Owner’s Affidavit of Partial Destruction of Mutilated Currency. Description: The Office of Currency Redemption and Destruction Standards, Bureau of Engraving and Printing, requests owners of partially destroyed
s3://data.kl3m.ai/documents/edgar/0001262876/0001262876-07-000022/2.json	text/plain	Exhibit 31.01 CERTIFICATION I, Michael Pacult, do hereby certify that: 1. I have reviewed this Amendment No. 2 to the annual report on Form 10-K of Providence Select Fund, Limited Partnership; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, 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; (c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the Registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonable likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. By: /s/ Michael Pacult Michael Pacult Date: August 23, 2007 <page>
s3://data.kl3m.ai/documents/fr/02-25120/html.json	text/markdown	Document Headings Document headings vary by document type but may contain the following: - the agency or agencies that issued and signed a document - the number of the CFR title and the number of each part the document amends, proposes to amend, or is directly related to - the agency docket number / agency internal file number - the RIN which identifies each regulatory action listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions See the Document Drafting Handbook for more details. ###### Federal Energy Regulatory Commission - 18 CFR Parts 154, 161, 250 and 284 - [Docket No. PL02-9-000] # AGENCY: Federal Energy Regulatory Commission. # ACTION: Notice of public conference. # SUMMARY: On February 9, 2000, the Commission issued Order No. 636, amending its regulations in response to growing development of more competitive markets for natural gas and the transportation of natural gas (65 FR 10156, February 25, 2000). The Commission is holding a public conference to engage industry members and the public in a dialogue about policy issues facing the natural gas industry today and the Commission's regulation of the industry of the future. # DATES: Requests to participate: October 15, 2002. Conference date: October 25, 2002. # ADDRESSES: Office of the Secretary, Federal Energy Regulatory Commission, 888 First street, NE., Washington, DC 20426. # FOR FURTHER INFORMATION CONTACT: Kenneth P. Niehaus, Office of Energy Projects, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC, (202) 502-6398, [email protected]. # SUPPLEMENTARY INFORMATION: 1. The Federal Energy Regulatory Commission (FERC) will hold a conference on October 25, 2002, to engage industry members and the public in a dialogue about policy issues facing the natural gas industry today and the Commission's regulation of the industry for the future. The Commission expects a wide ranging discussion that will help the Commission establish its regulatory goals for an industry that anticipates long term growth to reach 30-Tcf annually. The Commission anticipates exploring issues concerning: (1) Supply and demand; (2) the application of the Commission's open access polices to liquefied natural gas (LNG) import facilities; (3) the Commission's Outer Continental Shelf (OCS) gathering policy; and (4) the flexibility pipelines need to serve historical load as well as new demand. In addition, the Commission will provide an opportunity for market participants and other interested persons to raise issues and make policy recommendations for Commission consideration. ( print page 62919) ## I. Background 2. In 1997, the Commission held a conference to revisit its approach to natural gas regulation in light of significant changes in the structure of the natural gas industry that occurred as a result of Order No. 636.[1] Since that time, the energy industry has continued to experience ongoing structural changes that impact the supply and demand of natural gas. Some of these changes include shifts in the industry from regulated to non-regulated gathering operations. Over the past five years, the Commission has seen an increase in abandonment of these facilities from the regulated companies to non-regulated affiliated and non-affiliated gathering companies. Changes from regulated to non-regulated services raise important issues that the Commission needs to consider in assuring unrestricted access to necessary supplies from the OCS. 3. In Order No. 637,[2] issued in 2000, the Commission revised, among other things, its regulations relating to scheduling procedures, capacity segmentation, and pipeline penalties to improve the competitiveness and efficiency of the interstate pipeline grid and to enhance pipeline transportation services. Changes in historical pipeline operations brought about by Order No. 637 may impact investment in much needed pipeline infrastructure to fulfill future demand for natural gas. 4. The increasing demands placed on pipelines by new electric generation load may impact the flexibility pipelines currently have in meeting the service demands of historical customers. In its Annual Energy Outlook 2002, Energy Information Administration (EIA) forecasts that natural gas for power generation will grow 4.6 percent annually, reaching from 9.65 to 10.36 Tcf in 2020 depending on economic growth (consumption in 2000 was 4.24 Tcf). 5. The economy, mild weather patterns, and major developments in the financial foundation and structure of the energy industry may also have important repercussions on long term markets, supplies, and investment in infrastructure. Reduction in market capitalization of many major energy players, substantial layoffs, the exiting and restructuring of many companies' energy trading business, bankruptcies, the sale of major assets by major energy players, and the cancellation of many future gas-fired generation projects all may potentially affect natural gas markets and the infrastructure it depends upon. 6. Even with the nation's current economic slowdown, however, natural gas demand continues to grow. Overall, EIA projects that the natural gas market will grow from the 22.83 Tcf consumed in 2000 to between 30.02 to 32.63 Tcf in 2015, with projections for 2020 from 32.03 to 34.99 Tcf, depending on economic growth. All the above mentioned events may impact the industry's ability to prepare for and meet the future anticipated demand. ## II. Scope of Inquiry 7. The purpose of this conference is to discuss short and long term issues that may impact the Commission's regulation of the natural gas industry. The Commission wants to explore whether the Commission's current regulatory approach in natural gas fosters or impedes supply production and investment in development of the infrastructure needed to meet the anticipated long term growth to 30-Tcf annually. In addition to providing an open forum for communicating with the Commissioners, the Commission wishes to address the following topics. ### A. Supply Forecast 8. EIA projects that natural gas consumption could reach 34.99 Tcf annually in 2020. Decreasing gas prices have resulted in a reduction in capital expenditures for development in natural gas production. Evidence indicates that production in traditional supply regions, including onshore gas production in the Permian Basin and offshore in the shallow shelf of the Gulf of Mexico, is in decline. At the same time, Canadian imports have been falling while domestic exports to Mexico have been increasing. Additionally, concerns have been raised relating to potential barriers that may restrict the domestic producing community's ability to meet the projected demand. The Commission wishes to explore natural gas supply issues and their impact on the infrastructure needed to meet forecasted demand. ### B. Liquefied Natural Gas 9. In the 1970's the Commission authorized the construction and operation of several LNG import terminals to provide a needed supplemental source of gas supplies to U.S. markets.[3] In response to more recent demands for natural gas, the Commission has approved the reactivation of two of the original LNG import projects and the expansion of an existing LNG terminal.[4] Additionally, there are two pending applications for other LNG expansion projects and one for a new LNG import facility.[5] 10. The Commission recognizes that LNG imports are expected to become a key supply source in the U.S. over the next ten years. We believe it is time to reexamine our existing policy in light of the changes that have occurred in the gas industry since that time. While the Commission recently denied a request to disclaim jurisdiction over the siting, construction, and operation of LNG facilities,[6] it has not reviewed its open access policy as it pertains to LNG import facilities. The Commission wishes to explore regulatory goals that will remove unnecessary barriers to the development of LNG facilities and supply as a major source of natural gas to meet the forecasted future demand. ( print page 62920) ### C. Offshore Gathering Policy 11. In ExxonMobil Gas Marketing Company v. FERC ,[7] the court affirmed the Commission's gathering policy as it pertained to facilities located in the OCS. In Order No. 639,[8] the Commission determined that under the Commission's authority under the Outer Continental Lands Act (OCSLA), gatherers in the OCS must report information regarding service provided through their gathering facilities. The Commission believes that such information is necessary to assure that the gatherers providing service in the OCS do so on an open and nondiscriminatory basis. Subsequently, however, the court determined that the OCSLA did not give the Commission authorization to promulgate such a requirement.[9] The Commission wishes to explore future regulatory policies and goals that would promote the further development of offshore supply sources in the OCS. ### D. Flexibility in Pipeline Operations 12. Natural gas is now the fuel of choice for new power generation due to the efficiency of technology, low initial investment costs, relative ease of siting new plants, and lower pollutant emissions. Electric generation load is more variable through a given day than a traditional pipeline customer load.[10] Therefore, electric generation customers require transportation services and facilities that accommodate hourly rather than daily swings in gas consumption and wider fluctuations in consumption volumes.[11] Because of the large amounts of gas used as gas-fired generation plants, and their potential to cause rapid and unanticipated hourly consumption demands, traditional pipeline customers have expressed the concern that the ramping-up of one or more power plants could lead to pressure drops which, in turn, could result in a reduction in both the pressure and rate of gas flowing through the meter station and distribution facilities. The Commission believes it is imperative that the future pipeline infrastructure meets the flexibility and service needs of all of their customers. We wish to explore issues related to serving new demand to meet current and future needs. ### E. Open Forum 13. In addition to addressing the above mentioned issues, the Commission also seeks to encourage industry representatives and interested individuals to raise other issues for the Commission to consider in shaping its future regulatory policies concerning the natural gas industry. The Commission envisions that the conference will consist of panels and an open forum that will give all interested individuals an opportunity to raise issues. ## III. Participation 14. The conference will be held on October 25, 2002 at FERC, 888 First Street, NE., in Washington, DC in the Commission Meeting Room. The public is invited to attend. Anyone interested in participating should contact Ken Niehaus at 202-502-6398 or at [email protected] by October 15, 2002. Requests for participate should include information concerning the issue or issues the participant would like to raise. We will issue further details on the conference including the agenda and a list of participants, as plans evolve. 15. The conference will be transcribed. Those interested in acquiring the transcript should contact Ace Reporters at 202-347-3700 or 800-336-6646. Transcripts will be placed in the public record ten days after the Commission receives the transcripts. Additionally, Capitol Connection offers the opportunity for remote listening and viewing of the conference. It is available for a fee, live or over the Internet, via C-Band Satellite. Persons interested in receiving the broadcast, or who need information on making arrangements should contact David Reininger or Julia Morelli at Capitol Connection (703-993-3100) as soon as possible or visit the Capitol Connection website at http://www.capitolconnection.gmu.edu and click on “FERC.” Linwood A. Watson, Jr., Deputy Secretary. # Footnotes 1. Pipeline Service Obligations and Revisions to Regulations Governing Self-Implementing Transportation and Regulations of Natural Gas Pipelines After Partial Wellhead Decontrol, 57 FR 13,267 (April 16, 1992), FERC Stats. & Regs Preambles January 1991-June 1996 ¶ 30,939 (April 8, 1992), order on reh'g, Order No. 636-A, 57 FR 36,128 (August 12, 1992), FERC Stats. & Regs. Preambles, January 1991-June 1996 ¶ 30,950 (August 3, 1992), order on reh'g, Order No. 636-B, 57 FR 57,911 (December 8, 1992), 61 FERC ¶ 61,272 (1992), notice of denial of rehearing (January 8, 1993), 62 FERC ¶ 61,007 (1993), aff'd in part and vacated and remanded in part, UDC v. FERC, 88 F.3d 1105 (D.C. Cir. 1996), order on remand, Order No. 636-C, 78 FERC § 61,186 (1997), order on reh'g, Order No. 636-D, 83 FERC ¶ 61,210 (1998). Back to Citation 2. See Regulation of Short-Term Natural Gas Transportation Services and Regulation of Interstate Natural Gas Transportation Services, FERC Stats. & Regs. Regulations Preambles (July 1996-December 2000) ¶ 31,091 (Feb. 9, 2000); order on rehearing, Order No. 637-A FERC Stats. & Regs. Regulations Preambles (July 1996-December 2000) ¶ 31,099 (May 19, 2000), aff'd in part and rev'd and remanded in part, INGAA v. FERC, 285 F.3d 18 (D.C. Cir. 2002). Back to Citation 3. See Columbia LNG Corp., 47 FPC 1624, order on reh'g, 48 FPC 723 (1972) (approving the construction and operation of the Cove Point and Elba Island LNG import terminals); Trunkline LNG Co., 58 FPC 726, order on reh'g, 58 FPC 2935 (1977) (approving the construction and operation of a Lake Charles LNG import terminal); Distrigas Corp., 58 FPC 2589 (1977) (approving a settlement authorizing operation of LNG import terminal at Everett, Massachusetts). Back to Citation 4. See Southern LNG Inc., 89 FERC ¶ 61,314 (1999), order on reh'g, 90 FERC ¶ 61,257 (2000); Cove Point LNG Limited Partnership, 97 FERC ¶ 61,043, order on reh'g, 97 FERC ¶ 61,276 (2001); order denying clarification and reh'g, 98 FERC ¶ 61,270 (2002); Distrigas of Massachusetts, 94 FERC ¶ 61,008 (2001). Back to Citation 5. CMS Trunkline LNG Co. (CMS) application filed in Docket No. CP02-60-000. In Docket No. CP02-60-000, the Commission preliminary approved CMS's application to expand its Calcasieu Parish, Louisiana terminal (100 FERC ¶ 61,217), and in Docket No. CP02-379-000 Southern LNG's request authorization for further expansion of its Elba Island facility. On May 30, 2002, Hackberry LNG Terminal, L.L.C. filed an application in Docket No. CP02-374-000, et al., to construct and operate a new LNG import facility. Back to Citation 6. See Dynegy LNG Production Terminal, L.P., 97 FERC ¶ 61,231 (2001). Back to Citation 7. 297 F.3d 1071 (2002). Back to Citation 8. Regulations under the Outer Continental Shelf Lands Act Governing the Movement of Natural Gas on Facilities on the Outer Continental Shelf, 65 FR 20,354 (Apr. 17, 2000), FERC Stats. & Regs. ¶ 31,514 (2002), order on reh'g and clarification, Order No. 639-A, 65 FR 47,294 (Aug. 2, 2000), FERC Stats. & Regs. ¶ 31,103 (2000). Back to Citation 9. See Chevron U.S.A., Inc. v. FERC, No. 02-5056 (D.C. Cir.). Back to Citation 10. Impact of Power Generation Gas Demand on Natural Gas Local Distribution Companies, American Gas Association, prepared by: Energy and Environmental Analysis, Inc. There are baseload generators, intermediate load generators, and peaking plants. Used together, these plants maintain electric power levels throughout the electric transmission grid sufficient to meet customer demand. Generally, baseload units (these are high fixed-cost units using less expensive fuel and with the lowest operating costs) meet the based demands. Intermediate load generators ( i.e., most combined cycle facilities) are run regularly, by not on a full time basis. Peaking units are generally last dispatched and operated only on the days and hours of highest electricity demand. These units generally have low fixed costs, but high operating and fuel costs. Back to Citation 11. Id. Back to Citation [FR Doc. 02-25120 Filed 10-8-02; 8:45 am] BILLING CODE 6717-01-M
s3://data.kl3m.ai/documents/uspto/07415123.json	text/markdown	# Patent ## Title Method and apparatus for producing spatialized audio signals ## Abstract A method and apparatus for producing virtual sound sources that are externally perceived and positioned at any orientation in azimuth and elevation from a listener is described. In this system, a set of speakers is mounted in a location near the temple of a listener's head. A head tracking system determines the location and orientation of the listeners head and provides the measurements to a computer which processes audio signals, from an audio source, in conjunction with a head related transfer function (HRTF) filter to produce spatialized audio. The HRTF filter maintains the virtual location of the audio signals/sound, thus allowing the listener to change locations and head orientation without degradation of the audio signal. The audio system of the present invention produces virtual sound sources that are externally perceived and positioned at any desired orientation in azimuth and elevation from the user. ## Background CROSS-REFERENCE TO RELATED APPLICATIONS This Application is a Continuation-in-part of application Ser. No. 09/962,158 filed on Sep. 26, 2001 now U.S. Pat. No. 6,961,439. FIELD OF THE INVENTION This invention relates to audio systems. More particularly, it relates to a system and method for producing spatialized audio signals that are externally perceived and positioned at any orientation and elevation from a listener. BACKGROUND AND SUMMARY OF THE INVENTION Spatialized audio is sound that is processed to give the listener an impression of a sound source within a three-dimensional environment. A more realistic experience is observed when listening to spatialized sound than stereo because stereo only varies across one axis, usually the x (horizontal) axis. In the past, binaural sound from headphones was the most common approach to spatialization. The use of headphones takes advantage of the lack of crosstalk and a fixed position between sound source (the speaker driver) and the ear. Gradually, these factors are endowed upon conventional loudspeakers through more sophisticated digital signal processing. The wave of multimedia computer content and equipment has increased the use of stereo speakers in conjunction with microcomputers. Additionally, complex audio signal processing equipment, and the current consumer excitement surrounding the computer market, increases the awareness and desire for quality audio content. Two speakers, one on either side of a personal computer, carry the particular advantage of having the listener sitting rather closely and in an equidistant position between the speakers. The listener is probably also sitting down, therefore moving infrequently. This typical multimedia configuration probably comes as close to binaural sound using headphones as can be expected from free field speakers, increasing the probability of success for future spatialization systems. Spatial audio can be useful whenever a listener is presented with multiple auditory streams. Spatial audio requires information about the positions of all events that need to be audible, including those outside of the field of vision, or that would benefit from increased immersion in an environment. Possible applications of spatial audio processing techniques include: military communication systems to and between individuals within military vehicles, ships and aircraft as well as to and between dismounted soldiers; complex supervisory control system such as telecommunications and air traffic control systems; civil and military aircraft warning systems; teleconferencing and telepresence applications; virtual and augmented reality environments; computer-user interfaces and auditory displays, especially those intended for use by the visually impaired; personal information and guidance systems such as those used to provide exhibit information to visitors in a museum; and arts and entertainment, especially video games and music, to name but a few. Environmental cues, such as early echoes and dense reverberation, are important for a realistic listening experience and are known to improve localization and externalization of audio sources. However, the cost of exact environmental modeling is extraordinarily high. Moreover, existing spatial audio systems are designed for use via headphones. This requirement may result in certain limitations on their use. For example, spatial audio may be limited to those applications for which a user is already wearing some sort of headgear, or for which the advantages of spatial sound outweigh the inconvenience of a headset. U.S. Pat. No. 5,272,757, 5,459,790, 5,661,812, and 5,841,879, all to Scofield disclose head mounted surround sound systems. However, none of the Scofield systems appear to use head related transfer function (HRTF) filtering to produce spatialized audio signals. Furthermore, Scofield uses a system that converts signals from a multiple surround speaker system to a pair of signals for two speakers. This system appears to fail a real-time spatialization system where a person's head position varies in orientation and azimuth, thus requiring adjustment in filtering in order to maintain appropriate spatial locations. One current method for generating spatialized audio is to use multiple speaker panning. This method only works for listeners positioned at a sweet spot within the speaker array. This method cannot be used for mobile applications. Another method, often used with headphones, requires complex individual filters or synthesized sound reflections. This method performs filtering of a monaural source with a pair of filters defined by a pair of head related transfer functions (HRTFs) for a particular location. Each of these methods has limitations and disadvantages. The latter method works best if individual filters are used, but the procedure to produce individual filters is complex. Further, if individual filters or synthesized sound reflections are not used, then front-back confusions and poor externalization of the sound source would result. Thus, there is a need to overcome the above-identified problems. BRIEF SUMMARY Accordingly, the present invention provides a solution to overcome the above problems. In the present invention, a pair of speakers is mounted in a location near the temple of a listener's head, such for example, on an eyeglass frame or inside a helmet, rather than in headphones. A head tracking system also mounted on the frame where speakers are mounted determines the location and orientation of the listener's head and provides the measurements to a computer system for audio signal processing in conjunction with a head related transfer function (HRTF) filter to produce spatialized audio. The HRTF filter maintains virtual location of the audio signals, thus allowing the listener to change locations and head orientation without degradation of the audio signal. The system of the present invention produces virtual sound sources that are externally perceived and positioned at any desired orientation in azimuth and elevation from the listener. In its broader aspects, the present invention provides an apparatus for producing spatialized audio, the apparatus comprising at least one pair of speakers positioned near a user's temple for generating spatialized audio signals, whereby the speakers are positioned coaxially with a user's ear regardless of the user's head movement; a tracking system for tracking the user's head orientation and location; a head related transfer function (HRTF) filter for maintaining virtual location of the audio signals thereby allowing the user to change location and head orientation without degradation of the virtual location of audio signals; and a processor for receiving signals from the tracking system and causing the filter to generate spatialized audio, wherein the speakers are positioned to generate frontal positioning cues to augment spatial filtering for virtual frontal sources without degrading spatial filtering for other virtual positions. In another aspect, a method of producing spatialized audio signals, the method comprising: positioning at least one pair of speakers near a user's temple for generating spatialized audio signals, whereby the speakers are positioned coaxially with a user's ear regardless of the user's head movement to generate frontal positioning cues to augment spatial filtering for virtual frontal sources without degrading spatial filtering for other virtual positions; tracking orientation and location of the user's head using a tracking system; maintaining virtual location of the audio signals using a head related transfer function (HRTF) filter; and processing signals received from the tracking system using a processor; and controlling the filter using the processor to generate spatialized audio signals. In a further aspect, the present invention provides a system for producing spatialized audio signals, the system comprising: means for positioning at least one pair of speakers near a user's temple for generating spatialized audio signals, whereby the speakers are positioned coaxially with a user's ear regardless of the user's head movement; a tracking means for tracking orientation and location of the user's head; a filtering means for maintaining virtual location of the audio signals; and means for processing signals received from the tracking means; and means for controlling the filter means to generate spatialized audio signals. Additional objects, advantages and novel features of the invention are set forth in part in the description which follows, and in part will become apparent to those skilled in the art upon examination of the following or may be learned by practice of the invention. The objects and advantages of the invention may be realized and attained by means of the instrumentalities and combinations particularly pointed out in the appended claims. BRIEF SUMMARY OF THE DRAWINGS The accompanying drawings, which are incorporated in and form a part of the specification, illustrate an exemplary embodiment of the present invention and, together with the description, serve to explain the principles of the invention. It is noted that the exemplary embodiment is drawn to iris recognition. However novel aspects of the present invention are not limited in this scope. On the contrary, the novel aspects of the present invention can additionally be drawn to retina recognition or recognition of any parameter that can be imaged. In the drawings: FIG. 1 illustrates an exemplary system configuration of the present invention; FIG. 2 illustrates another embodiment of the present invention as shown in FIG. 1; FIGS. 3-4 illustrate various methods of mounting the speakers as shown in FIGS. 1-2; FIG. 5 illustrates a side view of an exemplary embodiment of a headpiece in accordance with the present invention; FIG. 6 illustrates a front view of the headpiece in FIG. 5; FIG. 7 illustrates an embodiment of a headband in accordance with the present invention; FIG. 8 illustrates another embodiment of a headband in accordance with the present invention; and FIG. 9 illustrates another embodiment of a headpiece in accordance with the present invention. DETAILED DESCRIPTION FIG. 1 shows an exemplary audio system configuration of the present invention as generally indicated at 100. Audio system 100 includes a computer system 102 for controlling various components of system 100. Audio signals from an audio source, such as for example, an audio server 112 are received by computer system 102 for further processing. Computer system 102 is an “off the shelf” commercially available system and could be selected from any of the following systems, which have been used to implement this invention: the Crystal River Engineering Acoustetron II; the Hewlett Packard Omnibook with a Crystal PnP audio system and RSC 3d audio software; an Apple Cube with USB stereo output and 3D audio software. A head tracking system 104 is mounted on a frame to which speakers 110 are attached close to the temple of a user's head. The frame is mounted on the user's head and moves as the head moves. Any conventional means for attaching the speakers to the frame may be used, such as for example, using fasteners, adhesive tape, adhesives, or the like. Head tracking system 104 measures the location and orientation of a user's head and provides the measured information to computer system 102 which processes the audio signals using a head related transfer function (HRTF) filter 106 thus producing spatialized audio. The spatialized audio signals are amplified in an amplifier 108 and fed to speakers 110. The amplified signals are binaural in nature (i.e., left channel signals are supplied to the left ear and right channel signals are supplied to the right ear. Amplifier 108 generates sound that is loud enough to be heard in the nearest ear but generally too soft to be heard in the opposite ear. Speakers 110 are mounted, for example, to an eyeglass frame or appropriately mounted to the inside of a helmet as shown in FIGS. 3 and 4. The speakers may also be mounted on a virtual reality head mounted visual display system. A miniature amphitheater-shell may be added to the mounting frame in order to increase the efficiency of the speakers. In operation, location and orientation information measured by head tracking system 104 is forwarded to computer system 102 which then processes the audio signals, received from an audio server, using head related transfer function filter 106 to produce a spatialized audio signals. The spatialized audio signals are amplified in amplifier 108 and then fed to speakers 110. The source of the sound is kept on axis with user's ear regardless of the head movement, thus simplifying the spatialization computation. FIG. 2 shows another embodiment of the present invention as in FIG. 1. Here, processor 102 also performs the HRTF filtering functions. The audio source is generated and operates under the control of the computer system. The rest of the operation of FIG. 2 is similar to the operation as explained with respect to FIG. 1. One aspect of the present invention, as alluded to above, deals with the manner in which the speakers are positioned in front of the ears of the user. For example, an apparatus may be used with a system that produces spatialized audio signals, wherein the apparatus includes a headpiece, speakers and an input system. The input system provides the spatially filtered audio signals from the HRTF filter to the speakers. Non-limiting examples of an input system include wires and wireless transmission systems. The speakers reproduce the sound from the spatially filtered audio signals such that the person hears the sound and perceives a maintained virtual location of the source of the sound. Further, the speakers are disposed with the headpiece so as to be positioned to augment the sound such that the perceived front-to-back reversals in a maintained virtual location of the source of the sound are reduced. In apparatus 500, as one exemplary embodiment illustrated in FIGS. 5 and 6, the headpiece is a headband 502, the speakers are speakers 504 and 506 and the input system is wire 508. Other non-limiting examples of a headpiece in accordance with the present invention include a hat, helmet, or any other article that can position the speakers to augment the sound such that the user's perceived front-to-back reversals are reduced. Further, other non-limiting examples of a number, size and shape of speakers in accordance with the present invention include those that can reproduce the sound to the user based on the spatially filtered audio signals from the HRTF. Further, the speakers may be water retardant so as to resist corruption by rain or sweat. FIG. 7 illustrates an embodiment of a headband in accordance with the present invention. As depicted in the figure, headband 700 includes a wearable portion 702 and an attachment strip 710. Attachment strip 710 enables speakers 704 and 706 to be attached thereto via an attachment portion, e.g., item 708 as depicted on speaker 706. Attachment strip 710 and attachment portion 708 may be a hook and loop system, such as provided by Velcro®. Accordingly, the positions of speakers 704 and 706 may be changed to minimize the front-to-back reversals. Other attachment mechanisms, which enable speakers to be disposed with the headpiece so as to be positioned to augment the sound such that the perceived front-to-back reversals in a maintained virtual location of the source of the sound are reduced, may be used in accordance with the present invention. Such attachment mechanisms may be permanent, such as by an adhesive, wire, thread, etc., or detachable, such as with a clip or button. FIG. 8 illustrates another embodiment of a headpiece in accordance with the present invention. As depicted in the figure, headband 800 includes a wearable portion 802, and a plurality of attachment areas 804. Attachment areas 804 enables speakers 704 and 706 to be attached thereto via attachment portion 708. Attachment areas 804 and attachment portion 708 may be a hook and loop system, such as provided by Velcro®. Accordingly, the positions of speakers 704 and 706 may be changed to minimize the front-to-back reversals. The number of attachment areas 804 is not limited. For example, a single set of attachment areas 804 may be used, wherein speakers 704 and 708 may be positioned in one respective pair of locations. Alternatively, a plurality of attachment areas may be used, wherein speakers 704 and 708 in addition to other speakers may be positioned thereby minimizing the front-to-back reversals for different users. FIG. 9 illustrates another embodiment of a headpiece in accordance with the present invention, wherein the headband 502 of FIG. 5 has been reversed such that speakers 504 and 506 are disposed against the head of the user. In the reversed position, speakers 504 and 506 generate acoustic signals that are conducted to the auditor senses through bone conduction in the skull, which is a quieter method of delivering the audio signals to the listener. While specific positions for various components comprising the invention are given above, it should be understood that those are only indicative of the relative positions most likely needed to achieve a desired sound effect with reduced noise margins. It will be appreciated that the indicated components are exemplary, and several other components may be added or subtracted while not deviating from the spirit and scope of the invention. While the invention has been described in connection with what is presently considered to be the most practical and preferred embodiment, it is to be understood that the invention is not to be limited to the disclosed embodiment, but on the contrary, is intended to cover various modifications and equivalent arrangements included within the spirit and scope of the appended claims. ## Claims 1. An apparatus to be used by a person, said apparatus comprising: a signal portion operable to provide audio signals corresponding to a sound to be reproduced and a virtual location of a source of the sound to be reproduced; a headpiece to be worn by the person; a tracking system operable to provide tracking signals corresponding to an orientation and location of the head of the person; a head related transfer function (HRTF) filter; and a plurality of speakers disposed with said headpiece, wherein said HRTF filter is operable to spatially filter the audio signals, based on the tracking signals, and thereby provide spatially filtered audio signals, wherein said speakers are operable to reproduce the sound based on the spatially filtered audio signals such that the person hears the sound and perceives a maintained virtual location of the source of the sound, and wherein said speakers are disposed with said headpiece at respective positions that augment the sound reproduced by said speakers such that perceived front-to-back reversals in the maintained virtual location of the source of the sound are reduced. 2. The apparatus of claim 1, wherein said signal portion is operable to provide the audio signals as binaural audio signals. 3. An apparatus to be used by a person, said apparatus comprising: a signal means for providing audio signals corresponding to a sound to be reproduced and a virtual location of a source of the sound to be reproduced; a headpiece to be worn by the person; a tracking means for providing tracking signals corresponding to an orientation and location of the head of the person; a head related transfer function (HRTF) filter; and a plurality of speakers disposed with said headpiece, wherein said HRTF filter is operable to spatially filter the audio signals, based on the tracking signals, and thereby provide spatially filtered audio signals, wherein said speakers are operable to reproduce the sound based on the spatially filtered audio signals such that the person hears the sound and perceives a maintained virtual location of the source of the sound, and wherein said speakers are disposed with said headpiece at respective positions that augment the sound reproduced by said speakers such that perceived front-to-back reversals in the maintained virtual location of the source of the sound are reduced. 4. An apparatus to be worn by a person and for use with a system operable to produce spatialized audio signals, the system including a signal portion operable to provide audio signals corresponding to a sound to be reproduced and a virtual location of a source of the sound to be reproduced, a tracking system operable to provide tracking signals corresponding to an orientation and location of the head of the person, a head related transfer function (HRTF) filter operable to spatially filter the audio signals, based on the tracking signals, and thereby provide spatially filtered audio signals, said apparatus comprising: a headpiece to be worn by the person; an input portion operable to receive the spatially filtered audio signals; and a plurality of speakers disposed with said headpiece and operable to receive the spatially filtered audio signals from said input portion, wherein said speakers are operable to reproduce the sound based on the received spatially filtered audio signals such that the person hears the sound and perceives a maintained virtual location of the source of the sound, and wherein said speakers are disposed with said headpiece at respective positions that augment the sound reproduced by said speakers such that perceived front-to-back reversals in the maintained virtual location of the source of the sound are reduced. 5. The apparatus of claim 4, wherein said headpiece comprises a headband. 6. The apparatus of claim 5, wherein said plurality of speakers is disposed within said headband. 7. The apparatus of claim 5, wherein said plurality of speakers is disposed on said headband. 8. The apparatus of claim 4, wherein said headpiece further comprises a first connecting portion, wherein said plurality of speakers comprises a second connecting portion, and wherein said first connecting portion is operable to connect to said second connecting portion thereby to dispose said plurality of speakers on said headpiece. 9. The apparatus of claim 8, wherein said first connecting portion comprises a first plurality of individual connecting portions, wherein said second connecting portion comprises a second plurality of individual connecting portions, and wherein each of said second plurality of individual connecting portions is operable to connect to respective individual connecting portions of said first plurality of individual connecting portions.
s3://data.kl3m.ai/documents/recap_docs/2019/02/15/u.s._specialty_ins._co._v._d_s_avionics_-_supplemental_opinion_13.pdf.json	text/markdown	- 283 - ### N ebraska ### S upreme ### C ourt ### A dva nc e ### S 302 N ebraska ### R eport U.S. SPECIALTY INS. CO. v . D S AVIONICS Cite as 302 Neb. 283 ### U . S . S pe c ialty ### I n sura nc e a c orporatio n ### , appellee ### , v ### D S A vio n i c s ### U n ### LL C, appella ___ N.W.2d ___ Filed February 15, 2019. No. S-17-1101. suppleme n tal opi n ### Appeal from the District Court for Douglas County: S hell ### R . S tratma n ### , Judge. Supplemental opinion: Former opini modified. Motions for rehearing overruled. Thomas M. Locher, of Locher, Pavelka, Dostal, Braddy & Hammes, L.L.C., for appellant. Robert E. O’Connor, Jr., for appellee. H eavi c a n ### , C.J., M iller ### - L erma n ### , C assel ### , S ta c y ### , F P apik ### , JJ., and J oh n so n ### , District Jud P er ### C uriam ### This case is before us on motions for rehearing filed by the appellant, D S Avionics Unlimited LLC, and the appellee, U.S. Specialty Insurance Company, concerning our opinion in U.S. Specialty Ins. Co. v. D S Avionics . 1 ### We overrule the motions, but we modify the opinion as follows: 1 U.S. Specialty Ins. Co. v. D S Avionics , 301 Neb. 388, 918 N.W.2d 589 (2018). Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/22/2019 01:08 PM CDT- 284 - ### N ebraska ### S upreme ### C ourt ### A dva nc e ### S 302 N ebraska ### R eport U.S. SPECIALTY INS. CO. v . D S AVIONICS Cite as 302 Neb. 283 ### In the “Declaratory Judgment Was Premature” subsection, we strike the third sentence of the first paragraph, including footnote 14. 2 ### Also in the same subsection, after the fourth sentence of the second paragraph, 3 ### we insert the following sen tence: “‘This rule embraces not only cases where the identi cal issues between the same parties are sub judice , but also possibly cases in which the issues only are identical but not the parties.’” 4 ### The remainder of the opinion shall remain unmodified. F ormer opi n io n modi f i ### M otio n s f or reheari n g overr 2 Id . at 398, 918 N.W.2d at 596. 3 Id . at 399, 918 N.W.2d at 596. 4 Strawn v. County of Sarpy , 146 Neb. 783, 788, 21 N.W.2d 597, 600 (1946).
s3://data.kl3m.ai/documents/edgar/0001056404/0001056404-19-010268/3.json	text/markdown	Management’sAssertion on Compliance with Applicable RegulationAB Servicing Criteria 1. Rialto Capital Advisors, LLC. (the“Asserting Party”) is responsible for assessing compliance with the servicing criteriaapplicable to it under paragraph (d) of Item 1122 of Regulation AB, as ofand for the 12-month period ending December 31, 2018 (the“Reporting Period”), as set forth in Appendix A hereto. The transactionscovered by this report, include commercial mortgage-asset-backed securitiestransactions, as listed on Exhibit 1 hereto, for which the Asserting Partyserved as special servicer, and that were registered with the Securities andExchange Commission pursuant to the Securities Act of 1933 (the “Platform”); 2. The Asserting Party has engaged certainvendors, which are not servicers as defined in Item 1101(j) of Regulation AB(the “Vendors”), to perform specific, limited or scripted activities, and theAsserting Party elects to take responsibility for assessing compliance with theservicing criteria or portion of the servicing criteria applicable to suchVendors’ activities as set forth in Appendix A hereto; 3. Except as set forth in paragraph 4 below,the Asserting Party used the criteria set forth in paragraph (d) of Item1122 of Regulation AB to assess the compliance with the applicable servicingcriteria; 4. The criteria listed in the column titled“Inapplicable Servicing Criteria” on Appendix A hereto are inapplicable to theAsserting Party based on the activities it performs, directly or through itsVendors, with respect to the Platform; 5. The Asserting Party has complied, in allmaterial respects, with the applicable servicing criteria as ofDecember 31, 2018 and for the Reporting Period with respect to thePlatform taken as a whole; 6. The Asserting Party has not identified andis not aware of any material instance of noncompliance by the Vendors with theapplicable servicing criteria as of December 31, 2018 and for theReporting Period with respect to the Platform taken as a whole; 7. The Asserting Party has not identified anymaterial deficiency in its policies and procedures to monitor the compliance bythe Vendors with the applicable servicing criteria as of December 31, 2018and for the Reporting Period with respect to the Platform taken as a whole; and 8. Deloitte & Touche LLP, anindependent registered public accounting firm, has issued an attestation reporton the Asserting Party’s assessment of compliance with the applicable servicingcriteria for the Reporting Period. October 18, 2019 Name: Adam Singer Title: Managing Director Signature: /s/ Adam Singer Exhibit1 \| Pooling and Servicing Agreements \| Reporting Period \| \|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------\|-----------------------------------------\| \| WFRBS 2012-C8 \| January 1, 2018 to December 31, 2018 \| \| WFCM 2012-LC5 \| January 1, 2018 to December 31, 2018 \| \| UBS-Barclays 2012-C3 \| January 1, 2018 to December 31, 2018 \| \| UBS-Barclays 2012-C4 \| January 1, 2018 to December 31, 2018 \| \| GSMS 2012-GCJ9 \| January 1, 2018 to December 31, 2018 \| \| JPMCC 2012-LC9 \| January 1, 2018 to December 31, 2018 \| \| COMM 2013-LC6 \| January 1, 2018 to December 31, 2018 \| \| WFRBS 2013-C12 \| January 1, 2018 to December 31, 2018 \| \| UBS-Barclays 2013-C6 \| January 1, 2018 to December 31, 2018 \| \| GSMS 2013-GCJ12 \| January 1, 2018 to December 31, 2018 \| \| WFRBS 2013-C14 \| January 1, 2018 to December 31, 2018 \| \| WFRBS 2011-C5 \| January 1, 2018 to December 31, 2018 \| \| WFCM 2013-LC12 \| January 1, 2018 to December 31, 2018 \| \| WFRBS 2011-C2 \| January 1, 2018 to December 31, 2018 \| \| WFRBS 2011-C3 \| January 1, 2018 to December 31, 2018 \| \| WFRBS 2011-C4 \| January 1, 2018 to December 31, 2018 \| \| UBS-Citigroup 2011-C1 \| January 1, 2018 to December 31, 2018 \| \| UBS 2012-C1 \| January 1, 2018 to December 31, 2018 \| \| WFRBS 2012-C6 \| January 1, 2018 to December 31, 2018 \| \| GSMS 2011-GC3 \| January 1, 2018 to December 31, 2018 \| \| COMM 2013-LC13 \| January 1, 2018 to December 31, 2018 \| \| WFRBS 2013-C16 \| January 1, 2018 to December 31, 2018 \| \| GSMS 2013-GCJ16 \| January 1, 2018 to December 31, 2018 \| \| WFRBS 2013-C17 \| January 1, 2018 to December 31, 2018 \| \| GSMS 2012-GC6 \| January 1, 2018 to December 31, 2018 \| \| MSBAM 2013-C13 \| January 1, 2018 to December 31, 2018 \| \| COMM 2014-CCRE14 \| January 1, 2018 to December 31, 2018 \| \| MSBAM 2014-C14 \| January 1, 2018 to December 31, 2018 \| \| WFRBS 2014-LC14 \| January 1, 2018 to December 31, 2018 \| \| COMM 2014-LC15 \| January 1, 2018 to December 31, 2018 \| \| WFRBS 2014-C20 \| January 1, 2018 to December 31, 2018 \| \| COMM 2014-CCRE18 \| January 1, 2018 to December 31, 2018 \| \| CGCMT 2014-GC23 \| January 1, 2018 to December 31, 2018 \| \| MSBAM 2014-C17 \| January 1, 2018 to December 31, 2018 \| \| COMM 2014-UBS5 \| January 1, 2018 to December 31, 2018 \| \| MSBAM 2014-C18 \| January 1, 2018 to December 31, 2018 \| \| COMM 2012-CCRE4 \| January 1, 2018 to December 31, 2018 \| \| COMM 2012-LC4 \| January 1, 2018 to May 31, 2018 \| \| WFRBS 2014-C24 \| January 1, 2018 to December 31, 2018 \| \| JPMBB 2014-C25 \| January 1, 2018 to December 31, 2018 \| \| LCCM 2014-909 \| January 1, 2018 to December 31, 2018 \| \| WFCM 2014-LC18 \| January 1, 2018 to December 31, 2018 \| \| COMM 2015-DC1 \| January 1, 2018 to December 31, 2018 \| \| GSMS 2015-GC28 \| January 1, 2018 to December 31, 2018 \| \| WFCM 2015-C27 \| January 1, 2018 to December 31, 2018 \| \| WFCM 2015-LC20 \| January 1, 2018 to December 31, 2018 \| \| WFCM 2015-NXS1 \| January 1, 2018 to December 31, 2018 \| \| CSAIL 2015-C2 \| January 1, 2018 to December 31, 2018 \| \| WFCM 2015-NXS2 \| January 1, 2018 to December 31, 2018 \| \| COMM 2015-PC1 \| January 1, 2018 to December 31, 2018 \| \| CSAIL 2015-C3 \| January 1, 2018 to December 31, 2018 \| \| WFCM 2015-SG1 \| January 1, 2018 to December 31, 2018 \| \| WFCM 2015-LC22 \| January 1, 2018 to December 31, 2018 \| \| COMM 2015-CCRE27 \| January 1, 2018 to December 31, 2018 \| \| WFCM 2015-NXS4 \| January 1, 2018 to December 31, 2018 \| \| MSCI 2015-UBS8 \| January 1, 2018 to December 31, 2018 \| \| CSAIL 2016-C5 \| January 1, 2018 to December 31, 2018 \| \| WFCM 2016-C32 \| January 1, 2018 to December 31, 2018 \| \| WFCM 2016-NXS5 \| January 1, 2018 to December 31, 2018 \| \| CGCMT 2015-GC27 (Special Servicer solely for the Boca Hamptons Plaza Portfolio Loan prior to July 5, 2018 and named Special Servicer under the applicable Pooling and Servicing Agreement from and after July 5, 2018 through December 31, 2018) \| January 1, 2018 to December 31, 2018 \| \| WFCM 2016-C33 \| January 1, 2018 to December 31, 2018 \| \| MSBAM 2016-C29 \| January 1, 2018 to December 31, 2018 \| \| CFCRE 2016-C4 \| January 1, 2018 to December 31, 2018 \| \| GSMS 2016-GS2 (Special Servicer solely for the Veritas Multifamily Pool 2 only) \| January 1, 2018 to December 31, 2018 \| \| BACM 2016-UBS10 \| January 1, 2018 to December 31, 2018 \| \| SGCMS 2016-C5 \| January 1, 2018 to December 31, 2018 \| \| WFCM 2016-BNK1 \| January 1, 2018 to December 31, 2018 \| \| CD 2016-CD1 \| January 1, 2018 to December 31, 2018 \| \| GSMS 2016-GS3 \| January 1, 2018 to December 31, 2018 \| \| MSBAM 2016-C31 \| January 1, 2018 to December 31, 2018 \| \| CGCMT 2016-C3 \| January 1, 2018 to December 31, 2018 \| \| CFCRE 2016-C6 \| January 1, 2018 to December 31, 2018 \| \| CSAIL 2016-C7 \| January 1, 2018 to December 31, 2018 \| \| MSCI 2016-UBS12 \| January 1, 2018 to December 31, 2018 \| \| BBCMS 2017-C1 \| January 1, 2018 to December 31, 2018 \| \| GSMS 2017-GS5 \| January 1, 2018 to December 31, 2018 \| \| CGCMT 2017-P7 \| January 1, 2018 to December 31, 2018 \| \| BANK 2017-BNK4 \| January 1, 2018 to December 31, 2018 \| \| CD 2017-CD4 \| January 1, 2018 to December 31, 2018 \| \| CFCRE 2017-C8 \| January 1, 2018 to December 31, 2018 \| \| JPMCC 2017-JP6 \| January 1, 2018 to December 31, 2018 \| \| CD 2017-CD5 \| January 1, 2018 to December 31, 2018 \| \| GSMS 2017-GS7 \| January 1, 2018 to December 31, 2018 \| \| BANK 2017-BNK7 \| January 1, 2018 to December 31, 2018 \| \| CSAIL 2017-CX9 \| January 1, 2018 to December 31, 2018 \| \| UBS 2017-C4 \| January 1, 2018 to December 31, 2018 \| \| UBS 2017-C6 \| January 1, 2018 to December 31, 2018 \| \| BANK 2017-BNK9 \| January 1, 2018 to December 31, 2018 \| \| GSMS 2018-GS9 \| March 29, 2018 to December 31, 2018 \| \| UBS 2018-C9 \| March 29, 2018 to December 31, 2018 \| \| MSCI 2012-C5 \| April 13, 2018 to December 31, 2018 \| \| WFCM 2018-C44 \| May 17, 2018 to December 31, 2018 \| \| UBS 2018-C10 \| May 31, 2018 to December 31, 2018 \| \| WFCM 2015-C30 \| July 5, 2018 to December 31, 2018 \| \| JPMBB 2014-C23 \| July 5, 2018 to December 31, 2018 \| \| MSBAM 2014-C19 \| July 5, 2018 to December 31, 2018 \| \| COMM 2015-LC21 \| July 5, 2018 to December 31, 2018 \| \| MSBAM 2015-C20 \| July 5, 2018 to December 31, 2018 \| \| JPMBB 2015-C31 \| July 5, 2018 to December 31, 2018 \| \| GSMS 2018-GS10 \| July 30,2018 to December 31, 2018 \| \| CD 2018-CD7 \| August 24, 2018 to December 31, 2018 \| \| GSMS 2018-3PCK \| September 27, 2018 to December 31, 2018 \| \| BANK 2018-BNK14 \| September 27, 2018 to December 31, 2018 \| \| DBGS 2018-C1 \| October 30, 2018 to December 31, 2018 \| \| CSAIL 2018-C14 \| November 29, 2018 to December 31, 2018 \| \| UBS 2018-C14 \| December 12, 2018 to December 31, 2018 \| APPENDIX A \| Servicing Criteria \| \| \| \|------------------------\|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------\|-------------------------------------------------------------------\| \| Reference \| Criteria \| Performed by Servicer \| Inapplicable Servicing Criteria \| \| \| \| General Servicing Considerations \| \| \| \| \| 1122(d)(1)(i) \| Policies and procedures are instituted to monitor any performance or other triggers and events of default in accordance with the transaction agreements. \| X \| \| \| \| 1122(d)(1)(ii) \| If any material servicing activities are outsourced to third parties, policies and procedures are instituted to monitor the third party’s performance and compliance with such servicing activities. \| X1 \| \| \| \| 1122(d)(1)(iii) \| Any requirements in the transaction agreements to maintain a back-up servicer for the pool assets are maintained. \| \| X \| \| \| 1122(d)(1)(iv) \| A fidelity bond and errors and omissions policy is in effect on the party participating in the servicing function throughout the reporting period in the amount of coverage required by and otherwise in accordance with the terms of the transaction agreements. \| X \| \| \| \| 1122(d)(i)(v) \| Aggregation of information, as applicable, is mathematically accurate and the information conveyed accurately reflects the information. \| X \| \| \| \| \| Cash Collection and Administration \| \| \| \| \| 1122(d)(2)(i) \| Payments on pool assets are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days following receipt, or such other number of days specified in the transaction agreements. \| X \| \| \| \| 1122(d)(2)(ii) \| Disbursements made via wire transfer on behalf of an obligor or to an investor are made only by authorized personnel. \| \| X3 \| \| \| 1122(d)(2)(iii) \| Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for such advances, are made, reviewed and approved as specified in the transaction agreements. \| \| X3 \| \| \| 1122(d)(2)(iv) \| The related accounts for the transaction, such as cash reserve accounts or accounts established as a form of overcollateralization, are separately maintained (e.g., with respect to commingling of cash) as set forth in the transaction agreements. \| X \| \| \| \| 1122(d)(2)(v) \| Each custodial account is maintained at a federally insured depository institution as set forth in the transaction agreements. For purposes of this criterion, “federally insured depository institution” with respect to a foreign financial institution means a foreign financial institution that meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act. \| X \| \| \| \| 1122(d)(2)(vi) \| Unissued checks are safeguarded so as to prevent unauthorized access. \| X \| \| \| \| 1122(d)(2)(vii) \| Reconciliations are prepared on a monthly basis for all asset-backed securities related bank accounts, including custodial accounts and related bank clearing accounts. These reconciliations are (A) mathematically accurate; (B) prepared within 30 calendar days after the bank statement cutoff date, or such other number of days specified in the transaction agreements; (C) reviewed and approved by someone other than the person who prepared the reconciliation; and (D) contain explanations for reconciling items. These reconciling items are resolved within 90 calendar days of their original identification, or such other number of days specified in the transaction agreements. \| X \| \| \| \| \| Investor Remittances and Reporting \| \| \| \| \| 1122(d)(3)(i) \| Reports to investors, including those to be filed with the Commission, are maintained in accordance with the transaction agreements and applicable Commission requirements. Specifically, such reports (A) are prepared in accordance with timeframes and other terms set forth in the transaction agreements; (B) provide information calculated in accordance with the terms specified in the transaction agreements; (C) are filed with the Commission as required by its rules and regulations; and (D) agree with investors’ or the trustee’s records as to the total unpaid principal balance and number of pool assets serviced by the Servicer. \| X4 \| \| \| \| 1122(d)(3)(ii) \| Amounts due to investors are allocated and remitted in accordance with timeframes, distribution priority and other terms set forth in the transaction agreements. \| \| X \| \| \| 1122(d)(3)(iii) \| Disbursements made to an investor are posted within two business days to the Servicer’s investor records, or such other number of days specified in the transaction agreements. \| \| X \| \| \| 1122(d)(3)(iv) \| Amounts remitted to investors per the investor reports agree with cancelled checks, or other form of payment, or custodial bank statements. \| \| X \| \| \| \| Pool Asset Administration \| \| \| \| \| 1122(d)(4)(i) \| Collateral or security on pool assets is maintained as required by the transaction agreements or related mortgage loan documents. \| X \| \| \| \| 1122(d)(4)(ii) \| pool asset and related documents are safeguarded as required by the transaction agreements \| X \| \| \| \| 1122(d)(4)(iii) \| Any additions, removals or substitutions to the asset pool are made, reviewed and approved in accordance with any conditions or requirements in the transaction agreements. \| X \| \| \| \| 1122(d)(4)(iv) \| Payments on pool assets, including any payoffs, made in accordance with the related pool asset documents are posted to the Servicer’s obligor records maintained no more than two business days after receipt, or such other number of days specified in the transaction agreements, and allocated to principal, interest or other items (e.g., escrow) in accordance with the related pool asset documents. \| \| X2 \| \| \| 1122(d)(4)(v) \| The Servicer’s records regarding the pool assets agree with the Servicer’s records with respect to an obligor’s unpaid principal balance. \| \| X \| \| \| 1122(d)(4)(vi) \| Changes with respect to the terms or status of an obligor's pool assets (e.g., loan modifications or re-agings) are made, reviewed and approved by authorized personnel in accordance with the transaction agreements and related pool asset documents. \| X \| \| \| \| 1122(d)(4)(vii) \| Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated, conducted and concluded in accordance with the timeframes or other requirements established by the transaction agreements. \| X \| \| \| \| 1122(d)(4)(viii) \| Records documenting collection efforts are maintained during the period a pool asset is delinquent in accordance with the transaction agreements. Such records are maintained on at least a monthly basis, or such other period specified in the transaction agreements, and describe the entity’s activities in monitoring delinquent pool assets including, for example, phone calls, letters and payment rescheduling plans in cases where delinquency is deemed temporary (e.g., illness or unemployment). \| X \| \| \| \| 1122(d)(4)(ix) \| Adjustments to interest rates or rates of return for pool assets with variable rates are computed based on the related pool asset documents. \| \| X \| \| \| 1122(d)(4)(x) \| Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such funds are analyzed, in accordance with the obligor’s pool asset documents, on at least an annual basis, or such other period specified in the transaction agreements; (B) interest on such funds is paid, or credited, to obligors in accordance with applicable pool asset documents and state laws; and (C) such funds are returned to the obligor within 30 calendar days of full repayment of the related pool assets, or such other number of days specified in the transaction agreements. \| \| X \| \| \| 1122(d)(4)(xi) \| Payments made on behalf of an obligor (such as tax or insurance payments) are made on or before the related penalty or expiration dates, as indicated on the appropriate bills or notices for such payments, provided that such support has been received by the Servicer at least 30 calendar days prior to these dates, or such other number of days specified in the transaction agreements. \| \| X \| \| \| 1122(d)(4)(xii) \| Any late payment penalties in connection with any payment to be made on behalf of an obligor are paid from the Servicer’s funds and not charged to the obligor, unless the late payment was due to the obligor’s error or omission. \| \| X \| \| \| 1122(d)(4)(xiii) \| Disbursements made on behalf of an obligor are posted within two business days to the obligor’s records maintained by the Servicer, or such other number of days specified in the transaction agreements. \| \| X \| \| \| 1122(d)(4)(xiv) \| Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in accordance with the transaction agreements. \| \| X \| \| \| 1122(d)(4)(xv) \| Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction agreements. \| \| X \| \| \| \| \| \| \| \| \| X1-RialtoCapital Advisors, LLC performs the activities pertaining to this criterion, exceptfor specific, limited activities performed by its third-party property managersrelating to REO Property, if any. Rialto has elected to takeresponsibility for assessing compliance with these servicing criteria withrespect to the activities of its third-party property managers. X2-Primaryresponsibility for processing borrower payments rests with the Master Servicer,however, Rialto Capital Advisors, LLC may from time to time receive payments onan exception basis which are forwarded to the Master Servicer in accordancewith such criteria. The criteria is marked inapplicable as Rialto CapitalAdvisors, LLC had no instances or activity relating to this criteria for thecalendar year of January 1, 2018 to December 31, 2018 X3-RialtoCapital Advisors, LLC performs the activities under the criteria, however therelated criteria are marked inapplicable as Rialto did not haveinstances/activity during the calendar year of January 1, 2018 and ending onDecember 31, 2018 relating to the criteria. X4-Only items(A) and (B) of the Servicing Criteria are applicable to Rialto CapitalAdvisors, LLC as special servicer. Items (C) and (D) are inapplicable asthe responsibility for filing reports with the Commission and agreeing totalsto the Servicer records rests with the Trustee and/or CertificateAdministrator, as applicable.
s3://data.kl3m.ai/documents/edgar/0001136261/0001136261-12-000086/	text/plain	December 31, 2011 Exhibit 10.28 Exhibit 10.28 CAVITATION TECHNOLOGIES, INC. COMMON STOCK AND WARRANT PURCHASE AGREEMENT This Common Stock and Warrant Unit Purchase Agreement (the "Agreement") is made as of December 4, 2009, among Cavitation Technologies, Inc., a Nevada corporation (the "Company") and Star Tech Electric Co (the "Investor"). The Investor understands that the Company proposes to offer and sell to the Investor 220,470 shares of its Common Stock at a purchase price of $0.17 per share and to issue to the Investor a 3 year warrant to purchase 220,470 shares of Common Stock at an exercise price of $0.42 per share. 1.Purchase and Sale of Common Stock and the Warrants. a. Common Stock and the Warrants i.The Common Stock. Subject to the terms and conditions of this Agreement, the Investor agrees to purchase from the Company 220,470 shares of Company Common Stock at a purchase price of $0.17 per share for an aggregate purchase price of $37,480.00. ii.The Warrants. Subject to the terms and conditions of this Agreement, the Investor agrees to purchase and the Company agrees to issue to the Investor at the Closing a Warrant in the form of Exhibit A to purchase 220,480 shares of Common Stock of the Company exercisable at $0.42 per share. The securities for which the Warrants are exercisable into are referred to as the "Warrant Common". iii.The Securities. The Common Stock, the Warrants and the Warrant Common shall collectively be referred to as the "Securities". b. Initial Closing. The purchase and sale of the Units shall take place at the offices of the Company at 10019 Canoga Avenue, Chatsworth, California 91311 ("Closing"). At the Closing, the Company shall deliver to the Investor the Securities, which such Investor is purchasing against delivery to the Company by such Investor of a check, wire transfer, or cancellation of indebtedness in the aggregate amount of the purchase price therefor payable to the Company's order. 2.The Company's Representations and Warranties. The Company represents and warrants to the Investor as follows: a.Organization and Standing. The Company is a corporation duly organized and validly existing under the laws of the State of Nevada. b.Authorization. The execution, delivery and performance of this Agreement by the Company has been duly authorized by all requisite corporate action, and this Agreement constitutes the legal, valid and binding obligation of the Company enforceable in accordance with its terms, subject as to enforcement of remedies to applicable bankruptcy, insolvency, reorganization or similar laws relating to or affecting the enforcement of creditors' rights. The execution, delivery and performance of this Agreement and compliance with the provisions hereof by the Company does not conflict with, or result in a breach or violation of the terms, conditions or provisions of, or constitute a default (or an event with which the giving of notice or passage of time, or both could result in a default) under, or result in the creation or imposition of any lien pursuant to the terms of, the Articles of Incorporation or the Bylaws of the Company. c.Securities. When issued pursuant to the terms of this Agreement, the Securities will be validly issued, fully paid and nonassessable, and will be free of any liens or encumbrances caused or created by the Company; provided, however, that the Securities shall be subject to restrictions on transfer under state or federal securities laws as set forth in this Agreement or otherwise required at the time a transfer is proposed. 3.Representations, Warranties of Investor and Restrictions on Transfer a.Representations and Warranties of Investor. The Investor represents and warrants to the Company with respect to the purchase of Securities under this Agreement as follows: i.This Agreement constitutes the Investor's valid and legally binding obligation, enforceable in accordance with its terms. ii.The Investor is acquiring the Securities for its own account for investment purposes only and not with a view to, or for the resale in connection with, any "distribution" thereof for purposes of the Securities Act of 1933, as amended (the "Act"). The Investor understands that the Securities have not been registered under the Act or any applicable state securities laws by reason of a specific exemption therefrom that depends upon, among other things, the bona fide nature of the investment intent as expressed herein. iii.The Investor has discussed the Company and its plans, operations and financial condition with its officers and has received all such information as the Investor deems necessary and appropriate to enable the Investor to evaluate the financial risk inherent in making an investment in the Securities. The Investor has received satisfactory and complete information concerning the business and financial condition of the Company in response to the Investor's inquiries. iv.The Investor realizes that the acquisition of the Securities will be a highly speculative investment. The Investor is able, without impairing the Investor's financial condition, to hold the Securities for an indefinite period of time and to suffer a complete loss of the Investor's investment. The Investor recognizes that the Company has only recently been organized and that it has a limited financial and operating history and the investment in the Company involves substantial risks. The Investor understands all of the risks related to the acquisition of the Securities. By virtue of the Investor's experience in evaluating and investing in private placement transactions of securities in companies similar to the Company, the Investor is capable of evaluating the merits and risks of the Investor's investment in the Company and has the capacity to protect the Investor's own interests. v.The Investor understands that the Securities must be held indefinitely unless subsequently registered under the Act or unless an exemption from registration is otherwise available. Moreover, the Investor understands that the Company is under no obligation to register the Securities. The Investor is aware of Rule 144 promulgated under the Act that permits limited resale of securities purchased in a private placement subject to the satisfaction of certain conditions. The Investor understands that the Securities will be imprinted with a legend which prohibits the transfer of the Securities unless they are registered or such registration is not required in the opinion of counsel for the Company. b.Legends. In addition to any legend imposed by state securities laws, each certificate representing the Securities shall be endorsed with the following legends: THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. The Company need not register a transfer of Securities unless the conditions specified in the foregoing legends are satisfied. The Company may also instruct its transfer agent not to register the transfer of any of the Securities unless the conditions specified in the foregoing legends are satisfied. c.Removal of Legends and Transfer Restrictions. The legend relating to the Act endorsed on a stock certificate pursuant to paragraph 4(b) of this Agreement and the stop transfer instructions with respect to such Securities shall be removed and the Company shall issue a stock certificate without such legend to the holder of such Securities if such Shares are registered under the Act and a prospectus meeting the requirements of Section 10 of the Act is available, or if such holder provides to the Company an opinion of counsel for such holder of the Shares or Note reasonably satisfactory to the Company or a no-action letter or interpretive opinion of the staff of the Commission to the effect that a public sale, transfer or assignment of such Shares or Note may be made without registration and without compliance with any restriction such as Rule 144. Any legend imposed by state securities laws will be removed if the state agency imposing such legend has consented to its removal. 4.Miscellaneous. a.Governing Law. This Agreement shall be governed in all respects by the laws of the State of Nevada without regard to the conflict of law provisions thereof. b.Survival. The representations and warranties contained herein shall survive the execution and delivery of this Agreement and the sale of the Securities. c.Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto. d.Entire Agreement. This Agreement embodies the entire understanding and agreement between each Investor and the Company and supersedes all prior agreements and understandings relating to the subject matter hereof. e.Notices, etc. All notices and other communications required or permitted hereunder shall be effective upon receipt and shall be in writing and may be delivered in person, by telecopy, electronic mail, overnight delivery service or U.S. mail, addressed (a) if to an Investor, at his or her address set forth opposite such Investors name on the last page of this Agreement, or at such other address as such Investor shall have furnished the Company in writing, or (b) if to the Company, at the address of its principal office, or at such other address as the Company shall have furnished to the Investor in writing. f.Titles and Subtitles. The titles of the paragraphs and subparagraphs of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. g.Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. h.Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and the holders of a majority of the Securities. Any amendment or waiver effected in accordance with this Section shall be binding upon each holder of any securities purchased under this Agreement at the time outstanding (including securities into which such securities are convertible), each future holder of all such securities, and the Company. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the day and year first written above. COMPANY:CAVITATION TECHNOLOGIES, INC. a Nevada corporation By: /s/Roman Gordon Roman Gordon, CEO INVESTOR: $ 37,480 Amount of Investment STAR TECH ELECTRIC CO BY: /s/____________________ [Signature page to Cavitation Technologies, Inc. Common Stock and Warrant Financing] Warrant No. C- Initially Issued December 4, 2009 THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. STOCK PURCHASE WARRANT To Purchase Common Stock of CAVITATION TECHNOLOGIES, INC. For value received, the Cavitation Technologies, Inc. a Nevada corporation (the "Company") hereby grants to Star Tech Electric Co (the "Investor"), and his assigns, the right to purchase from the Company 220,470 shares of Common Stock (the "Shares"). The exercise price per Share shall be $0.42 per Share. The amount and kind of securities purchasable under this Warrant, and the Purchase Price, are subject to adjustment as provided below. 1.Title of Warrant. Prior to the expiration hereof and subject to compliance with applicable laws, this Warrant and all rights hereunder are transferable, in whole or in part, at the office or agency of the Company referred to in Section 2(a) below, by the registered holder hereof (the "Holder") in person or by duly authorized attorney, upon surrender of this Warrant and the Assignment Form attached hereto properly endorsed. 2.Exercise of Warrant. (a)The purchase rights represented by this Warrant are exercisable by the Holder, in whole or in part, at any time before the close of business on December 4, 2012 by the surrender of this Warrant and the Notice of Exercise attached hereto duly executed at the office of the Company (or such other office or agency of the Company as it may designate in writing to the Holder at the address of the Holder appearing on the books of the Company), and upon payment of the Purchase Price of the shares thereby purchased (by cash, check, or cancellation of indebtedness of the Company to the Holder, if any, at the time of exercise in an amount equal to the purchase price of the shares thereby purchased); whereupon the Holder shall be entitled to receive a certificate for the number of shares of Common Stock so purchased. The Company agrees that upon due exercise of this Warrant by the Holder, the shares so purchased shall be and be deemed to be issued to the Holder as the record owner of such shares as of the close of business on the date on which this Warrant is exercised. 1 (b)In lieu of the cash payment set forth in Section 2(a) above, the Holder shall have the right ("Conversion Right") to convert this Warrant in its entirety (without payment of any kind) into that number of Shares of Common Stock equal to the quotient obtained by dividing the Net Value (as defined below) of the Shares by the Fair Market Value (as defined below) of one share of Common Stock. As used herein, (A) the Net Value of the Shares means the aggregate Fair Market Value of the Common Stock subject to this Warrant minus the aggregate purchase price; and (B) the Fair Market Value of one share of Common means the 5 day closing average price of the Company's Common Stock immediately preceding the conversion. (c)Certificates for shares purchased hereunder shall be delivered to the Holder within a reasonable period of time after the date on which this Warrant is exercised. (d)The Company covenants that all shares of Common Stock which may be issued upon the exercise of this Warrant will be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue). 3.No Fractional Shares or Scrip. No fractional shares or scrip representing fractional share shall be issued upon the exercise of this Warrant. With respect to any fraction of a share called for upon the exercise of this Warrant, an amount equal to such fraction multiplied by the current Purchase Price at which each share may be purchased hereunder shall be paid in cash to the Holder. 4.Charges, Taxes and Expenses. Issuance of certificates for shares of Common Stock upon the exercise of this Warrant shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such certificate, all of which taxes and expenses shall be paid by the Company, and such certificates shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided however that in the event certificates for shares of Common Stock are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder; and provided further that upon any transfer involved in the issuance or delivery of any certificates for shares of Common Stock, the Company may require reimbursement for any transfer tax. 5.No Rights as Shareholder. This Warrant does not entitle the Holder to any voting rights or other rights as a Shareholder of the Company prior to the exercise hereof. 6.Exchange and Registry of Warrant. This Warrant is exchangeable, upon the surrender hereof by the Holder at the above-mentioned office or agency of the Company, for a new Warrant of like tenor and dated as of such exchange. The Company shall maintain at such office or agency a registry showing the name and address of the Holder. This Warrant may be surrendered for exchange, transfer or exercise, in accordance with its terms, at such office or agency of the Company, and the Company shall be entitled to rely in all respects, prior to written notice to the contrary, upon such registry. 2 7.Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it, and upon reimbursement to the Company of all reasonable expenses incidental thereto, and upon surrender and cancellation of such Warrant, if mutilated, the Company will make and deliver a new Warrant of like tenor and dated as of such cancellation, in lieu of this Warrant. 8.Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall be a Saturday or a Sunday or shall be a legal holiday, then such action may be taken or such right may be exercised on the next succeeding day not a legal holiday. 9.Adjustment and Termination. (a)Early Termination on Merger, etc. If at any time the Company proposes to (i) merge with or into any other corporation, effect a reorganization, or sell or convey all or substantially all of its assets to any other entity in a transaction in which the shareholders of the Company immediately before the transaction own immediately after the transaction less than a majority of the outstanding voting securities of the surviving entity (or its parent) (a "Merger Transaction"), or (ii) effect a registered public offering of its shares, then the Company shall give the holder of this Warrant ten (10) days notice of the proposed effective date of the transaction and, if the Warrant has not been exercised by the effective date of the transaction, it shall terminate. (b)Reclassification, etc. If the Company at any time shall, by subdivision, combination or reclassification of securities or otherwise, change any of the securities to which purchase rights under this Warrant exist into the same or a different number of securities of any class or classes, the Shares of Common Stock for which this Warrant is exercisable shall thereafter be convertible into the kind and number of Common Stock or other securities or property of the Company or otherwise to which the Holder would have been entitled if immediately prior to such change the Holder had acquired the Common Stock for which this Warrant is exercisable. If shares of the Company's Common Stock or other securities purchasable hereunder are subdivided or combined into a greater or smaller number of securities, the Purchase Price under this Warrant shall be proportionately reduced in case of subdivision of shares of Common Stock or proportionately increased in the case of combination of shares of Common Stock. No adjustment on account of cash dividends or interest on the Shares of Common Stock interests or other securities purchasable hereunder will be made to the Purchase Price under this Warrant. 3 (c)Notice of Adjustment. Upon any adjustment of the securities issuable upon exercise of this Warrant, Purchase Price for the shares, and/or any increase or decrease in the number of shares purchasable upon the exercise of this Warrant, the Company shall give written notice thereof, by first class mail, postage prepaid, addressed to the Holder at the address of the Holder as shown on the books of the Company. (d)Authorized Shares. The Company covenants that during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock or other securities purchasable hereunder a sufficient number of shares to provide for the issuance of Shares of Common Stock or other securities upon the exercise of any purchase rights under this Warrant. 10.Miscellaneous. (a)Issue Date. The provisions of this Warrant shall be construed and shall be given effect in all respect as if it had been issued and delivered by the Company on the date hereof. This Warrant shall be binding upon any successors or assigns of the Company. This Warrant shall constitute a contract under the laws of the State of California and for all purposes shall be construed in accordance with and governed by the laws of said state. (b)Restrictions. The Holder of this Warrant, by acceptance hereof, makes the representations of an Investor under Section 3 of the Purchase Agreement and shall confirm such representations upon any exercise of this Warrant. The Holder acknowledges that the securities acquired upon the exercise of this Warrant may have restrictions upon its resale imposed by state and federal securities laws. (c)Modification and Waiver. This Warrant and any provisions hereof may be changed, waived, discharged or terminated only by an instrument in writing signed by the party against which enforcement of the same is sought. (d)Notices. All notices, reports and other communications required or permitted hereunder shall be in writing and may be delivered in person, by telecopy with written confirmation, overnight delivery service or U.S. mail, in which event it may be mailed by first-class, certified or registered, postage prepaid, addressed to the Holder at its address as shown on the books of the Company or to the Company at its address of record. 4 Each such notice, report or other communication shall for all purposes under this Warrant be treated as effective or having been given when delivered if delivered personally or, if sent by mail, at the earlier of its receipt or 72 hours after the same has been deposited in a regularly maintained receptacle for the deposit of the United States mail, addressed and mailed as aforesaid, or, if sent by telecopier with written confirmation, at the earlier of (i) 24 hours after confirmation of transmission by the sending telecopier machine or (ii) delivery of written confirmation. Dated: December 4, 2009 CAVITATION TECHNOLOGIES, INC By:/s/ Roman Gordon Title:CEO 5 ASSIGNMENT FORM (To assign the foregoing Warrant, execute this form and supply the required information. Do not use this form to purchase shares.) FOR VALUE RECEIVED, the undersigned hereby, sells, assigns and transfers unto: ________________________________________________________________________ whose address is ___________________________________________________ (Please Print) and whose Social Security or other Taxpayer Identification Number is: __________________ the foregoing Warrant and all rights thereunder, hereby constituting and appointing ______________________________________ to transfer said Warrant on the books of the Company, will full power of substitution in the premises. Dated: ______________, 20__. Holder's Signature: ______________________________ Holder's Name: ____________________________ (Please Print) Holder's Address: ______________________________ (Please Print) ____________________________ Signature Guaranteed: ____________________________________________ NOTE: The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatever, and must be guaranteed by a bank or trust company or by a member of the National Association of Securities Dealers, Inc. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Warrant. 6 NOTICE OF EXERCISE To:Cavitation Technologies, Inc. 10019 Canoga Ave Chatsworth, CA 91311 (1)The undersigned hereby elects to purchase ______________ shares of Common Stock of (the "Shares") of Cavitation Technologies, Inc. pursuant to the terms of the attached Warrant, and tenders herewith payment of the purchase price in full, together with all applicable transfer taxes, if any. (2)Please issue a certificate or certificates representing the Shares in the name of the undersigned or in such other name as is specified below: ____________________________________ (Print Name) ____________________________________ (Print Address) ____________________________________ (3)The undersigned confirms that the Shares are being acquired for the account of the undersigned for investment only and not with a view to, or for resale in connection with, the distribution thereof and that the undersigned has no present intention of distributing or selling the Shares. _________________________________ (Date) _________________________________ (Signature) _________________________________ (Print Name) 7
s3://data.kl3m.ai/documents/recap/gov.uscourts.caed.183563/gov.uscourts.caed.183563.241.0.pdf.json	text/markdown	1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ----oo0oo---- DALE M. WALLIS, D.V.M., JAMES L. WALLIS, and HYGIEIA BIOLOGICAL LABORATORIES, INC., a California Corporation, Plaintiffs, v. CENTENNIAL INSURANCE COMPANY, INC., a New York corporation, and ATLANTIC MUTUAL INSURANCE, CO., INC., a New York corporation, Defendants, / AND RELATED COUNTERCLAIMS AND THIRD-PARTY COMPLAINT. / NO. CIV. 2:08-02558 WBS GGH ORDER ----oo0oo---- All the parties have filed objections (See Docket Nos. 234, 235, 238.) the Final Pretrial Order (“Order”), (Docket No. 233), filed in this case on August 7, 2013. 1 Case 2:08-cv-02558-WBS-AC Document 241 Filed 08/16/13 Page 1 of 31 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. Defendants’ Objection to the Final Pretrial Order Pursuant to defendants request, the Order is amended such that no later than seven calendar days before the trial date, counsel for each party shall file trial briefs pursuant to Local Rule 16-285. II. Third-Party Defendant Mendoza’s Objections to the Order Pursuant to defendant Mendoza’s objection, the Order is amended to add as Mendoza’s exhibits those documents listed on pages 14-15 of her Objections and Requests for Modification to the Court’s Final Pretrial Order. (TPD’s Objections at 14:28- 15:26 (Docket No. 235).) Mendoza’s exhibits shall bear numbers, commencing with the first number not used by plaintiffs. All issues raised in defendant Mendoza’s objections that have not been ruled upon in prior orders will be dealt with at the time of trial. III. Plaintiffs’ Objections to the Order A. Bond Even if defendants were required to post a bond pursuant to sections 1616 et seq. of the California Insurance Code by virtue of becoming insolvent during this action, plaintiffs’ request, on the eve of trial, is untimely. By May 1, 2012, plaintiffs knew that the court would not stay this case because of defendants’ liquidations. (See May 1, 2012 Order (Docket No. 141).) On that same date, the court also lifted the stay over all claims not subject to arbitration. (Id. at 8:6-9.) Plaintiffs have since allowed the case to proceed for over a year without any request for a bond. They provide no explanation as 2 Case 2:08-cv-02558-WBS-AC Document 241 Filed 08/16/13 Page 2 of 31 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to why they waited until this late date to request a bond. The 1 bond request also remains insufficiently documented. B. Default of Atlantic Mutual Plaintiffs’ request for a hearing before trial on the issue of Atlantic Mutual’s default is also untimely. Plaintiffs did not raise the issue of Atlantic Mutual’s failure to file a timely answer at the pretrial conference held on August 5, 2013. At that time, the answer was already late. Immediately after plaintiffs raised the issue in their objections to the Order, Atlantic Mutual filed its answer. (See Docket No. 239.) Counsel for Atlantic Mutual states that the failure to file the answer by August 2, 2013 was a mistake. (Evans Decl. ¶ 10 (Docket No. 239- 2).) As it appears that there will be no prejudice to plaintiffs because the answer was eleven days late, the court denies plaintiffs’ request for a hearing on whether default should be entered as to Atlantic Mutual. IT IS SO ORDERED. DATED: August 16, 2013 Plaintiffs now object to Atlantic Mutual filing an 1 answer to the First Amended Complaint without first posting a bond. They made no such objection when Centennial filed its answer to the First Amended Complaint on April 18, 2013. (See Docket No. 218.) 3 Case 2:08-cv-02558-WBS-AC Document 241 Filed 08/16/13 Page 3 of 3
s3://data.kl3m.ai/documents/recap_docs/1999/06/01/USA_v._Salinas_1.pdf.json	text/plain	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. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-30130 Summary Calendar UNITED STATES of AMERICA, Plaintiff-Appellee, versus SANTIAGO SALINAS, Defendant-Appellant. Appeal from the United States District Court for the Western District of Louisiana (96-CR-20021-1) May 28, 1999 Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges. PER CURIAM: Santiago Salinas pleaded guilty to conspiracy to possess cocaine with intent to distribute. He then filed a notice of appeal. Salinas’ court-appointed trial counsel filed a motion for leave to withdraw on the ground that the appeal was frivolous because the appellant had entered a voluntary plea of guilty and the district court’s denial of a downward departure was not reviewable on appeal. In his brief in support of his motion to withdraw, counsel demonstrated that he had conscientiously examined 2 the record, and knew of no arguable issues which could be presented on appeal. The Court advised the appellant of his right under Anders v. California, 386 U.S. 738 (1967) to answer counsel's motion by filing a response setting forth any points he claims are appealable. The appellant failed to submit any such brief or reply. In conformity with the guidelines established by Anders, we have reviewed the record and are impelled to agree with counsel's characterization of the appeal as totally frivolous. Accordingly, we dismiss the appeal and grant counsel's motion to withdraw. DISMISSED.
s3://data.kl3m.ai/documents/recap/gov.uscourts.cand.204016.9.0.pdf.json	text/plain	Case 4:08-cv-02816-WDB Document 9 Filed 08/20/2008 Page 1 of 2 Case 4:08-cv-02816-WDB Document 9 Filed 08/20/2008 Page 2 of 2
s3://data.kl3m.ai/documents/cap/11696515.json	text/markdown	No. 96-8236. #### Knight v.United States. C. A. 8th Cir. Cer-tiorari denied.
s3://data.kl3m.ai/documents/edgar/0001193125/0001193125-07-043376/3.json	text/markdown	Exhibit 10.8 LEASE AGREEMENT THIS AGREEMENT BETWEEN Sitterly Associates, LLC c/o Abele Builders, Inc., 14 Corporate Drive, Clifton Park, New York 12065 as Landlord And Daystar Technologies Inc., 900 Golden Gate Terrace, Suite A, Grass Valley, California 95945 as Tenant WITNESSETH: The Landlord hereby leases to the Tenant the following premises: approximately 18,000 square feet, at 13 Corporate Drive (the Building), Town of Clifton Park, Saratoga County, New York (the Premises or Demised Premises), for the term (Term) of five (5) years to commence from the later to occur of the 1st day of July ,2004 or Substantial Completion (defined below) of Landlordss Work (Commencement Date) and to end on the 30th day of June 2009, to be used and occupied only for office/warehouse space and light manufacturing upon conditions and covenants following: 1st. That the Tenant shall pay the annual rent of One Hundred Seventeen Thousand and 00/100 ($117,000.00) Dollars, said rent to be paid in equal monthly payments in advance on the 1st day of each and every month during the term aforesaid, as follows: Nine Thousand Seven Hundred Fifty and 00/100 ($9,750.00) Dollars per month commencing on the first day of the first month and each and every month thereafter. Furthermore, if said rent is not received by the Landlord on or before the 10th day of the month, a 4% late charge will be added to rent and shall be paid with rent. 2nd. That the Tenant shall take good care of the Premises and shall, at the Tenants own cost and expense make all repairs except repairs to or replacement of heat, ventilation and air conditioning, plumbing, structural roof and mechanical systems (the Landlords items) which are the responsibility of the landlord, and at the end or other expiration of the term, shall deliver up the Demised Premises in good order or condition, damages by the elements excepted. 3rd. That the Tenant shall promptly execute and comply with all statutes, ordinances, rules, orders, regulations and requirements of the Federal, State and Local Governments and of any and all their Departments and Bureaus applicable to said premises, for the correction, prevention, and abatement of nuisances or other grievances, in, upon, or connected with said premises during said term; and shall also promptly comply with and execute all rules, orders and regulations of the New York Board of Fire Underwriters, or any other similar body, at the Tenants own cost and expense. Landlord warrants and represents (i) that on the Commencement Date, the Demised Premises will comply with all statutes, ordinances, rules, orders, regulations and requirements of the Federal, State and Local Governments and of any and all their Departments and Bureaus applicable to the Demised Premises and (ii) that any Local Government approvals necessary for occupancy of the Demised Premises by Tenant and the conduct of Tenants intended business therein have been obtained and are in full force and effect, except any approvals that are required because of the nature of the Tenants business (e.g., special use permits). 4th. That the Tenant, successors, heirs, executors or administrators shall not assign this agreement, or underlet or underlease the premises, or any part thereof, or make any alternations on the premises, without the Landlords consent in writing, which consent shall not be unreasonably withheld; or occupy, or permit or suffer the same to be occupied for any business or purpose deemed disreputable or extra-hazardous on account of fire, under the penalty of damages and forfeiture, and in the event of a breach thereof, the term herein shall immediately cease and determine at the option of the Landlord as if it were the expiration of the original term. 5th. Tenant must give Landlord prompt notice of fire, accident, damage or dangerous or defective condition. If the Premises can not be used because of fire or other casualty, Tenant is not required to pay rent for the time the Premises are unusable. If part of the Premises can not be used, Tenant must pay rent for the usable part. Landlord shall have the right to decide which part of the Premises is usable. Landlord need only repair the damaged structural parts of the premises. Landlord is not required to repair or replace any equipment, fixtures, furnishings or decorations unless originally installed by Landlord. Landlord is not responsible for delays due to settling insurance claims, obtaining estimates, labor and supply problems or any other cause not fully under Landlords control. If the fire or other casualty is caused by an act of neglect of Tenant, Tenants employees or invitees, or at the time of the fire or casualty Tenant is in default in any term of this Lease, then all repairs will be made at Tenants expense and Tenant must pay the full rent with no adjustment. The cost of the repairs will be added rent. Landlord has the right to demolish or rebuild the Building if there is substantial damage by fire or other casualty. Landlord may cancel this Lease within 30 days after the substantial fire --- or casualty by giving Tenant notice of Landlords intention to demolish or rebuild; if no notice is given, this Lease shall be deemed cancelled. Tenant shall have the right to terminate the lease if 35% or greater of manufacturing/warehouse space of the Building has been rendered unusable, provided that Tenant gives Landlord notice of termination prior to the date, if any, on which Landlord gives Tenant notice of Landlords intention to rebuild. This Lease will end 30 after (a) Landlords cancellation notice to Tenant, (b) Tenants cancellation notice to Landlord, or (c) the date on which this Lease is deemed cancelled. Tenant must deliver the Premises to Landlord on or before the cancellation date in the notice and pay all rent due to the date of the fire or casualty. If the Lease is cancelled Landlord is not required to repair the Premises or Building. The cancellation does not release Tenant of liability in connection with the fire or casualty. This Section is intended to replace the terms of New York Real Property Law Section 227. If there is substantial damage by fire or other casualty not caused by an act or neglect of Tenant, Tenants employees or invitees, Tenant may cancel this Lease if Landlord fails to rebuild the Building and deliver possession of the rebuilt Demised Premises within six (6) months after the date of Landlords notice to intention to rebuild. 6th.The said Tenant agrees that the said Landlord and the Landlords agents and other representatives shall have the right to enter into and upon said premises, or any part thereof, at all reasonable hours on reasonable notice if possible for the purpose of examining the same, or making such repairs or alternations therein as may be necessary for the safety and preservation thereof. 7th. The Tenant also agrees to permit the Landlord or the Landlords agents to show the premises to persons wishing to hire or purchase the same at all reasonable hours on reasonable notice where possible; and the Tenant further agrees that on and after the sixth month, next preceding the expiration of the term hereby granted, the Landlord or the Landlords agents shall have the right to place notices on the front of said premises, or any part thereof, offering the premises To Let or For Sale, and the Tenant hereby agrees to permit the same to remain thereon without hindrance or molestation. 8th. That if the default be made in the payment of the said rent or any part thereof, or if any default be made in the performance of any of the covenants herein contained, including but not limited to any anticipatory breach or default which Tenant fails to cure within ten (10) days after written notice of such default, the Landlord or Landlords representatives may re-enter the said premises by force, summary proceedings or otherwise, and remove all persons therefrom, without being liable to prosecution therefor, and the Tenant hereby expressly waives the service of any notice in writing of intention to re-enter, and the Tenant shall pay at the same time as the rent becomes payable under the terms hereof a sum equivalent to the rent reserved herein and additional rent or other charges reserved herein, and the Landlord may rent the premises on behalf of the Tenant, reserving the right to rent the premises for a longer period of time than fixed in the original lease without releasing the original Tenant from any liability, applying any moneys collected, first to the expense of resuming or obtaining possession, second to restoring the premises to a rentable condition, and then to the payment of the rent and all other charges due and to become due to the Landlord, any surplus to be paid to the Tenant, who shall remain liable for any deficiency. Landlord shall also have the option of accelerating all sums, including rent, additional rent and other charges, becoming due under the terms hereof after the date of such breach or default. If landlord exercise such option, the Present Value (hereinafter define) as all such sums shall become immediately due and payable as of the date on which Landlord notifies Tenant of Landlords exercises of its option to accelerate as hereinabove provided, together with all sums past due. As used herein, the term Present Value means the present value of all sums due under the terms hereof after the date of Tenants breach or default, discounted at the rate of eight (8%) percent per annum. 9th. Landlord may replace, at the expense of Tenant, any and all broken glass in and about the Demised Premises, such broken glass caused by carelessness, negligence or improper conduct on the part of the said Tenant or the Tenants agents or employees. Damage and injury to the Premises or the common areas of the building on which the Premises is located, including the Landlords items, caused by the carelessness, negligence or improper conduct on the part of the said Tenant or the Tenants agents or employees shall be repaired as speedily as possible by the Tenant at the Tenants own cost and expense, or if Tenant fails to do so, by the Landlord at the expense of Tenant. 10th. That the Tenant shall neither encumber nor obstruct the sidewalk in front of, entrance to, or halls and stairs of said premises, nor allow the same to be obstructed or encumbered in any manner. 11th. The Tenant shall neither place, or cause or allow to be placed, any sign or signs of any kind whatsoever at, in or about the entrance to said premises or any other part of same, except in or at such place or places as may be indicated the Landlord and consented to by the Landlord in writing. And in case the Landlord or the Landlords representatives shall deem it necessary to remove any such sign or signs in order to paint the said premises or the building wherein same is situated or make any other repairs, alterations or improvements in or upon said premises or building or any part thereof, the Landlord shall have the right to do so, providing the same be removed and replaced at the Landlords expense, whenever said repairs, alterations or improvements shall be completed. Landlord shall provide directory signs for the tenants in the building in the first floor and second floor lobbies. The cost of manufacture of Tenants signs in the above referenced directory signs, and any replacement thereof, shall be borne by Tenant. --- 12th. Intentionally Deleted. 13th. Intentionally Deleted. 14th. That this instrument shall not be a lien against said premises in respect to any mortgages that are now on or that hereafter may be placed against said premises, and that the recording of such mortgage or mortgages shall have preference and precedence and be superior and prior in lien of this lease, irrespective of the date of recording and the tenant agrees to execute without cost, any such instrument which maybe deemed necessary or desirable to further effect the subordination of this lease to any such mortgage or mortgages, In the event Tenant fails to execute any such instrument, Tenant herby authorizes Landlord to execute any such instrument with the same force as effect as if executed by Tenant. In the alternative, Landlord shall have the option of canceling this Lease without incurring any expense or damage and the term hereby granted shall be expressly limited accordingly. Notwithstanding the foregoing, Landlord shall provide a subordination, non-disturbance and attornment agreement (SNDA) in the form used by Landlords mortgage holder which Tenant shall execute and Landlord shall cause to be executed by the mortgage lender. 15th. The Tenant has this day deposited with the Landlord the sum of Five Thousand Five Hundred Ninety and 00/100 ($5,590.00) Dollars as security for the full and faithful performance by the Tenant of all the terms, covenants and conditions of this lease upon the Tenants part to be performed, which said sum shall be returned to the Tenant after the time fixed as the expiration of the term herein, provided the Tenant has fully and faithfully carried out all of said terms, covenants and conditions on Tenants part to be performed. In the event of a bona fide sale, subject to this lease, the Landlord shall have the right to transfer the security to the vendee for the benefit of the Tenant and the Landlord shall be considered released by the Tenant from all liability for the return of such security; and the Tenant agrees to look to the new Landlord solely for the return of the said security, and it is agreed that this shall apply to every transfer or assignment made of the security to a new Landlord. 16th. That Tenant shall not mortgage or otherwise encumber Tenants leasehold interest in the Premises or the security deposited under this Lease, and shall not assign the security except in connection with an assignment to which Landlord consents pursuant to Paragraph 4thhereof. 17th. It is expressly understood and agreed that if the Tenant shall file or there be filed against Tenant a petition in bankruptcy or arrangement, or Tenant be adjudicated a bankrupt or make an assignment for the benefit of creditors or take advantage of any insolvency act, the Landlord may, if the Landlord so elects, at any time thereafter terminate this lease and the term hereof , on giving to the Tenant five days notice in writing of the Landlords intention so to do, and this lease and the term hereof shall expire and come to an end on the date fixed in such notice as if the said date were the date originally fixed in this lease for the expiration hereof. Such notice may be given by mail to the Tenant addressed to the demised premises. 18th. That the Tenant will not nor will the Tenant permit undertenants or other persons to do anything in said premises, or bring anything into said premises, or permit anything to be brought into said premises or to be kept therein, which will in any way increase the rate of fire insurance on said demised premises, nor use the demised premises or nay part thereof, nor suffer or permit their use for any business or purpose which would cause an increase in the rate of fire insurance on said building, and the Tenant agrees to pay on demand any such increase. 19th. The failure of the Landlord to insist upon a strict performance of any of the terms, conditions and covenants herein, shall not be deemed a waiver of any rights or remedies that the Landlord may have, and shall not be deemed a waiver of any subsequent breach or default in the terms, conditions and covenants herein contained. The failure of the Tenant to insist upon a strict performance of any of the terms, conditions and covenants herein, shall not be deemed a waiver of any rights or remedies that the Tenant may have, and shall not be deemed a waiver of any subsequent breach of default in the terms, conditions and covenants herein contained. This instrument may not be changed, modified, discharged or terminated orally. 20th. If the whole or any part of the demised premises shall be acquired or condemned by Eminent Domain for any public or quasi public use or purpose, then and in that event, the term of this lease shall cease and terminate from the date of title vesting in such proceeding and Tenant shall have no claim against Landlord for the value of any unexpired term of said lease. No part of any award shall belong to the Tenant. 21st. If after default in payment of rent or violation of any other provision of this lease, or upon the expiration of this lease, the Tenant moves out or is dispossessed and fails to remove any trade fixtures or other property prior to such said default, removal expiration of lease, or prior to the issuance of the final order or execution of the warrant, then and in that event, the said fixtures and property shall be deemed abandoned by the said Tenant and shall become the property of the Landlord. --- 22nd.It is mutually agreed between Landlord and Tenant that the respective parties hereto shall and herby do waive trial by jury in any action, proceeding or counterclaim brought by either of the parties against the other on any matters whatsoever arising out of or in any way connected with this lease, the Tenants use or occupancy of said premises, and/or any claim of injury or damage. 23rd.The Tenant waives all rights to redeem under any law of the State of New York. 24th.This lease and the obligation of Tenant to pay rent hereunder and perform all of the other covenants and agreements hereunder on part of Tenant to be performed shall in nowise be affected, impaired or excused because Landlord is unable to supply or is delayed in supplying any service expressly or impliedly to be supplied or is unable to make, or is delayed in making any repairs, additions alternations or decorations or is unable to supply or is delayed in supplying any equipment or fixtures if Landlord is prevented or delayed from so doing by reason of governmental preemption in connection with a National Emergency or in connection with any rule, order or regulation of any department or subdivision thereof of any governmental agency or by reason of the condition of supply and demand which have been or are affected by ware or other emergency. 25th.No diminution or abatement of rent, or other compensation, shall be claimed or allowed for inconvenience or discomfort arising from the making of repairs or improvements to the building or to its appliances, nor for any space taken to comply with any law, ordinance or order of a governmental authority. In respect to the various services, if any, herein expressly or impliedly agreed to be furnished by the Landlord to the Tenant, it is agreed that there shall be no diminution or abatement of the rent, or any other compensation, for interruption or curtailment of such service when such interruption or curtailment shall be due to accident, alternations or repairs desirable or necessary to be made or to inability or difficulty in securing supplies or labor for the maintenance of such service or to some other cause, not negligence on the part of the Landlord. No such interruption or curtailment of any such service shall be deemed a constructive eviction. The Landlord shall not be required to furnish, and the Tenant shall not be entitled to receive, any of such services during any period wherein the Tenant shall be in default in respect to the payment of rent. Neither shall there be any abatement or diminution of rent because of making of repairs, improvements or decorations to the demised premises after the date above fixed for the commencement of the term, it being understood that rent shall, in any event, commence to run at such date so above fixed. 26th.Landlord shall not be liable for failure to give possession of the premises upon commencement date by reason of the fact that premises are not ready for occupancy or because a prior Tenant or any other person is wrongfully holding over or is in wrongful possession, or for any other reason. The rent shall not commence until possession is given or is available, but the term herein shall not be extended. And the said Landlord doth covenant that the said Tenant on paying the said yearly rent, and performing the covenants aforesaid, shall and may peacefully and quietly have, hold and enjoy the said demised premises for the term aforesaid, provided however, that this covenant shall be conditioned upon the retention of title to the premises by the Landlord. And it is mutually understood and agreed that the covenants and agreements contained in the within lease shall be binding upon the parties hereto and upon their respective successors heirs, executors and administrators. --- In Witness Whereof, the parties have interchangeably set their hands and seals (or caused these presents to be signed by their proper corporate officers and caused their proper corporate seal to be hereto affixed) this _____ day of _________, 2004. Signed, sealed and delivered \| \| \| \| \| \|------------------ \| \| ------------------------- \| \| \|In the presence of \| \| Sitterly Associates, LLC \| \| \| \| \| /s/ Edward P. Abele L.S. \| \| \| \| \| Daystar Technologies Inc. \| \| \| \| \| /s/ John R. Tuttle L.S. \| \| \| \| \| \|------------------ \| \| - \| \| --- \|State of New York \| \| } \| \| \| \| \| } \| \| ss. \|County of Saratoga \| \| } \| \| On the 25day of May in the year 2004 before me, the undersigned, a Notary Public in and for said State, personally appeare John R. Tuttle personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/ their capacity(ies) and that by his/her/their signatures on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. \| \| \| \|------------------------------------ \| \| -------------------- \|PHYLLIS MILLIMAN \| \| \|Notary Public, State of New York \| \| \|No. 4992115 \| \| /s/ Phyllis Milliman \|Qualified in Schenectady County \| \| Notary Public \|Commission Expires February 18, 2006 \| \| \| \| \| \| \| \|------------------ \| \| - \| \| --- \|State of New York \| \| } \| \| \| \| \| } \| \| ss. \|County of Saratoga \| \| } \| \| On the 25day of May in the year 2004 before me, the undersigned, a Notary Public in and for said State, personally appeared Edward Abele personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in he/her/their capacity(ies) and that by his/her/their signature(s) on the instrument, the individual(s) or the person upon behalf of which the individual(s) acted, executed the instrument. \| \| \| \|------------------------------------ \| \| -------------------- \|PHYLLIS MILLIMAN \| \| \|Notary Public, State of New York \| \| \|No. 4992115 \| \| /s/ Phyllis Milliman \|Qualified in Schenectady County \| \| Notary Public \|Commission Expires February 18, 2006 \| \| In Consideration of the letting of the premises within mentioned to the within named Tenant and the sum of $1.00 paid to the undersigned by the within named Landlord, the undersigned do hereby covenant and agree, to and with the Landlord and the Landlords legal representatives, that if default shall at any time be made by the said Tenant in the payment of the rent and the performance of the covenants contained in the within lease, on the Tenants part to be paid and performed, that the undersigned will well and truly pay the said rent, or any arrears thereof, that may remain due unto the said Landlord, and also pay all damages that may arise in consequence of the non-performance of said covenants, or either of them, without requiring notice of any such default from the said Landlord. The undersigned hereby waives all right to trial by jury in any action or proceeding hereinafter instituted by the Landlord, to which the undersigned may be a party. In Witness Whereof, the undersigned has set hand and seal this day of ,2004 \| \| \| \| \| \|------- \| \| \| \| ---- \|WITNESS \| \| \| \| L.S.
s3://data.kl3m.ai/documents/uspto/07415696.json	text/markdown	# Patent ## Title Extensible help facility for a computer software application ## Abstract Content obtained from a help file containing at least two interactive links in a sequence may be displayed in a help facility. Each interactive link may be associated with at least one user-activated step in a computer software application to perform in connection with a help topic according to the sequence so that once a user activates one of these links out of sequence, an operation in the computer software application may be invoked to effect the at least one user-activated step. ## Background CROSS-REFERENCE TO RELATED APPLICATIONS The present application is a continuation of U.S. patent application Ser. No. 09/966,806, now U.S. Pat. No. 7,024,658 filed on Sep. 28, 2001, entitled “Extensible Help Facility For A Computer Software Application,” which is incorporated herein in its entirety. TECHNICAL FIELD The present application relates to a help facility for a computer software application. BACKGROUND Many computer software applications, such as word processors, image editors, spreadsheets, email clients, and the like, include a help facility to aid users in performing discrete operations and/or comprehensive tasks in the application. Help facilities come in many different forms including wizards, which present a sequence of steps for a user to perform to accomplish a particular task, context-sensitive help systems, which automatically display help topics relevant to the current state of the application, and conventional text-based help systems which present a user with an index that can be manually searched to look for a help topic of interest. FIG. 1 shows a screenshot of a help facility for Adobe Acrobat®—an application for viewing, editing and creating documents in the Portable Document Format (PDF). As shown in FIG. 1, a user of the Acrobat application would be presented with a window 100 within a graphical user interface (GUI) that includes a menu bar 104 providing access to various drop-down menus, various graphical buttons 103 that, when selected, place the application in different modes and/or provide the user with access to different tools, and a workspace 105 for displaying sub-windows containing PDF documents. In this screenshot, the workspace 105 includes two sub-windows—one to display a PDF document 102 (manual.pdf), which for example the user is viewing or editing, and another window to display a PDF document 106 (Acrohelp.pdf), which is a guide containing the help information for the application. The user may invoke the help system, thereby bringing up the help document 102, by selecting the Help menu item on the menu bar 104. Once opened, the user can navigate the help guide using various different mechanisms. For example, the user can scroll through the help guide as if reading a book by using the scrolling controls 113 for the window 106. Alternatively, the user can select a particular bookmark, such as “Annotating PDF Documents” bookmark 108, which will cause a corresponding help page 110 to be presented to the user. The user also can jump to desired locations within the help guide by selecting (e.g., clicking on) links with a help page, such as link 112 in page 110. The link 112 points to another page (for example, “Using the annotation tools”) within the help guide and, upon being clicked, causes that page to be displayed in the window 106. In any event, the user can peruse the help guide to gather information about how to use various features of the application to perform operations and tasks. SUMMARY The present inventors recognized that conventional help systems tended to be difficult or inflexible to extend, and/or limited in the ability to instruct users how to operate the application. Consequently, the present inventors developed a help facility that is easily and flexibly extendible, easy to use, and provides intelligent and interactive interoperability with the application for which help is being sought. Implementations of the help facility described here may include various combinations of the following features. In one aspect, a help facility for a computer software application is provided by enabling an author to generate one or more help files that specify content to be displayed and at least one interactive link (e.g., a hyperlink, a hotspot or a graphical button) that, when activated, performs an operation in the computer software application associated with the specified content. The help facility is enabled to access, while executing, the generated one or more help files upon detecting that the one or more help files exist in a predetermined location within a local file structure accessible to the help facility. Prior to enabling the help facility to access the generated help file, the help file may be placed in the predetermined location in the hierarchical file structure, for example, either by the author of the help file or automatically by a software process. The generated help files may be retrieved from an external source, for example, a remote resource on a network or a removable storage medium. Enabling the help facility to access the help files may include displaying the one or more help files as a help page in the help facility. Alternatively, or in addition, enabling the help facility to access the generated one or more help files may include causing the help facility to traverse the local file structure to identify existing help files. The help facility may dynamically generate a listing of available help topics, and/or a table of contents file, based on help files identified during traversal. The help facility may be caused to detect the existence of one or more help files in response to a user action or automatically, for example, when a change in a help file or the addition of a new help file is detected. Enabling an author to generate one or more help files may include enabling the author to record a sequence of one or more user activities performed in the computer software application. Alternatively, or in addition, enabling the author to generate one or more help files may include providing a markup language extension that enables an activity in the computer software application to be performed indirectly. The operation in the computer software application associated with the interactive link may be an atomic step of a complex operation or may involve a plurality of steps associated with a complex operation. Moreover, the operation in the computer software application associated with the interactive link may correspond to a menu item in a graphical user interface of the computer software application or may correspond to an operation available through an application program interface of the computer software application. In another aspect, a help facility for a computer software application may be provided by enabling a computer software application to record a sequence of one or more user operations performed within the computer software application, and enabling a user to generate one or more help files that that specify help content to be presented and at least one interactive link that, when activated, performs the recorded sequence of one or more operations. The generated help files may be displayed as a help page in the help facility. The help facility may be enabled to access the generated one or more help files, while executing, upon detecting that the one or more files exist in a predetermined location within a local file structure accessible to the help facility. In response to user input, the help facility may selectively perform the one or more operations associated with the interactive link based on a state of the computer application. Such selective performance of the one or more operations may, for example, involve refraining from attempting to perform an operation if the computer software application is in an improper state for performing the operation. The help facility further may inform the user of one or steps to undertake to place the computer software application in a proper state to perform the operation. In another aspect, a help facility for a computer software application may be controlled by enabling a user to generate one or more help files that specify content to be presented and at least one interactive link that, when activated, performs an operation in the computer software application associated with the content. The help facility is enabled to detect a state of the computer software application and to selectively cause the operation to be performed by the computer software application based on the detected state. The help facility may refrain from causing the operation to be performed if the computer software application is in improper state for performing the operation. Moreover, the user may be information of one or steps to undertake to place the computer software application in a proper state to perform the operation. In another aspect, an extensible help facility for a computer software application may include a graphical user interface for communicating with a user, help files arranged in a hierarchical file structure, and software processes configured to perform operations such as (i) enabling a user to generate or modify help files that specify content to be displayed and include an interactive link that, when activated, performs an operation in the application associated with the specified content, (ii) causing the help facility, while executing, to access the generated help files upon detecting that the help files exist in a predetermined location within the hierarchical file structure, and/or (iii) causing the help facility to detect a state of the computer software application and to selectively cause an operation corresponding to an interactive link to be performed by the computer software application based on the detected state. One or more of the following advantages may be provided. The systems and techniques described here may result in a help facility that can be easily extended using standard document formats (e.g., HTML, PDF, MS Word, etc.) and standard editing environments, which, for example, do not require extensive programming experience or knowledge of the help facility's application program interface (API). Moreover, the help facility may be able to recognize and access newly generated or newly retrieved help files without having to re-start the help facility or its associated application. The help files that the help facility uses are able not only to display instructive content (e.g., text) to the user, but also can include interactive links (e.g., hyperlinks, hotspots or graphical buttons) that, when activated, cause the help facility to drive the application (that is, perform one or more operations in the application). By doing so, the help facility may provide an enhanced ability to explain to the user the individual steps involved in accomplishing a particular task. Accordingly, help files can be generated, retrieved and/or modified to customize the help facility to a specific user, environment, or context. Moreover, by examining the application's current state before attempting to drive the application, the help facility can provide intelligent interoperability with the application such that, for example, the help facility will refrain from instructing the application to perform operations that are inappropriate or impossible based on the application's current state. Details of one or more embodiments are set forth in the accompanying drawings and the description below. Other features, objects, and advantages will be apparent from the description and drawings, and from the claims. DRAWING DESCRIPTIONS FIG. 1 is a screenshot of an application with a help guide window. FIG. 2 is a block diagram of an extensible help facility that can interact with a computer application. FIGS. 3A-3D are screenshots showing an example of using an interactive help facility. FIG. 4 is a flowchart of a method of using an interactive help facility. FIG. 5 is a screenshot showing an example of alerting a user when an application cannot be performed by the help facility. FIG. 6 is a diagram of a file structure that may be used with an extensible help facility. FIG. 7 is a flowchart of a method for extending a help facility. FIGS. 8A-8C are screenshots showing an example of extending a help facility. Details of one or more embodiments are set forth in the accompanying drawings and the description below. Other features and advantages will be apparent from the description and drawings, and from the claims. DETAILED DESCRIPTION FIG. 2 is a block diagram of an extensible help facility 200 that can interact with a computer software application 202. The help facility 200 and the computer software application may reside and execute on the same computer system platform 215, for example, a personal computer running an operating system such as Microsoft Windows or Apple Mac OS. The help facility 200, which can be implemented as a separate program or, can be embedded partially or entirely in the computer software application 202, can provide commands 212 or other instructions to the application in order to “drive” the application—that is, to perform operations in the application 202. These operations can be operations that are available through the application's GUI, for example, such as those made available to a user through menu items, graphical buttons, and the like, or they can be “built-in” operations, which typically are not available or transparent to users, but rather can be invoked only through the application's API. Moreover, the help facility 200 can cause the application 202 either to perform a single atomic operation or any arbitrary sequence of operations. Depending on the preferences of the system designer, the help facility 200 may be able to access all or only a subset the application's potentially available operations. The help facility 200 also may be able to collect from the application 202, or otherwise examine, state information 214 relating to the application's current state (e.g., whether a work file is currently open or closed, attributes of the work file, the application's current mode of operation, etc.). As described in more detail below, this state information 214 can be used by the help facility 200 to determine whether the application is in a proper or correct state to perform a particular operation. A user 210, for example, a human user or an automated entity such as a computer process, can interact with the help facility 200 and/or the application 202 in order to accomplish tasks or learn about how to operate the application 202. When the user 210 interacts with the help facility 200, for example, the user can cause the help facility 200 to selectively display help files 204 having content (e.g., text, images) that instructs the user about how to operate the application 202 and how to use it to accomplish desired goals. The help files 204 also may include one or more interactive links that, when selected or otherwise activated by the user, cause the help facility to send commands 212 to the application to perform a particular operation or set of operations. The help files 204 may be stored in a predetermined location, for example, in a logical arrangement in a hierarchical file structure local to (e.g., on the same computer system platform 215 as) the help facility 200. Upon being launched and/or refreshed, the help facility 200 may examine the file structure and use the help files that it finds to dynamically build a table of contents of, and pointers to, available help topics for presentation to the user. The user 210 may interact with an editing application 206 (e.g. HTML editor, word processor, or PDF file writer) to create new help files or modify existing help files. These new or modified help files then can be accessed by the help facility 200 upon recognizing the existence of the new help files within the file structure, for example, either automatically, or upon being instructed to refresh the help facility's awareness of the currently available help files. The help files 204 can be generated using standard formats such as HTML, PDF, MS Word, or virtually any other format that supports text or other content display and the ability to embed links to external resources. Alternatively, or in addition, new or modified help files can be received from an external source 208 such as a website accessible through a network connection or a removable medium such as a CD-ROM or floppy disk. FIGS. 3A-3D are screenshots showing an example of using an interactive help facility, referred to as “Recipes,” provided with the Adobe Photoshop Elements® image editing application. A Recipe is a set of instructions that may be followed by a user to learn how to accomplish a task in the application. A Recipe may include not only instructional content such as text that can be read by a user, but also interactive links that, when selected or otherwise activated, may cause an operation to be performed in the application. In one implementation, the instructions provided to the user, as well as any operations for which interactive links may be provided, are purposefully limited to performing atomic operations—that is, single, constituent steps—in the application so that the user gains a detailed understanding of how to perform the task under consideration. However, a Recipe could include instructional steps and/or interactive links that result in two or more operations being performed concurrently, or consecutively, while making their individual details transparent to the user. As shown in FIG. 3A, the application window 300 may include a menu bar 302 and a work space 304 in which subwindows can be displayed, such as subwindow 310 in which an image 312 has been opened and displayed. The Recipes help facility is presented in a separate window 306, which need not be bounded by the application window 300 as shown in FIG. 3A, but rather can be moved and resized to appear as a separate window on the computer's desktop. In the implementation shown, the help files are created and stored as standard HTML files and the Recipes window 306 is an instance of a browser that retrieves and displays the HTML-based help files. However, other implementations could use help files in other formats (e.g., PDF, MS Word) and a suitable renderer for rendering help files in the chosen format. The Recipes window 306 includes a dropdown menu 308 that includes five different Recipe categories 309, each of which contains one or more individual Recipes under that category. The dropdown menu 308 also includes a menu option 311 for downloading new Recipes from a remote source, such as a website accessible on the Internet. In this example, assume that a user selects the Recipe category “Add Elements” from the dropdown menu 308. In that case, the Recipe window 306 changes its appearance to display the ten different Recipes 314 that fall under the Add Elements category 316. Each of the ten different Recipes 314 is represented as a hyperlink that, when clicked, causes the help facility to jump to an associated help file stored at a specified location in the file structure. For example, if the user clicks the link for the “Add a Drop Shadow or Bevel” Recipe, the Recipe window 306 retrieves the help file pointed at by the HREF associated with that link and displays it as shown in FIG. 3C. As shown in FIG. 3C, the “Add a Drop Shadow or Bevel” Recipe 317 includes five steps, numbered 1 through five, and two interactive links 318, 320, also referred to as “Do it for me” buttons. The user can now examine and experiment with this Recipe 317 in a non-modal manner. That is, unlike conventional wizards, a Recipe does not constrain the user as to which steps to perform or the order in which they are performed. For example, the user may chose click button 320 before clicking button 318, even though button 320 is associated with step 5 and button 318 is associated with step 2. Or the user may chose to forego clicking either or both of the buttons. As a result of this non-modal behavior, the Recipe help facility provides a user with enhanced flexibility and experimentation opportunities. In the typical contemplated interaction with a Recipe, however, the user will read and follow each of the Recipe steps in order, and click the “Do it for me” buttons in the appropriate sequence, in order to learn how to perform the task under consideration—in this example, adding a drop shadow or a bevel to an image. Accordingly, after reading the text associated with steps 1 and 2, a user typically will click “Do it for me” button 318, which will cause the help facility to instruct the application to perform the corresponding function. In this example, as indicated by the text in step 2, clicking button 318 will cause the application to display the “Layer Styles” palette 322 as shown in FIG. 3D. Also as indicated by text accompanying step 2, clicking button 318 has the same effect as if the user had clicked the “Window” menu header from the menu bar and then had moved the cursor down and selected the “Show Layer Styles” menu item 326. Accordingly, by providing users with text describing how to perform steps and with interactive buttons that can perform those steps automatically, the Recipes help facility represents an easy-to-use yet effective tool for learning how to use an application. In order to allow the interactive links in Recipes help files to cause the application to perform operations, any of three extensions to standard HTML may be used: PlayAction(<Action set name>, <Action name>) PlayMenuByName(<unique_menu_item_name>) PlayBuiltinCommand(<keyword>) A link in an HTML file can specify one of these extensions as an attribute in order to cause the application to perform one or more specified operations. PlayAction(<Action set name>, <Action name>) is an HTML extension that enables predefined “Actions” to be performed. As used herein, an “Action” is a type of macro defining a set of one or more application operations. Typically, Actions are implemented as files in a predetermined format and having an “.atn” extension. Both Adobe Photoshop® and Photoshop Elements® provide the ability to play pre-defined Actions and Photoshop® further provides the ability to create new Actions by recording a sequence of user activities. In the example Recipe shown in FIG. 3C (“Add a Drop Shadow or Bevel”), the corresponding HTML file defining that Recipe includes two PlayAction( ) statements—one to invoke the Action associated with “Do it for me” button 318 (i.e., display the Layer Styles palette) and another to invoke the Action associated with “Do it for me” button 320 (i.e., fine tune the style settings). As an example, the format of the first PlayAction( ) statement is as follows: href=“. .\. .\. .\Desktop\PlayAction(photoshop_elements.atn,show_styles)” where “photoshop_elements.atn” is the Action set name, and “show_styles” is the Action name, essentially a pointer to a particular item within the named Action set. PlayMenuByName(<unique_menu_item_name>) can be specified as an attribute of a link in order to perform an operation corresponding to a specified menu item in the application—that is, any menu item that is accessible to the user through the application's GUI. For example, if a link had the attribute PlayMenuByName(Fresco), the application would perform the same operation on an image as if the user had selected Filter>Artistic>Fresco from the menu bar in the application's GUI. PlayBuiltinCommand(keyword) can be specified as an attribute of a link in order to perform an operation corresponding to a “built in” application operation—that is, an operation available through the application's API and typically not accessible or visible to the user through the application's GUI. At initialization, the application loads the HTML renderer/parser used for displaying help files through the help facility (e.g., depending on platform, either Microsoft Internet Explorer for Windows or HTMLRenderingLib for the Apple Mac OS) and registers to be informed whenever the user clicks on a link. In the Apple Mac OS, such registration is accomplished by an API call to RegisterURLToFSSpecCallbackProc(<help facility function>). Consequently, when the renderer/parser detects that a link has been clicked, the specified help facility function is called and the argument(s) are passed. If any of the PlayAction( ), PlayMenuItem( ), or PlayBuiltinCommand( ) attributes have been specified in the link, the help facility function processes the link click. Otherwise, the function simply returns and lets the renderer/parser process the link click. For example, if the user clicks the “Do it for me” button 318 in FIG. 3C, the HTML renderer/parser, based on the prior registration, calls the specified help facility function with the PlayAction( ) attribute and its associated arguments (Action set name, Action name). If the named Action set exists, the help facility causes the specified Action to be played and the corresponding operations are performed by the application. If the named Action does not exist, the help facility fails gracefully, for example, by presenting a pop-up window to the user stating “The command you are trying to run is unavailable.” If the associated help page is located, and being presented to a user, on a remote machine (or server), but the Action set is present locally (i.e., local to the machine or server on which the help facility is executing), the help facility still can drive the application even though the link having the PlayAction( ) attribute originated on a remote machine. FIG. 4 is a flowchart of a process 400 of using an interactive help facility for an application program. First, a user selects a help topic having an interactive link corresponding to operation of the application (e.g., a Recipe having a “Do it for me” button as shown in FIG. 3C) (402). Next, the user selects or otherwise activates the interactive link, for example, by clicking on a “Do it for me” button in a Recipe (404). Next, the process 400 examines the current state of the application to determine whether the application, and/or a work file on which the application is operating, is in a proper state to perform the one or more operations associated with interactive link (406). If the process 400 determines based on the state information that the application operation can and/or should be performed, the operation associated with the interactive link is performed (408, 410). On the other hand, if the process 400 determines based on the state information that the application operation cannot and/or should not be performed, the operation associated with the interactive link is not performed and appropriate action is undertaken, for example, the user is alerted (408, 412). The alert provided to the user either can be a simple notice that the requested operation cannot be performed under the current application state (for example, as shown by popup window 502 in FIG. 5), or the alert can be more elaborate, for example, providing details of why the application's current state prevents performance of the operation and/or listing steps or activities that the user can take to place the application in the correct state for performing the operation associated with the interactive link. In this manner, accordingly, the help facility can fail gracefully when the user requests an application operation not currently performable and potentially can outline corrective measures to place the application in the proper state. As a result, the robustness and instructive value of the help facility may be enhanced. FIG. 6 is a diagram of a file structure 600 that may be used with an extensible help facility. The file structure 600 may be a hierarchical file structure composed of directories, sub-directories, files and links and may, for example, have four levels as shown in FIG. 5: a base directory level 602, a category directory level 604, a help topic (or recipe) level 606, and a help file level 608. The base directory level 602, which for example could be a directory named “Recipes,” represents the highest level in the hierarchy under which the other help facility directories, files and links may be arranged. The category directory level 604 may include one or more sub-directories, for example, each named for a different help topic category such as “Add Elements” or “Rotate and Move.” Each category directory 604 in turn may include at the help topic level 606 one or more sub-directories, each corresponding to a specific help topic. For example, the “Rotate and Move” category directory may include three help topic sub-directories named “Move an Object,” “Rotate an Image,” and “Rotate a Selection.” Each help topic sub-directory in turn may include one or more help files 608 that are used to represent the help content (e.g., instructive text and/or image) and associated interactive links such as “Do it for me” buttons. In one implementation, two help files 608 (e.g., index.html and listing.html) may be used for each help topic or Recipe. In that case, the file index.html may include HTML statements and/or code that collectively define the Recipe's content, layout and interactive links that are presented to the user. The file listing.html may include a link pointing to the corresponding index.html file and specifying the name of the help topic to be displayed to the user in a table of contents. Upon being launched, and/or upon refreshing its knowledge of the contents of the hierarchical file structure 600, the help facility will traverse the file structure 600 and will use the directory names at levels 604 and 606, and the listing.html files at level 608, to build a table of contents and content dynamically. In particular, the name of each category directory residing in level 604 of the file structure is added to a list of available help categories displayed to the user in a menu (see, e.g., the list 309 of five different Recipe categories displayed in dropdown menu 308 in FIG. 3A). Moreover, the listing.html files in level 608 are used to dynamically generate one or more HTML files at level 606 that identify and point to each of the individual help topic's index.html files. For example, each of Recipe1 and Recipe2 under Category in FIG. 6 will have corresponding index.html and listing.html files. When the help facility traverses the file structure 600, the listing.html files for Recipe1 and Recipe2 will be used to automatically generate another HTML file at level 606 that identifies and points to Recipe1's and Recipe2's respective index.html files. Because the help facility may dynamically build and update its available help content in the manner described above, new help categories/topics can be added to the help facility, or existing help categories/topics can be modified, with relative ease and simplicity. For example, the help facility content represented in FIG. 6 (containing two help categories having two Recipes a piece) can be expanded simply by adding at level 604 a category directory (“New Category”) having a sub-directory (“Recipe5”), which in turn includes associated listing.html and index.html files. When the help facility next traverses the file structure, this New Category of help information will be visible to and accessible by the user. FIG. 7 is a flowchart of a process 700 that may be used for extending a help facility, for example, to add new help topics and/or to modify existing help topics. First, help content that is to be used to extend the help facility is generated or retrieved (702). Generating help files may be accomplished by an author creating new help files or modifying existing ones. The author can use a standard editing application to generate a help file, potentially having one or more interactive links, using a standard format such as HTML, PDF, Microsoft Word or the like. An interactive link specified by an author can point to an executable or interpretable resource that causes the application to perform one or more operations, for example, a sequence of related operations defined by a macro such as a Photoshop® Action. The macro either can be predefined, e.g., by another author, or can be generated anew. One method for generating a macro of one or more operations is to create a new Action by recording a series of user activities—a feature available in Adobe Photoshop®. To do so, the author uses various GUI mechanisms such as dialog boxes to specify an Action name, an Action set and to start and stop recording user activities—e.g., selecting menu items, changing application modes, performing operations on images and the like. The recorded activities define the Action, which may be invoked through a specified function key, through the application GUI, or indirectly through the help facility using interactive links. Accordingly, by enabling the generation of new or modified help files and associated macros of application operations in the manner described, authors are provided with a highly flexible and extensible help facility that may be used to customize the help facility for specific contexts or uses. As an alternative to generating new help content, or in addition, the help facility can be extended by retrieving new or modified help content from an external source, for example, from a website accessible via a network or from a removable medium such as a CD-ROM. Retrieving new help content in this manner can be performed either in response to user commands or actions (e.g., selection of the “Download New Recipes” menu item 311 as shown in FIG. 3A), or transparently to the user, for example, based on the automatic detection of updated material being available at a predetermined URL (universal resource locator) address. Next, the generated or retrieved help file(s) are placed at predetermined location(s) within the file structure used by the help facility (704). Placement of the help files can be performed manually by a user or author, or can occur automatically, for example, in the event of downloading new help content from an external source such as a website. Next, the help facility recognizes the existence of new help file(s) in the file structure (706). This recognition can be triggered either by an express user action (e.g., clicking a refresh button in the help facility's GUI) or can occur automatically, for example, by traversing the file structure periodically (e.g., once every 10 seconds) or whenever a change in the file structure is detected. Finally, the help facility makes the new help content accessible to the user, for example, by updating menus or other displays and/or dynamically building new tables of content, to include the identities of and links to the new content (708). FIGS. 8A-8C are screenshots showing an example of extending a help facility by adding a new category of help information. FIG. 8A shows a screenshot of a window 800 showing the contents of the directory “Recipes,” which corresponds to the base level 602 in FIG. 6. Before the new help information category is added, the base level directory includes category directories 801-805, corresponding to the list 309 of five different Recipe categories displayed in dropdown menu 308 in FIG. 3A. In this example, a new category, named “New Recipe Category,” has been retrieved or generated and placed in the appropriate predetermined location in the hierarchical file structure. Although not evident from FIG. 8A, the directory “New Recipe Category” contains at least one sub-directory corresponding to an associated Recipe, which in turn includes corresponding index.html and listing.html files. FIG. 8B shows a screenshot of the help facility's main window 810 in which a user has selected menu item 814 (“Scan For Recipes”) from dropdown menu 812 to cause the help facility to identify new and/or modified help information appearing in the file structure since the help facility's last traversal of the file structure. In response, the help facility traverses the file structure, inserts the names of the category directories located to the dropdown menu 308, and, for each category, dynamically generates an HTML file of the Recipe names under that category, as specified in the Recipe directories' respective listing.html files. As a result, the next time that the user pulls down the dropdown menu 308, as shown in FIG. 8C, the New Recipe Category 816 is displayed and accessible to the user. The help facility accordingly may be extended or updated on-the-fly and without having to terminate and/or re-start the application or the help facility. Various implementations of the systems and techniques described here may be realized in digital electronic circuitry, integrated circuitry, or in computer hardware, firmware, software, or combinations thereof. Other embodiments may be within the scope of the following claims. ## Claims 1. A method comprising: launching a help facility associated with a computer software application; displaying content obtained from a help file containing at least two interactive links in a sequence, each interactive link being associated with at least one user-activated step in the computer software application to perform in connection with a help topic according to the sequence; receiving an input from a user activating one of the interactive links having at least one preceding interactive link in the sequence; and invoking an operation in the computer software application to effect the at least one user-activated step. 2. A method as in claim 1, wherein the operation is invoked via an application programming interface of the computer software application. 3. A method as in claim 1, further comprising: determining whether a state of the computer software application is compatible with the at least one user-activated step; and wherein the operation is invoked only if the state of the computer software program is compatible with the at least one user-activated step. 4. A method as in claim 3, further comprising: informing the user of one or more steps to undertake to place the computer software application in a proper state to perform the operation. 5. A method as in claim 1, further comprising: retrieving the help file from an external source via a communications network. 6. A method as in claim 1, wherein the invoked operation is based on a recorded sequence of actions. 7. A method as in claim 1, wherein the invoked operation corresponds to a menu item in a graphical user interface of the computer software application. 8. A method as in claim 1, wherein the help file specifies content to be presented within the help facility. 9. A help facility for a computer software application stored on a computer readable medium and executable on a computer, the help facility comprising: one or more software processes configured to perform the following operations: providing a graphical user interface for communicating with a user; launching a help facility associated with a computer software application; and displaying content obtained from a help file containing at least two interactive links in a sequence, each interactive link being associated with at least one user-activated step in the computer software application to perform in connection with a help topic according to the sequence; receiving an input from the user activating one of the interactive links having at least one preceding interactive link in the sequence; and invoking an operation in the computer software application to effect the at least one user-activated step. 10. A help facility as in claim 9, wherein the operation is invoked via an application programming interface of the computer software application. 11. A help facility as in claim 9, wherein the one or more software processes are further configured to perform the following operations: determining whether a state of the computer software application is compatible with the at least one user-activated step; and wherein the operation is invoked only if the state of the computer software program is compatible with the at least one user-activated step. 12. A help facility as in claim 11, wherein the one or more software processes are further configured to perform the following operation: informing the user of one or steps to undertake to place the computer software application in a proper state to perform the operation. 13. A help facility as in claim 9, wherein the one or more software processes are further configured to perform the following operation: retrieving the help file from an external source via a communications network. 14. A help facility as in claim 9, wherein the invoked operation is based on a recorded sequence of actions. 15. A help facility as in claim 9, wherein the invoked operation corresponds to a menu item in a graphical user interface of the computer software application. 16. A help facility as in claim 9, wherein the one or more software processes are further configured to perform the following operation: enabling a generation of one or more help files that specify content to be presented within the help facility. 17. Machine-readable instructions, embodied in a tangible medium, for causing a machine to perform operations comprising: launching a help facility associated with a computer software application; displaying content obtained from a help file containing at least two interactive links in a sequence, each interactive link being associated with at least one user-activated step in the computer software application to perform in connection with a help topic according to the sequence; receiving an input from a user activating one of the interactive links having at least one preceding interactive link in the sequence; and invoking an operation in the computer software application to effect the at least one user-activated step. 18. Machine-readable instructions as in claim 17, wherein the operation is invoked via an application programming interface of the computer software application. 19. Machine-readable instructions as in claim 17, for causing the machine to perform further operations comprising: determining whether a state of the computer software application is compatible with the at least one user-activated step; and wherein the operation is invoked only if the state of the computer software program is compatible with the at least one user-activated step. 20. Machine-readable instructions as in claim 19, for causing the machine to perform further operations comprising: informing the user of one or steps to undertake to place the computer software application in a proper state to perform the operation. 21. Machine-readable instructions as in claim 17, for causing the machine to perform further operations comprising: retrieving the help file from an external source via a communications network. 22. Machine-readable instructions as in claim 17, wherein the invoked operation is based on a recorded sequence of actions taken. 23. Machine-readable instructions as in claim 17, wherein the invoked operation corresponds to a menu item in a graphical user interface of the computer software application. 24. Machine-readable instructions as in claim 17, further comprising: enabling a generation of one or more help files that specify content to be presented within the help facility. 25. A system including at least one computer comprising: a computer software application configured to launch a help facility associated with the computer software application; an application window configured to display content obtained from a help file containing at least two interactive links in a sequence, each interactive link being associated with at least one user-activated step in the computer software application to perform in connection with a help topic according to the sequence; and a help facility configured to: receive an input from a user activating one of the interactive links having at least one preceding interactive link in the sequence, and invoke an operation in the computer software application to effect the at least one user-activated step. 26. The system of claim 25, wherein the operation is invoked via an application programming interface of the computer software application. 27. The system of claim 25, wherein the help facility is further configured to: determine whether a state of the computer software application is compatible with the at least one user-activated step; and wherein the operation is invoked only if the state of the computer software program is compatible with the at least one user-activated step. 28. The system of claim 27, wherein the help facility is further configured to inform the user of one or more steps to undertake to place the computer software application in a proper state to perform the operation. 29. The system of claim 25, wherein the help facility is further configured to retrieve the help file from an external source via a communications network. 30. The system of claim 25, wherein the invoked operation is based on a recorded sequence of actions. 31. The system of claim 25, wherein the invoked operation corresponds to a menu item in a graphical user interface of the computer software application. 32. The system of claim 25, wherein the help file specifies content to be presented within the help facility.
s3://data.kl3m.ai/documents/cap/11697417.json	text/markdown	#### Marilyn SPITZFADEN, et al. v. DOW CORNING CORPORATION. No. 98-CC-0357. Supreme Court of Louisiana. April 1, 1998. In re Plaintiffs Steering Committee;— Plaintiffs); applying for supervisory and/or *223remedial writs; Parish of Orleans, Civil District Court, Div. “F”, No. 92-2589; to the Court of Appeal, Fourth Circuit, No. 98CW-0076. Denied. CALOGERO, C. J., would grant the writ. TRAYLOR and KNOLL, JJ., recused. LEMMON, J., not on panel; recused.
s3://data.kl3m.ai/documents/recap_docs/1999/06/09/alday_v._tecphy_division.pdf.json	text/plain	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-2150 JAMES D. ALDAY; LORRI ALDAY, Plaintiffs - Appellants, versus TECPHY DIVISION FIRMINY, Defendant - Appellee, and FORTECH, INCORPORATED; C. H. POWELL COMPANY, Defendants. Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (CA-97-2356-2-18) Submitted: May 11, 1999 Decided: June 9, 1999 Before WIDENER and KING, Circuit Judges, and BUTZNER, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. 2 Julian H. Toporek, Savannah, Georgia, for Appellants. Robert H. Brunson, Courtney A. Crook, NELSON, MULLINS, RILEY & SCARBOROUGH, L.L.P., Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: James and Lorri Alday appeal the district court’s order granting Appellee summary judgment in this diversity personal injury action. We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court. See Alday v. Tecphy Division Firminy, No. CA-97-2356-2-18 (D.S.C. July 10, 1998). 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. AFFIRMED
s3://data.kl3m.ai/documents/edgar/0000949303/0000949303-04-000009/3.json	text/markdown	`Exbihit 31.1 Certification Pursuant to 18 U.S.C. Section 1350, As Adopted ------------------------------------------------------------ Pursuant to Section 302 of The Sarbanes-Oxley Act of 2002 I, Alan Treibitz , the Chief Executive Officer of Z-Axis Coporation (the "Company"), certify that: 1. I have reviewed this quarterly report on Form 10-QSB of the Company; 2. Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this quarterly report; 3. Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this quarterly report; 4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have: a) designed such disclosure controls and procedures to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared; b) evaluated the effectiveness of the registrant's disclosure controls and procedures as of a date within 90 days prior to the filing date of this quarterly report (the "Evaluation Date"); and c) presented in this quarterly report our conclusions about the effectiveness of the disclosure controls and procedures based on our evaluation as of the Evaluation Date; 5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent function): a) all significant deficiencies in the design or operation of internal controls which could adversely affect the registrant's ability to record, process, summarize and report financial data and have identified for the registrant's auditors any material weaknesses in internal controls; and b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal controls; and 6. The registrant's other certifying officers and I have indicated in this quarterly report whether or not there were significant changes in internal controls or in other factors that could significantly affect internal controls subsequent to the date of our most recent evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses. Dated: February 17, 2004 /s/ Alan Treibitz ----------------- Name: Alan Treibitz Title: Chief Executive Officer`
s3://data.kl3m.ai/documents/recap/gov.uscourts.cand.240178/gov.uscourts.cand.240178.9.0.pdf.json	text/plain	1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MELINDA L. HAAG, CSBN 132612 United States Attorney LUCILLE GONZALES MEIS, SB CO 15153 Regional Chief Counsel, Region IX Social Security Administration DAVID LERCH, CSBN 229411 Special Assistant United States Attorney 333 Market Street, Suite 1500 San Francisco, California 94105 Telephone: (415) 977-8936 Facsimile: (415) 744-0134 E-Mail: [email protected] Attorneys for Defendant UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA LISA JEAN SWIM, ) Case No. 1:11-cv-02128-NJV Plaintiff, ) ) STIPULATION AND PROPOSED ORDER FOR v. ) REMAND PURSUANT TO SENTENCE SIX ) OF 42 U.S.C. § 405(g) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) Defendant. ) ______________________________) IT IS HEREBY STIPULATED, by and between the parties, through their respective counsel of record, that this action be remanded to the Commissioner of Social Security for further administrative action pursuant to section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), sentence six. On remand, the Appeals Council will vacate its prior Notice of Denial dated February 25, 2011, remove Exhibit 17F from the Plaintiff’s record, and issue a new action with respect to the Plaintiff’s request for review of the decision of the Administrative Law Judge dated September 14, 2009. Stip. & Proposed Order for Remand, 1:11-CV-02128-NJV Case 1:11-cv-02128-NJV Document 9 Filed 07/25/11 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted, DATED: July 20, 2011 By: s/ Kenneth J. Collins [per telephone authorization] KENNETH J. COLLINS, Attorney for Plaintiff DATED: July 20, 2011 MELINDA L. HAAG United States Attorney LUCILLE GONZALES MEIS Regional Chief Counsel, Region IX Social Security Administration By: s/ David Lerch DAVID LERCH Special Assistant United States Attorney Attorneys for Defendant ORDER PURSUANT TO STIPULATION, IT IS SO ORDERED: Dated ____________ By: ___________________ NANDOR J. VADAS United States Magistrate Judge Stip. & Proposed Order for Remand, 1:11-CV-02128-NJV 2 Case 1:11-cv-02128-NJV Document 9 Filed 07/25/11 Page 2 of 2
s3://data.kl3m.ai/documents/uspto/07415497.json	text/markdown	# Patent ## Title Method and apparatus for asynchronously transferring at least one message signal ## Abstract In a client/server computer architecture, a message signal appearing on a server computer is assigned a further message signal and the latter is written to a pipe and transmitted to a servlet on the server computer via the pipe. The further message signal is then transferred to a client computer via a transfer channel by way of the servlet. Here, the message signal is decoupled from the corresponding further message signal, with the fate of the message signal after it has appeared no longer directly influencing the fate of the associated message signal. ## Background The present application hereby claims priority under 35 U.S.C. §119 on European patent application number EP 02024267.3 filed Oct. 31, 2002, the entire contents of which are hereby incorporated herein by reference. FIELD OF THE INVENTION The invention generally relates to a method and an apparatus for asynchronously transferring at least one message signal in a client/server architecture, particularly within a command system implemented by way of such an architecture. BACKGROUND OF THE INVENTION On account of Internet technology, which has been progressing further and further particularly in recent times, and all the associated communication and application solutions, it is possible even in command systems for controlling and observing a technical installation to spot the trend for developing such command systems by incorporating methods and solutions from the field of Internet technology. The particular effect which is intended to be achieved by this is that the control stations (operator terminals) in the command system become largely locally independent of the site of the technical installation. In addition, the intention is for it no longer to be necessary to install special control and observation software on the control stations in order to be able to control the technical installation. A client computer with an installed web browser will be sufficient for this. Such a command system allows a technical installation to be controlled remotely, and in many cases the control room within the technical installation no longer needs to be occupied or no longer needs to be occupied all the time. In many known command systems, alarms within the technical installation are often reported not only by way of visual display, for example on a screen or a large screen, but also audibly, for example by way of a signal horn or a claxon. This, at least when an alarm message requiring rapid action appears, emits a loud tone at a particular frequency in order to give a clear indication to personnel present in the technical installation that there is an urgent need for action. In an unmanned or only intermittently occupied control room, an audible alarm is inevitably often unnoticed. In command systems which make use of Internet technology, a connection from a control station to a server computer in the command system is set up usually only when needed, for example in order to perform a control action or to assure oneself of the current operating state of the technical installation. Such command systems usually have no provision for asynchronous transfer of messages from the server computer to a client computer (control station in the command system). Thus, in such command systems, it is essentially possible to transfer only such messages/signals to a control station (client computer) as are waiting on the server computer at the time of a connection existing between the control station and the server computer. SUMMARY OF THE INVENTION An embodiment of the invention is therefore based on an object of specifying a method and an apparatus for asynchronously transferring at least one message signal which improve the communication between a server computer and a client computer. For the method, an embodiment of the invention achieves the object by way of a method for asynchronously transferring at least one message signal from a server computer to at least one client computer which comprises the following steps: 1. when the message signal appears on the server computer, the message signal is assigned at least one further message signal, 2. the further message signal is written to at least one pipe which the server computer includes as a communication device, 3. the further message signal is transmitted by way of the pipe to at least one servlet which the server computer includes, and 4. the further message signal is transferred by way of the servlet to the client computer via a transfer channel. In this case, an embodiment of the invention is based on the consideration that, in a server/client architecture for a computer system, particularly when the transfer channel involved is the Internet, asynchronous transfer of messages/signals from the server computer to the client computer is necessary in order to recognize all important signals/messages quickly and to identify them with certainty using the client computer. If there is no such opportunity for data transfer, then the client computer can recognize such signals and messages as have already arisen on the server computer before a connection has been set up between client computer and server computer only with difficulty, and in particular cannot do so quickly. The inventive method now makes provision for the message signal, when it appears, to be assigned a further message signal and for the latter to be written to a pipe. Subsequently, the message signal is then not transmitted to the client computer directly, but rather the further message signal, which indicates that decoupling is achieved between the two signals. In particular, the further message signal can also be used to transfer such a message signal to the client computer as is no longer waiting on the server computer at all at the time of a connection between the client computer and the server computer. In this respect, the message signal and the further message signal associated therewith are decoupled in terms of their later fate. A pipe is a known communication device which is used for efficient communication between processes which take place within the same computer or on different computers connected by way of a network. In addition, an application software program making use of a pipe for communication does not have to concern itself with details of the connection setup to a remote computer. This is because the known pipe communication includes a customary client/server architecture, with a process which generates a pipe client easily being able to communicate with a process which produces a pipe server. In line with the inventive method, the further message signal is transmitted to at least one servlet by way of the pipe. The pipe is thus the device used for communication in order to set up a connection between a process which produces the further message signal and a further process, namely the servlet. The servlet is a software program on the server computer which is used to implement at least part of the functionality of the server computer. Using a servlet affords, inter alia, the advantage that it remains resident in memory between various requests to the servlet, which means that it is not necessary to reload and start the servlet. Furthermore, there is only one instance of the servlet. This instance processes all requests simultaneously, which saves memory space and allows the servlet to process continual data streams easily. Finally, servlets are usually in the form of software modules which are created using the programming language Java and run within an application program on a server (which is also where the name “servlet” comes from). Servlets are thus not tied to one specific client/server protocol and are therefore independent of platform. In one advantageous refinement of an embodiment of the invention, the client computer includes at least one communication software program which is used to set up a connection to the servlet and which is used to execute an audio program, which the server computer includes and which is associated with the further message signal, on the client computer. In this case of this refinement of an embodiment of the invention, it is particularly possible to transfer message signals which trigger an audible signal in the technical installation asynchronously to the client computer using the further message signal, in which case audible signaling takes place on the client computer. The communication software program connects to the servlet and evaluates the incoming data such that audible signaling takes place on the client computer if needed. In this case, a corresponding audio program is executed on the client computer. Depending on the priority and/or type of a received further message signal, a plurality of audio programs can be provided, which indicates that simple and rapid classification of the message signal is possible on the basis of the sound pattern of the respective audio program. Using this advantageous refinement of the inventive method, the audible signaling customary in the prior art within a technical installation is transferred to a configuration of the command system in which a control computer (client computer) is arranged outside the technical installation and the audible signaling takes place on this computer. In another advantageous refinement, a connection from the client computer to the server computer is set up only when needed. During operation of a technical installation, it is usually not necessary to maintain a continual connection between a central computer in the command system and the control computers. This is because action is taken in the technical installation from the control computer only intermittently, or information regarding the operating state of the technical installation is needed only intermittently. In the case of such an architecture and manner of operation for a command system, the advantages of an inventive method for asynchronous data transfer become noticeable with particular clarity. This is because, in particular, there is the assurance that even such message signals as have already arisen before connection setup are transferred with certainty and quickly to the client computer. This overcomes at least one serious drawback of known command systems in which no provision is made for asynchronous transfer of message signals. One particular advantage is that while the client computer is connected to the server computer, a first access operation by the client computer to the server computer prompts a communication program which the servlet includes to start, and further access operations by the client computer to the server computer prompt monitoring of whether the communication program is currently running. This allows the servlet to transfer all arising message signals rapidly to one or more client computers using the corresponding further message signals without the need to load and start an auxiliary program each time there is access in order to transfer these data. The communication program in this embodiment is thus a software program which is used to read the data which are in the pipe, a first read access operation involving the communication program being set up and being kept active while a connection exists between client computer and server computer. Problems in reading data which are in the pipe are recognized by way of the cited monitoring of the communication program. Advantageously, the communication program is used to transmit an identification information item for the pipe to the servlet. Such “named pipes” can be used for particularly efficient communication, since it is possible to connect to a desired pipe specifically using said pipe's identification information item. This identification information item can include a descriptor (a name) and/or a software address for the pipe, for example. In one particularly advantageous refinement of an embodiment of the invention, the transfer channel comprises at least part of the Internet and/or an intranet. In this way, it is possible to monitor a technical installation over almost unlimited distances, so long as an Internet connection is possible between the client computer and server computer. Since a multiplicity of communication mechanisms have already become established in connection with Internet technology, a command system which makes use of such a distributed architecture is additionally relieved of the burden of communication tasks relating to data transfer between the server computer and the client computer. Furthermore, a client computer used in connection with this embodiment needs, in essence, only to comprise a known web browser (thin client). The actual functionality of such a command system is implemented in the server computer, which is operated as a web server. A popular transfer protocol which can be used in this embodiment is the http protocol, which can be processed as standard by popular web browsers. BRIEF DESCRIPTION OF THE DRAWINGS The present invention will become more fully understood from the detailed description of preferred embodiments given hereinbelow and the accompanying drawing, which is given by way of illustration only and thus is not limitative of the present invention, and wherein: The FIGURE shows an apparatus in accordance with an embodiment of the invention with incorporation of the Internet. DETAILED DESCRIPTION OF THE PREFERRED EMBODIMENTS An apparatus 1 in accordance with an embodiment of the invention includes, as fundamental parts, a server computer 10, a transfer channel 17 provided by the Internet and a number of client computers 15. In this context, the communication between the server computer 10 and the client computer 15 is preferably handled by way of known communication mechanisms such as the http protocol. To link the client computers 15 to the transfer channel 17, the client computers 15 each comprise a known web browser 60. The server computer 10 includes the functionality of a known web server. The server computer 10 processes a number of server tasks 20 which can include one or more message signals 25 which need to be transferred to at least one client computer 15. Such message signals 25 can include, by way of example, alarm messages which arise when a technical installation is operated. In this case, to transfer the message signals 25, at least one message signal 25 is assigned at least one further message signal 27, 28, 29 which is written to at least one pipe 35, 37, 39. At least one further message signal 27, 28, 29 has at least one associated audio program 62 whose sound content is characteristic of the corresponding further message signal. The server computer 10 also includes a servlet container 30 which includes at least one servlet 40. The further message signals 27, 28, 29 are transmitted to the servlet 40 by way of the pipe 35, 37, 39 and are transferred to at least one client computer 15 via the transfer channel 17. The servlet 40 includes a communication program 70 which, while at least one client computer 15 is connected to the server computer 10, is started upon a first access operation by the client computer. It is also monitored upon further access operations in order to determine whether it is active. It is therefore not necessary to load and start an auxiliary program during a connection whenever there is access by a client computer 15. Instead, the communication program 70 remains active during the connection and is continually monitored during the connection for its activity, which makes rapid error recognition possible. One or more client computers 15 have a sound reproduction device 64 which includes, by way of example, a commercially available sound card and a loudspeaker. These allow message signals 25 for which audible signaling is desired to be presented audibly on the client computer 15. The connection from one of the client computers 15 to the server computer 10 via the transfer channel 17 is set up on the client computer 15 using a communication software program 50. The communication software program 50 is used to contact the servlet 40. The communication software program 50 can preferably also be used to execute the audio programs 62 associated with the server computer 10 on the client computer 15; the communication software program 50 can in this case be part of the web browser and can contain known Internet communication mechanisms which are in widespread use. It can be seen that an apparatus in accordance with an embodiment of the invention can be used for asynchronous transfer of message signals, which becomes noticeable with particular advantage in the case of audible remote alarm raising over the Internet. In summary, an embodiment of the invention can be outlined as follows: in a client/server computer architecture, it is proposed that a message signal (25) appearing on a server computer (10) be assigned a further message signal (27, 28, 29) and that the latter be written to a pipe (35, 37, 39) and transmitted to a servlet (40) on the server computer (10) by way of the pipe. The further message signal (27, 28, 29) is then transferred to a client computer (15) via a transfer channel (17) by way of the servlet (40). One advantage of the inventive method and apparatus is that the message signal may be decoupled from the corresponding further message signal, with the fate of the message signal (25) after it has appeared no longer directly influencing the fate of the associated message signal (27, 28, 29). Exemplary embodiments being thus described, it will be obvious that the same may be varied in many ways. Such variations are not to be regarded as a departure from the spirit and scope of the present invention, and all such modifications as would be obvious to one skilled in the art are intended to be included within the scope of the following claims. ## Claims 1. A method for asynchronously transferring at least one message signal from a server computer to at least one client computer, comprising: assigning the at least one message signal, when the at least one message signal appears on the server computer, at least one further message signal; writing the at least one further message signal to at least one pipe of the server computer; transmitting the at least one further message signal, via the at least one pipe, to at least one servlet of the server computer; using at least one communication software program on the at least one client computer to set up a connection to the servlet of the server computer and to execute an audio program, which the server computer includes and which is associated with the further message signal; and transferring the at least one further message signal from the at least one servlet to the at least one client computer via the connection, wherein a fate of the at least one message signal and the at least one further message signal are decoupled, and wherein a sound content of the audio program is characteristic of the associated at least one further message signal. 2. The method as claimed in claim 1, wherein a connection from the client computer to the server computer is set up only when needed. 3. The method as claimed in claim 2, wherein, while the client computer is connected to the server computer, a first access operation by the client computer to the server computer prompts a communication program of the servlet to start, and further access operations by the client computer to the server computer prompt monitoring of whether the communication program is currently running. 4. The method as claimed in claim 3, wherein the communication program is used to transmit an identification information item for the pipe to the servlet. 5. The method as claimed in claim 4, wherein the identification information item includes at least one of a descriptor and a software address for the pipe. 6. The method as claimed in claim 1, wherein, while the client computer is connected to the server computer, a first access operation by the client computer to the server computer prompts a communication program of the servlet to start, and further access operations by the client computer to the server computer prompt monitoring of whether the communication program is currently running. 7. The method as claimed in claim 6, wherein the communication program is used to transmit an identification information item for the pipe to the servlet. 8. The method as claimed in claim 7, wherein the identification information item includes at least one of a descriptor and a software address for the pipe. 9. The method as claimed in claim 1, wherein the connection includes a transfer channel, including at least part of at least one of the Internet and an intranet. 10. An apparatus for asynchronously transferring at least one message signal, comprising: a server computer, including at least one pipe, adapted to assign the at least one message signal, when it appears on the server computer, a further message signal and adapted to write the further message signal to the at least one pipe; at least one servlet of the server computer, to which the further message signal is adapted to be transmitted via the at least one pipe; a transfer channel; and at least one client computer, to which the further message signal is adapted to be transferred by the server computer using the servlet, wherein the at least one client computer includes a communication software program, adapted to setup a connection to the servlet of the server computer and adapted to execute an audio program, which the server computer includes and which is associated with the further message signal, wherein a fate of the at least one message signal and the at least one further message signal are decoupled, and wherein a sound content of the audio program is characteristic of the associated at least one further message signal. 11. The apparatus as claimed in claim 10, wherein the servlet includes a communication program adapted be executed upon a first access operation by the client computer on the server computer and adapted to be checked upon further access operations by the client computer to the server computer in order to determine whether it is currently running. 12. The apparatus as claimed in claim 11, wherein the communication program is adapted to be used to transmit an identification information item for the pipe to the servlet. 13. The apparatus as claimed in claim 12, wherein the identification information item includes at least one of a descriptor and a software address for the pipe. 14. The apparatus as claimed in claim 10, wherein the transfer channel includes at least part of at least one of the Internet and an intranet. 15. A server computer for asynchronously transferring at least one message signal, comprising: at least one pipe, wherein the server computer is adapted to assign the at least one message signal, when it appears on the server computer, a further message signal and is adapted to write the further message signal to the at least one pipe; and at least one servlet of the server computer, to which the further message signal is adapted to be transmitted via the pipe, wherein the further message signal is adapted to be transferred to a client computer by the server computer using the servlet, wherein the client computer includes a communication software program, adapted to setup a connection to the servlet of the server computer and adapted to execute an audio program, which the server computer includes and which is associated with the further message signal, wherein a fate of the at least one message signal and the at least one further message signal are decoupled, and wherein a sound content of the audio program is characteristic of the associated at least one further message signal.
s3://data.kl3m.ai/documents/recap_docs/1999/06/07/malcolm_r._lowe_ii_v._lowndes_county_building_inspection_department.pdf.json	text/plain	IN THE SUPREME COURT OF MISSISSIPPI NO. 1999-CA-01138-SCT MALCOLM R. LOWE, II AND HARRIET LOWE v. LOWNDES COUNTY BUILDING INSPECTION DEPARTMENT DATE OF JUDGMENT: 06/07/1999 TRIAL JUDGE: HON. LEE J. HOWARD COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: FRANK J. DANTONE, JR. JOHN MADISON BROOKS, III ATTORNEY FOR APPELLEE: ARMSTRONG WALTERS NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE DISPOSITION: REVERSED AND REMANDED - 3/16/2000 MOTION FOR REHEARING FILED: MANDATE ISSUED: 4/6/2000 BEFORE PITTMAN AND BANKS, P.JJ., AND MILLS, J. BANKS, PRESIDING JUSTICE, FOR THE COURT: ¶1. This case presents the question whether a county may be held liable in tort for damages for issuing a permit to perform work when it knows that the applicant who proposes to do the work is not duly licensed to perform the work in question. We answer in the affirmative. I. a. ¶2. This appeal arises out of a contract entered into between the appellants, Malcolm and Harriet Lowe (The Lowes), and Donna Kay Lynn (Lynn) pursuant to which Lynn was to perform certain described carpentry, painting, electrical and foundation work on the residence owned by the Lowes located on Highway 69 South in Columbus, Mississippi. Lynn did not possess a valid license from the Mississippi State Board of Contractors as required by Miss. Code Ann. § 73-59-3 (Supp. 1999). A permit was issued by the appellee, the Lowndes County Building Inspection Department (LCBID), upon application by Lynn, to Housing, Inc., an entity unrelated to Lynn. ¶3. The Lowes filed their complaint against LCBID on March 8, 1999, alleging that LCBID was negligent in issuing a building permit to Housing, Inc., on Lynns application, when it knew that she did not posses a valid license as required by Miss. Code Ann. § 73-59-3 (Supp. 1999). Further, the Lowes alleged in their complaint that the LCBID was negligent in failing to notify the Mississippi State Board of Contractors ("MSBC") that Lynn was operating without a license, and further that Housing, Inc., had illegally lent its license to Lynn, both in violation of Miss. Code Ann. § 73-59-17 (1995). ¶4. LCBID filed a motion to dismiss admitting the facts, but alleging, inter alia, that no contractual relationship existed between the parties, and that the Lowes' own negligence was the sole proximate cause of their harm. LCBID filed a subsequent motion to dismiss ten days later, alleging sovereign immunity pursuant to Miss. Code Ann. § 11-46-9 (1)(h) (Supp. 1999). The circuit court heard arguments of counsel and took the matter under advisement. On June 7, 1999, the Court entered its order dismissing the matter with prejudice, finding that pursuant to Miss. Code Ann. § 11-46-9(i)(h) (Supp. 1999), Lowndes County was "completely and totally immune from any liability." The Lowes filed this appeal. b. ¶5. The Lowes and Lynn entered into a contract which Lynn would perform certain described carpentry, painting, electrical and foundation work on a residence owned by the Lowes located on Highway 69 South in Columbus, Mississippi. Several add ons to the contract were agreed to, and the final price, for performing all the work specified on the contract was $46,380. Lynn represented to the Lowes that she was licensed and bonded. However, Lynn did not posses a valid license from the MSBC as required by Miss. Code Ann. § 73-59-3 (Supp. 1999). On or about December 3, 1997, Housing, Inc., a contractor possessing a license from the MSBC, lent its license to Lynn so that she could make application, for a permit for the construction taking place at the aforementioned residence at Highway 69 South, Columbus, Mississippi. At no time was Housing, Inc., to perform any of the work at the aforementioned residence. II. a. ¶6. A motion for dismissal under Miss. R. Civ. P. 12(b)(6) raises an issue of law. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss. 1990) (citing Lester Eng'g Co. v. Richland Water & Sewer Dist., 504 So.2d 1185, 1187 (Miss. 1987)). This Court reviews questions of law de novo. Tucker, at 872 (citing UHS-Qualicare, Inc. v. Gulf Coast Community Hosp., Inc., 525 So.2d 746, 754 (Miss. 1987)). Under de novo review, this Court will affirm only if it can be shown, beyond doubt, no set of facts would entitle the Lowes to relief. Robinson v. Stewart, 655 So. 2d 866, 867 (Miss. 1995) (citing Tucker, at 872). ¶7. The allegations in the complaint must be taken as true and the motion should not be granted unless it appears beyond doubt that the Lowes will be unable to prove any set of facts in support of their claim. Butler v. Board of Supervisors for Hinds County, 659 So.2d 578, 581 (Miss. 1995) (citing Overstreet v. Merlos, 570 So.2d 1196, 1197 (Miss. 1990)). b. ¶8. This case turns upon the application and interpretation of the terms "arbitrary and capricious" in Miss. Code Ann. § 11-46-9 (1)(h) (Supp. 1999), which states in pertinent part: (1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim: (h) Arising out of the issuance, denial, suspension, or revocation of, or the failure or refusal to issue, deny, suspend or revoke any privilege, ticket, pass, permit, license, certificate, approval, order or similar authorization where the governmental entity or its employees is authorized by law to determine whether or not such authorization should be issued, denied, suspended, or revoked unless such issuance, denial, suspension or revocation, or failure or refusal thereof, is of a malicious or arbitrary and capricious nature. (emphasis supplied). ¶9. Specifically, the question is, whether the failure of LCBID to abide by Miss. Code Ann. § 73-53-17 (Supp. 1995), was arbitrary and capricious in nature, and therefore not protected by the qualified sovereign immunity granted by Miss. Code Ann. § 11-46-9(1)(h) (Supp. 1999). ¶10. Black's Law Dictionary defines "arbitrary and capricious" as "[c]haracterization of a decision or action taken by an administrative agency or inferior court meaning willful and unreasonable action without consideration or in disregard of facts or law or without determining principle." Black's Law Dictionary 105 (6th ed. 1990) (emphasis added). ¶11. We have yet to define the terms "arbitrary and capricious" in the context of Miss. Code Ann. § 11-46- 9(1)(h) (Supp. 1999). However, we have discussed the terms "arbitrary and capricious" in review of a decision made by an administrative agency on appeal. State Tax Comm'n v. Earnest, 627 So.2d 313, 319-20 (Miss. 1993). We have stated that arbitrary and capricious is "open-textured and not susceptible of precise definition or mechanical application." Mississippi State Dep't. of Health v. Southwest Miss. Med. Ctr., 580 So.2d 1238, 1239 (Miss. 1991). We found North Carolina's definition of the terms helpful: An act is arbitrary when it is done without adequately determining principle, not done according to reason or judgment, but depending upon the will alone, -- absolute in power, tyrannical, despotic, non-rational,-- implying either a lack of understanding of or a disregard for the fundamental nature of things . . . An act is capricious when it is done without reason, in a whimsical manner, implying either a lack of understanding of or disregard for the surrounding facts and settle controlling principles. Id. at 1240 (quoting In re Housing Authority of City of Salisbury, 70 S.E.2d 500, 503 (N.C. 1952)); see also Melody Manor Convalescent Ctr. v. Mississippi State Dep't of Health, 546 So.2d 972, 974 (Miss. 1989); Mississippi State Tax Commission v. Dyer Inv. Co., 507 So.2d 1287, 1289 (Miss. 1987); State Bd. of Psychological Examiners v. Coxe, 355 So.2d 669, 671 (Miss. 1978). ¶12. In Mississippi Dep't of Envtl. Quality v. Weems, 653 So.2d 266 (Miss. 1995), this Court determined that the Mississippi Commission on Environmental Quality acted arbitrarily and capriciously by failing to follow clear statutory directives, stating: [T]he Commission's actions, as stated in its ruling, indicate an arbitrary and capricious reaction. An administrative act is arbitrary and capricious if the agency 'entirely failed to consider an important aspect of the problem, or offered an explanation for its decision that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of any agency expertise." 2 Am Jur 2d §530 at 519 (1994). In addition, the failure of an agency to abide by its rules is per se arbitrary and capricious as is the failure of an administrative body to conform to prior procedure without adequate explanation for the change. Id. 653 So. 2d at 281. ¶13. The Lowes argue that this Court recently specifically ruled that immunity will not attach where a governmental entity fails to abide by a statutory mandate, stating: "[u]nder this statute, as long as ordinary care is used while performing statutory duty, immunity exists. But when the state actor fails to use ordinary care in executing and performing or failing to execute or perform an act mandated by statute there is no shield of immunity." L.W. v. McComb Separate Mun. Sch. Dist., No. 97-CA-01465-SCT, 1999 WL 682076, at *6 (Miss. Sept. 2, 1999) (emphasis added). ¶14. LCBID does not dispute the allegations in the complaint. LCBID argues that the Lowes are dissatisfied with work performed by subcontractor Lynn and seek to expand Miss. Code Ann.§ 73-59-17 (1995), from a statutory mandate only to issue building permits to licensed contractors to include LCBID as a guarantor of the work of subcontractors hired by licensed contractors to whom the building permit was rightfully issued. LCBID asserts that the Lowes' proper remedy lies against the licensed contractor. ¶15. Paragraph VI of plaintiffs' complaint reads as follows: The Lowndes County Building Inspection Department, knowing that Lynn was the contractor performing the work and knowing that Lynn was not properly licenced pursuant to Miss. Code Ann. § 73-59-3 allowed Lynn to sign the building permit application as agent for Housing, Inc. The permit was issued by the department despite knowledge by the department at all relevant times hereto that Housing, Inc. had no contract with Plaintiff and was not performing any contract work for Plaintiff. At no times relevant hereto did the department notify Plaintiffs or the Mississippi State Board of Contractors that Lynn did not posses a valid license all in violation of Miss. Code Ann. § 73-59-17. We assume these facts to be true at this stage. Whether they are and, if so, whether the acts of the county were a proximate cause of injury to the plaintiff are issues yet to be resolved. We decide only that, accepting the allegations as true, the county has engaged in arbitrary and capricious conduct violative of a statutory mandate. ¶16. Miss. Code Ann. § 73-59-17 provides: [LCBID] shall refuse to issue a permit for any undertaking which would classify the applicant as a residential builder or remodeler under this chapter unless the applicant has furnished evidence that he is either licensed . . . or exempt . . . . [LCBID] shall also report to [MSBC] the name and address of any person who . . . has violated this chapter by accepting, or contracting to accomplish, work which would classify the person as a residential builder or remodeler . . . without a license or acknowledgment. Miss. Code Ann. § 73-59-17 (1995). ¶17. As we stated earlier we must take the Lowes' complaint as true. It is clear that if LCBID knew, as alleged, that Lynn was not licensed and that Lynn had contracted to performed the work, LCBID would be in violation of Miss. Code Ann. § 73-59-17 (1995). CONCLUSION ¶18. For the foregoing reasons the judgment of the circuit court is reversed, and this case is remanded to that court for further proceedings consistent with this opinion. ¶19. REVERSED AND REMANDED. PITTMAN, P.J., McRAE, SMITH, MILLS, WALLER AND COBB, JJ., CONCUR. PRATHER, C.J., NOT PARTICIPATING.
s3://data.kl3m.ai/documents/recap_docs/2022/02/24/people_v._cerritos.pdf.json	text/plain	2022 IL App (4th) 200443-U NO. 4-20-0443 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODOLFO A. CERRITOS, Defendant-Appellant. ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Ford County No. 14CF6 Honorable Paul G. Lawrence, Judge Presiding. JUSTICE DeARMOND delivered the judgment of the court. Justices Cavanagh and Harris concurred in the judgment. ORDER ¶ 1 Held: The appellate court affirmed, finding (1) the trial court did not err in denying defendant postconviction relief following an evidentiary hearing, (2) defendant was not denied the effective assistance of his trial counsel, and (3) defendant received reasonable assistance of postconviction counsel. ¶ 2 In December 2019, defendant, Rodolfo A. Cerritos, filed a pro se postconviction petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)), alleging ineffective assistance of his trial counsel. In May 2020, defendant, through his appointed counsel, filed an amended postconviction petition, and in June 2020, the State filed a motion to dismiss. In September 2020, the trial court held an evidentiary hearing on the matter and denied defendant’s amended postconviction petition. FILED February 24, 2022 Carla Bender 4th District Appellate Court, IL NOTICE This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). - 2 - ¶ 3 Defendant appeals, arguing the trial court erred by denying his claims of ineffective assistance of counsel based on trial counsel’s failure, at sentencing, to object to Special Agent Andrew Huckstadt’s testimony and present mitigating evidence. Defendant further argues he was denied the reasonable assistance of his postconviction counsel due to counsel’s failure to amend his pro se postconviction petition to adequately present his constitutional claims. We affirm. ¶ 4 I. BACKGROUND ¶ 5 A. The State’s Charges and Defendant’s Guilty Plea ¶ 6 In January 2014, the State charged defendant by information with two counts of armed robbery (counts I and IV) (720 ILCS 5/18-2(a)(1), (a)(2) (West 2012)), two counts of kidnapping (counts II and V) (720 ILCS 5/10-1(a)(1), (a)(2) (West 2012)), and one count of aggravated battery (count III) (720 ILCS 5/12-3.05(f)(1) (West 2012)). ¶ 7 In October 2014, defendant entered an open plea to one count of armed robbery (count I) and one count of kidnapping (count II). The State agreed to dismiss the remaining charges. Defendant indicated no one threatened or forced him to plead guilty and he understood the rights he was giving up by pleading guilty. In its factual basis, the State said the evidence would show defendant knowingly and secretly confined J. Hastings against his will and, while armed with a dangerous weapon, i.e., a baseball bat, he knowingly took by force Hastings’s property, including $300 in United States currency, a cell phone, profit-sharing checks, and two credit cards. The trial court found defendant’s guilty pleas knowing and voluntary. ¶ 8 B. Sentencing ¶ 9 At the December 2014 sentencing hearing, the State presented the testimony of Paxton police officer Chad Johnson. Johnson testified he received a phone call from Hastings on - 3 - December 9, 2013, at approximately 8:40 p.m. Hastings stated he had been kidnapped. Johnson went to Hastings’s house and found him “a little bit hysterical and kind of in a panic mode.” Hastings stated he was leaving work when he opened his car door and found a man in his backseat. Hastings backed up, and a male came up from behind him. The subjects forced him into the car, zip-tied his hands, and drove him around Ford and Iroquois Counties. Hastings was struck with a baseball bat and a gun. The individuals took cash, checks, credit cards, and his cell phone, and they threatened his family. Hastings stated the men made calls to an individual they called “Boss” and asked if they should kill Hastings. They then made comments to him about getting $50,000 in cash or cocaine in the same amount. The subjects eventually released him. Thereafter, Hastings’s family was taken into protective custody. ¶ 10 Special Agent Andrew Huckstadt of the Federal Bureau of Investigation (FBI) testified the subjects arranged a time for Hastings to drop $50,000 at an agreed-upon location. On January 15, 2014, a controlled money drop took place, and defendant arrived to retrieve the money. Following his arrest, defendant indicated he and/or other men attempted to kidnap Hastings three times prior to their successful kidnapping. In July 2013, three individuals, not including defendant, attempted to abduct Hastings at his house, but they “got spooked by his dogs and decided that they should wait on doing it another time.” In November 2013, individuals attempted to abduct Hastings at his place of employment but did not because of others outside the business. On December 9, 2013, the day of the actual abduction, defendant and codefendant Marcos were dropped off by codefendant Samano near Hastings’s house, but they decided to wait to execute the abduction because they believed a neighbor had seen them. Defendant told Huckstadt the individuals conducted surveillance of Hastings’s house and workplace and obtained an internet video to determine what he looked like. - 4 - ¶ 11 The State asked the trial court to sentence defendant to 22 years in prison. Defense counsel asked for a six-year sentence, arguing as factors in mitigation, inter alia, defendant’s work history, his “substantially law[-]abiding life,” hardship to his dependents, his cooperation with law enforcement, his remorse, and the support from his family. ¶ 12 Before pronouncing sentence, the trial court said it considered the presentence investigation report, the evidence in aggravation and mitigation, and multiple victim impact statements. The court stated defendant was 26 years old, “still a relatively young man” but “old enough to be able to conform his conduct to the requirements of the law.” He also had a one-year-old child, had a good employment history, and good support from his family and church. The court further noted defendant showed “appropriate remorse, and * admitted his involvement as [defense counsel] indicated on three different occasions in speaking with the police and the FBI.” However, as aggravating factors, the court found defendant caused “serious harm” to Hastings and “minimized his role” in the offenses. Regarding defendant’s criminal history, the court considered defendant’s prior felony conviction for cannabis possession, along with convictions for driving under the influence and driving on a suspended license. ¶ 13 Noting the need “to deter others from taking part in such foolish and [nonsensical] activity,” the trial court sentenced defendant to 25 years in prison on count I and a concurrent term of 5 years on count II. In doing so, the court considered the “very obvious” impact on Hastings’s family and determined “a sentence [was] necessary to deter others, whether it was a planned crime or just a spur of the moment crime.” ¶ 13 C. Relevant Posttrial Motions and Direct Appeal ¶ 14 In June 2015, defendant filed a pro se motion to withdraw his guilty plea and to vacate the sentence, contending he “had inadequate representation of counsel.” The trial court - 5 - held a Krankel hearing based on defendant’s motion in July 2015. See People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984). Defendant told the court he “did everything [counsel] wanted,” yet counsel never responded to his letters, did not provide him with discovery materials, and did not talk to him at the jail after he was sentenced. Defendant indicated his family “tried calling [counsel] and left messages. And in addition, my mom said she sent some letters for him. So he could use them.” However, defendant was uncertain if counsel received the letters “[b]ecause [defendant’s] mom never got ahold of him and never found anything about it.” ¶ 15 Defendant’s trial counsel, Assistant Public Defender David Rumley, testified he made “several visits to the jail.” As to the unreceived letters, Rumley said defendant’s “wishes were communicated to [him] in open Court at the time of the sentencing.” Rumley also indicated he “received no letters from members of [defendant’s] family,” and he received “no phone messages from anyone on [defendant’s] behalf.” The trial court denied defendant’s motion to withdraw his guilty plea. Thereafter, defendant appealed, and this court remanded the cause for strict compliance with Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). People v. Cerritos, 2017 IL App (4th) 150553-U, ¶ 3. ¶ 16 On October 5, 2018, defendant filed an amended motion to withdraw his guilty plea and vacate the sentence, alleging he “[h]ad inadequate representation of counsil [sic].” The State subsequently filed a motion to dismiss, contesting defendant’s assertions. On October 25, 2018, the trial court held a hearing on defendant’s motion, and defendant claimed trial counsel never discussed mitigation evidence with him. Defendant also stated he was unaware he could present character witnesses on his behalf at sentencing, but he “provided some after the fact.” Rumley told the court he spoke with defendant prior to sentencing and informed him of his right to present mitigating evidence. Ultimately, the court found defendant’s guilty plea “was knowing - 6 - and voluntary,” and the court denied defendant’s amended motion. On direct appeal, this court affirmed defendant’s conviction and sentence. See People v. Cerritos, 2019 IL App (4th) 190030-U, ¶ 3. ¶ 17 D. Postconviction Proceedings ¶ 18 In December 2019, defendant filed a pro se postconviction petition pursuant to the Act (725 ILCS 5/122-1 et seq. (West 2018)), alleging ineffective assistance of his trial counsel. Defendant alleged, inter alia, Rumley provided ineffective assistance for failing to “file motion to suppress confession where the law provided an avenue such as the immunity agreement written by [defense counsel] himself,” and for failing to “object to the joint sentencing hearing where the hearing would not be fair to defendant as he had an immunity agreement with the State and his co-defendant did not.” The petition further alleged Rumley failed to “inform defendant about what mitigation evidence was thus not allowing defendant to show mitigation evidence at [the] sentencing hearing.” ¶ 19 In May 2020, defendant, through his appointed counsel, filed an amended postconviction petition alleging he was denied the effective assistance of his trial counsel. The petition alleged, in relevant part, Rumley “failed to object to * Huckstadt’s testimony * during the sentencing hearing” because “his testimony was in direct violation of the [immunity] agreement.” The petition also alleged Rumley “failed to object to the State’s request to conduct a joint sentencing hearing with codefendant.” Finally, the amended petition asserted Rumley failed to present “live testimony from the Defendant and the Defendant’s family members as well as letters of recommendation” and failed to contact or return phone calls from family members who “attempted to submit said mitigation.” In support of this claim, defendant attached affidavits from three potential witnesses. - 7 - ¶ 20 Rodolfo Leon averred he would have been willing to testify as a character witness at defendant’s sentencing hearing. However, Rumley “never reached out to [him] to write any character witness letter on [defendant’s] behalf and never reached out to [him] to testify as the father of [defendant] on his sentencing heating [sic].” Rosa Alvarado, defendant’s mother, averred she “tried to contact Mr. Romley [sic] on December 1st of 2014 but didn’t get a response.” Her affidavit further averred she would have been willing to testify on defendant’s behalf and, “[i]f [Rumley] would have called [her], [she] would have sent [defendant] the character letters.” Takeisha Johnson, defendant’s girlfriend, asserted she was “never contacted by [defendant’s] attorney to testify or write a letter on his behalf.” Defendant also included his own affidavit attesting Rumley “failed to tell [him] that [he] could provide mitigating evidence at the sentencing hearing. He failed to contact any sources of said mitigating evidence and failed to return calls from [defendant’s] family members who attempted to submit said mitigation.” ¶ 21 In June 2020, the State filed a motion to dismiss defendant’s amended postconviction petition, arguing defendant’s claims were procedurally forfeited and otherwise “subject to dismissal under the doctrine of res judicata.” Following a July 2020 hearing, the trial court granted the State’s motion to dismiss “in its entirety except for Paragraphs 8-5A, which relate[d] to the Grant of Use Immunity Agreement.” ¶ 22 In September 2020, the trial court held a third-stage evidentiary hearing at which Rumley and defendant each testified. Defendant stated he signed a grant-of-use immunity agreement in February 2014. Before signing the document, defendant testified Rumley discussed the agreement with him. As part of the agreement, defendant understood he was to testify truthfully against any codefendants and, according to defendant, he believed any statements he made to the FBI regarding the details of the offenses would not be used against him. After he - 8 - signed the agreement, defendant stated he spoke with Rumley again “about that are they going to be able to use it against [him], and [Rumley] said no.” Defendant claimed he spoke to Rumley at the sentencing hearing regarding his having “an immunity agreement and [his] co-defendant did not,” and he expressed concern over Huckstadt’s testimony, which defendant believed should not have been presented against him. However, Rumley told defendant “the Court, even if he objected, would still have allowed joint sentencing.” On cross-examination, defendant admitted he did not testify at any proceeding against his codefendants. When asked if he “remember[ed] Mr. Rumley pointing out to the Judge how cooperative [he] had been in the investigation,” defendant answered, “Yes.” Defendant also recalled Rumley citing the number of times he met with authorities as a demonstration of his cooperation in mitigation. ¶ 23 Rumley testified he had over 30 years of experience as an attorney and participated in “[d]ozens” of sentencing hearings each year. Rumley stated he drafted a grant-of-use immunity agreement and described its purpose to defendant. Rumley indicated his intention was “to create a circumstance where [defendant] could cooperate and reap the benefit from the cooperation.” In drafting the agreement, Rumley did not intend for defendant to rely on it unless it had been implemented. However, he described the agreement as being “in the works all along negotiations.” Rumley recalled highlighting defendant’s cooperation with authorities at sentencing and stated “it [was] certainly something the Court should consider in mitigation of any sentence.” Rumley had no recollection of defendant expressing any concerns regarding joint sentencing, the immunity agreement, or Huckstadt’s testimony. ¶ 24 As part of its ruling, the trial court appropriately discussed defendant’s burden of proof in a third-stage postconviction evidentiary hearing, as well as the law applicable to a claim of ineffective assistance of counsel. The court first found, “[t]here really isn’t a Use Agreement - 9 - that is valid here” because “it was never effectuated by the Court. The State never went to me or any other Judge * to actually have this thing put into effect.” The court also considered Rumley’s trial strategy “in his closing argument that [authorities] talked to [defendant] three times, and nobody got away.” The court noted it was “clear * the evidence that was presented by Officer Huckstadt was not aggravating to the Court.” The court then stated it “disregarded that evidence, and found that it didn’t make any difference * whether it was a premeditated offense or it occurred two seconds before it happened.” Further, “even if the Court was able to find that Mr. Rumley’s representation did fall below an objective standard of reasonableness, * it certainly did not prejudice the Defendant.” The court “found the offense to be very offensive to the victim and the victim’s family. And that is why the Court imposed such a harsh sentence as it did.” Ultimately, the court denied defendant’s amended postconviction petition, concluding he was not denied the effective assistance of counsel. ¶ 25 This appeal followed. ¶ 26 II. ANALYSIS ¶ 27 On appeal, defendant argues the trial court erred by denying his claims of ineffective assistance of counsel based on trial counsel’s failure, at sentencing, to object to Special Agent Huckstadt’s testimony and present mitigating evidence. Defendant further argues he was denied the reasonable assistance of his postconviction counsel due to counsel’s failure to amend his pro se postconviction petition to adequately present his constitutional claims. ¶ 28 A. Standard of Review ¶ 29 The Act provides a remedy for defendants who have suffered a substantial violation of constitutional rights at trial. People v. Pendleton, 223 Ill. 2d 458, 471, 861 N.E.2d 999, 1007 (2006). The Act sets forth three stages of proceedings. Pendleton, 223 Ill. 2d at - 10 - 471-72. At the first stage, the trial court independently reviews the defendant’s postconviction petition and determines whether “the petition is frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2020). If it finds the petition is frivolous or patently without merit, the court must dismiss the petition. 725 ILCS 5/122-2.1(a)(2) (West 2020). If the court does not dismiss the petition, it proceeds to the second stage, where the court may appoint counsel for an indigent defendant. Pendleton, 223 Ill. 2d at 472. Appointed counsel may amend the defendant’s petition to ensure the defendant’s contentions are adequately presented. Pendleton, 223 Ill. 2d at 472. Also, at the second stage, the State may file a motion to dismiss the defendant’s petition or file an answer to it. Pendleton, 223 Ill. 2d at 472. If the State does not file a motion to dismiss or the court denies such a motion, the petition advances to the third stage, wherein the court holds a hearing at which the defendant may present evidence in support of his or her petition. Pendleton, 223 Ill. 2d at 472-73. At a third-stage hearing, “the trial court acts as a fact-finder, making credibility determinations and weighing the evidence. [Citation.] Accordingly, we review the court’s decision to deny relief for manifest error.” People v. Reed, 2020 IL 124940, ¶ 51. “Manifest error is ‘clearly evident, plain, and indisputable.’ [Citation.] Thus, a decision is manifestly erroneous when the opposite conclusion is clearly evident.” People v. Coleman, 2013 IL 113307, ¶ 98, 996 N.E.2d 617 (quoting People v. Morgan, 212 Ill. 2d 148, 155, 817 N.E.2d 524, 528 (2004)). Reviewing courts apply the manifestly erroneous standard in recognition of “the understanding that the post-conviction trial judge is able to observe and hear the witnesses at the evidentiary hearing and, therefore, occupies a position of advantage in a search for the truth which is infinitely superior to that of a tribunal where the sole guide is the printed record.” (Internal quotation marks omitted.) People v. Coleman, 183 Ill. 2d 366, 384, 701 N.E.2d 1063, 1073 (1998). - 11 - ¶ 30 B. Ineffective Assistance ¶ 31 1. Counsel’s Failure to Object to Huckstadt’s Testimony ¶ 32 Defendant first argues the trial court erred by denying his claim of ineffective assistance of counsel because trial counsel failed to raise an objection to Huckstadt’s testimony based on the use immunity agreement at sentencing. ¶ 33 A defendant’s claim of ineffective assistance of counsel is analyzed under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Veach, 2017 IL 120649, ¶ 29, 89 N.E.3d 366. To prevail, “a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defendant.” People v. Petrenko, 237 Ill. 2d 490, 496, 931 N.E.2d 1198, 1203 (2010). To establish deficient performance, the defendant must show “counsel’s performance ‘fell below an objective standard of reasonableness.’ ” People v. Valdez, 2016 IL 119860, ¶ 14, 67 N.E.3d 233 (quoting Strickland, 466 U.S. at 688). “ ‘Effective assistance of counsel refers to competent, not perfect representation.’ ” People v. Evans, 209 Ill. 2d 194, 220, 808 N.E.2d 939, 953 (2004) (quoting People v. Stewart, 104 Ill. 2d 463, 491-92, 473 N.E.2d 1227, 1240 (1984)). ¶ 34 Prejudice is established when a reasonable probability exists, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Evans, 209 Ill. 2d at 219-20 (citing Strickland, 466 U.S. at 694). “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” People v. Peeples, 205 Ill. 2d 480, 513, 793 N.E.2d 641, 662 (2002) (quoting Strickland, 466 U.S. at 694). “[T]here is a strong presumption of outcome reliability, so to prevail [on an ineffective assistance claim], a defendant must show that 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.’ ” People v. Pineda, - 12 - 373 Ill. App. 3d 113, 117, 867 N.E.2d 1267, 1272 (2007) (quoting Strickland, 466 U.S. at 686). “Satisfying the prejudice prong necessitates a showing of actual prejudice, not simply speculation that defendant may have been prejudiced.” People v. Patterson, 2014 IL 115102, ¶ 81, 25 N.E.3d 526. A defendant must satisfy both prongs of the Strickland standard, and the failure to satisfy either prong precludes a finding of ineffective assistance of counsel. People v. Clendenin, 238 Ill. 2d 302, 317-18, 939 N.E.2d 310, 319 (2010). “If such a claim can be disposed of because the defendant suffered no prejudice, we need not address whether counsel’s performance was deficient.” People v. Schnoor, 2019 IL App (4th) 170571, ¶ 57, 145 N.E.3d 544. ¶ 35 Here, defendant’s claim of ineffective assistance of counsel fails because he clearly was not prejudiced by trial counsel’s failure to object to Huckstadt’s testimony at sentencing. The aggravating evidence against defendant in this case was overwhelming. Despite defendant’s efforts to minimize his involvement in the offenses, it is undisputed he participated in the violent kidnapping and armed robbery, which terrorized Hastings and his family. At the time of the guilty plea, defendant stipulated through counsel the State could produce witnesses who would testify, among other things, to the fact defendant armed himself with a baseball bat. Officer Johnson testified he received a phone call from Hastings on December 9, 2013, at approximately 8:40 p.m. Hastings stated he had been kidnapped. Johnson went to Hastings’s house and found him “a little bit hysterical and kind of in a panic mode.” Hastings stated he was leaving work when he opened his car door and found a man in his backseat. Hastings backed up, and a male came up from behind him. The subjects forced him into the car, zip-tied his hands, and drove him around Ford and Iroquois Counties. Hastings was struck with a baseball bat and a gun. The evidence also indicated, while laughing and calling him names, the abductors placed - 13 - the gun against Hastings’s head and pulled the trigger. They threatened to cut off one of Hastings’s fingers, kill his family, or take his wife and daughters to Mexico. Not only did the assailants take Hastings’s money, credit cards, checks, and his cell phone, they also demanded more money and threatened him and his family with violent acts if he did not comply. What is more, defendant continued to participate in the criminal enterprise when, over a month after the offenses were committed, he attempted to retrieve the money from the prearranged location, where he was apprehended. Given the “serious harm” caused by defendant as well as the “very obvious” impact on Hastings’s family, the court determined a 25-year sentence was necessary “to deter others from taking part in such foolish and [nonsensical] activity,” regardless of “whether it was a planned crime or just a spur of the moment crime.” ¶ 36 Furthermore, the trial court was in a much better position “to observe and hear the witnesses at the evidentiary hearing and, therefore, occupie[d] a position of advantage in a search for the truth which is infinitely superior to that of a tribunal where the sole guide is the printed record.” (Internal quotation marks omitted.) Coleman, 183 Ill. 2d at 384. The court specifically found any failure by trial counsel to raise an objection regarding Huckstadt’s testimony “certainly did not prejudice the Defendant.” The court “found the offense to be very offensive to the victim and the victim’s family. And that is why the Court imposed such a harsh sentence as it did.” ¶ 37 Because defendant’s claim of ineffective assistance of counsel fails to satisfy the prejudice prong, we reject his claim and need not address whether trial counsel’s performance was deficient. Schnoor, 2019 IL App (4th) 170571, ¶ 57. Thus, the trial court’s denial of defendant’s amended postconviction petition was not manifestly erroneous. See Coleman, 2013 IL 113307, ¶ 98. - 14 - ¶ 38 2. Counsel’s Failure to Present Mitigating Evidence ¶ 39 Defendant next argues his trial counsel was ineffective for failing to investigate and call mitigation witnesses at his sentencing hearing. This claim was dismissed at the second stage of postconviction proceedings. The State contends defendant’s argument is procedurally defaulted and, alternatively, the trial court properly dismissed his claim because defendant failed to make a substantial showing of a constitutional violation. ¶ 40 An action under the Act is a collateral attack on the trial court proceedings—not an appeal from the judgment of conviction. People v. Tate, 2012 IL 112214, ¶ 8, 980 N.E.2d 1100. This court reviews a dismissal at the second stage de novo. People v. Sanders, 2016 IL 118123, ¶ 31, 47 N.E.3d 237. The scope of a postconviction proceeding is ordinarily limited to constitutional matters involved in the original proceedings that have not been, nor could have been, previously adjudicated. People v. Blair, 215 Ill. 2d 427, 447, 831 N.E.2d 604, 617 (2005). Forfeiture applies to any issue that could have been raised on direct appeal but was not. People v. Ligon, 239 Ill. 2d 94, 103, 940 N.E.2d 1067, 1073 (2010). We may relax the doctrines of res judicata and forfeiture under circumstances where: (1) the facts relating to counsel’s alleged ineffectiveness do not appear on the face of the original appellate record, (2) a defendant can establish appellate counsel was ineffective for failing to raise the issue on direct appeal, or (3) fundamental fairness so requires. People v. Terry, 2012 IL App (4th) 100205, ¶ 30, 965 N.E.2d 533. ¶ 41 Here, defendant’s claim his trial counsel was ineffective for failing to call Leon, Alvarado, and Johnson as witnesses to testify is based entirely upon facts contained in the common law record. “[I]n Illinois, defendants are required to raise ineffective assistance of counsel claims on direct review if apparent on the record.” Veach, 2017 IL 120649, ¶ 46. Even - 15 - though defendant now supports his ineffective-assistance claim with additional witness affidavits which were not part of the record on direct review, this does not mean the underlying claim itself “could not have been raised on direct appeal.” People v. Newbolds, 364 Ill. App. 3d 672, 677, 847 N.E.2d 614, 619 (2006). The proposed testimony of these potential witnesses recount facts defendant would have necessarily been aware of at the time of his sentencing hearing. As the State points out, defendant, at the July 2015 hearing, told the trial court his family “tried calling [counsel] and left messages. And in addition, [defendant’s] mom said she sent some letters for him. So he could use them.” At the hearing in October 2018, defendant claimed counsel never discussed mitigation evidence with him and, despite being unaware he could present character witnesses on his behalf at sentencing, defendant “provided some after the fact.” Defendant was cognizant throughout the posttrial proceedings and on direct appeal that his father, mother, and girlfriend were potential witnesses who were not called. The claim could have been raised by defendant on direct appeal and as a result has been forfeited. Petrenko, 237 Ill. 2d at 499; People v. Harris, 224 Ill. 2d 115, 124, 862 N.E.2d 960, 966 (2007). ¶ 42 Assuming, arguendo, this issue was not procedurally defaulted, it is without merit because defendant cannot make a substantial showing of a constitutional violation. As stated above, defendant contends his trial counsel was ineffective for failing to investigate witnesses who were willing to testify on his behalf at the time of sentencing. Defendant attached affidavits from Leon, Alvarado, and Johnson to his amended postconviction petition averring counsel never contacted them to testify at defendant’s sentencing hearing. Defendant also included his own affidavit attesting counsel “failed to tell [him] that [he] could provide mitigating evidence at the sentencing hearing. He failed to contact any sources of said mitigating evidence and failed to return calls from [defendant’s] family members who attempted to submit said mitigation.” In his - 16 - amended petition, defendant alleged counsel failed to present “live testimony from the Defendant and the Defendant’s family members as well as letters of recommendation.” “Decisions concerning which witnesses to call at trial and what evidence to present on defendant’s behalf ultimately rest with trial counsel.” People v. Wilborn, 2011 IL App (1st) 092802, ¶ 79, 962 N.E.2d 528. Moreover, where a defendant cannot point to “potentially favorable testimony the witnesses might offer,” the failure to call such witnesses does not indicate incompetence on the part of counsel. People v. Williams, 147 Ill. 2d 173, 245, 588 N.E.2d 983, 1012 (1991). Trial counsel cannot be deemed ineffective for failing to investigate these witnesses because none of the affidavits indicate what the witnesses’ testimony would have been or whether they would have been helpful. We have not found any evidence in the record, nor has defendant presented any, to rebut the presumption that the absence of these witnesses’ testimony was a matter of trial strategy and a sound decision by defense counsel. Even if it was not, defendant provides no substance to the claimed missing mitigation evidence by which we could weigh it against the overwhelmingly aggravating evidence present. Thus, it does not amount to ineffective assistance of counsel. See Clendenin, 238 Ill. 2d at 317-18. ¶ 43 C. Reasonable Assistance ¶ 44 Finally, defendant argues he was denied the reasonable assistance of his postconviction counsel due to counsel’s failure to amend his pro se postconviction petition “to adequately present his constitutional claims based on the immunity agreement and joint sentencing.” ¶ 45 The right to counsel in postconviction proceedings is statutory as provided in the Act, not a constitutional right. People v. Suarez, 224 Ill. 2d 37, 42, 862 N.E.2d 977, 979 (2007). Further, “a defendant in postconviction proceedings is entitled to only a ‘reasonable’ level of - 17 - assistance, which is less than that afforded by the federal or state constitutions.” Pendleton, 223 Ill. 2d at 472. “Commensurate with the lower reasonable assistance standard mandated in postconviction proceedings, Illinois Supreme Court Rule 651 (eff. July 1, 2017) sharply limits the requisite duties of postconviction counsel.” People v. Custer, 2019 IL 123339, ¶ 32, 155 N.E.3d 374. Rule 651(c) provides that postconviction counsel file a certificate stating he or she (1) consulted with the defendant to ascertain his contentions of deprivation of constitutional right, (2) examined the record of the proceedings at trial, and (3) amended the defendant’s pro se petition, if necessary, to ensure defendant’s contentions are adequately presented. Ill. S. Ct. R. 651(c) (eff. July 1, 2017). ¶ 46 “Fulfillment of the third obligation under Rule 651(c) does not require postconviction counsel to advance frivolous or spurious claims on defendant’s behalf. If amendments to a pro se postconviction petition would only further a frivolous or patently nonmeritorious claim, they are not ‘necessary’ within the meaning of the rule.” People v. Greer, 212 Ill. 2d 192, 205, 817 N.E.2d 511, 519 (2004). Our supreme court has “repeatedly held that the purpose of Rule 651(c) is to ensure that counsel shapes the petitioner’s claims into proper legal form and presents those claims to the court.” People v. Perkins, 229 Ill. 2d 34, 43-44, 890 N.E.2d 398, 403 (2007). Additionally, “[p]ostconviction counsel is not required to comb the record for issues not raised in the defendant’s pro se post-conviction petition.” (Internal quotation marks omitted.) People v. Rials, 345 Ill. App. 3d 636, 641, 802 N.E.2d 1240, 1245 (2003). A postconviction petitioner is “not entitled to the advocacy of counsel for purposes of exploration, investigation and formulation of potential claims.” People v. Davis, 156 Ill. 2d 149, 163, 619 N.E.2d 750, 758 (1993). - 18 - ¶ 47 Defendant acknowledges postconviction counsel filed a certificate pursuant to Rule 651(c). “The filing of a facially valid Rule 651(c) certificate creates a rebuttable presumption that counsel acted reasonably and complied with the rule.” People v. Wallace, 2016 IL App (1st) 142758, ¶ 25, 67 N.E.3d 976. “It is defendant’s burden to overcome this presumption by demonstrating his attorney’s failure to substantially comply with the duties mandated by Rule 651(c).” People v. Profit, 2012 IL App (1st) 101307, ¶ 19, 974 N.E.2d 813. On appeal, we review an attorney’s compliance with Rule 651(c) de novo. People v. Blanchard, 2015 IL App (1st) 132281, ¶ 15, 43 N.E.3d 1077. ¶ 48 We turn first to defendant’s assertion postconviction counsel provided unreasonable assistance when she “failed to raise a freestanding due-process claim in the amended petition.” Defendant posits, “[b]ecause there has been an intolerable breakdown of ‘fairness, integrity, and honor in the operation of the criminal justice system’ in this case, [postconviction counsel] should have raised a due-process claim in the amended petition.” In Pendleton, our supreme court considered whether postconviction counsel was required to amend a pro se petition to assert a claim not included in the original petition. There, the defendant filed a pro se postconviction petition asserting, among other things, improper evidence was presented at his sentencing hearing and his trial counsel was ineffective for failing to file a motion to withdraw the defendant’s guilty plea after the defendant told counsel he wished to withdraw his plea. Pendleton, 223 Ill. 2d at 466-67. Postconviction counsel filed an amended petition in which counsel incorporated the allegations in the defendant’s pro se petition and asserted specific claims regarding evidence presented at the sentencing hearing. Pendleton, 223 Ill. 2d at 467. The defendant appealed the dismissal of his petition and argued for the first time (1) the trial court failed to properly admonish him pursuant to Illinois Supreme Court Rule 605(b) (eff. Oct. 1, - 19 - 2001) and (2) postconviction counsel provided unreasonable assistance for failing to include the admonishment issue in the amended petition. Pendleton, 223 Ill. 2d at 469-70. The appellate court found the defendant forfeited the issue because it was not included in his postconviction petition but nevertheless found postconviction counsel ineffective for failing to include the issue in the petition, notwithstanding counsel’s filing of a Rule 651(c) certificate. Pendleton, 223 Ill. 2d at 470. ¶ 49 Our supreme court reversed the appellate court’s decision and found postconviction counsel was not required to raise the admonishment issue because it was not included in the defendant’s pro se petition. The supreme court further found postconviction counsel did not render deficient assistance in failing to raise the issue because “ ‘[p]ostconviction counsel is only required to investigate and properly present the petitioner’s claims.’ ” (Emphasis in original.) Pendleton, 223 Ill. 2d at 475 (quoting Davis, 156 Ill. 2d at 164). The supreme court observed, “Rule 651(c) only requires postconviction counsel to examine as much of the record ‘as is necessary to adequately present and support those constitutional claims raised by the petitioner.’ ” Pendleton, 223 Ill. 2d at 475 (quoting Davis, 156 Ill. 2d at 164). The supreme court noted that while postconviction counsel may conduct a broader review of the record and may raise additional issues not included in the petition, “there is no obligation to do so.” Pendleton, 223 Ill. 2d at 476. ¶ 50 Similarly, in Rials, 345 Ill. App. 3d at 643, the defendant raised only sentencing issues in his postconviction petition but claimed on appeal his appellate counsel was ineffective for failing to raise a claim the State did not prove his guilt beyond a reasonable doubt because an expert chemist’s testimony lacked the necessary foundation. After finding the claims raised on appeal forfeited because they were not included in the defendant’s postconviction petition, the - 20 - court rejected the defendant’s claim he was denied reasonable assistance of postconviction counsel where counsel did not amend his petition to include the claims the defendant sought to raise on appeal. Rials, 345 Ill. App. 3d at 643. The court observed, “[c]ounsel is obligated to amend defendant’s pro se petition only when necessary to adequately present the claims defendant had already raised in his petition and while counsel may add new claims, he is not required to amend defendant’s pro se postconviction petition to include new issues.” Rials, 345 Ill. App. 3d at 641. Therefore, because the claims the defendant sought to raise on appeal were not included in his pro se petition, “counsel was not required to review the record to ascertain any potential claim of error not raised in defendant’s original petition or to amend the petition to include these claims.” Rials, 345 Ill. App. 3d at 643. ¶ 51 In this case, although defendant raised numerous claims of ineffective assistance of trial counsel, he did not assert—or even allude to the fact that his “due-process rights had been violated by the course of governmental conduct in relation to the immunity agreement” in his pro se petition. See Davis, 156 Ill. 2d at 163 (stating a postconviction petitioner is “not entitled to the advocacy of counsel for purposes of exploration, investigation and formulation of potential claims”). Therefore, we find postconviction counsel was not required to amend defendant’s petition to assert such a claim and defendant was not denied reasonable assistance by counsel’s failure to do so. See Pendleton, 223 Ill. 2d at 474-75; Rials, 345 Ill. App. 3d at 643. ¶ 52 Defendant next argues postconviction counsel performed unreasonably because her amendment of defendant’s joint sentencing complaint “provide[d] no hint to the legal basis for such an objection or to the prejudicial impact of joint sentencing.” The gravamen of defendant’s complaint is “the immunity agreement made the objectionable portions of SA - 21 - Huckstadt’s testimony admissible in aggravation against * co-defendant Marcos but not against [defendant] himself.” ¶ 53 Illinois’s use immunity statute “provides that if a witness has refused or is likely to refuse to produce evidence on the basis of his privilege against self-incrimination, the State can file a motion that the witness be granted immunity from prosecution in a criminal case as to any information directly or indirectly derived from the production of evidence from the witness.” People v. Ousley, 235 Ill. 2d 299, 316, 919 N.E.2d 875, 887 (2009); 725 ILCS 5/106-2.5 (West 2020). “The State has ‘the exclusive authority to grant use immunity,’ and ‘[t]he trial court’s role is limited to examining the motion to determine whether the motion meets the procedural and substantive requirements of the use immunity statute.’ ” People v. Figueroa, 2020 IL App (2d) 160650, ¶ 44, 156 N.E.3d 1133 (quoting Ousley, 235 Ill. 2d at 315). Here, any objection to the joint sentencing hearing based on the purported immunity agreement would have been frivolous as the State never filed a motion effectuating the agreement. “Defense counsel is not required to make futile motions or objections in order to provide effective assistance.” (Internal quotation marks omitted.) People v. Mister, 2016 IL App (4th) 130180-B, ¶ 95, 58 N.E.3d 1242 (quoting People v. Smith, 2014 IL App (1st) 103436, ¶ 64, 16 N.E.3d 129). ¶ 54 Defendant concedes, “without the agreement, [he] could show neither deficiency nor prejudice from Rumley’s failure to object to joint sentencing.” But even if it could be said that Rumley’s failure to object to joint sentencing was objectively unreasonable, it caused no prejudice. It is evident from the trial court’s remarks it was inclined to view the allegedly objectionable portions of Huckstadt’s testimony in mitigation. The court concluded it was “clear * the evidence that was presented by Officer Huckstadt was not aggravating to the Court.” In fact, the court expressly stated it “disregarded that evidence, and found that it didn’t make any - 22 - difference * whether it was a premeditated offense or it occurred two seconds before it happened.” Thus, there is no reasonable probability, absent Huckstadt’s testimony, the outcome would have been different. See Peeples, 205 Ill. 2d at 513. ¶ 55 Having found no effective use immunity agreement, defendant could not make a substantial showing of a violation of his constitutional right to the effective assistance of counsel. Consequently, any amendment alleging trial counsel was ineffective for failing to object to joint sentencing based on such an agreement would have been frivolous and thus was unnecessary. See Greer, 212 Ill. 2d at 205 (finding where amendments to a pro se postconviction petition would only further a frivolous and patently nonmeritorious claim, they are not “ ‘necessary’ ” within the meaning of Rule 651(c)). Accordingly, we find defendant was not denied the reasonable assistance of postconviction counsel. ¶ 56 III. CONCLUSION ¶ 57 For the foregoing reasons, we affirm the trial court’s judgment. ¶ 58 Affirmed.
s3://data.kl3m.ai/documents/recap/gov.uscourts.caed.272043/gov.uscourts.caed.272043.5.0.pdf.json	text/plain	ORDER TO SHOW CAUSE RE: TAX SUMMONS 1 ENFORCEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 BENJAMIN B. WAGNER United States Attorney YOSHINORI H. T. HIMEL #66194 Assistant United States Attorney Eastern District of California 501 I Street, Suite 10-100 Sacramento, CA 95814-2322 Telephone: (916) 554-2760 Facsimile: (916) 554-2900 email: [email protected] Attorneys for Petitioner United States of America IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Petitioner, v. MARK DERZON, Respondent. 1:14-cv-01362-LJO-JLT ORDER TO SHOW CAUSE RE: TAX SUMMONS ENFORCEMENT Taxpayer: MARK DERZON Date: October 20, 2014 Time: 9:30 a.m. Ctrm: Ctrm. 6, 7th Floor Upon the petition of BENJAMIN B. WAGNER, United States Attorney for the Eastern District of California, including the verification of Revenue Officer MICHAEL J. PAPASERGIA, and the Exhibit attached thereto, it is hereby: ORDERED that the Respondent, MARK DERZON, appear before United States Magistrate Judge Jennifer L. Thurston, in that Magistrate Judge's courtroom in the United States Courthouse, 51019th Street, on November 5, 2014, at 8:30 a.m., to show cause why the respondent should not be compelled to obey the Internal Revenue Service summons issued on November 26, 2013. / / / / / / Case 1:14-cv-01362-LJO-JLT Document 5 Filed 09/08/14 Page 1 of 3 ORDER TO SHOW CAUSE RE: TAX SUMMONS 2 ENFORCEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 It is further ORDERED that: 1. The United States Magistrate Judge will preside, under 28 U.S.C. Section 636(b)(1) and Local Rule 72-302(c)(9), at the hearing scheduled above. After hearing, the Magistrate Judge intends to submit proposed findings and recommendations under Local Rule 304(a), with the original thereof filed by the Clerk and a copy provided to all parties. 2. Under Fed. R. Civ. P. 4(c)(1), the Court hereby appoints the investigating Internal Revenue Service employee, and all federal employees designated by that employee, to serve process in this case. 3. To afford the respondent an opportunity to respond to the petition and the petitioner an opportunity to reply, a copy of this order, the Verified Petition and its Exhibit, and the Points and Authorities, shall be served by delivering a copy to the respondent personally, or by leaving a copy at the respondent’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by any other means of service permitted by Fed. R. Civ. P. 4(e), within 21 days of the date this order is served upon the United States Attorney, unless such service cannot be made despite reasonable efforts. 4. Proof of any service done under paragraph 3, above, shall be filed with the Clerk as soon as practicable. 5. If the federal employee assigned to serve these documents is not reasonably able to serve the papers as provided in paragraph 3, petitioner may request a court order granting leave to serve by other means. See Fed. R. Civ. P. 81(a)(5). The federal employee assigned to serve the documents shall make a certificate detailing the efforts made within the 21-day period to serve the respondent as provided in paragraph 3. 6. The file reflects a prima facie showing that the investigation is conducted pursuant to a legitimate purpose, that the inquiry may be relevant to that purpose, that the information sought is not already within the Commissioner’s possession, and that the administrative steps required by the Code have been followed. See United States v. Powell, 379 U.S. 48, 57-58 Case 1:14-cv-01362-LJO-JLT Document 5 Filed 09/08/14 Page 2 of 3 ORDER TO SHOW CAUSE RE: TAX SUMMONS 3 ENFORCEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 (1964). The burden of coming forward therefore has shifted to whoever might oppose enforcement. 7. If the respondent has any defense or opposition to the petition, such defense or opposition shall be made in writing and filed with the Clerk and a copy served on the United States Attorney at least 10 days before the date set for the show cause hearing. 8. At the show cause hearing, the Magistrate Judge intends to consider the issues properly raised in opposition to enforcement. Only those issues brought into controversy by the responsive pleadings and supported by affidavit will be considered. Any uncontested allegation in the petition will be considered admitted. 9. The respondent may notify the Court, in a writing filed with the Clerk and served on the United States Attorney at least 10 days before the date set for the show cause hearing, that the respondent has no objections to enforcement of the summons. The respondent’s appearance at the hearing will then be excused. IT IS SO ORDERED. Dated: September 8, 2014 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE Case 1:14-cv-01362-LJO-JLT Document 5 Filed 09/08/14 Page 3 of 3
s3://data.kl3m.ai/documents/cap/116970.json	text/markdown	#### Hoover Steel Ball Company v.Schafer Ball Bearing Company. [Decided January 27th, 1919.] 1. Payments made at a time when a corporation is insolvent and has suspended its business in the sense that it has ceased to meet its maturing pecuniary obligations as they accrue, to a creditor, with notice of the insolvency, whose debt arose by reason of an advance by him to the corporation at a time when it was insolvent to his knowledge, are voidable under section 64 of the Corporation act and may be recovered by a receiver. . 2. A creditor who has advanced money to a corporation insolvent to his knowledge and has taken a pledge of all of its assets, the advances not being made in pursuance of any plan of rehabilitation, repayment being provided for in monthly installments in amounts which the creditor must have known the corporation could not pay except at the expense of nerv creditors unless extraordinary circumstances intervened, is charged with knowledge, of. insolvency at the time of payments which in fact existed. 479On bill, &e. On appeal of administrator of Daniel H. Tolman from determination of the receiver on claim. Messrs. Bilder & Bilder (Mr. David H. Bilder),for the receiver. Mr. Benjamin F. Jonesand Mr. Porter(of the New York bar), for the claimant. Lane, V. C. The Tolman estate is the holder of notes aggregating $5,000 made by defendant corporation on or about October 27th, 1917, and secured by a chattel mortgage. The total amount of the notes originally was $6,000. They were payable $500 each month. The first two notes were paid in due course. In prior conclusions in this case I found that tire chattel mortgage was given at a time when the corporation was insolvent and had suspended its ordinary business in the sense of suspension of payment of its pecuniary obligations as they matured to the knowledge of Tolman, and I held void a pledge of steel made at the same time to secure another debt. The Tolman estate admitted the invalidity of.the chattel mortgage for want of proper record. It filed its claim with the receiver for the balance of $5,000 due on the notes, which claim the receiver rejected upon the ground that the payments of the two notes were in violation of the sixty-fourth section of the Corporation act. (2 Comp. Stat. p. 1638),for the reason that at the time they were made the corporation was insolvent and had suspended business to the knowledge of Tolman. I set forth the facts with considerable detail in my prior conclusions, which may be considered with these. I found that the company at the time of the original transaction was insolvent in the sense that there was a general inability to meet pecuniary obligations as they matured by means of available assets or an honest use of credit, and that it had suspended its business in the sense that it had ceased payments of the pecuniary obligations as they matured and was not about to resume paj'ments and that no plan was proposed by which the company was to be put upon its feet, nor was it contemplated that the 480moneys raised should be used for the purpose of putting the corporation in the position of paying its maturing obligations. The most that can be said is that the officers of the company hoped that the money advanced by Tolman mightenable them to complete their experiments so that they might have something which would put them in a position to negotiate with creditors. Tolman was, in fact, advancing capital at usurious rates secured by a pledge of all the company’s available assets. The company was not in need of funds to tide it over a temporary embarrassment. It was in need of working capital. In consideration of the advance of some $9,000, the corporation stripped itself of its available means of raising money. The notes and chattel mortgage were for short terms and not given in pursuance of any plan of rehabilitation. The law is settled that payments made to creditors resulting in preferences when a corporation is insolvent, to the knowledge of the creditor, may be recovered. Millerv. Audonried, 67 N. J. Eq. 252; affirmed, 68 N. J. Eq. 658; Jessup, Receiver,v. Thomason, 68 N. J. Eq. 443.I do not mean to intimate that payments may not be made where the suspension of business has been so complete, or the payments are made so out of the ordinary course of business as that they may be recovered, even if creditors have not actual knowledge of insolvency. I conclude that at the time the payments were made Tolman had notice of the insolvency, and of the suspension of business in the sense that I have held that the company had suspended business. Both pajnnents were made within sixty daj's after the giving of the chattel mortgage which, with the pledge held by Tolman, covered all of the property of the corporation. As I have stated, the money was not advanced pursuant to any plan of rehabilitation. It was an advance of capital rather than a loan of money to tide over a temporary embarrassment. Tolman’s knowledge of the situation at the time the notes were given was such that lie was bound to know'that the company never could succeed and resume its business unless something extraordinary happened. The company was not manufacturing and was.not in receipt of an income. He knew, or was charged with knowing, that within the short space of sixty days it could not commence manufactur*481ing with profit. He must be assumed to know that the payments were at the expense of new creditors of the company. The money was used to prefer certain creditors. He in turn was preferred at the expense of others. Nothing was brought to his attention which would warrant him in assuming that there had been the slightest change in the situation. Under the circumstances, it was his duty to have ascertained the condition of the company at the time of the payments. I conclude that Tolman took the two payments of $500 charged with notice of insolvency and that the payments created voidable preferences. Inasmuch as the dividend on the Tolman general claim will be in excess of $1,000, there is no necessity that any actual repayments be made. The receiver may allow the claim of the notes secured by the chattel mortgage as a general claim for $6,000. He may figure the dividend for the general creditors as if he had $1,000 more than he has in his possession, and may deduct that $1,000 from the dividend payable to Tolman’s estate. No costs to either party. Settle order on one day’s notice.
s3://data.kl3m.ai/documents/uspto/07416630.json	text/markdown	# Patent ## Title Fabrication of LTCC T/R modules with multiple cavities and an integrated ceramic ring frame ## Abstract A method of fabricating a transmit/receive (T/R) module utilizing low temperature co-fired ceramic (LTCC) material in place of high temperature co-fired ceramic (HTCC) material and utilizing a combination of multiple lamination steps which also include forming a ceramic frame, as opposed to a metal ring frame, in the process. Brazing metallization is also utilized to attach heat sinks and lids as well as pin connectors. The formation of the pin connectors is provided on the side surface of the T/R module with a side printing process. ## Background BACKGROUND OF THE INVENTION 1. Field of the Invention This invention relates generally to microwave transmit/receive (T/R) modules used in connection with an active aperture of a phased array radar system and more particularly to the method of fabricating T/R module packages utilizing laminated layers of low temperature co-fired ceramic (LTCC) material. 2. Description of Related Art Phased array radars utilizing electronically scanned antenna arrays, also referred to as active apertures, require many individually controllable T/R modules which are arranged in an array. The T/R modules are connected to frontally located radiator elements which collectively generate a transmitted radar beam. The beam is normally energized, shaped and directed in azimuth and elevation under electronic control of the signals applied to the individual radiators. Present state of the art T/R module packages include a structure in the form of a multi-cavity, multi-layer substrate comprised of high temperature co-fired ceramic (HTCC) layers including, for example, black alumina ceramics and tungsten. The ceramic layers have outer surfaces including metallization patterns of ground planes and conductors as well as feedthroughs or vertical vias formed therein for providing three dimensional routing of both RF and DC signals. Active circuit components comprised of integrated circuit chips are located in the various cavities of the substrate which implement suitable control and generating functions of RF signals to and from respective antenna elements. One such T/R module is shown and described in U.S. Pat. No. 6,114,986 entitled “Dual Channel Microwave Transmit/Receive Module for an Active Aperture of a Radar System”, issued to John W. Cassen et al. on Sep. 5, 2000, the details of which are incorporated herein by reference. In the Cassen et al. patent, two discrete transmit/receive (T/R) channels are implemented in a single common T/R module package having the capability of providing combined functions, control and power conditioning while utilizing a single multi-cavity, multi-layer substrate comprised of high temperature co-fired ceramic (HTCC) layers. Although packages for active and passive electronic components fabricated from multiple layers of low temperature co-fired ceramic (LTCC) tape are known in the prior art, the conventional method of fabricating these LTCC packages has been found to be adequate only for fabricating multi-layer substrates with a small number, typically 5-10 layers of tape. This method, however, has been found to be completely inadequate for fabricating highly complex packages of 20 or more layers of tape and having multiple cavities with different floor thicknesses, through-holes, and an integrated ring frame in the package as required, for example, by an LTCC T/R module utilized in a radar system. SUMMARY Accordingly, it is an object of the present invention to provide an improvement in the method of fabricating transmit/receive (T/R) module packages and substrates used in connection with an active aperture of a pulsed radar system. It is another object of the present invention to provide an improved method of fabricating the substrates of T/R module packages with a type of ceramic material which reduces weight and electrical loss while at the same time increasing performance. It is a further object of the invention to provide an improved method of fabricating the substrates of T/R module packages with low temperature co-fired ceramic (LTCC) material. These and other objects are achieved in the present invention by an improved method of fabricating T/R modules with low temperature co-fired ceramic (LTCC) material which permits relatively easy construction of multiple cavities in a substrate having different floor thicknesses for the placement of active and passive circuit components (e.g. semiconductor chips) as well as through-holes in a relatively thick package, on the order of 200-250 mils, containing 20 or more individual layers of 5 mil thick (LTCC) tape, as opposed to the known prior art LTCC packages, and including an integrated ceramic ring frame that is also formed within the package. Brazing metallization is also used to attach heat sinks and covers or lids. Furthermore, a side printing capability of brazeable metallization is provided so as to attach connector pins thereto. The result is an LTCC package for a T/R module which is relatively simple, elegant and light weight. In the subject method of fabrication of the substrate, a number of LTCC tape layers are initially divided into multiple stacks of tape layers, e.g., four stacks or sections, based on a final cavity routing configuration of each stack. One of the stacks comprises a set of layers for the formation of a ceramic ring frame. Each stack is then separately tack laminated, followed by cavity patterns being machined therein using a router device whereby a large number of layers are routed in a single pass, forming cavities having side walls which are relatively smooth and straight as opposed to the known prior art method of cutting individual layers with a laser, for example, which results in the formation of jagged side walls. Following cavity routing, all of the stacks are laid up on a base plate including a set of tooling pins for providing alignment of the stacks. The lay up is completed with a placement of a top Mylar template followed by a copper template. The assembly is next covered with an expandable latex sheet that has been lightly coated with a graphite aerosol for aiding the removal of the latex sheet without metal lift-off after lamination. The assembly is then placed in a lamination fixture and isostatically laminated for a specific period of time at a predetermined pressure and temperature, typically 4000-5000 psi at 72° C. for 15 minutes, resulting in a structure in the form of laminated panel. The panel is then allowed to cool, removed from the fixture where it is green cut to remove tooling holes and then fired with a designated firing profile. A plurality of mutually identical LTCC substrates for a T/R module are then diced, i.e. cut, from the panel and post fire printed as required. Further scope of applicability of the present invention will become apparent from the detailed description provided hereinafter. It should be noted, however, that the detailed description and specific example, while indicating the preferred method of the invention, is provided by way of illustration only, since various changes, alterations and modifications coming within the spirit and scope of the invention will become apparent to those skilled in the art from the following detailed description. BRIEF DESCRIPTION OF THE DRAWINGS The present invention will become more fully understood when considered in conjunction with the accompanying drawings, which are provided by way of illustration and thus are not meant to be considered in a limiting sense, and wherein: FIG. 1 is a flow diagram illustrative of a known prior art fabrication process conventionally used in the fabrication of LTCC packages comprised of a relatively small number of LTCC tape layers; FIG. 2 is a flow diagram illustrative of the process of fabricating an LTCC package for T/R modules in accordance with the subject invention comprised of a relatively large number of LTCC tape layers; FIG. 3 is an exploded isometric view of four LTCC multi-layer laminated tapes in accordance with the method shown in FIG. 2; and FIGS. 4 and 5 are isometric and top planar views of a composite laminated assembly of the four LTCC tape sections shown in FIG. 3. DETAILED DESCRIPTION OF THE INVENTION The subject invention is directed to three new features of LTCC T/R module packages resulting from advances in materials and process technologies not heretofore available, namely: (1) an improved process that permits fabrication of multiple cavities and through holes in a very thick package; (2) a ceramic ring that is integrally formed within the package; and (3) attachment of heat sinks and lids with brazing metallization and a side printing capability for attaching connector pins. The known prior art process for fabricating LTCC packages is shown in FIG. 1. The method of FIG. 1 consists of blanking and stabilizing the green tape, punching vias, filling the via holes, and screen printing the conductor layers as shown by steps 100, 102, 104 and 106. For cavities in the substrate, each of the desired layers are then subjected to laser cutting, one at a time, as shown by step 108, which is followed by collating and stacking as shown in step 110, form cavities in the completed part, which may be, for example, a substrate for electronic components such as integrated circuit chips. The stacked part is then isostatically laminated, routed to remove the tooling holes, fired and diced, as shown by steps 112, 114, 116 and 118. Following this, the part is tested and shipped as shown by reference numerals 120 and 122. The process flow illustrated in FIG. 1 is found to be adequate for building multi-layer substrates with, for example, 10-15 layers of tape. However, it was found that such a process could not be employed in the fabricating of T/R modules consisting of 20 or more layers of LTCC tape having multiple cavities with different floor thickness, through-holes and an integrated ceramic ring frame as opposed to a heretofore used metal ring frame. To form all these cavities in the tape requires the removal of a substantial amount of material from the green tape and the conventional time consuming laser cutting of individual tape layers makes manufacturing parts highly uneconomical. The solution to this problem lies in forming the cavities in a laminated stacked section of multiple layers of LTCC tape rather than in individual tape layers. This is particularly important for the formation of a ceramic ring frame, as opposed to a conventional metal ring frame, that must be simultaneously co-fired with the package and which constitutes the subject matter of the subject invention. Such a process is shown in FIG. 2, which discloses an inventive change in sequence and number of process steps. Substrate Fabrication Referring now to FIG. 2 which discloses the preferred method of the subject invention, the process steps up to conductor printing and including of blanking the green tape, punching the vias, filling the via holes and screen printing, as shown in steps 200-206, are the same as shown in the prior art process of FIG. 1. Now, however, following an inspection step as shown by reference number 208, a plurality of, for example, forty seven tape layers (HO1-H47) for the simultaneous fabrication of plurality of identical T/R module substrates, one of which is shown, for example, in FIGS. 4 and 5 by reference numeral 20, are divided and stacked into four sections 10, 12, 14, 16 as shown by steps 210, 212, 214 and 216. Section 10 is comprised of a stack of five layers HO1-H05, the second section 12 is comprised of a stack of twelve layers H06-H18, the third section 14 is comprised of a stack of four layers H19-H22, and the fourth section 16 is comprised of a relatively thick stack of twenty four tape layers, H23-H47, the latter section comprising a stack of tape layers which is used for the formation of a ceramic ring frame. The four tape sections 10, 12, 14 and 16 are separately tack laminated at a pressure of 1000-2000 psi as shown by steps 218, 220, 222 and 224. Specific cavity patterns are next machined in the four individual laminated tape sections 10-16, as shown in FIG. 3 by reference numeral 18 by routing using a DNC (direct numerical control) router as shown by steps 226, 228, 230 and 232. There are two advantages associated with using routing, namely: first, unlike a laser process, a large number of layers can be routed in one pass requiring very little time, and secondly, cavity walls formed by routing are smooth and straight in contrast to a jagged wall formed by individual layers being cut by a laser. A smooth and straight side wall is essential for ease of subsequent semiconductor chip placement. After cavity routing and cleaning of the four laminated tape sections 10, 12, 14 and 16 as shown by steps 226, 228, 230 and 232 of FIG. 2, the four sections are stacked on a copper base plate, not shown, which includes tooling pins per step 234 for providing an alignment mechanism. The four section stack of LTCC tape is next covered with a green expandable “Stretchlon SL 200” (TM) latex sheet, not shown, that has been lightly coated with a graphite aerosol to facilitate the removal of the latex sheet without metal lifting off after lamination. The assembly is then placed in a well known lamination fixture and isostatically laminated at 4000-5000 psi, at 72° C. for 15 minutes. This lamination step results in a composite multi-layer panel 20 of a plurality of individual substrate parts, one of which is shown in FIGS. 4 and 5. The panel is then taken out of the fixture after it is allowed to cool, where it is green cut as shown in step 236 to remove tooling holes and fired with a designated firing profile as shown by step 238. Parts comprising a substrate of a T/R module package are then diced, cleaned and post fire printed, as required in a conventional manner as shown by steps 240, 242 and 244 to provide individual substrates 20. Ceramic Ring Fabrication The ring frames of T/R modules, one example of which is shown in U.S. Pat. No. 6,114,986, are conventionally made out of metal, typically Kovar, that are solder-or braze-attached to ceramic substrates which are then hermetically sealed with metal lids using a seam or laser welding technique. The T/R module, when built with HTCC technology, lends itself to nickel and gold plating as a post-fire operation for attachment of the metal ring frame. However, since plating is not allowed in connection with LTCC tape material, and due to the special design of the connector bulkhead that prevents post printing of metal, the Kovar ring frame is not an option for LTCC T/R modules. This difficulty has now led to the inclusion of a ceramic ring frame 16, shown in FIGS. 3-5, that is produced from the same tape material as the package, and is simultaneously co-fired with the package including the sections 10, 12 and 14 so that the cost of having and attaching a separate ring frame to a ceramic package is completely eliminated. The cost of developing a fixture and the firing profile for soldering or brazing is also eliminated. Having a ceramic ring frame attached to a ceramic package, the CTE mismatch problem between ceramic and metal, unavoidable in HTCC, is skillfully avoided in LTCC, and the weight of the ring frame is reduced by ̃62%. Finally, the cost is further reduced by the fact that the ceramic ring frame 16 is formed from the LTCC tape layers H23-H47 shown in FIG. 2 that would otherwise be thrown away to make room for cavities for placing the metal ring frame adjacent to the ceramic bulkhead. To be able to use this throw-away tape to build the ceramic ring frame is a formidable way to reduce cost. The integrated ring frame 16 in the T/R module package of the subject invention is 50 mils wide on the outside and has 6 internal walls that are 45 mils wide. The walls are marked by staggered vias and internal ground planes to provide adequate electrical isolation of the parts, and can receive co-fired or post-fired metal layers on the top for lid attachment, a significant improvement in the art. The fabrication of the ceramic ring frame 16 starts with the building of sections 10, 12, 14 and 16, described in FIG. 2 with reference to steps 210-216. Section 16 comprises the ring frame section and is formed in step 216 and consists of 25 layers of tape (H23-H47) which are via filled and printed within the confines of the ring frame width. This section is machined e.g. routed in step 232 using a program that produces the desired ring frame configuration required. The ring frame section 16 is then placed on top of the Sections 10, 12 and 14 of the package in step 234 of FIG. 2, using the tooling holes for alignment and is laminated as described before. During final lamination in step 234, pressure is applied in such a way that all sections are well pressed into one part without delamination, shape distortion, collapse or buckling of the ring frame section. This is one of the most important steps for maintaining the shape of the ring frame structure in the green and fired states. After lamination, the tooling holes are routed off, and the parts are fired in panel form using the designated firing profile. After firing, the individual modules 20 are diced from the panel to the final dimension as noted earlier per step 240 and post fired printed as required as shown by reference numeral 248 and then electrically tested as shown by step 246. Brazing A T/R module fabricated with LTCC material in accordance with this invention requires that a heat sink, a lid, and the pin connectors, be attached to the surfaces of the LTCC substrate. Brazing has been found to be desirable for use in making these attachments. With respect to the selection of the most desirable metallization for attachment and its method of application, experimentation resulted in the selection of metallization manufactured by the DuPont Corporation as thick film brazing system materials 5062 and 5063, since the HTCC substrate material is fabricated with a DuPont ceramic composition. Experiments were carried out to determine the best thickness of each material to be applied. The 5062 metallization material is used in the fabrication of glass rich adhesion layer(s). The 5063 metallization is used in the fabrication of gold bonding layer(s). Different screens and printing parameters were used to determine the quickest method to get a print that was approximately 1 to 1.5 mils thick. Screens of different mesh counts and different wire diameters were used in the experiments. 290 mesh, 0.8 mil wire diameter screens were used in the first experiment. Several test pieces were side printed with the 5062 metallization. This first print gave an average fired print thickness of 0.18 mils. A second print of 5063 metallization gave an average fired print thickness of 0.43 mils. The third print was made with 5063 material. This print had an average fired thickness of 0.66 mils. A fourth and final print was made using the 5063 material. This print had an average fired thickness of 0.86 mils. The next screen used for this experiment was a 230 mesh. 1.6 mil wire diameter screen. The first print of 5062 had an average print thickness of 0.50 mils. The second print was made with 5063 and had an average thickness of 0.84 mils. The last print of 5063 had an average print thickness of 1.20 mils. The 230 mesh screens provide a thicker print and therefore reduce the number of prints and firings required to complete the part. Side Printing To build a T/R module in LTCC in accordance with the subject invention, a method of printing brazeable metallization on the side wall, for example, on the front wall 16 of the module 20 as shown in FIGS. 4 and 5 has been developed and is utilized since LTCC does not accept the standard HTCC approach of nickel/gold plating. There was no way to use a standard screen printer due to the height limitations as well as the hold down mechanism. This is overcome by modifying a conventional screen printer to accommodate and hold the part securely as it is being printed. Side printing of the new T/R module design is made possible by adding a print fixture onto a modified MPM SP-1500 Semi-Automatic Screen Printer which includes free space at the back of the printer nest plate. The normal clearance of screen printers including the SP-1500 is “1”. This fixture made it possible to print on the side of a 2′′ long T/R module substrate 20. The module sits flush with the print surface while being held in the fixture which extends below the nest plate. This allows the printer head to clear the substrate surface. In testing the modified fixture, it was determined that the travel speed of the nest plate caused the fixture to break the limit switch at the back of the machine. The printer was therefore further modified to reduce the nest plate travel speed. Once the speed was reduced, the fixture was found to hold the substrate in a proper position and printing of the substrate side wall could be printed for the attachment of pin connectors, not shown, to the front wall 22 as shown by step 250 which includes post firing. Inspection and shipping, as shown by steps 252 and 254, complete the process. Thus what has been shown and described is a method of fabrication of transmit-receive (T/R) modules with LTCC material including a new combination of process steps. The detailed description provided above, however, merely illustrates the principles of the invention. It will thus be appreciated that those skilled in the art will be able to devise various changes and modifications which, while not explicitly described or shown herein, embody the principles of the invention embodied in the accompanying claims and are thus within its spirit and scope. ## Claims 1. A method of fabricating a package for an electronic device with low temperature co-fired ceramic (LTCC) including one or more multi-layer parts having multiple cavities therein for the location of active and passive electronic circuit components, comprising the steps of: dividing and stacking a plurality of partially fabricated layers of LTCC material into a predetermined number of stacks, each of the stacks including a predetermined number of LTCC layers based on a respective cavity configuration to be subsequently formed therein; separately laminating each of the stacks of LTCC layers at a first predetermined pressure into individual sections of laminated LTCC material; forming desired cavity patterns into each of said sections; stacking the sections including the cavity patterns formed therein into an assembly of contiguous sections; placing the assembly in a lamination fixture; and isostatically laminating the assembly of the sections at a second predetermined pressure into a composite LTCC structure; wherein said layers of LTCC tape comprise at least 20 layers of about 5 mil thick tape. 2. A method according to claim 1 wherein said composite structure comprises a panel of a plurality of like LTCC parts. 3. A method according to claim 2 and additionally including the step of separating the panel into individual parts. 4. A method according to claim 3 wherein said individual parts comprise substrates for a circuit module utilized in an electronic system. 5. A method according to claim 1 wherein said predetermined number of stacks of LTCC material include one stack for the fabrication of a ceramic ring frame and the remaining stacks are utilized for forming a substrate for a transmit/receive (T/R) module in a radar system. 6. A method according to claim 1 wherein said LTTC structure comprises at least one substrate for a transmit/receive (T/R) module for an active aperture of a phased array radar system. 7. A method according to claim 6 wherein one of said sections comprises an outer ceramic ring for the substrate. 8. A method according to claim 7 wherein said layers of LTCC materials comprise layers of LTCC tape. 9. A method according to claim 8 wherein said step of separately laminating each of the stacks comprises laminating the stacks of LTCC tape. 10. A method according to claim 9 wherein said first predetermined pressure ranges between about 1000 psi and about 2000 psi. 11. A method according to claim 8 further including the step of machining the cavity patterns in each of the sections. 12. A method according to claim 11 wherein the step of machining comprises routing the cavity patterns with a router tool. 13. A method according to claim 10 wherein said second predetermined pressure ranges between about 4000 psi and about 5000 psi. 14. A method according to claim 13 wherein said step of isostatically laminating the assembly includes isostatically laminating the assembly of contiguous sections at substantially 4000-5000 psi at about 72° C. for about 15 minutes. 15. A method according to claim 14 and additionally including the step of attaching a lid, a heat sink and a set of pin connectors to the substrate by brazing. 16. A method according to claim 2 and additionally including the step of firing the panel with a designated firing profile following the isostatic laminating step. 17. A method according to claim 15 wherein the pin connectors are attached by brazing metallization to a side wall surface of the substrate. 18. A method according to claim 17 and further including the step of dicing individual parts from the panel. 19. A method according to claim 17 and additionally including the step of effecting post fire printing as required.
s3://data.kl3m.ai/documents/recap_docs/1999/06/16/USA_v._Perez_1.pdf.json	text/plain	* 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. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-51069 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALMA ROSA PEREZ, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. P-98-CR-101-2 - - - - - - - - - - June 16, 1999 Before EMILIO M. GARZA, BENAVIDES, and PARKER, Circuit Judges. PER CURIAM:* Alma Rosa Perez appeals her sentence in a guilty-plea conviction for possession with intent to distribute marijuana. The district court found that Perez’ recruitment of Gilberto Gonzales Juarez to assist her qualified her as a leader or organizer under § 3B1.1 of the United States Sentencing Guidelines. Perez contends that she does not meet the definition of a § 3B1.1 leader or organizer because Juarez was not No. 98-51069 -2- criminally responsible and because she did not exercise control or authority over Juarez. The determination that a defendant is a § 3B1.1 “leader or organizer” is a factual finding to be reviewed for clear error. United States v. Ronning, 47 F.3d 710, 711 (5th Cir. 1995). The district court adopted the findings of the presentence report (PSR) in full. Although the district court did not make an express finding that Juarez was criminally responsible and, therefore, a participant under § 3B1.1, such a finding is implicit in the judgment and is supported by both the PSR and the sworn criminal complaint. See United States v. Sherbak, 950 F.2d 1095, 1099-1101 (5th Cir. 1992); United States v. Alfaro, 919 F.2d 962, 966 (5th Cir. 1992). Moreover, there is ample evidence that Perez recruited Juarez and exercised some degree of authority over him. Recruitment of accomplices is a factor to be considered under § 3B1.1. United States v. Giraldo, 111 F.3d 21, 24-25 (5th Cir. 1997). As the district court’s findings are plausible in light of the record as a whole, they are not clearly erroneous. United States v. Watson, 966 F.2d 161, 162 (5th Cir. 1992). Therefore, we AFFIRM the judgment of the district court. AFFIRMED.
s3://data.kl3m.ai/documents/uspto/07415278.json	text/markdown	# Patent ## Title Method and system for creating and deploying a mesh network ## Abstract A method and system for creating and deploying a mesh network are disclosed. In one embodiment, the method comprises providing a mesh router having a plurality of radios. The mesh router is used in a cell of a plurality of cells that covers a geographic region. Channels are assigned to the plurality of radios. The channels are selected from a plurality of channels to allow channel reuse throughout the plurality of cells. ## Background The present application claims the benefit of and priority to U.S. Provisional Patent Application No. 60/622,223 entitled “Cellular Mesh Architecture,” and filed on Oct. 27, 2004, and is hereby, incorporated by reference. FIELD OF THE INVENTION The field of the invention relates generally to wireless networks and more particularly relates to a method and system for creating and deploying a mesh network. BACKGROUND High speed and high performance network access are needed in many areas where wired infrastructure is non-existent, outdated, or impractical. Fixed wireless broadband networks can fulfill this need. However, use of existing fixed wireless broadband technology is limited due to a combination of technological constraints and high deployment costs. For example, Wireless Local Area Network (WLAN) technology requires multiple access points where each access point must be connected via cable to a wired backbone infrastructure. As a result, the network becomes difficult and costly to deploy. To address these problems, wireless mesh network architecture has been studied as a system for becoming part of the network infrastructure and providing wireless access to users. However, wireless mesh networking is limited by its network capacity due to the requirement that nodes forward each others' packets. For example, a uniform random network with random traffic pattern has an end-to-end throughput of 1/n1/2, where n is the total number of nodes. Therefore, throughput approaches zero as the number of nodes increase. There are two fundamental reasons that result in diminished throughput. First, current 802.11 Media Access Control (MAC) protocol is inefficient and unfair in multi-hop environments. For example, 802.11 radios cannot transmit and receive at the same time; 802.11 MAC protocol does not correctly solve hidden terminal problems in a mesh; and Request to Send (RTS)/Clear to Send (CTS) scheduling along a multi-hop chain can cause Transmission Control Protocol (TCP) fairness problems and back-off inefficiencies. Second, only a small portion of the available spectrum is used. For example, 802.11b/g has three non-overlapping channels and 802.11a has twelve non-overlapping channels, but 802.11 is designed to use only a single channel frequency at any given time. In the past, one possible solution was to improve the 802.11 MAC layer. However, this would require changes to the MAC and hardware, which would be expensive and take a significant amount of time to complete. Alternatively, network capacity can be increased by using multiple radios and multiple channels. For example, a link layer protocol called the Multi-radio Unification Protocol (MUP) has been proposed to coordinate the operation of multiple wireless network cards tuned to non-overlapping frequency channels. However, there is inefficient use of available frequencies because all the nodes in the network use the same fixed channels to talk to their neighbors. As a result, no frequency reuse is available. Furthermore, same-radio packet relay, or the inability to transmit and receive packets at the same time, cannot be completely avoided. SUMMARY A method and system for creating and deploying a mesh network are disclosed. In one embodiment, the method comprises providing a mesh router having a plurality of radios. The mesh router is used in a cell of a plurality of cells that covers a geographic region. Channels are assigned to the plurality of radios. The channels are selected from a plurality of channels to allow channel reuse throughout the plurality of cells. The above and other preferred features, including various novel details of implementation and combination of elements, will now be more particularly described with reference to the accompanying drawings and pointed out in the claims. It will be understood that the particular methods and systems described herein are shown by way of illustration only and not as limitations. As will be understood by those skilled in the art, the principles and features described herein may be employed in various and numerous embodiments without departing from the scope of the invention. BRIEF DESCRIPTION OF THE DRAWINGS The accompanying drawings, which are included as part of the present specification, illustrate the presently preferred embodiment of the present invention and together with the general description given above and the detailed description of the preferred embodiment given below serve to explain and teach the principles of the present invention. FIG. 1 illustrates a block diagram of a prior art network; FIG. 2 illustrates a block diagram of an exemplary wireless mesh network, according to one embodiment of the present invention; FIG. 3 illustrates a block diagram of multiple hexagonal cells of a mesh network, according to one embodiment of the present invention; FIG. 4 illustrates a block diagram of a mesh network having multiple hexagonal cells that include channel assignments for mesh routers, according to one embodiment of the present invention. FIG. 5 illustrates a block diagram of an exemplary wireless card, according to one embodiment of the present invention; FIG. 6 illustrates a block diagram of an exemplary wireless local area network router used to communicate with a mesh router, according to one embodiment of the present invention; FIG. 7 illustrates a block diagram of an exemplary mesh router, according to one embodiment of the present invention; FIG. 8 illustrates a flow diagram of an exemplary process for assigning channels in a mesh network, according to one embodiment of the present invention; FIG. 9 illustrates a flow diagram of an exemplary network packet flow process, according to one embodiment of the present invention. DETAILED DESCRIPTION A method and system for creating and deploying a mesh network are disclosed. In one embodiment, the method comprises providing a mesh router having a plurality of radios. The mesh router is used in a cell of a plurality of cells that covers a geographic region. Channels are assigned to the plurality of radios. The channels are selected from a plurality of channels to allow channel reuse throughout the plurality of cells. In the following description, for purposes of explanation, specific nomenclature is set forth to provide a thorough understanding of the various inventive concepts disclosed herein. However, it will be apparent to one skilled in the art that these specific details are not required in order to practice the various inventive concepts disclosed herein. Some portions of the detailed descriptions that follow are presented in terms of wireless networks and computer systems. These wireless network descriptions and representations are the means used by those skilled in the wireless networking arts to most effectively convey the substance of their work to others skilled in the art. A wireless network is here, and generally, conceived to be a system for communications among two or more computers using radio waves as its carrier. Usually, though not necessarily, the information communicated between computer systems takes the form of packets. Furthermore, for reasons of common usage, the components of the packets are referred to as bits, values, elements, symbols, characters, terms, numbers, or the like. It should be borne in mind, however, that all of these and similar terms are to be associated with the appropriate physical quantities and are merely convenient labels applied to these quantities. Unless specifically stated otherwise as apparent from the following discussion, it is appreciated that throughout the description, discussions utilizing terms such as “router” or “radio” or “frequency” or “channel” or “backbone” or “packet” or “communicate” or the like, refer to the components, and actions and processes of a network, or similar communication system, that transfers data represented as physical (electronic) quantities within the computer system's registers and memories or other such information storage, transmission or display device from one computer system to another. The present invention also relates to apparatus for performing the operations herein. This apparatus may be specially constructed for the required purposes, or it may comprise a general-purpose computer selectively activated or reconfigured by a computer program stored in the computer. Such a computer program may be stored in a computer readable storage medium, such as, but is not limited to, any type of disk including floppy disks, optical disks, CD-ROMs, and magnetic-optical disks, read-only memories, random access memories, EPROMs, EEPROMs, magnetic or optical cards, or any type of media suitable for storing electronic instructions, and each coupled to a computer system bus. The methods presented herein are not inherently related to any particular computer or other apparatus. Various general-purpose systems may be used with programs in accordance with the teachings herein, or it may prove convenient to construct more specialized apparatus to perform the required method steps. The required structure for a variety of these systems will appear from the description below. In addition, the present invention is not described with reference to any particular programming language. It will be appreciated that a variety of programming languages may be used to implement the teachings of the invention as described herein. FIG. 1 illustrates a block diagram of a prior art network 199. In FIG. 1, the Internet 100 is connected to a variety of networks, any of which may be wireless networks. For example wireless networks may cover a neighborhood 110, office buildings 120, government areas 130, and/or universities and colleges 140. The Internet 100 may be a system of interconnected computer networks, local area networks, wide area networks, virtual private networks, or other networks that are configured to transmit data by packet switching using standardized protocols, such as Internet Protocol. Interconnected computer networks facilitate the transfer of information and services, which may include electronic mail, file sharing, and access to the World Wide Web. The various networks 110-140 may have any of a variety of wireless architectures—for example: a wireless local area network, wireless metropolitan area network, wireless wide area network, or other similar wireless network. FIG. 2 illustrates a block diagram of an exemplary wireless mesh network, according to one embodiment of the present invention. Mesh network 200 may be part of a wireless network, such as neighborhood 212. According to one embodiment, the neighborhood 212 is divided into a number of hexagonal cells 210, where each individual cell 211 includes one or more subscribers 220 to the wireless mesh network 200. The division of the neighborhood 212 is a logical division, and the physical boundaries between cells in network 200 are only representations of the logical network operation. A hexagonal cell 211 may or may not encompass a subscriber 220 because a particular cell may be situated such that no subscribers happen to be located within its area. According to one embodiment, a subscriber 220 is a computer system authorized to access the neighborhood 212 wireless network 200. A subscriber 220 may be situated in a neighborhood home, in a car, or anywhere within the network coverage area. In addition to the mesh network, it is to be appreciated that other systems employing the various teachings herein may also be used to practice the various aspects of the present invention, and as such, are considered to be within its full scope. FIG. 3 illustrates a block diagram of multiple hexagonal cells 399 of a mesh network, according to one embodiment of the present invention. Hexagonal cells 399 are a logical network representation and are not meant to define actual physical boundaries. Each cell 211 of the hexagonal cells 399 includes a mesh router 300. A mesh router 300 communicates with exemplary subscribers 330-350. A mesh router 300 may have three backbone radios 310 and one access radio 320. The three backbone radios 310 are used to communicate with other mesh routers. The access radio may be used to communicate with multiple subscribers 330-350. The three backbone radios 310 are assigned three separate channels and the access radio 320 is also assigned a separate channel. One exemplary method of assignment is to use 802.11b/g radios for local access and 802.11a radios for the mesh backhaul. Although a mesh router 300 having three backbone radios 310 and a local access radio 320 have been described, the use of other mesh router configurations is within the scope of the present invention. A mesh router 300 communicates with subscribers 330-350 through the access radio 320. The subscribers 330-350 need to be setup with subscriber accounts in order to gain access to the mesh network, such as mesh network 200, through a mesh router 300. These subscribers may include a wireless personal digital assistant (PDA) 340, a wireless local area network (LAN) router 350, or a wireless laptop 330. A wireless PDA 340 may include Palm Pilots with wireless capabilities, Blackberrys, or other hand-held device with wireless capabilities. A wireless LAN router 350 may include any network routers that can communicate with a mesh router 300. A wireless laptop 330 may include any computer system with wireless capabilities. Although a wireless PDA 340, a wireless LAN router 350, and a wireless laptop 330 are described, any device with wireless capability may be considered as subscribers. Mesh routers 300 may also serve as gateways 390 to the Internet 100. According to one embodiment, mesh router/gateway 390 has at least one network interface, such as an ethernet controller that a connection to the Internet 100 via a communications link 370, such as Ethernet. In a mesh network, multiple gateways 390 may exist. Gateway 390 allows mesh routers 300 to access the Internet. The mesh network topology of FIG. 3 may also include a network management server 360. Network management server 360 may be connected to a gateway 390 through the Internet 100. According to one embodiment, the network management server 360 designates the channel assignments of all mesh routers 300 in the mesh network. FIG. 4 illustrates a block diagram of a mesh network 499 having multiple hexagonal cells that include channel assignments for mesh routers 400-407, according to one embodiment of the present invention. Each of the mesh routers 400-407 are assigned three different channels according to the exemplary process described in FIG. 8. Each of the mesh routers 400-407 has three backbone radios 310 which utilize seven non-overlapping frequencies or channels, channels 1-7, throughout the entire mesh network 499. These seven non-overlapping channels provide direct links between all neighboring cells. For example, cell 411 has six neighbors 412-417. Cell 411 has three backhaul channels (3, 4, 5) used to communicate with the six neighbors 412-417. The channels are assigned to the mesh routers 401-407 such that two neighboring mesh routers have one backhaul radio channel in common. For example neighboring mesh routers 402, 403 have backhaul channel 3 in common with mesh router 401. Channel 3 is the only channel that mesh routers 401-403 have in common. Similarly, channel 4 is the only channel that mesh router 401 has in common with mesh routers 404, 405. And channel 5 is the only channel that mesh router 401 has in common with mesh routers 406, 407. Each channel is reused in nearby, but not adjacent cells. For each channel, there is a buffer about two cells wide where a channel is not being reused allowing for good separation and low co-channel interference. For example, channel 3 used by mesh routers 401-403 is not used by any mesh routers in neighboring cells 414-422. In other words, it would take two hops before channel 3 is reused. By systematically spacing mesh routers 400 and their channel groups, the available channels are distributed throughout the geographic region 499 and may be reused as many times as necessary so long as the interference between co-channel mesh routers is kept below acceptable levels. In addition, because mesh routers 400 use three different channels, the mesh backhaul network 499 avoids same-radio packet relay. Because the mesh backhaul network 499 avoids same-radio packet relay, end-to-end throughput does not decrease as the number of mesh routers 400 increases. This allows for the architecture to scale. According to one embodiment, efficient scaling is supported by configuring each mesh router with three backhaul radios on three different channels, as described above. Assuming that 802.11a radios are used, the throughput of each backhaul radio is up to 54 Mbps. As three neighboring backhaul radios on the same channel consist of a backhaul WLAN and share the bandwidth, the throughput of each backhaul radio is roughly 1⁄3 of 54 Mbps. As all the same-radio packet relay is completely avoided, the throughput of the relay nodes is not halved and all the traffic, no matter local or remote, will not change the end-to-end throughput available to each mesh router. For example, the end-to-end backhaul throughput T available to each mesh router is: T=54 Mbps( 1/3 )3=54 Mbps (1) Note that in (1), the end-to-end throughput T available to each mesh router is a constant, and is not related to n, the number of nodes in the network. In another word, the end-to-end throughput available to each node is O (1), which simply means that this architecture scales. It should be noted that although IEEE 802.11 based radios are often assumed, the present embodiments of the invention are by no means limited to using 802.11 radios. It is entirely possible that, if found beneficial, other radio technologies can also be used which are highly flexible and radio-agnostic. The mesh network 499 does not share spectrum for access and backhaul, further improving capacity. If IEEE 802.11 based technology is used, the mesh router 400 could use 802.11b/g radios for local access (e.g., radio 320) and 802.11a radios for mesh backhaul network (e.g., radios 310). FIG. 5 illustrates a block diagram of an exemplary wireless card 500 for use in a mesh network, according to one embodiment of the present invention. Wireless card 500 may be used with a laptop or desktop computer. According to one embodiment, the wireless network card 500 has a peripheral component interconnect (PCI) interface 520 that connects the network card 500 to the computer. The wireless network card 500 also has a processor 510 connected to a random access memory (RAM) module 530 and 802.11 controller 540. The 802.11 controller 540 allows the network card's processor 510 to communicate with the 802.11 antennae 550. FIG. 6 illustrates a block diagram of an exemplary wireless router 600, according to one embodiment of the present invention. In FIG. 6, a wireless local area network router 600 allows subscribers to set up their own local area networks. Wireless local area network router 600 may be a Wi-Fi router such as router 350. The wireless local area network router 600 has a processor 610 connected to the power supply 620, random access memory (RAM) module 630, a Ethernet controller 640, and a 802.11 controller 650. The Ethernet controller 640 allows the processor 610 to communicate with Ethernet adapter 660. The 802.11 controller 650 allows the processor 610 to communicate with the 802.11 antennae 670. FIG. 7 illustrates a block diagram of an exemplary wireless mesh router 700, according to one embodiment of the present invention. In FIG. 7, the mesh router 700 has a processor 710 connected to the power supply 720, random access memory (RAM) module 730, and radio controllers 740. Mesh router 700 may be a mesh router, such as mesh router 300. The radio controllers 740 may include three backhaul radio controllers 740a, 740b, 740c, and one local access radio controller, 740d. Each backhaul radio controller 740a, 740b, 740c allows the processor 710 to communicate with the backhaul radio antennae 750a, 750b, 750c. The mesh router 700 uses 120° sectored directional antennas in order to reduce co-channel interference, according to one embodiment of the present invention. The local access radio controller 740d allows the processor 710 to communicate with the local access radio antenna 750d. Although three radio controllers are described, the mesh router 300 may include more or fewer controllers based on available router technology and the network topology. According to one embodiment, a mesh router 700 may also include at least one communications interface 770, such as an Ethernet interface, that enables communication with the Internet and act as a gateway 390 for other mesh routers in the network. An interface controller 760 allows the processor 710 to communicate with the interface 770. In alternate embodiments, the communications interface 770 is a wireless communications interface. In addition, components of mesh router 700 may be integrated with each other. FIG. 8 illustrates a flow diagram of an exemplary process 800 for deploying a mesh network, according to one embodiment of the present invention. In FIG. 8, a network provider may set up a mesh network by first dividing the geographic region for network deployment into cells 210, where the cells may be hexagonal. (802) This division is a logical network representation and is not meant to define actual physical boundaries. At least one mesh router 300 is installed in each hexagonal cell. (804) When a mesh router 700 is first powered up (e.g., before any channels are assigned to it), the mesh router 700 first tries to find neighboring routers using its backhaul radios 750a, 750b, 750c on a default channel. (806) If any neighboring routers which have a gateway is found (808), the mesh router 700 will send a channel assignment request and its own configuration information to the network management server 360 through that neighbor. (810) The network management server 360 is connected to the gateway 390 and in charge of the channel assignment of the whole network (e.g., mesh network 499). Upon receiving the channel assignment request from the mesh router 700, the network management server 360 uses a simple set of rules and the network topology information stored in its database to decide which channels to assign to that mesh router 700. The network management server 360 then sends the channel assignments to the mesh router 700. (812) If after a certain timeout period, no neighbors that have a gateway to the network management server 360 can be found using the default channel, the mesh router 700 will automatically start to scan the channels in an attempt to find neighbors that have a gateway 390, and will continue trying until successful. (814) This can happen during incremental deployment. Incremental deployment typically involves situations where a new mesh router is added to a mesh network comprised of mesh routers whose channels have already been assigned by the network management server 360. In this case, it is possible that none of the new mesh router's neighbors uses the default channel. As a result, the new mesh router 700 needs to scan the channels in order to communicate with its neighbors and to find one that has a gateway to the network management server 360. FIG. 9 illustrates an exemplary process 900 of how a packet is sent through a mesh network, according to one embodiment of the present invention. In FIG. 9, a packet is sent by a subscriber 220 located in a cell that includes a mesh router, for example mesh router 401. (902) The mesh router 401 receives the packet and decides if the packet is destined for a subscriber within its boundary 411. (904) If so, then the packet is sent to the destination computer or system. (910) If not, then the packet is sent to the next appropriate mesh router in a neighboring cell 412 according to a predetermined routing table. (906) The next mesh router 402 receives the packet and follows the same decision process as the previous mesh router 401. (904) The present embodiments of a mesh network architecture address many of the problems encountered in deploying prior art wireless mesh network. Some of the benefits of the present mesh network architecture include, but are not limited to, scalability, capacity, cost effectiveness, flexibility, simplicity, and robustness. The present mesh network architecture provides scalability by using multiple radios, utilizing cell-based wide area broadband coverage, and keeping the end-to-end backhaul throughput available to each mesh router at a constant level, i.e., throughput does not decrease as the number of nodes increases. This network capacity is at least an order of magnitude greater than the capacity of prior art mesh networks and is accomplished without requiring any changes to standard 802.11 MAC and hardware. In addition, cost is reduced by minimizing the number of backhaul radios required to deploy a mesh network. In additional embodiments, to further reduce cost, a more compact, simpler mesh router with one access radio and one backhaul radio could be used as an edge node or to terminate the mesh. A method and system for creating and deploying a mesh network have been disclosed. Although the present methods and systems have been described with respect to specific examples and subsystems, it will be apparent to those of ordinary skill in the art that it is not limited to these specific examples or subsystems but extends to other embodiments as well. ## Claims 1. A computer-implemented method comprising: providing a mesh router, wherein the mesh router is used in a cell of a plurality of cells that covers a geographic region, and wherein the mesh router includes three backhaul radios on three different channels and one access radio, the three backhaul radios used to communicate only with other routers and the access radio used to communicate only with subscribers; assigning channels to the three backhaul radios of the mesh router wherein the channels are selected from a plurality of channels to allow channel reuse throughout the plurality of cells; assigning a common channel of the three different channels to a first neighboring mesh router within a first neighboring cell and a second neighboring mesh router within a second neighboring cell, wherein the first neighboring cell, the second neighboring cell, and the cell are adjacent to one another; and assigning additional channels to the first neighboring mesh router and second neighboring mesh router, wherein the additional channels are not the three different channels of the mesh router. 2. The computer-implemented method of claim 1, wherein the mesh router is in a hexagonal cell having six neighboring cells, each neighboring cell has a neighboring mesh router; and wherein the mesh router communicates with the neighboring mesh routers via the three backhaul radios. 3. The computer-implemented method of claim 1 further comprising: reusing the common channel in non-adjacent cells, wherein the non-adjacent cells are not adjacent to the first neighboring cell, the second neighboring cell, or the cell. 4. The computer-implemented method of claim 2, wherein the mesh router uses sectored directional antennas. 5. The computer-implemented method of claim 2, wherein the plurality of channels includes seven non-overlapping channels. 6. The computer-implemented method of claim 2, further comprising receiving channel assignments from a network management server; and, wherein assigning channels further comprises scanning for the plurality of channels. 7. The computer-implemented method of claim 2, wherein the geographic area includes edge cells, the edge cells including a simple mesh router having one access radio and one backhaul radio. 8. The computer-implemented method of claim 2, further comprising turning off one or more backhaul radios of the three backhaul radios when the plurality of channels is insufficient to allow channel reuse. 9. A computer-readable medium having stored thereon a plurality of instructions, said plurality of instructions when executed by a computer, cause said computer to perform: providing a mesh router, wherein the mesh router is used in a cell of a plurality of cells that covers a geographic region, and wherein the mesh router includes three backhaul radios on three different channels and one access radio, the three backhaul radios used to communicate only with other routers and the access radio used to communicate only with subscribers; assigning channels to the three backhaul radios of the mesh router wherein the channels are selected from a plurality of channels to allow channel reuse throughout the plurality of cells; assigning a common channel of the three different channels to a first neighboring mesh router within a first neighboring cell and a second neighboring mesh router within a second neighboring cell, wherein the first neighboring cell, the second neighboring cell, and the cell are adjacent to one another; and assigning additional channels to the first neighboring mesh router and second neighboring mesh router, wherein the additional channels are not the three different channels of the mesh router. 10. The computer-readable medium of claim 9, wherein the mesh router is in a hexagonal cell having six neighboring cells, each neighboring cell has a neighboring mesh router; and wherein the mesh router communicates with the neighboring mesh routers via the three backhaul radios. 11. The computer-readable medium of claim 9 having stored thereon-additional instructions, said additional instructions when executed by a computer, cause said computer to further perform: reusing the common channel in non-adjacent cells, wherein the non-adjacent cells are not adjacent to the first neighboring cell, the second neighboring cell, or the cell. 12. The computer-readable medium of claim 10, wherein the mesh router uses sectored directional antennas. 13. The computer-readable medium of claim 10, wherein the plurality of channels includes seven non-overlapping channels. 14. The computer-readable medium of claim 10 having stored thereon-additional instructions, said additional instructions when executed by a computer, cause said computer to further perform receiving channel assignments from a network management server; and, wherein assigning channels further comprises scanning for the plurality of channels. 15. The computer-readable medium of claim 10, wherein the geographic area includes edge cells, the edge cells including a simple mesh router having one access radio and one backhaul radio. 16. The computer-readable medium of claim 10 having stored thereon-additional instructions, said additional instructions when executed by a computer, cause said computer to further perform turning off one or more backhaul radios of the three backhaul radios when the plurality of channels is insufficient to allow channel reuse. 17. A network management server, comprising: a processor; memory coupled to the processor; and a bus coupling the processor and memory; wherein the memory stores instructions that are executed by the processor to assign channels to three radios in a mesh router wherein the channels are selected from a plurality of channels to allow channel reuse throughout a plurality of cells that covers a geographic region, and wherein the mesh router includes three backhaul radios on three different channels and one access radio, the three backhaul radios used to communicate only with other routers and the access radio used to communicate only with subscribers, and wherein the instructions allow the processor to assign a common channel of the three different channels to a first neighboring mesh router within a first neighboring cell and a second neighboring mesh router within a second neighboring cell, wherein the first neighboring cell, the second neighboring cell, and the cell are adjacent to one another, and assign additional channels to the first neighboring mesh router and second neighboring mesh router, wherein the additional channels are not the three different channels of the mesh router. 18. The server of claim 17, wherein the mesh router is in a hexagonal cell having six neighboring cells, each neighboring cell has a neighboring mesh router; and wherein the mesh router communicates with the neighboring mesh routers via the three backhaul radios. 19. The server of claim 17, wherein the instructions allow the processor to reuse the common channel in non-adjacent cells, wherein the non-adjacent cells are not adjacent to the neighboring cell, the second neighboring cell, or the cell. 20. The server of claim 18, wherein the plurality of channels includes seven non-overlapping channels. 21. A mesh router comprising: a processor; memory coupled to the processor; three backhaul radios on three different channels and one access radio, the three backhaul radios used to communicate only with other routers and the access radio used to communicate only with subscribers; and a bus coupling the processor and memory; wherein channels are assigned to the three backhaul radios of the mesh router, and the channels are selected from a plurality of channels to allow channel reuse throughout a plurality of cells that covers a geographic region, and wherein the processor assigns a common channel of the three different channels to a first neighboring mesh router within a first neighboring cell and a second neighboring mesh router within a second neighboring cell, wherein the first neighboring cell, the second neighboring cell, and the cell are adjacent to one another, and assigns additional channels to the first neighboring mesh router and second neighboring mesh router, wherein the additional channels are not the three different channels of the mesh router. 22. The server of claim 21, wherein the three backhaul radios existing in a hexagonal cell having six neighboring cells, each neighboring cell has a neighboring mesh router; and wherein the plurality of radios communicate with the neighboring mesh routers via the three backhaul radios.
s3://data.kl3m.ai/documents/recap/gov.uscourts.cand.196103.77.0.pdf.json	text/plain	United States District Court For the Northern District of California 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA In re: DEAN GORDON POTTER, Debtor. ________________________________/ UNICO Services INC., Plaintiff, v. UNITED STATES OF AMERICA. Defendants. ________________________________/ No. C 07-4826 CW C 08-0800 CW (Bk. No. 06-42425 RLE-11) ORDER GRANTING REQUEST FOR EXTENSION OF TIME (Docket No. 74) On July 3, 2013, this Court entered an Order to Show Cause directing Debtor Dean Gordon Potter and Plaintiff Unico Services Inc. to appear before the Court on August 8, 2013 to show cause why they should not be held in contempt for failure to comply with the March 3, 2013 scheduling order. The Court further ordered Debtor to produce to the government certain documents within one week of the date of the order and to make certain filings with the Court no later than July 18, 2013. Lead Counsel for Debtor has now filed an ex parte application for an extension of time with respect to the production of documents to the government due today. Counsel states that he has only recently appeared in this case, and he did not review the Case4:07-cv-04826-CW Document77 Filed07/10/13 Page1 of 2 United States District Court For the Northern District of California 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 July 3 order until July 8 because he was on vacation. Counsel seeks a two-day extension to July 12. The Court will grant Counsel until 12:00 pm on July 12 to produce the relevant documents to the government. However, the Court admonishes counsel that he must comply with the Court’s Local Rules. See Local Rule 7-10 (providing that “a party may file an ex parte motion . . . only if a statute, Federal Rule, local rule or Standing Order authorizes the filing of an ex parte motion in the circumstances and the party has complied with the applicable provisions allowing the party to approach the Court on an ex parte basis.”) Moreover, the Court advises Debtor that it will not grant any request to extend time with respect to the filings he is required to make by July 18, 2013. IT IS SO ORDERED. Dated: CLAUDIA WILKEN United States District Judge Case4:07-cv-04826-CW Document77 Filed07/10/13 Page2 of 2
s3://data.kl3m.ai/documents/edgar/0000950123/0000950123-12-002185/	text/plain	exv4w294 EXHIBIT 4.294 THE BANK OF NEW YORK MELLON AS COLLATERAL AGENT AND THE COMPANIES LISTED IN SCHEDULE 1 AS PLEDGORS CONFIRMATION AGREEMENT The taking of this document or any certified copy of it or any document which constitutes substitute documentation for it, or any document which includes written confirmations or references to it, into Austria as well as printing out any e-mail communication which refers to any Loan Document in Austria or sending any e-mail communication to which a pdf scan of this document is attached to an Austrian addressee or sending any e-mail communication carrying an electronic or digital signature which refers to any Loan Document to an Austrian addressee may cause the imposition of Austrian stamp duty. Accordingly, keep the original document as well as all certified copies thereof and written and signed references to it outside of Austria and avoid printing out any email communication which refers to any Loan Document in Austria or sending any e-mail communication to which a pdf scan of this document is attached to an Austrian addressee or sending any e-mail communication carrying an electronic or digital signature which refers to any Loan Document to an Austrian addressee. - 1 - CONTENTS Clause Page 1.Definitions And Interpretation 2 2.Confirmation 3 3.Costs 4 4.Partial Invalidity 4 5.Law And Jurisdiction 4 Schedule 1 The Pledgors 5 Schedule 2 Pledge Agreements 6 - 1 - THIS CONFIRMATION AGREEMENT is made on 16 November 2010 BETWEEN: (1) THE BANK OF NEW YORK MELLON, acting for itself and as collateral agent as appointed under the First Lien Intercreditor Agreement (as defined below) for the benefit of the Secured Parties (as defined below), together with its successors and permitted assigns in such capacity (the “Collateral Agent”); and (2) The pledgors listed in schedule 1 (the “Pledgors”). WHEREAS: (A) Pursuant to a credit agreement (the “Credit Agreement”) dated 5 November 2009 and entered into between Reynolds Group Holdings Inc., Reynolds Consumer Products Holdings Inc., SIG Euro Holding AG & CO KGaA, Closure Systems International Holdings Inc., Closure Systems International B.V. and SIG Austria Holding GmbH as borrowers, Reynolds Group Holdings Limited, the lenders from time to time party thereto and Credit Suisse AG, as administrative agent, as amended by amendment agreements dated as 21 January 2010 and 4 May 2010 and as further amended, extended, restructured, renewed, novated, supplemented, restated, refunded, replaced or modified from time to time, certain loan facilities (the “Facilities”) were made available to the Borrowers (as defined below). (B) Pursuant to an indenture (the “Senior Secured Notes Indenture”) dated 5 November 2009 and entered into between the 2009 Issuers (as defined below), the Note Guarantors (as defined therein) and The Bank of New York Mellon, as trustee, principal paying agent, transfer agent and registrar, as amended, extended, restructured, renewed, refunded, novated, supplemented, restated, replaced or modified from time to time, certain notes were issued by the 2009 Issuers. (C) On 5 November 2009, the Collateral Agent, The Bank of New York Mellon as trustee under the Senior Secured Note Indenture, Credit Suisse AG as administrative agent under the Credit Agreement, and the Loan Parties (as defined below) as at that date and certain other parties, entered into an intercreditor agreement (the “First Lien Intercreditor Agreement”) amended by an amendment dated 21 January 2010 and as further amended, novated, supplemented, restated or modified from time to time. (D) On 30 September 2010, Reynolds Group Holdings Inc., Reynolds Consumer Products Holdings Inc., SIG Euro Holding AG & CO KGaA, Closure Systems International Holdings Inc., Closure Systems International B.V. and SIG Austria Holding GmbH as borrowers, Reynolds Group Holdings Limited, the lenders from time to time party thereto and Credit Suisse AG, as administrative agent, together with certain other parties have entered into an amendment N°3 and incremental term loan assumption agreement (the “Amendment and Incremental Assumption Agreement”) relating to the Credit Agreement. - 2 - (E) On 15 October 2010 the Escrow Issuers (as defined below) and The Bank of New York Mellon, as trustee, principal paying agent, transfer agent, registrar and collateral agent and Wilmington Trust (London) Limited as additional collateral agent, entered into an indenture in respect of the issue of new senior secured notes (the “2010 Secured Notes”) by the Escrow Issuers (the “2010 Senior Secured Notes Indenture”), as amended, extended, restructured, renewed, refunded, novated, supplemented, restated, replaced or modified from time to time. On or about the date hereof, the 2010 Secured Notes shall be released from escrow and the obligations of the Escrow Issuers shall be assumed by the 2009 Issuers as applicable. (F) On or about the date hereof, Reynolds Group Holdings Inc., Reynolds Consumer Products Holdings Inc., each of the Reaffirming Parties therein, Credit Suisse AG as administrative agent and The Bank of New York Mellon, as trustee and collateral agentand Wilmington Trust (London) Limited, as Collateral Agent, have entered into a reaffirmation agreement (the “Reaffirmation Agreement”) pursuant to which each Reaffirming Party reaffirmed the Security Documents to which they are a party. (G) As a condition precedent to any further borrowing under the Credit Agreement, as amended pursuant to the Amendment and Incremental Assumption Agreement, the Pledgors have agreed to confirm the security interest granted under each of the pledge agreements (as listed in schedule 2 hereto, the “Pledge Agreements”). (H) The Obligations in respect of the 2010 Senior Secured Notes Indenture and any Senior Secured Note Documents (as defined therein) will or have been designated as “Additional Obligations” under, and in accordance with, section 5.02 (c) of the First Lien Intercreditor Agreement (the “Secured Notes Designation”). THE PARTIES AGREE AS FOLLOWS: 1. DEFINITIONS AND INTERPRETATION 1.1 Terms defined in the First Lien Intercreditor Agreement and/or the Pledge Agreements shall bear the same meaning herein, unless expressly provided to the contrary. 1.2 In this Agreement: “Borrowers” shall mean the “Borrowers” under, and as defined in, the Credit Agreement from time to time. “2009 Issuers” shall mean the “Issuers” under and as defined in the Senior Secured Notes Indenture, including their successors in interest. “Escrow Issuers” shall mean RGHL US Escrow I LLC, RGHL US Escrow I Inc. and RGHL Escrow Issuer (Luxembourg) I S.A.. “Loan Documents” shall mean the “Credit Documents” under, and as defined in, the First Lien Intercreditor Agreement and any other document designated by the Loan Parties’ Agent and the Collateral Agent as a Loan Document. “Loan Parties” shall mean the “Grantors” under, and as defined in, the First Lien Intercreditor Agreement. - 3 - “Secured Obligations” shall mean the “Secured Obligations” under, and as defined in, each of the Pledge Agreements. “Secured Parties” shall mean the “Secured Parties” under, and as defined in, the First Lien Intercreditor Agreement. 1.3 This Confirmation Agreement may be executed in any number of counterparts and by way of facsimile exchange of executed signature pages, all of which together shall constitute one and the same Confirmation Agreement. 1.4 The Parties agree that this Confirmation Agreement shall be deemed a “Security Document” for the purposes of and as defined in the First Lien Intercreditor Agreement (and for no other purpose) and that, accordingly, all rights , duties, privileges, protections and benefits of the Collateral Agent set forth in the First Lien Intercreditor Agreement are hereby incorporated by reference. 2. CONFIRMATION Each Pledgor hereby, for the benefit of the Collateral Agent acting for itself and as collateral agent as appointed under the First Lien Intercreditor Agreement for the benefit of the Secured Parties, expressly (a) confirms its respective pledges and grants of security interests in the Pledge Agreements to which it is a party and (b) agrees and confirms that the Pledge Agreements and each of the security interests created thereunder shall (i) remain in full force and effect in accordance with their terms subject to any applicable Legal Reservation, (ii) continue to secure the Secured Obligations as they shall be in existence following the amendment to the Credit Agreement pursuant to the Amendment and Incremental Assumption Agreement and the Secured Notes Designation (iii) extend, subject to the limitations (if any) contained in the relevant Pledge Agreements, to any obligations assumed by any Loan Party under the Amendment and Incremental Assumption Agreement and to the obligations that are “Additional Obligations” as a result of the Secured Notes Designation, without any further actions. 3. COST All the Collateral Agent’s costs and expenses, shall be reimbursed in accordance with the provisions of Section 9.05 (Expenses, Indemnity) of the Credit Agreement. 4. PARTIAL INVALIDITY If any provision of this Agreement is declared by any judicial or other competent authority to be void or otherwise unenforceable, that provision shall be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect. The Agreement shall, however, thereafter be amended by the parties in such reasonable manner so as to achieve, without illegality, the intention of the parties with respect to that severed provision. - 4 - 5. LAW AND JURISDICTION This Agreement shall be governed by Luxembourg law and the courts of Luxembourg-City shall have exclusive jurisdiction to settle any dispute which may arise from or in connection with it. This Agreement has been duly executed by the parties in twelve copies. - 5 - SCHEDULE 1 THE PLEDGORS 1. REYNOLDS GROUP HOLDINGS LIMITED, a company incorporated in New Zealand with registration number 1812226 (“Parent”); 2. BEVERAGE PACKAGING HOLDINGS (LUXEMBOURG) I S.A., a société anonyme incorporated under Luxembourg law with registered office at 6C, Parc d’Activités Syrdall, L-5365 Munsbach, Grand-duchy of Luxembourg registered with the Luxembourg register of commerce and companies under the number B128.592 (“BPH I”); 3. BEVERAGE PACKAGING HOLDINGS (LUXEMBOURG) II S.A., a société anonyme incorporated under Luxembourg law with registered office at 6C, Parc d’Activités Syrdall, L-5365 Munsbach, Grand-duchy of Luxembourg registered with the Luxembourg register of commerce and companies under the number B128.914 (“BPH II”); 4. BEVERAGE PACKAGING HOLDINGS (LUXEMBOURG) III S.àR.L., a société à responsabilité limitée incorporated under Luxembourg law with registered office at 6C, Parc d’Activités Syrdall, L-5365 Munsbach, Grand-duchy of Luxembourg registered with the Luxembourg register of commerce and companies under the number B128.135 and having a share capital of EUR 404,969,325.- (“BPH III”); 5. SIG FINANCE (LUXEMBOURG) S.ÀR.L., a société à responsabilité limitée incorporated under Luxembourg law with registered office at 6C, Parc d’Activités Syrdall, L — 5365 Munsbach, Grand-Duchy of Luxembourg, registered with the register of commerce and companies of Luxembourg under number B130.835 and having a share capital of EUR 12,500.- (“SIG Finance”) - in liquidation and represented by its appointed liquidator Headstart Management Services S.à r.l.; 6. REYNOLDS GROUP ISSUER (LUXEMBOURG) S.A., a société anonyme incorporated under Luxembourg law with registered office at 6C, Parc d’Activités Syrdall, L-5365 Munsbach, Grand-Duchy of Luxembourg, registered with the register of commerce and companies of Luxembourg under number B148.957 (“Lux Issuer”); 7. CLOSURE SYSTEMS INTERNATIONAL (LUXEMBOURG) S.ÀR.L., a société à responsabilité limitée incorporated under Luxembourg law with registered office at 6C, Parc d’Activités Syrdall, L - 5365 Munsbach, Grand-Duchy of Luxembourg, registered with the register of commerce and companies of Luxembourg under number B146.929 and having a share capital of EUR 33,101,925.- (“CSI LUX”); 8. REYNOLDS CONSUMER PRODUCTS (LUXEMBOURG) S.ÀR.L., a société à responsabilité limitée incorporated under Luxembourg law with registered office at 6C, Parc d’Activités Syrdall, L - 5365 Munsbach, Grand-Duchy of Luxembourg, registered with the register of commerce and companies of Luxembourg under number B146.959 and having a share capital of EUR 1,089,800.- (“RCP LUX”); - 6 - 9. EVERGREEN PACKAGING (LUXEMBOURG) S.ÀR.L., a société à responsabilité limitée incorporated under Luxembourg law with registered office at 6C, Parc d’Activités Syrdall, L — 5365 Munsbach, Grand-Duchy of Luxembourg, registered with the register of commerce and companies of Luxembourg under number B152.662 and having a share capital of EUR 12,500.- (“EVERGREEN”); 10. SIG ASSET HOLDINGS LIMITED a non-cellular company limited by shares incorporated under the laws of the Island of Guernsey with its registered office at Heritage Hall, Le Marchant Street, St. Peter Port, Guernsey, GY1 4EL with registration number 28883; and 11. SIG COMBIBLOC HOLDING GMBH, a company incorporated under German law with registered office at Rurstraâe 58, 52441 Linnich, Germany and registered with the Commercial Register of the Local Court Düren under number HRB 5751. - 7 - SCHEDULE 2 PLEDGE AGREEMENTS 1. a Luxembourg law share pledge agreement dated 5 November 2009 and entered into between Parent as pledgor and the Collateral Agent, such pledge being granted over the shares held by Parent in the share capital of BPH I; 2. a Luxembourg law share pledge agreement dated 5 November 2009 and entered into between BPH I as pledgor and the Collateral Agent, such pledge being granted over the shares held by BPH I in the share capital of BPH III; 3. a Luxembourg law share pledge agreement dated 5 November 2009 and entered into between BPH I as pledgor and the Collateral Agent, such pledge being granted over the shares held by BPH I in the share capital of the Lux Issuer; 4. a Luxembourg law share pledge agreement dated 5 November 2009 and entered into between BPH III as pledgor and the Collateral Agent, such pledge being granted over the shares held by BPH III in the share capital of CSI Lux; 5. a Luxembourg law share pledge agreement dated 5 November 2009 and entered into between BPH III as pledgor and the Collateral Agent, such pledge being granted over the shares held by BPH III in the share capital of RCP Lux; 6. a Luxembourg law share pledge agreement dated 29 January 2010 and entered into between SIG Asset Holdings Limited as pledgor and the Collateral Agent in the presence of SIG Finance, such pledge to be granted over the shares held by SIG Asset Holdings Limited in the share capital of SIG Finance; 7. a Luxembourg law pledge over receivables agreement dated 5 November 2009 and entered into by the Lux Issuer as pledgor and the Collateral Agent, such pledge being granted over certain receivables held by the Lux Issuer towards BPH III under a proceeds loan agreement; 8. a Luxembourg law pledge over receivables agreement dated 5 November 2009 and entered into between BPH III as pledgor and the Collateral Agent, such pledge being granted over certain receivables held by BPH III towards BPH I; 9. a Luxembourg law pledge over receivables agreement dated 5 November 2009 and entered into between BPH I as pledgor and the Collateral Agent, such pledge being granted over certain receivables held by BPH I towards BPH III; 10. a Luxembourg law pledge over receivables agreement dated 5 November 2009 and entered into between BPH II as pledgor and the Collateral Agent, such pledge being granted over the claims the pledgor owns against BPH I under certain proceeds loans made by BPH II to BPH I; 11. a Luxembourg law pledge over receivables agreement dated 5 November 2009 and entered into between SIG Finance as pledgor and the Collateral Agent, such pledge being granted over certain receivables held by SIG Finance towards BPH III; - 8 - 12. a Luxembourg law profit participating bond pledge agreement dated 5 November 2009 and entered into between BPH I as pledgor and the Collateral Agent, such pledge being granted over the Bonds (as defined therein) issued by BPH III and held by BPH I; 13. a Luxembourg law bank accounts pledge agreement dated 5 November 2009 and entered into between SIG Finance as pledgor and the Collateral Agent over certain bank accounts opened with Société Générale Bank & Trust (the “Luxembourg Account Bank”); 14. a Luxembourg law bank accounts pledge agreement dated 5 November 2009 and entered into between CSI Lux as pledgor and the Collateral Agent, over certain bank accounts opened with the Luxembourg Account Bank; 15. a Luxembourg law bank accounts pledge agreement dated 5 November 2009 and entered into between BPH I as pledgor and the Collateral Agent, over certain bank accounts opened with the Luxembourg Account Bank; 16. a Luxembourg law bank accounts pledge agreement dated 5 November 2009 and entered into between BPH III as pledgor and the Collateral Agent, over certain bank accounts opened with the Luxembourg Account Bank; 17. a Luxembourg law bank accounts pledge agreement dated 5 November 2009 and entered into between RCP Lux as pledgor and the Collateral Agent, over certain bank accounts opened with the Luxembourg Account Bank; 18. a Luxembourg law bank accounts pledge agreement dated 5 November 2009 and entered into between the Lux Issuer as pledgor and the Collateral Agent, over certain bank accounts opened with the Luxembourg Account Bank; 19. a Luxembourg law pledge over receivables agreement dated 2 December 2009 and entered into between the Parent as pledgor and the Collateral Agent in the presence of BPH I, such pledge being granted over certain receivables held by the Parent towards BPH I under an intercompany loan agreement; 20. a Luxembourg law pledge over receivables agreement dated 23 February 2010 and entered into between BPH I as pledgor and the Collateral Agent in the presence of SIG Austria Holding GmbH and SIG Euro Holding AG & Co. KGaA, such pledge being granted over certain receivables held by BPH I towards SIG Austria Holding GmbH and SIG Euro Holding AG & Co. KGaA under certain intercompany loan agreements; 21. a Luxembourg law share pledge agreement dated 4 May 2010 and entered into between SIG Combibloc Holding GmbH as pledgor and the Collateral Agent in the presence of Evergreen, such pledge to be granted over the shares held by the pledgor in the share capital of Evergreen; 22. a Luxembourg law bank accounts pledge agreement dated 4 May 2010 and entered into between Evergreen as pledgor and the Collateral Agent, over certain bank accounts opened with the Luxembourg Account Bank; and - 9 - 23. a Luxembourg law pledge over receivables agreement dated 4 May 2010 and entered into between BPH III as pledgor and the Collateral Agent, such pledge to be granted over certain receivables held by BPH III towards SIG Combibloc Holding GmbH. - 10 - SIGNATURE PAGE — LUXEMBOURG CONFIRMATION AGREEMENT The Collateral Agent THE BANK OF NEW YORK MELLON /s/ Catherine F. Donohue Name: Catherine F. Donohue Title: Vice President The Pledgors REYNOLDS GROUP HOLDINGS LIMITED (formerly known as Rank Group Holdings Limited) /s/ Robert Bailey Name: Robert Bailey Witness: /s/ Karen Mower Title: Authorised signatory Karen Mower Occupation: Lawyer Address: Sydney, Australia BEVERAGE PACKAGING HOLDINGS (LUXEMBOURG) I S.A. /s/ Robert Bailey Name: Robert Bailey Title: Authorised signatory BEVERAGE PACKAGING HOLDINGS (LUXEMBOURG) II S.A. /s/ Robert Bailey Name: Robert Bailey Title: Authorised signatory BEVERAGE PACKAGING HOLDINGS (LUXEMBOURG) III S.à R.L. /s/ Robert Bailey Name: Robert Bailey Title: Authorised signatory SIG FINANCE (LUXEMBOURG) S.ÀR.L. — in liquidation - represented by its liquidator Headstart Management Services S.àr.l., itself represented by: /s/ Robert Bailey Name: Robert Bailey Title: Authorised signatory REYNOLDS GROUP ISSUER (LUXEMBOURG) S.A. /s/ Robert Bailey Name: Robert Bailey Title: Authorised signatory SIGNATURE PAGE — LUXEMBOURG CONFIRMATION AGREEMENT CLOSURE SYSTEMS INTERNATIONAL (LUXEMBOURG) S.ÀR.L. /s/ Robert Bailey Name: Robert Bailey Title: Authorised signatory REYNOLDS CONSUMER PRODUCTS (LUXEMBOURG) S.ÀR.L. /s/ Robert Bailey Name: Robert Bailey Title: Authorised signatory EVERGREEN PACKAGING (LUXEMBOURG) S.ÀR.L. /s/ Robert Bailey Name: Robert Bailey Title: Authorised signatory SIG ASSET HOLDINGS LIMITED /s/ Robert Bailey Name: Robert Bailey Title: Authorised signatory SIGNATURE PAGE — LUXEMBOURG CONFIRMATION AGREEMENT SIG COMBIBLOC HOLDING GMBH /s/ Robert Bailey Name: Robert Bailey Title: Authorised signatory
s3://data.kl3m.ai/documents/cap/12124160.json	text/markdown	#### U.S. SECURITIES AND EXCHANGE COMMISSION, Appellee, v. Eric J. ARONSON, Vincent J. Buonauro, Jr., Robert S. Kondratick, Permapave Industries, LLC, Permapave USA Corp., Permapave Distributions, Inc., Verigreen, LLC, and Interlink-US-Network, Ltd., Defendants, Caroline Aronson, Deborah Buanauro, Dash Development, LLC, Aron Holdings, Inc., Permapave Construction Corp., Dymoncrete Industries, LLC, Dymon Rock LI, LLC, and Lumi-Coat, Inc., Relief Defendants, Fredric H. Aaron, Defendant-Appellant. 15-3446-cv United States Court of Appeals, Second Circuit. December 5, 2016 79For Appellee: Paul G. AlvaRez, Senior Counsel, Anne K. Small, General Counsel, Sanket J. Bulsara, Deputy General Counsel, Michael A. Conley, Solicitor, Tracey A. Hardin, Assistant General Counsel, United States Securities and Exchange Commission, Washington, D.C. For Appellant: Andrew M. St. Laurent, Harris, St. Laurent & Chaudhry LLP, New York, New York. Present: PETER W. HALL, DEBRA ANN LIVINGSTON, Circuit Judges, NICHOLAS G. GARAUFIS, District Judge. * Judge Nicholas G. Garaufis, United States District Court for the Eastern District of New York, sitting by designation. SUMMARY ORDER Defendant-Appellant Fredric H. Aaron appeals from a final judgment entered in favor of Plaintiff-Appellee United States Securities and Exchange Commission by the United States District Court for the Southern District of New York. Aaron challenges both the district court’s order to brief the issue of monetary relief after Aaron conceded liability and the substanee of the monetary relief imposed. We assume the parties’ familiarity with the un80derlying facts, the procedural history, and the district court’s rulings that form the basis of this appeal. We review district court “determination[s] undertaken to manage the litigation before the court” for abuse of .discretion. In re World Trade Ctr. Disaster Site Litig.,722 F.3d 483, 487 (2d Cir. 2013). We likewise review orders of disgorgement and the imposition of civil penalties for abuse of discretion. SEC v. Kern,425 F.3d 143, 153-54 (2d Cir. 2005); SEC v. Warde,151 F.3d 42, 49 (2d Cir. 1998). The interpretation of the terms of a settlement agreement approved by the district court is subject to de novoreview. See United States v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers of Am., AFL-CIO,141 F.3d 405, 408 (2d Cir. 1998). With respect to the district court’s briefing order, we find no abuse of discretion. “It is well established that district courts possess the ‘inherent power’ and responsibility to manage their dockets ‘so as to achieve the orderly and expeditious disposition of cases.’” In re World Trade Ctr.,722 F.3d at 487 (quoting Link v. Wabash R.R. Co.,370 U.S. 626, 630-31, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)). The district court exercised its sound discretion here in ordering briefing on the monetary relief after waiting more than a year for the criminal case to resolve. Further, Aaron identifies no cognizable prejudice that he suffered from the district court’s actions. It is true as a general matter that consent judgments are “construed largely as contracts.” United States v. Apple, Inc.,791 F.3d 290, 337 (2d Cir. 2015) (quoting SEC v. Citigroup Glob. Mkts., Inc.,752 F.3d 285, 297 (2d Cir. 2014)) (alterations omitted). And it is also true that a district court generally has a “duty to enforce the stipulation that it has approved.” Geller v. Branic Int’l Realty Corp.,212 F.3d 734, 737 (2d Cir. 2000). But it is not true that the district court was bound by the provision Aaron cites here. The cases that Aaron cites do not stand for the broad proposition that consent agreements conclusively bind a district court’s procedures. See Citigroup Glob. Mkts., Inc.,752 F.3d 285 (addressing a district court’s refusal to approve a consent agreement in the first place); Geller,212 F.3d 734 (dealing with sealing case documents, a power not possessed by the parties); City of Hartford v. Chase,942 F.2d 130 (2d Cir. 1991) (concerning district court’s interpretation of a confidentiality order that was contrary to the plain text of the consent agreement). Here, the briefing provision contemplated that the parties would proposea briefing schedule after the conclusion of Aaron’s criminal case. By its plain language, it did not conclusively bind the district court to any particular briefing schedule, nor did it limit the district court’s inherent power to manage its docket. See In re World Trade Ctr.,722 F.3d at 487. And unlike Citigroup, Geller,and City of Hartford,the briefing provision did not reach any substantive issue. It merely set out the procedure by which monetary relief would be determined after Aaron conceded liability. As such, there is no basis in this Court’s precedents to conclude that the district court was conclusively, bound to wait (perhaps indefinitely) to resolve the only issues remaining in the case. Nor do we find that Aaron suffered any cognizable prejudice as a result of the briefing order. First, “[a] defendant has no absolute right not to be forced to choose between testifying in a civil matter and asserting his Fifth Amendment privilege.” Louis Vuitton Malletier S.A. v. LY USA Inc.,676 F.3d 83, 98 (2d Cir. 2012) (quoting Keating v. Office of Thrift Supervision,*8145 F.3d 322, 326 (9th Cir. 1995)); see also Kashi v. Gratsos,790 F.2d 1050, 1057 (2d Cir. 1986) (“[T]he Constitution does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings.” (quoting SEC v. Dresser Indus.,628 F.2d 1368, 1372 (D.C. Cir. 1980) (en banc))). Thus, the “dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against self-incrimination.” Williams v. Florida,399 U.S. 78, 84, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). Moreover, any speculation about how the SEC or the district court would have acted had the criminal case concluded first is not prejudice in any cognizable sense. With respect to the substance of the relief ordered, we also conclude that the district court did not abuse its discretion. District courts enjoy “broad equitable power to fashion appropriate remedies” for federal securities law violations, “including ordering that culpable defendants disgorge their profits.” SEC v. First Jersey Sec., Inc.,101 F.3d 1450, 1474 (2d Cir. 1996). “The amount of disgorgement ordered need only be a reasonable approximation of profits causally connected to the violation.” SEC v. Razmilovic,738 F.3d 14, 31 (2d Cir. 2013) (quoting SEC v. First Jersey Sec., Inc.,101 F.3d 1450, 1475 (2d Cir. 1996)). The SEC must first establish “a reasonable approximation of the profits causally related to the fraud,” then the burden shifts to the defendant “to show that his gains ‘were unaffected by his offenses.’” Id.(quoting SEC v. Lorin,76 F.3d 458, 462 (2d Cir. 1996)). First, the district court did not abuse its discretion in ordering disgorgement of the $282,580 paid to Aaron from accounts containing investor funds. Even if some portion of Aaron’s work was otherwise legitimate, performing that work for an organization that is built entirely on a fraudulent scheme still creates a causal connection to the ill-gotten gains. And despite some $600,000 in legitimate sales, the record makes clear that the object of the organization was to perpetrate the $26 million fraud. Second, ordering disgorgement of $212,500—representing the fair market value of Aaron’s Interlink shares—was not an abuse of discretion. This Court has long held that disgorgement of “unrealized gains” is proper in some circumstances. See SEC v. Commonwealth Chem. Sec., Inc.,574 F.2d 90, 102 (2d Cir. 1978) (declining to give securities laws violators “credit for the fact that they had not succeeded in unloading all their purchases at the time when the scheme collapsed”); SEC v. Shapiro,494 F.2d 1301, 1309 (2d Cir. 1974) (upholding disgorgement of “paper profits” even though the defendant had to surrender more than he actually made). Here, it was not error for the district court to decline to credit Aaron for the fact “that he was unable to keep up the ruse long enough to sell the shares at a high price and therefore never realized the value of the shares in the form of cash or other liquid investments.” J.A. 697. Third, the district court did not abuse its discretion in imposing joint and several liability for $1,053,175 in transfers to unknown payees. Aaron argues that because he is a secondary violator, joint and several liability was inappropriate. Appellant’s Br. at 33-34. That argument fails because a defendant’s status as a secondary violator does not disturb the broad discretion district courts have in ordering joint and several liability. See SEC v. AbsoluteFuture.com,393 F.3d 94, 97 (2d Cir. 2004). Further, there is sufficient proof that the defendants here closely collaborated with each other and shared in the unaccounted-for profits: Aaron was the 82sole signatory on at least one- of the accounts, one of a handful of signatories on others, and the defendants paid each other in cash from PermaPave accounts. Finally, we find no error in the district court’s imposition of a $250,000 civil penalty. Under 15 U.S.C. §§ 77t(d)(2)(B) and 78u(d)(3)(B)(ii), “second tier” civil penalties are appropriate if the securities violation “involve[s] fraud, deceit, manipulation, or deliberate or reckless disregard of a regulatory requirement.” “Beyond setting maximum penalties, the statutes leave ‘the actual amount of -the penalty ... up to the discretion of the district court.’” Razmilovic,738 F.3d at 38 (quoting Kern,425 F.3d at 153). In deciding the penalties, district courts weigh: (1) the egregiousness of the defendant’s misconduct; (2) the degree of the defendant’s scienter; (3) whether the defendant’s misconduct created substantial losses or the risk of substantial losses to other persons; (4) whether the defendant’s misconduct was isolated or recurrent; and (5) whether the penalty should be reduced due to the defendant’s demonstrated current and future financial condition. SEC v. Milligan,436 Fed.Appx. 1, 3 (2d Cir. 2011). None of Aaron’s challenges to the eivil penalty are persuasive. The securities laws provide for penalties up to the full amount of a violator’s gross pecuniary gains. 15 U.S.C. §§ 77t(d)(2)(B), 78u(d)(3)(B)(ii). The penalty here reached only a portion of that amount. Further, the district court reasonably credited Aaron’s “blatant abuse of his position and knowledge as a [former SEC] lawyer” and his willing participation in the scheme “to take advantage of ... unwitting and unsophisticated investors” even after those investors noted that his presence reassured them that the investments were safe. J.A. 700-01. Finally, contrary to Aaron’s assertion, the district court did examine his ability to pay and reasonably concluded that his monthly income of $13,000 did not render a civil penalty inappropriate. We have considered Appellant’s remaining arguments and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.
s3://data.kl3m.ai/documents/uspto/07416248.json	text/markdown	# Patent ## Title Adjustable configuration seating ## Abstract The adjustable configuration seating has a pair of opposed lateral rigid frame members with seat and back panels extending therebetween. In some embodiments, the chair includes flexible panels secured in place between the two frame members by crossmembers extending between the frame members, with a single adjustably positionable tension crossmember also extending between the frame members to hold the seat and back panel taut. Conversion between relatively upright and reclining configurations is accomplished by repositioning the tension crossmember between the frames, and turning the assembly ninety degrees to position the selected seating surface to face generally upwardly. Other embodiments have rigid seating and back panels, with the backrest panel articulating between the frame members to allow the seating configuration to change. The backrest panel may be secured to the seating panels by a rigid or flexible intermediate panel. ## Background REFERENCE TO RELATED PATENT APPLICATION This application is a continuation in part of U.S. patent application Ser. No. 11/087,641 filed on Mar. 24, 2005 now abandoned. BACKGROUND OF THE INVENTION 1. Field of the Invention The present invention relates generally to adjustable chairs and seating. More particularly, the adjustable configuration seating is a dual configuration chair having seating and back panels which may be quickly and easily converted from a generally upright seating position using one side of the seating and back panels, to a more reclined seating position using the opposite side of the seating and back panels. 2. Description of the Related Art The desirability and need for chairs and seating surfaces having multiple configurations has been recognized for some time. Seating which is convertible between a relatively upright position and a reclining position is desirable due to its versatility and the ability to combine two (or more) different types of seating configurations into a single unit, thereby saving space and expense. Most such adjustable configuration chairs or seats are relatively large, heavy, and immobile units, offering excellent comfort but also being relatively heavy and bulky. Lighter weight and more compact chairs have also been manufactured which provide portability for camping, beach use, etc. Most such portable seating is foldable for compact storage and transport, and many of these portable chairs are also convertible between relatively upright and reclining positions, as desired. However, all such convertible and portable chairs of which the present inventor is aware require some articulation of the lateral frame members, which results in a weaker frame than is achievable in a rigid, fixed structure. Moreover, none of the chairs and seats known to the present inventor makes use of both sides of a seating and/or backrest panel. An example of such a chair is described in the drawings and English abstract of Swiss Patent No. 662,258, published on Sep. 30, 1987, which describes a folding chair that is convertible between relatively upright reclining positions by means of the articulation of the lateral frame assemblies. Another folding chair is shown in Japanese Patent No. 6-98,816, published on Apr. 12, 1994. This chair is formed of relatively thick support and seating components, with a generally U-shaped back portion having a relatively shallow depth. The seat folds into the back portion between the shallow arms, with the forward portions of the sides and arms folding inwardly across the front of the assembly. Another portable, folding seat is found in Japanese Patent No. 6-197,821, published on Jul. 19, 1994. This device has a configuration somewhat like that of a so-called “director's chair,” in which the legs are diagonally braced. The upper ends of the diagonals have collars that slide along the four uprights, allowing the uprights to be drawn together for folding the chair. This chair appears to have only a single seating configuration when deployed for use. None of the above inventions and patents, taken either singly or in combination, is seen to describe the instant invention as claimed. Thus, adjustable configuration seating solving the aforementioned problems is desired. SUMMARY OF THE INVENTION The adjustable configuration seating is convertible between relatively upright and reclining configurations. Two opposed lateral frames are used to support the seating and back panels therebetween. The lateral frames are rigid, rectangular units, and do not fold, articulate, or disassemble in any way. In some embodiments, a flexible seating web or sling is tautly secured between the two frames by a series of seating panel support crossmembers and a single tension crossmember. Conversion between the two seating configurations is accomplished by moving the lateral tension crossmember from a first to a second location across the two frames, thereby altering the path of the seating web or sling between the two frames. The entire assembly is then rotated ninety degrees to position the selected seating surface to face generally upwardly, with the seating surface for the other configuration positioned generally below the selected seating surface. The adjustable configuration seating with its flexible seating surfaces may be folded for storage or transport by removing all of the lateral seating surface support crossmembers and the single tension rod, thereby allowing the seating web or sling to be removed and the two frames to be placed together. The two lateral frames may include means for folding, if so desired, for even more compact storage and shipping. Alternatively, the seating surface support crossmembers may be provided with hinges or the like and means for locking the hinges rigidly when the chair is deployed. Folding is accomplished by unlocking the support crossmembers and removing the tension crossmember, thereby allowing the two frames to be drawn together and folding the seating surface therebetween. Additional versatility may be provided by elongating the crossmembers and widening the panel surfaces to provide seating for more than one person, and/or providing additional intermediate frame members for additional support between each seating panel, as desired. In other embodiments, the seating comprises a chair having rigid side frames. However, the seating and backrest panels are rigid, with the backrest panel including a slot therein to enable the panel to articulate and reposition a short intermediate panel between the lower edge of the backrest panel and the rear edges of the two seat bottom panels. The seat bottom panels are rigidly and immovably affixed between the two lateral frame members, with no folding capability being provided. Another embodiment based upon the rigid panel structure includes a relatively short or narrow intermediate panel of flexible material. This obviates the need for longitudinal articulation of the backrest panel, with the backrest panel pivoting between either of the two configurations, and the flexible intermediate panel folding between the lower edge of the backrest panel and the rear edges of the two rigid seating panels when the chair is repositioned to either configuration. These and other features of the present invention will become readily apparent upon further review of the following specification and drawings. BRIEF DESCRIPTION OF THE DRAWINGS FIG. 1 is a perspective view of a first embodiment of the adjustable configuration seating according to the present invention, with the chair shown in an upright position and an optional headrest shown exploded therefrom. FIG. 2 is a perspective view of the adjustable configuration seating of FIG. 1 in an intermediate or transition configuration, the tensioning member being exploded to show conversion from the upright configuration of FIG. 1 to the reclining configuration of FIG. 3. FIG. 3 is a perspective view of the reclining configuration of the adjustable configuration seating of FIGS. 1 and 2 reconfigured to a second seating configuration, also showing an optional removably attachable armrest accessory exploded therefrom. FIG. 4 is a perspective view of an embodiment of the adjustable configuration seating of the present invention in a partially folded state, with the crossmembers partially folded. FIG. 5 is a perspective view of the adjustable configuration seating of FIG. 4 in a completely folded state. FIG. 6 is an exploded perspective view of optional cushions that may be removably attached to and used with the adjustable configuration seating of the present invention with the seating in an upright orientation. FIG. 7 is a perspective view of another embodiment of the adjustable configuration seating according to the present invention incorporating rigid panels, with the chair shown in an upright position and an optional headrest shown exploded therefrom. FIG. 8 is a perspective view of the adjustable configuration seating of FIG. 7 in an intermediate or transition configuration. FIG. 9 is a perspective view of the adjustable configuration seating of FIG. 8, rotated forty-five degrees between its upright and reclining configurations. FIG. 10 is a perspective view of the reclining configuration of the adjustable configuration seating of FIGS. 7 through 9 reconfigured to a second seating configuration, also showing an optional removably attachable armrest accessory and cushions exploded therefrom. FIG. 11 is a perspective view of another embodiment of the adjustable configuration seating according to the present invention incorporating a flexible intermediate panel between a rigid seat panel and rigid backrest panel, with the chair shown in an upright position and an optional headrest shown exploded therefrom. FIG. 12 is a perspective view of the adjustable configuration seating of FIG. 11 in an intermediate or transition configuration. FIG. 13 is a perspective view of the adjustable configuration seating of FIG. 12, rotated forty-five degrees between its upright and reclining configurations. FIG. 14 is a perspective view of the reclining configuration of the adjustable configuration seating of FIGS. 11 through 13, reconfigured to a second seating configuration, and also showing an optional removably attachable armrest accessory and cushions exploded therefrom. FIG. 15A is a schematic right side elevation view of a first stacking configuration for the embodiments of FIGS. 7-14, with the chairs stacked along the longer edges of their frames. FIG. 15B is a schematic right side elevation view of a second stacking configuration for the embodiments of FIGS. 7-14, with the chairs stacked along the shorter edges of their frames. Similar reference characters denote corresponding features consistently throughout the attached drawings. DETAILED DESCRIPTION OF THE PREFERRED EMBODIMENTS The present invention comprises various embodiments of a seating device having an adjustable or variable configuration, and also optionally providing for lateral folding or collapsing with the two lateral frame members remaining in their rigid, unfolded state. In some embodiments, the seat or chair utilizes a web or sling member for the seating and back surfaces, with opposite sides or surfaces of the web or sling being used for the different seating configurations. FIG. 1 of the drawings illustrates the adjustable configuration seating in its generally upright seating configuration. The seat or chair 10 includes laterally opposed first and second rigid lateral frame members, respectively 12a and 12b, with a series of crossmembers supporting a web or sling type panel therebetween. The two lateral frame members 12a and 12b are each rigid, non-foldable units that retain their shapes at all times; no folding or articulation is provided for either of the lateral frame members 12a and 12b, per se. While the two frame members 12a and 12b are shown as having open rectangular configurations, it will be seen that these two frame members may comprise continuous panels having closed interior areas, if so desired. The interiors of the frame members 12a and 12b may be closed by solid, rigid structure, or covered using fabric or other non-structural material, as desired. Each frame member 12a, 12b includes four sides, respectively 14a through 20a for the first frame member 12a, and 14b through 20b for the second frame member 12b. It will be noted that the sides 14a, 14b and 18a, 18b are somewhat shorter than the sides 16a, 16b and 20a, 20b. The sides of each frame member form four corners, respectively 22a through 28a for the first frame member 12a and 22b through 28b for the second frame member 12b. It is not absolutely essential that the corners 22a through 28b of the frame members be comprise acute corners as shown in the drawings; the corners may be rounded, beveled, chamfered, etc., as desired. The two frame members 12a, 12b may be formed of any suitable rigid and sturdy material, e.g., wood, metal, dense plastic, etc., or some composite combination thereof in either solid or hollow tubular form, as desired. A series of seat and back panel retaining crossmembers extend between the two frame members 12a and 12b, and support a seat and back panel thereon. Each of the crossmembers may comprise a rigid, inflexible rod, bar, or tube, or may alternatively provide for folding, as desired. A first panel retaining or support crossmember 30 extends between the two second sides 16a, 16b of the two frames and generally medially between the two corners 22a, 24a and 22b, 24b, with a second panel retaining crossmember 32 extending between the two corners 28a, 28b of the frame members, and a third crossmember 34 extending between the two frame sides 18a, 18b, crossmember 34 being closer to corners 26a, 26b than corners 24a, 24b. A fourth, selectively positionable seat and back panel tensioning member 36 also extends between the two lateral frame members, with the tensioning member 36 installed between the fourth sides 20a, 20b of the frame members in the upright seating configuration of FIG. 1, tensioning member 36 being closer to frame corners 26a, 26b than corners 28a, 28b. A continuous, thin, flexible seat and back panel is secured to the various panel retaining crossmembers 30 through 34 and wraps partially around the tensioning member 36. The seat and back panel comprises three general portions. A first, large portion 38 extends from the first panel retaining crossmember 30, with a second, relatively short portion 40 extending from the second panel retaining crossmember 32 and a third large portion 42 extending from the third crossmember 34 and wrapping partially about the tension crossmember 36. The various panel portions 38, 40, and 42 are all joined together (e.g., stitched or bonded for fabrics, etc.) along a common lateral seam 44. Any suitable thin, flexible, substantially inelastic (slight stretching may be acceptable) sheet material may be used to form the panel and its three portions 38 through 42 as desired, e.g., woven fabric; plastic; leather or metal screen or mesh; continuous, impervious sheet materials (plastic, leather, etc.); large gauge mesh materials (e.g., knitted or knotted cord or rope as in a hammock), etc., as desired. It will be noted that in the example illustrated in FIGS. 1 through 3 and in FIG. 6, that the three panel portions 38 through 42 actually each comprise two substantially parallel sheet surfaces or plies, i.e., plies 38a, 38b for the portion 38, plies 40a, 40b for the portion 40, and plies 42a, 42b for the panel portion 42. Each portion 38 through 42 extends from the common seam 44 to wrap about the respective crossmember 30 through 34 and extend back to the seam 44. In this manner, a finished surface always faces outwardly and is exposed as the seat and back surface for the seat or chair 10, regardless of its orientation and configuration. Alternatively, each portion of the back and seating surfaces may comprise a single sheet or ply of material secured about its respective crossmember 30 through 34 by means of a tubular hem, if so desired. Such a single ply embodiment is shown in FIGS. 4 and 5, illustrating the lateral folding action of the foldable or collapsible embodiment of the present seating, discussed further below. FIG. 3 provides an illustration of the second, reclining configuration for the seating of FIG. 1, with FIG. 2 illustrating an intermediate configuration as the seating is reconfigured from its generally upright configuration shown in FIG. 1 to its reclining configuration shown in FIG. 3. In FIG. 2, the tensioning member 36 for the seating panels 38 through 40 has been removed from its position in the upright chair configuration, thereby removing tension in the panel portion 42, which serves as the tensioning panel in the upright configuration. The other two panels 38 and 40 also slacken, due to their common seam 44 with the slackened panel 42. All three of the seat and back panel retaining crossmembers 30 through 34 remain in position across the two lateral frame members 12a and 12b, and continue to secure the seat and back panels 38 through 42 therebetween. The seating 10 has also been turned or rotated clockwise by about 45° in FIG. 2 from its upright orientation in FIG. 1. In FIG. 3, the seating 10 is rotated 90° clockwise from its upright orientation in FIG. 1, with the tension crossmember 36 reinstalled across the two frame sides 16a, 16b, generally opposite its installation across the sides 20a, 20b for the upright configuration of FIG. 1. In the reclining configuration of FIG. 3, the tension member extends across the first panel portion 38 of the seating and back panel, i.e., the panel portion used as the seating portion in the upright seating configuration. This panel 38 is positioned in the lower portion of the chair 10, beneath the other panel portions 40 and 42 in FIG. 3, due to the clockwise rotation of the assembly by 90° between FIG. 1 and FIG. 3. Accordingly, the third panel portion 42, which was the tension panel in FIG. 1, becomes the seating portion for the reclining configuration shown in FIG. 3. Specifically, the first ply 42a, which was facing outwardly away from the tension member in the upright configuration of FIG. 1, becomes the upwardly facing seating portion in the reclining configuration of FIG. 3. The back panel 40 serves the same function in both chair configurations, but the first ply 40a serves as the back contact panel in the upright configuration of FIG. 1, while the second ply 40b serves as the back contact panel in the reclining configuration of FIG. 3. The panels 38 through 42 of the seating 10 provide a much more reclined orientation in the configuration of FIG. 3 as opposed to the upright configuration of FIG. 1, due to the reorientation of the rectangular lateral frame members 12a and 12b to rest upon two of their longer sides in FIG. 3 and the adjustment of the geometry of the three panel portions 38 through 42 due to the repositioning of the tension member 36. It will be noted that the chair or seating 10 of FIGS. 1 through 3 may also include a backrest or headrest cushion 46 removably secured thereto. The cushion 46 may extend somewhat higher than shown in FIGS. 1 through 3, and may provide further head and/or back support in addition to the relatively low backrest panel 40 of the chair 10. The crossmember attachment edge of the backrest panel 40 includes a cutout 48 therein, as do the other panel portions 38 and 42. The cushion 46 includes a pair of crossmember attachments 50, e.g., openable fabric loops removably secured by snaps, mating hook and loop fabric material, etc., which secure removably about the second panel retaining crossmember 32 within the panel 40 edge cutout 48. As this crossmember 32 serves as the uppermost structural member of the seating 10 to support the upper edge of the backrest panel 40 in both seating configurations, the cushion 46 need only be flipped over from one side of the backrest panel 40 to the other as the chair configuration is changed, to provide a head or upper back cushion in either configuration. Alternatively, the cushion 46 may be flipped to the unused surface of the backrest panel, if the user of the seating 10 does not wish to use the cushion or the cushion may be removed completely by opening the attachment straps 50 securing it to the crossmember 32, if so desired. While the cushion 46 may serve primarily as a head or upper back cushion, it will be seen that it may be secured about either of the other two crossmembers 30 or 34 for use thereon, if so desired. FIG. 3 also illustrates another accessory that may be provided with the present adjustable configuration seating. In FIG. 3, an armrest accessory 52 (e.g., cupholder, ashtray or other tray, etc.) is shown separated from the upper edge or arm 20a of the first or right frame member 12a. A pair of pins 54 extends from the accessory 52, with one of the pins inserting removably into the existing hole or passage 56 for the tension member 36 when the seating is in its upright configuration and the other pin fitting into a specially provided accessory attachment hole 58. It will be seen that an additional left side attachment hole is also provided in the second frame member 12b, and that additional accessory attachment holes (not shown) may be provided for installation of the accessory 52 at a convenient location when the seating 10 is oriented in its upright configuration, if so desired. While the two lateral frame members 12a and 12b do not fold, collapse, or articulate in any manner, the adjustable configuration seating may be constructed to provide laterally inwardly folding or collapsing of the crossmember structure for compact storage, if so desired. FIGS. 4 and 5 illustrate the folding of a folding embodiment of the seating. It has been noted further above that all of the three panel retaining members 30 through 34 may comprise rigid, unitary lengths of material, if so desired, and may be made to be removable from the two side frames 12a and 12b to permit the chair or seating to be collapsed for storage. However, the panel retaining members 30 through 34 may be constructed with end hinges 30a, 30b, 32a, 32b, and 34a, 34b for the respective frame 12a, 12b attachment ends of the three crossmembers 30 through 34. Central hinges 30c, 32c, and 34c are also provided respectively along each of the crossmembers 30 through 34, to permit them to fold or collapse inwardly, thereby allowing the frames 12a and 12b to draw together for compact storage of the seating unit 10. Examples of hinges and pivots which may be used with the present seating are shown and described in U.S. Pat. No. 4,715,650 issued on Dec. 29, 1987 to Cary Berman et al., titled “Fully Collapsible Portable Chair,” which is hereby incorporated by reference in its entirety. Locking sleeves 60 (shown most clearly in FIGS. 1 and 2) slide over the central hinge assemblies 30c through 34c to hold each of the respective pivotally connected panel retaining member components as straight, rigid assemblies when the chair is being used. The single tension member 36 is removed from between the two lateral frame members 12a and 12b before folding the seating 10, as the tension member 36 is removed and repositioned in any event according to the seating configuration desired. The seating assembly in FIGS. 4 and 5 is shown in its upright orientation, i.e., with the longer sides or legs 16a, 16b and 20a, 20b of the two lateral frames 12a, 12b oriented generally vertically. In FIG. 4, the three locking sleeves 60 have been moved axially from their positions over their respective hinges 30c, 32c, and 34c of the three panel retaining members 30 through 34, allowing the crossmembers 30 through 34 to hinge or fold at their central hinge points and at their end hinge attachment points to the two lateral frame members 12a and 12b as well. The seating assembly 10 is shown partially folded in FIG. 4, with complete folding shown in FIG. 5. The various panel portions are illustrated as single thicknesses in the embodiment of FIGS. 4 and 5 for clarity in the drawings, and as an alternative embodiment as well. The same nomenclature used to describe the panel portions in FIGS. 1 through 3 is used in FIGS. 4 and 5, with it being understood that the panel references refer to opposite surfaces of a single ply in FIGS. 4 and 5, rather than to two generally parallel plies, as in the embodiment of FIGS. 1 through 3. In FIG. 4, the first crossmember 30 is folding downwardly, i.e., with its central hinge 30c moving toward the plane between the two lower sides 18a, 18b of the two frames 12a, 12b. This results in the first panel 38 folding downwardly as well, with its first surface 38a folding inwardly and its opposite second surface 38b (the lower surface when the seating is deployed as shown in FIG. 1) facing outwardly to each side of the central fold. Simultaneously with the above, the second crossmember 32, which supports the upper edge of the back panel 40, is hinging forwardly, with its central hinge 32c moving toward the plane between the two forward edges 16a and 16b of the two frame members 12a, 12b. This results in the upper edge of the back panel 40 forming an inwardly V-shaped fold, while its lower edge, i.e., the edge along the panel assembly seam 44, folds downwardly, as indicated in FIGS. 4 and 5. At the same time, the third crossmember 34 is folding, with its central hinge 34c moving forwardly and passing slightly beyond the plane defined by the two lower sides 18a and 18b of the two lateral frames 12a and 12b. This results in the lower, outer portions of the first face 42b of the third panel 42 folding to face outwardly, with the remainder of the first face 42b of the third panel 42 folding inwardly to capture the rearward portion of the first panel 38 therebetween. The result is a compactly folded structure with the two lateral frames 12a and 12b disposed closely adjacent and parallel to one another, separated only by the thicknesses of the folded crossmembers 30 through 34 and the thickness of the folded panel portions 38 through 42, as shown in FIG. 5 of the drawings. The adjustable configuration seating, in its various embodiments, provides a quite comfortable, compactly storable, and versatile seating arrangement. Even more comfort may be achieved by providing one or more cushions, which not only cushion the seating, but may also add some additional support as well. FIG. 6 provides an exploded perspective view of such cushioning, applied to the upright seating configuration of FIGS. 1 and 4. Three cushions 62a, 62b, and 62c are provided, with a thin, rigid panel 64 shown in broken lines within the first cushion 62a. The rigid panel 64 may be included optionally in the other cushions 62b and 62c as well, if so desired. The rigid panel 64 provides additional support when a larger cushion is cantilevered to extend beyond the panel retaining crossmember between the edges of the frame members, as would be the case with the larger first cushion 62a when placed against the back panel 40. The cushion 62a also includes a pair of ties 66 or the like (e.g., hook and loop fastener straps, snaps, etc.) for removably securing the cushion 62a to the sides of the two frame members 12a and 12b. The ties 66 or the like enable the entire assembled series of cushions 62a through 62c to be flipped over from one side of the seating surface to the other when the seating unit is converted from one configuration to the other. Alternatively, the cushion 62a may be equipped with a pair of crossmember attachment loops, e.g. loops 50 as shown with the single cushion 46 of FIGS. 1 through 3. The configuration of the cushion assembly 62a through 62c results in the smallest cushion 62c extending beyond the crossmember 30 when the seating is in its most upright position, as shown in FIG. 6, with both cushions 62b and 62c resting atop the longer opposite seating surface 42 when the seating is in its lower, more reclined configuration. Another alternative allows the cushions 62b and 62c to be removed from the cushion 62a, and the single separate cushion 62a to be flipped from one side of the backrest to the other during conversion of the seating. Each cushion 62a through 62c also preferably includes some means for securing the cushions to one another along their mating edges. For example, the mating edges of the cushions may be provided with mating zipper teeth, e.g., 68a along one edge of the first cushion 62a and 68b along the mating edge of the second cushion 62b. The opposite edge of the second cushion 62b may be provided with zipper teeth or other attachment means 68a identical to the attachment 68a of the first cushion 62a, with the third cushion 62c having attachment means 68b along a mating edge. In this manner, two or more such cushions may be assembled together as desired, with the first cushion 62a attaching directly to the third cushion 62c, or other arrangements or configurations as desired. The cushion assemblies may also be reversed to place the cushions in the opposite order from that shown in FIG. 6, if so desired, depending upon the configuration of the seating assembly 10. When the cushions 62a through 62c are secured to one another as shown in FIG. 6 of the drawings, the smaller cushion 62c depends over or covers the crossmember 30, depending upon the chair configuration, thereby providing additional comfort for the user of the chair. Many other cushion configurations are possible, limited only in accordance with the desires of the user. For example, the smaller cushion 62c may be used separately as a lumbar support in either seating configuration. Alternatively, the smaller cushion 62c may be secured to the intermediate or back cushion 62a, and folded over to double the thickness of the two cushions 62a and 62c along one edge thereof. The smaller cushion 62c, when placed along the upper edge of the back cushion 62a in this manner, serves as an upper shoulder or neck support, particularly when the seating is in the reclining configuration. Another alternative is the placement of the seat cushion 62b along the backrest area, for additional back support. The smaller cushion may be attached to the seat cushion 62b and used in the manner described immediately above, if so desired. It should be noted that the above described cushion arrangements are not limiting, but are merely examples of a vast array of configurations and arrangements that may be formed. FIGS. 7 through 15B show additional embodiments of adjustable configuration seating. FIGS. 7 through 10 illustrate an adjustable configuration seat 110 and its conversion from a first seating configuration to a second seating configuration. FIG. 7 of the drawings illustrates the adjustable configuration seating 110 in its generally upright seating configuration. The seat or chair 110 includes laterally opposed first and second rigid lateral frame members 112a and 112b, respectively, having the same general configuration as the lateral frame members 12a and 12b of the seating 10 of FIGS. 1 through 6. The two lateral frame members 112a and 112b are each rigid, non-foldable units which retain their shapes at all times; no folding or articulation is provided for either of the lateral frame members 112a and 112b, per se. While the two frame members 112a and 112b are shown as having open rectangular configurations, it will be seen that these two frame members may comprise continuous panels having closed interior areas, if so desired. The interiors of the frame member peripheries 112a and 112b may be closed by solid, rigid structure, or covered by fabric or other non-structural material. Each frame member 112a, 112b includes four sides 114a through 120a for the first frame member 112a, and four sides 114b through 120b for the second frame member 112b, respectively. These side members 114a through 120a and 114b through 120b define the respective peripheries of the two frame members 112a and 112b. It will be noted that the sides 114a, 114b and 118a, 118b are somewhat shorter than the sides 116a, 116b and 120a, 120b. The sides of each frame member form four corners 122a through 128a for the first frame member 112a and four corners 122b through 128b for the second frame member 112b, respectively. It is not absolutely essential that the corners 122a through 128b of the frame members have acute corners, as shown in the drawings. The corners may be rounded, beveled, chamfered, etc., as desired. The two frame members 112a, 112b may be formed of any suitable rigid and sturdy material, e.g., wood, metal, dense plastic, etc., or some composite combination thereof in either solid or hollow tubular form. A rigid first seating panel 130 extends between the two frame assemblies 112a and 112b, the rigid seating panel 130 having a first or forward edge 132 extending between the second frame side members 116a and 116b, an opposite rearward edge 134 disposed generally centrally between the two frame members, a first panel seating surface 130a, and a first panel undersurface 130b opposite the seating surface 130a. A second rigid seating panel 136 also extends between the two frame assemblies 112a and 112b, the second rigid seating panel 136 having a first or forward edge 138 extending between the second frame members 118a and 118b, an opposite rearward edge 140 disposed generally centrally between the two frame members and immovably affixed to the rearward edge 134 of the first rigid seating panel 130 along a seating panel joint, a second panel seating surface 136a, and a second panel undersurface 136b opposite the seating surface 136a. It should be noted that one or the other of the “forward edges” 132 or 138 of the two seating panels 130 and 136 is disposed forwardly when the chair or seating 110 is oriented to position the respective seating panel 130 or 136 as a seating surface, e.g., the first edge 132 of the first seating panel 130 is oriented forwardly in the seating configuration shown in FIG. 7. Each seating panel 130, 136 preferably has a relatively wide or thick crossmember 142 and 144, respectively, disposed along their respective first or forward edges 132 and 138 between the two frame members 112a and 112b. It will be understood that the two rigid seating panels 130 and 136 are immovably affixed between the two frame members 112a and 112b due to the fixed attachment of the first or forward edge 132 of the first seating panel 130 between the two frame member sides 116a and 116b and the fixed attachment of the first or forward edge 138 of the second seating panel 136 between the two frame member sides 118a and 118b. A back panel crossmember 146 extends between the fourth corners 128a, 128b of the two frame members 112a and 112b. The crossmember 146 preferably comprises a rigid rod or the like to support a rigid back panel 148 adjustably thereon. The back panel 148 includes a lateral slot 150 formed therethrough, the crossmember 146 passing through the slot 150 to capture the back panel 148 adjustably upon the crossmember 146 and between the two lateral frame members 112a and 112b. The back panel 148 further includes an upper edge 152, an opposite lower edge 154, and opposite first and second backrest surfaces 148a and 148b, respectively. The back panel 148 is not directly connected to the fixed joint defined by the second or rear edges 134 and 140 of the two seating panels 130 and 136. Rather, a rigid intermediate panel 156 extends between the rear or joint edges 134 and 140 of the two seating panels 130 and 136 and the lower edge 154 of the back panel 148. The intermediate panel 156 includes mutually opposed first and second seating surfaces 156a and 156b, respectively, a forward edge 158 pivotally connected to the joint edges 134, 140 of the two seating panels 130, 136 by a seat panel hinge 160, and an opposite rearward edge 162 pivotally connected to the lower edge 154 of the back panel 148 by a back panel hinge 164. The adjustable configuration seating 110 is adjusted between the relatively upright orientation shown in FIG. 7 to the semi-reclining orientation shown in FIG. 10 in accordance with the intermediate illustrations of FIGS. 8 and 9 and the description provided immediately below. It will be noted that the two lateral frame members 112a, 112b are at least generally rectangular in shape, with the two opposite sides 116a, 120a and 116b, 120b being longer than their respective sides 114a, 118a and 114b, 118b. This results in the chair or seating 110 having a relatively upright orientation or configuration when it is resting upon the shorter sides 118a, 118b of the frame members 112a, 112b, as shown in FIG. 7. The seating configuration shown in FIG. 7 also shows the backrest panel 148 slid down to its lowermost position on the back panel crossmember 146, this position of the back panel being limited by the upper edge of the slot 150 contacting the back panel crossmember 146. This results in the intermediate panel 156 being lowered to a position essentially coplanar with the first seating panel 130 shown in FIG. 7 to provide a full seat portion comprising the first seat panel 130 and substantially, or at least generally, coplanar intermediate panel 156. The generally horizontal orientation of the intermediate panel 156 results in the lower edge 154 of the back panel 148 being positioned only slightly forwardly of the back panel crossmember 146, thereby positioning the back panel to a generally vertical orientation with only a slight reclining angle. In FIG. 8, the back panel 148 has been drawn upward about the back panel crossmember 146, with the lower edge of the slot 150 adjacent the crossmember 146. The hinged connection of the lower edge 154 of the back panel 146 to the intermediate panel 156 results in the intermediate panel pivoting upwardly relative to the first seating panel 130 for alignment generally coplanar with the back panel 148. This is an intermediate configuration between the upright seating position shown in FIG. 7 and the semi-reclining position shown in FIG. 10. In FIG. 9 the chair or seating 110 has been tipped forwardly by about forty-five degrees, or about halfway between the upright orientation of FIG. 7 and the semi-reclining orientation of FIG. 10. The chair or seat configuration is otherwise as shown in FIG. 8, with the backrest panel 148 drawn upwardly to pull the intermediate panel 156 into general alignment with the backrest panel. FIG. 10 provides an illustration of the completion of the change to a semi-reclining configuration. It will be seen in FIG. 10 that the chair or seating 110 has been rotated by another forty-five degrees from the position shown in FIG. 9, so the seating 110 is resting upon the longer horizontal sides 116a and 116b of the two lateral frame members 112a and 112b. This allows the back panel 148 to drop downwardly over its restraining crossmember 146, the upper edge of the slot 150 resting upon the crossmember. The slot 150 is positioned and dimensioned through the back panel 148 to position the intermediate panel 156 in at least a generally coplanar orientation with the second seating panel 136, as shown in FIG. 10. The longer horizontal span of the lateral frame members 112a and 112b in this orientation results in the lower edge 154 of the back panel 148 being positioned somewhat farther forwardly of the crossmember 146 than is the case in the upright seating configuration shown in FIG. 7, thereby positioning the backrest panel 148 at a somewhat shallower angle for a more reclined seating position. The first seating surface 136a of the second seat panel 136 becomes the seat bottom surface in this configuration, with the second back panel surface 148b becoming the seat back surface. Greater comfort may be provided by the placement of one or more removable cushions upon the hard or rigid panels 130, 136, 148, and 156. A plurality of such cushions, comprising a seat cushion 166, a backrest cushion 168, and a panel crossmember or crossbar cushion 170, are illustrated in FIG. 10 of the drawings. The various cushions 166 through 170 preferably include mating attachment edges 172 extending therefrom (e.g., zippers, Velcro®, snaps, etc.) allowing the cushions to be removably attached to one another and/or to the various seating surfaces of the chair or seat 110. While the various cushions 166 through 170 are shown above or adjacent to the second seating and backrest surfaces 136a and 148b in FIG. 10, it will be seen that they may be applied to the opposite first seating and backrest surfaces 130a and 148a when the chair or seating 110 is in its more upright position as shown in FIG. 7. Additional comfort and convenience may be provided by a detachable headrest cushion 174 (FIG. 7). The headrest cushion 174 includes one or more pins 176, which install removably within mating receptacles 178 formed in the upper portion of the back panel 148. Additional accessories, e.g., a cup holder or ashtray 180, etc., may be removably installed upon the chair or seating structure 110, as shown in FIG. 10. The armrest accessory attachment 180 may be removably secured to either of the lateral frame members 112a or 112b by one or more pins or rods 182 extending from the accessory 180 to engage mating receptacles 184 provided in the frame member(s) 112a and/or 112b. While only a single set of accessory receptacles 184 are illustrated in the fourth side 120a of the first lateral frame member 112a in FIG. 10, it will be seen that such receptacles could be formed in the opposite frame member 112b and/or in either of the first side components 114a and/or 114b forming the armrests of the seat 110 when it is in its upright seating position, as shown in FIG. 7. FIGS. 11 through 14 show an additional embodiment of the adjustable configuration seating, designated as seating or chair 210. The seating 210 is quite similar to the seating 110 of FIGS. 7 through 10, with the exception of the intermediate panel between the two seating panels and the attachment of the back panel between the two lateral frame members. Accordingly, the corresponding reference numerals are used for corresponding components between the two seats or chairs 110 and 210, with reference numerals for the chair 210 having second and third place digits identical to those digits for corresponding components of the chair 110. FIG. 11 of the drawings illustrates the adjustable configuration seating embodiment 210 in its generally upright seating configuration. The seat or chair 210 includes laterally opposed first and second rigid lateral frame members 212a and 212b, respectively, having the same general configuration as the lateral frame members 112a and 112b of the seating 110 of FIGS. 7 through 10. The two lateral frame members 212a and 212b are each rigid, non-foldable units that retain their shapes at all times. No folding or articulation is provided for either of the lateral frame members 212a and 212b, per se. While the two frame members 212a and 212b are shown as having open rectangular configurations, it will be seen that these two frame members may comprise continuous panels having closed interior areas. The interiors of the frame member peripheries 212a and 212b may be closed by solid, rigid structure, or covered by fabric or other non-structural material. Each frame member 212a, 212b includes four sides 214a through 220a for the first frame member 212a, and 214b through 220b for the second frame member 212b, respectively. These side members 214a through 220a and 214b through 220b define the respective peripheries of the two frame members 212a and 212b. It will be noted that the sides 214a, 214b and 218a, 218b are somewhat shorter than the sides 216a, 216b and 220a, 220b. The sides of each frame member form four corners 222a through 228a for the first frame member 212a and 222b through 228b for the second frame member 212b, respectively. It is not absolutely essential that the corners 222a through 228b of the frame members be acute corners, as shown in the drawings. The corners may be rounded, beveled, chamfered, etc. The two frame members 212a, 212b may be formed of any suitable rigid and sturdy material, e.g., wood, metal, dense plastic, etc., or some composite combination thereof in either solid or hollow tubular form. A rigid first seating panel 230 extends between the two frame assemblies 212a and 212b, the rigid seating panel 230 having a first or forward edge 232 extending between the second frame side members 216a and 216b, an opposite rearward edge 234 disposed generally centrally between the two frame members, a first panel seating surface 230a, and a first panel undersurface 230b opposite the seating surface 230a. A second rigid seating panel 236 also extends between the two frame assemblies 212a and 212b, the second rigid seating panel 236 having a first or forward edge 238 extending between the second frame members 218a and 218b, an opposite rearward edge 240 disposed generally centrally between the two frame members and immovably affixed to the rearward edge 234 of the first rigid seating panel 230 along a seating panel joint, a second panel seating surface 236a, and a second panel undersurface 236b opposite the seating surface 236a. It should be noted that one or the other of the “forward edges” 232 or 238 of the two seating panels 230 and 236 is disposed forwardly when the chair or seating 210 is oriented to position the respective seating panel 230 or 236 as a seating surface, e.g., the first edge 232 of the first seating panel 230 is oriented forwardly in the seating configuration shown in FIG. 11. Each seating panel 230, 236 preferably has a relatively wide or thick crossmember 242 or 244, respectively, disposed along their respective first or forward edges 232 and 238 between the two frame members 212a and 212b. It will be understood that the two rigid seating panels 230 and 236 are immovably affixed between the two frame members 212a and 212b due to the fixed attachment of the first or forward edge 232 of the first seating panel 230 between the two frame member sides 216a and 216b, and the fixed attachment of the first or forward edge 238 of the second seating panel 236 between the two frame member sides 218a and 218b. A back panel crossmember 246 extends between the fourth corners 228a, 228b of the two frame members 212a and 212b. The crossmember 246 preferably comprises a rigid rod or the like to support a rigid back panel 248 adjustably thereon. The back panel 248 of the embodiment 210 of FIGS. 11 through 14 differs from the back panel 148 of the embodiment 110 of FIGS. 7 through 10. The back panel 248 includes a lateral passage 250 formed therethrough dimensioned to fit closely about the crossmember 246, rather than a slot allowing the panel to slide longitudinally about the crossmember, as in the case of the seat 110 of FIGS. 7 through 10. The back panel 248 has an upper edge 252, an opposite lower edge 254, and opposite first and second backrest surfaces 248a and 248b, respectively. The crossmember 246 of the embodiment 210 of FIGS. 11 through 14 passes through the passage 250 to capture the back panel 248 pivotally upon the crossmember 246 and between the two lateral frame members 212a and 212b. No longitudinal movement of the back panel 248 relative to the remainder of the structure is permitted in this embodiment. Alternatively, the crossmember 246 could pivot within the two opposed corner portions 228a and 228b of the opposite frame members 212a and 212b, with the back panel 248 being immovably affixed to the crossmember 246. Another alternative would be to provide relatively short pins extending inwardly from each corner portion 228a and 228b of the frame members, the pins engaging mating receptacles in the opposite lateral edges of the back panel 248. However, it is preferred that the crossmember 246 comprise a single, continuous rod or the like immovably affixed between the two frame members 212a and 212b for greater rigidity and strength for the complete structure. The back panel 248 is not directly connected to the fixed joint defined by the second or rear edges 234 and 240 of the two seating panels 230 and 236. Rather, a flexible intermediate panel 256 (e.g., coated or non-coated fabric; relatively thin, flexible plastic sheet material, webbing or mesh, etc.) extends between the rear or joint edges 234 and 240 of the two seating panels 230 and 236 and the lower edge 254 of the back panel 248. The flexible intermediate panel 256 includes mutually opposed first and second seating surfaces 256a and 256b, respectively, a forward edge 258 flexibly attached to the joint edges 234, 240 of the two seating panels 230, 236, and an opposite rearward edge 262 flexibly attached to the lower edge 254 of the back panel 248. The adjustable configuration seating 210 is adjusted between the relatively upright orientation shown in FIG. 11 to the semi-reclining orientation shown in FIG. 14 in accordance with the intermediate illustrations of FIGS. 12 and 13 and the description provided immediately below. It will be noted that the two lateral frame members 212a, 212b are at least generally rectangular in shape, the two opposite sides 216a, 220a and 216b, 220b being longer than their respective sides 214a, 218a and 214b, 218b. This results in the chair or seating 210 having a relatively upright orientation or configuration when it is resting upon the shorter sides 218a, 218b of the frame members 212a, 212b, as shown in FIG. 11. The seating configuration shown in FIG. 11 also shows the backrest panel 248 pivoted or positioned at a relatively steep slope approaching the vertical on the back panel crossmember 246, with this position of the back panel being limited by the span of the intermediate flexible panel 256 extending between the joint between the two seating panels 230 and 236 and the lower edge 254 of the back panel 248. This results in the intermediate panel 256 being extended to an essentially coplanar orientation relative to the first seating panel 230, as shown in FIG. 11, to provide a full seat portion comprising the first seat panel 230 and substantially, or at least generally, coplanar intermediate panel 256. The generally horizontal orientation of the intermediate panel 256 results in the lower edge 254 of the back panel 148 being positioned only slightly forwardly of the back panel crossmember 246, thereby positioning the back panel to a generally vertical orientation with only a slight reclining angle. In FIG. 12, the back panel 248 has been pivoted about the back panel crossmember 246, with the lower edge 254 of the back panel 248 adjacent the rear edge 234 of the first seating panel 230. This results in the intermediate panel 256 flexing or folding together. This is an intermediate configuration between the upright seating position shown in FIG. 11, and the semi-reclining position shown in FIG. 14. In FIG. 13 the chair or seating 210 has been tipped forwardly by about forty-five degrees, or about half way between the upright orientation of FIG. 11 and the semi-reclining orientation of FIG. 14. The chair or seat configuration is otherwise as shown in FIG. 12, with the backrest panel 248 pivoted to position the lower edge 254 of the back panel 248 adjacent the rear edge 234 of the first seating panel 230, thereby causing the intermediate panel 156 to fold as shown in FIGS. 12 and 13. FIG. 14 provides an illustration of the completion of the change to a semi-reclining configuration. It will be seen in FIG. 14 that the chair or seating 210 has been rotated by another forty-five degrees from the position shown in FIG. 13, so that the seating 210 is resting upon the longer horizontal sides 216a and 216b of the two lateral frame members 212a and 212b. The back panel 248 is pivoted about the crossmember 246 to raise its upper edge 252 to the greatest extent possible, thereby drawing the lower edge 254 of the back panel 248 to extend the flexible intermediate seating panel 256 to form a rearward extension of the second seating panel 236. The longer horizontal span of the lateral frame members 212a and 212b in this orientation results in the lower edge 254 of the back panel 248 being positioned somewhat farther forwardly of the crossmember 246 than is the case in the upright seating configuration shown in FIG. 11, thereby positioning the backrest panel 248 at a somewhat shallower angle for a more reclined seating position. The first seating surface 236a of the second seat panel 236 becomes the seat bottom surface in this configuration, the second back panel surface 248b becoming the seat back surface. The chair or seating embodiment 210 of FIGS. 11 through 14 may make use of cushions to provide greater comfort, as shown in FIG. 14. These cushions 166 through 170 may be essentially identical to the cushions 166 through 170 shown in FIG. 10 of the drawings for the seating 110, and, accordingly, are designated with the same reference numerals. Conventional attachment means 172 (hook and loop, zippers, snaps, etc.) are provided along the mating edges of the cushions for securing the cushions to one another and/or to the seating or chair 210. While the various cushions 166 through 170 are shown above or adjacent to the second seating and backrest surfaces 236a and 248b in FIG. 14, it will be seen that they may be applied to the opposite first seating and backrest surfaces 230a and 248a when the chair or seating 210 is in its more upright position as shown in FIG. 11. A detachable headrest 174 may also be installed to the upper edge 252 of the back panel 248 by means of headrest attachment receptacles or sockets 278 formed in the upper portion of the back panel 248 and mating pins or rods 176 extending from the headrest 174, as shown in FIG. 11 of the drawings. The headrest 174 and its pins or rods 176 are identical to the headrest and pins illustrated in FIG. 7 for the chair or seating embodiment 110, with the same reference numerals being used accordingly. Additional accessories, e.g., a cup holder or ashtray 180, etc., may be removably installed upon the chair or seating structure 210, as shown in FIG. 14. The armrest accessory attachment 180 may be removably secured to either of the lateral frame members 212a or 212b by one or more pins or rods 182 extending from the accessory 180 to engage mating receptacles 284 provided in the frame member(s) 212a and/or 212b in the same manner as described further above for the seating embodiment 110 of FIGS. 7 through 10. As the accessory 180 and its attachment are identical in both embodiments 110 and 210, the same reference numerals are used for the accessory in FIGS. 10 and 14. While only a single set of accessory receptacles 284 are illustrated in the fourth side 220a of the first lateral frame member 212a in FIG. 14, it will be seen that such receptacles could be formed in the opposite frame member 212b and/or in either of the first side components 214a and/or 214b forming the armrests of the seat 210 when it is in its upright seating position, as shown in FIG. 11. The rigid rectangular configuration of the lateral frame members of the various embodiments of the adjustable configuration seating provides for the convenient stacking of a series of such seats or chairs atop one another for storage when the lateral frame members are provided with suitable mutual engagement means. FIGS. 15A and 15B provide illustrations of such stacked chairs or seating. In FIG. 15A, a series of chair or seating embodiments 110 are shown stacked atop one another with their widest frame sides or elements disposed horizontally, with the uppermost chair or seat shown slightly separated from those below. At least two protrusions 186 extend outwardly from the lowermost longer frame side member or element 118b of each of the chairs, each uppermost longer frame side member or element 114b having corresponding receptacles 188 for engaging the protrusions. It will be understood that the protrusions 186 and receptacles 188 are preferably provided on the corresponding frame side members or elements 114a and 114b of the left side of the chair, as well as those shown on the right side of the chair in FIG. 15A. The protrusions 186 may comprise relatively hard but resilient plastic or rubber bumpers in order to serve as “feet” for the chair or seating 110 when the chair resting upon a floor or other surface for use. FIG. 15B shows a series of adjustable configuration seating chairs 110 stacked atop one another with their shorter side elements 116b and 120b engaging one another. The chairs 110 shown stacked in FIG. 15B are upright in the orientation shown in FIG. 7 of the drawings for more upright or formal seating. Accordingly, a series of protrusions, bumpers, or feet 118 are installed to project from the lowermost shorter or narrower frame element or side 116b, with the opposite narrower frame element or side 120b having a series of corresponding protrusion-engaging receptacles 188 formed therein. It will be noted that the seating or chairs 110 of both FIGS. 15A and 15B include protrusions 186 disposed upon both the wider and narrower frame side elements 118b and 116b, with both the wider and narrower frame side elements 114b and 120b having mating receptacles 188 formed therein. This allows the chairs or seating 110 to be stacked in either orientation shown in FIGS. 15A and 15B, as well as providing bumpers or “feet” for the chairs 110, whether in their more upright, formal seating configuration (FIG. 7) or in their lower, less formal seating configuration (FIG. 10). It will be seen that this protrusion and receptacle arrangement may be provided for any of the other chairs or seating disclosed herein, i.e., the chair 10 of FIGS. 1 through 6 and chair 210 of FIGS. 11 through 14, as well as the seat 110 of FIGS. 7 through 9. In conclusion, the adjustable configuration seating provides superior versatility for different seating configurations and storage. The seating may be constructed to provide relatively light weight for portability, yet provides a sturdy and solid structure by means of its rigid lateral members. The structure of the present seating is relatively economical, thus providing for use in many environments where large numbers of durable yet comfortable chairs or seating must be provided, e.g., resorts, hotels and motels, etc. The unique concept that gives one series of embodiments of this seating its ability to convert from use for relaxing, e.g. living room, terrace or poolside, etc., to use for dining or other more upright seating environment, is the precise calculation of the lengths of the three portions of the flexible seating surface in combination with the two precise locations of the tension bar across the assembly. This precise combination of lengths and placements determines the important seat angles and depths of each position for maximum comfort while being used for the desired purpose. For relaxing, the seat back is at a more reclined angle, the seat bottom slopes down at the back, and the depth of the seat is deeper. For dining or other more formal, upright seating, the seat back is more erect, the seat bottom is more horizontal, and the seat depth is shorter. The adjustable configuration seating provides a change in the height of the seating position due to the rotation of the frame during the configuration change. This provides a higher and more upright seating position compatible with a conventional table or the like, e.g., for dining, desk work or any other situation requiring upright seating, while providing a lower, more reclined seating position and orientation due to the lower frame disposition when the present seat is in its reclining configuration. The seating will also find favor among dorm students and owners and renters of studio apartments or other small quarters, as the versatility enables the seating to serve dual purposes or functions while requiring no more room than a single small conventional chair. Even greater versatility may be provided by elongating the crossmembers and widening the panel surfaces to provide seating for more than one person, and/or providing additional intermediate frame members for additional support between each seating panel. Accordingly, the present seating in its various embodiments will prove to be extremely popular among a great number of people of different needs and backgrounds. It is to be understood that the present invention is not limited to the embodiments described above, but encompasses any and all embodiments within the scope of the following claims. ## Claims 1. Adjustable configuration seating, comprising: first and second rigid lateral frame members, each of the frame members having a peripheiy; a rigid first seating panel extending between each of the lateral frame members, the first seating panel having a forward edge extending between the periphery of each of the lateral frame members, a rearward edge opposite the forward edge, a first panel seating surface, and a first panel undersurface opposite the first panel seating surface; a rigid second seating panel extending between each of the lateral frame members, the second seating panel having a forward edge extending between the peripheries of the lateral frame members, a rearward edge opposite the forward edge, a second panel seating surface, and a second panel undersurface opposite the second panel seating surface, the rearward edge being affixed to the rearward edge of the first seating panel, defining a seating panel joint; a back panel crossmember extending between each of the lateral frame members; a rigid back panel having a lateral slot disposed therethrough, the back panel crossmember passing through the slot of the back panel, the back panel being adjustably captured upon the crossmember and between each of the lateral frame members, the back panel further having an upper edge, a lower edge opposite the upper edge, a first backrest surface, and a second backrest surface opposite the first backrest surface; and a rigid intermediate seating panel having a first seating surface, a second seating surface opposite the first seating surface, a forward edge, and a rearward edge opposite the forward edge, the forward edge of the intermediate panel being pivotally attached to the seating panel joint of the first seating panel and the second seating panel, the rearward edge of the intermediate panel being pivotally attached to the lower edge of the back panel. 2. The adjustable configuration seating according to claim 1, further including at least one cushion selectively attached to a corresponding one of the panels. 3. The adjustable configuration seating according to claim 2, wherein the at least one cushion comprises a plurality of mutually selectively attached cushions. 4. The adjustable configuration seating according to claim 1, further including a selectively attached armrest accessory. 5. The adjustable configuration seating according to claim 1,wherein each of the lateral frame members has a rectangular configuration having first through fourth frame elements, the seating further comprising: a plurality of protrusions extending from at least one of the frame elements of each of the lateral frame members; and a corresponding plurality of protrusion engaging receptacles formed in a corresponding at least one of the frame elements of each of the lateral frame members. 6. The adjustable configuration seating according to claim 1, further including a headrest removably secured to the upper edge of the back panel.
s3://data.kl3m.ai/documents/edgar/0000950123/0000950123-12-002185/	text/plain	exv4w385 EXHIBIT 4.385 THIRD AMENDMENT TO THE QUOTA PLEDGE AGREEMENT Among The Bank of New York Mellon as Collateral Agent for the benefit of the Secured Parties under the First Lien Intercreditor Agreement Closure Systems International B.V. and Closure Systems International Holdings Inc. as Grantors and Closure Systems International (Brazil) Sistemas de Vedação Ltda. as the Company Dated as of March 2, 2011 THIRD AMENDMENT TO THE QUOTA PLEDGE AGREEMENT This Third Amendment to the Quota Pledge Agreement (the “Amendment”) is made as of March 2, 2011 by and among: (a) Closure Systems International B.V., a company, duly organized and existing in accordance with the laws of the Netherlands, with its registered office at Teleportboulevard 140, 1043EJ Amsterdam, Netherlands, herein duly represented in accordance with its Charter Documents (together with its successors and permitted assignees, “CSI B.V.”); (b) Closure Systems International Holdings Inc., a company duly incorporated and existing under the laws of the State of Delaware, United States of America (“USA”), with its registered office in the State of Delaware at National Registered Agents, Inc, 160 Greentree Drive, Suite 101, Dover, DE 19904 and principal place of business at 6641 West Broad Street, Richmond, VA, 23230, USA, herein duly represented in accordance with its Charter Documents (together with its successors and permitted assignees, “CSI Holdings” and together with CSI B.V., the “Grantors”); (c) The Bank of New York Mellon, a financial institution duly organized and existing under the laws of the State of New York, with its registered office at One Wall Street, New York, New York, enrolled with the Brazilian Taxpayers Roll of the Ministry of Finance (CNPJ/MF) under no 09.214.177/0001-65, acting exclusively in the capacity as collateral agent of and for the benefit of the Secured Parties under the First Lien Intercreditor Agreement (together with its successors and permitted assignees in such capacity, the “Collateral Agent”); and (d) Closure Systems International (Brazil) Sistemas de Vedação Ltda., a limited liability company duly organized and existing in accordance with the laws of Brazil, with its registered office in the City of Barueri, State of São Paulo, at Alameda Araguaia, no 1.819-1.889, Sítio Tamboré, enrolled with the Brazilian Taxpayers Roll of the Ministry of Finance (CNPJ/MF) under no 09.074.885/0001-48 (the “Company”). WHEREAS, on January 29, 2010, the parties hereto entered into the Quota Pledge Agreement (the “Pledge Agreement”). WHEREAS, the Pledge Agreement was amended by the Amendment to the Quota Pledge Agreement dated May 4, 2010, in respect of an Amendment No. 2 and Incremental Term Loan Assumption Agreement dated May 4, 2010, and further amended by the Second Amendment to the Quota Pledge Agreement dated November 16, 2010, in respect of an Amendment No. 3 and Incremental Term Loan Assumption Agreement dated September 30, 2010 and a Senior Secured Notes Indenture dated October 15, 2010. WHEREAS, the following document was entered into on the dates, and by and among the parties, described below (“Credit Agreement Amendment and Restatement”): Amendment No. 4 and Incremental Term Loan Assumption Agreement dated February 9, 2011, entered into by and among, including others, Reynolds Group Holdings Inc., Reynolds Consumer Products Holdings Inc., Closure Systems International Holdings Inc., SIG Euro Holding AG & Co. KGaA, SIG Austria Holding GmbH, Closure Systems International B.V., Pactiv Corporation, Reynolds Group Holdings Limited, the Guarantors from time to time party thereto, the Lenders from time to time party thereto and Credit Suisse AG (formerly known as Credit Suisse), as administrative agent for the Lenders, related to and amending and restating the Credit Agreement dated as of November 5, 2009, as amended by an Amendment No. 1 dated as of January 21, 2010, and as further amended by an Amendment No. 2 dated May 4, 2010 and an Amendment No. 3 dated September 30, 2010. WHEREAS, pursuant to an indenture (the “February 2011 Secured Notes Indenture”) dated February 1, 2011, and entered into between the February 2011 Issuers (as defined below), The Bank of New York Mellon, as trustee, principal paying agent, transfer agent, registrar and collateral agent, The Bank of New York Mellon London Branch as paying agent and Wilmington Trust (London) Limited as additional collateral agent, certain secured notes (the “February 2011 Secured Notes”) were issued by the February 2011 Issuers. WHEREAS, the obligations in respect of the February 2011 Secured Notes Indenture and any Senior Secured Note Documents (as defined therein) have been designated as “Additional Obligations” under, and in accordance with section 5.02(c) of the First Lien Intercreditor Agreement (the “Secured Notes Designation”). WHEREAS, the parties recognize and agree that the security interest created under the Pledge Agreement shall extend to secure, in addition to the obligations currently secured thereby, the obligations created under the Credit Agreement Amendment and Restatement and the Additional Documents (as defined under the First Lien Intercreditor Agreement) in respect of the Secured Notes Designation (“Additional Covered Obligations”). NOW, THEREFORE, in consideration of the foregoing premises and mutual covenants contained herein, the parties hereto agree as follows: 1. Defined Terms. Capitalized terms used and not otherwise defined in this Amendment are used herein and in any notice given under this Amendment with the same meanings ascribed to such terms in the Pledge Agreement and in the First Lien Intercreditor Agreement, as applicable. All terms defined in this Amendment shall have the defined meanings contained herein when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. 2. Amendment. The parties hereto agree to amend the Pledge Agreement as follows, such amendments to be in force and effect as of the date hereof: (a) The following new definitions will be inserted at the appropriate place in alphabetical order with the following wording: “February 2011 Issuers” means Reynolds Group Issuer Inc., Reynolds Group Issuer LLC and Reynolds Group Issuer (Luxembourg) S.A. “February 2011 Secured Notes Indenture” means the indenture dated February 1, 2011, and entered into between the February 2011 Issuers, The Bank of New York Mellon, as trustee, principal paying agent, transfer agent, registrar and collateral agent, The Bank of New York Mellon London Branch as paying agent and Wilmington Trust (London) Limited as additional collateral agent. “February 2011 Secured Notes Indenture Secured Parties” shall mean such entities as fall within the definition of “Additional Secured Parties” under the First Lien Intercreditor Agreement as a result of the designation of the obligations in respect of the February 2011 Secured Notes Indenture and the Senior Secured Note Documents (as defined therein) being “Additional Obligations” under the First Lien Intercreditor Agreement. (b) In order to evidence the extension of the security interest created under the Pledge Agreement to the Additional Covered Obligations, the Parties agree to amend the description of the Secured Obligations contained in Schedule A-I of the Pledge Agreement to read as follows: Description of the Secured Obligations under the Loan Documents A) All obligations owed to the Secured Parties now existing or hereafter arising, direct or indirect, absolute or contingent, due or to become due, under the Loan Documents, including (and without limitation): (i) a senior secured U.S. term loan facility in an aggregate principal amount not in excess of US$2,325,000,000 with an interest rate equivalent to the Applicable Margin plus (a) (i) the greater of 1.00% per annum and (ii) (x) the LIBO Rate in effect for such Interest Period and (y) Statutory Reserves or (b) the Alternate Base Rate as applicable; which shall be repaid in full on February 9, 2018 (subject to prepayment and acceleration provisions); (ii) a European term loan facility in an aggregate principal amount of approximately €250,000,000 with an interest rate equivalent to the Applicable Margin plus (a) (i) the greater of 1.50% per annum and (ii) (x) the EURIBO Rate in effect for such Interest Period plus (y) Mandatory Cost or (b) in the case of loans denominated in Euro, the Foreign Base Rate as applicable; which shall be repaid in full on February 9, 2018 (subject to prepayment and acceleration provisions); (iii) a senior secured U.S. revolving loan facility in an aggregate principal amount of approximately US$120,000,000, which principal amounts include sub-limits for letter of credit facilities with an interest rate equivalent to the Applicable Margin plus (a) (i) the greater of 2.00% per annum and (ii) (x) the LIBO Rate in effect for such Interest Period and (y) Statutory Reserves or (b) the Alternate Base Rate as applicable; which shall be repaid in full on November 5, 2014 (subject to prepayment and acceleration provisions); (iv) a European revolving loan facility in an aggregate principal amount of approximately €80,000,000, which principal amounts include sub-limits for letter of credit facilities with an interest rate equivalent to the Applicable Margin plus (a) (i) the greater of 2.00% per annum and (ii) (x) the EURIBO Rate in effect for such Interest Period plus (y) Mandatory Cost or (b) in the case of loans denominated in Euro, the Foreign Base Rate as applicable; which shall be repaid in full on November 5, 2014 (subject to prepayment and acceleration provisions); and (v) incremental loan facilities in a principal amount up to US$750,000,000 with an interest rate equivalent to the rates set forth in clauses (i) through (iv) above, as applicable to the relevant incremental loan facility; which shall be repaid in full as set forth in clauses (i) through (iv) above, as applicable to the incremental loan facility or such other as set out in the relevant Incremental Assumption Agreement, which date shall be earlier than the dates set forth above as applicable to the incremental loan facility (subject to prepayment and acceleration provisions). B) all other obligations, advances, debts and liabilities owed to the Credit Agreement’s Secured Parties, including indemnities, fees and interest incurred under, arising out of or in connection with the Credit Agreement. Definitions For the purpose of this item “I” of this Schedule A all capitalized terms used and not otherwise defined in this Agreement shall have the meaning ascribed to such terms in the Credit Agreement. (c) In order to evidence the extension of the security interest created under the Pledge Agreement to the Additional Covered Obligations, the Parties also agree to insert Schedule A-IV describing the obligations in respect of the February 2011 Secured Notes: IV — Description of the Obligations Under the Senior Secured Note Documents (Relating to the February 2011 Secured Notes Indenture) All obligations owed to the February 2011 Secured Notes Indenture Secured Parties now existing or hereafter arising, direct or indirect, absolute or contingent, due or to become due, under the Senior Secured Note Documents (as such term is defined in the February 2011 Secured Notes Indenture), including (and without limitation): (i) the due and punctual payment of: (a) (A) US$1,000,000,000 aggregate principal amount on the notes due 2021 and interest, which shall be paid on February 15 and August 15, at the rate of 6.875% per annum (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the notes, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise; and (b) all other monetary obligations of any February 2011 Issuer to any of the February 2011 Secured Notes Indenture Secured Parties under the Senior Secured Note Documents (as such term is defined in the February 2011 Secured Notes Indenture), including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding). (ii) the due and punctual performance of all other obligations of the February 2011 Issuers under or pursuant to the Senior Secured Note Documents (as such term is defined in the February 2011 Secured Notes Indenture); and (iii) the due and punctual payment and performance of all the obligations of each other obligor under or pursuant to the Senior Secured Note Documents (as such term is defined in the February 2011 Secured Notes Indenture). (d) For the avoidance of doubt, the parties agree that, as a result of this amendment: (i) the obligations created under the Credit Agreement Amendment and Restatement and the February 2011 Secured Notes Indenture and the Senior Secured Note Documents (as defined therein) shall be considered “Secured Obligations” for the purposes of the Pledge Agreement; and (ii) any February 2011 Secured Notes Indenture Secured Parties (including any holder of the February 2011 Secured Notes) shall be considered “Secured Parties” for the purposes of the Pledge Agreement. 2. Registration of this Amendment. The Grantor, at its expense, shall within 20 (twenty) days from the execution date of this Amendment, (i) cause the signature of the parties who have signed this Amendment outside Brazil to be notarized by a public notary and consularized at the local Brazil consulate, (ii) cause this Amendment to be translated into Portuguese by a sworn translator (tradutor público juramentado), and (iii) have this Amendment, together with its sworn translation (tradução juramentada) into Portuguese, annotated at the margin of the registration of the Pledge Agreement with the competent Registry of Deeds and Documents (Cartório de Registro de Títulos e Documentos) in Brazil pursuant to Article 128 of Law No. 6,015 of December 31, 1973. The Grantor shall, promptly after such registration deliver to the Collateral Agent evidence of such registration in form and substance satisfactory to the Collateral Agent. All expenses incurred in connection with such registrations shall be borne by the Grantor. Notwithstanding the foregoing, the Collateral Agent, at its sole discretion, may decide to undertake any of the registrations, translations, filings and other formalities described herein if Grantor fails to do so, whereupon the Grantor shall reimburse the Collateral Agent promptly of any and all costs and expenses incurred by it related to such registrations, translations, filings and other formalities in accordance with the provisions of the Principal Finance Documents. 3. Effectiveness of the Pledge Agreement. All the provisions of the Pledge Agreement not expressly amended as a result of this Amendment shall remain in full force and effect. 4. Security Document. The Parties agree that this Amendment shall be deemed a “Security Document” for the purposes of and as defined in the First Lien Intercreditor Agreement (and for no other purpose) and that, accordingly, all rights, duties, privileges, protections and benefits of the Collateral Agent set forth in the First Lien Intercreditor Agreement are hereby incorporated by reference. 5. Governing Law; Jurisdiction. This Amendment shall be governed by and construed and interpreted in accordance with the laws of Brazil. The parties irrevocably submit to the jurisdiction of the courts sitting in the City of São Paulo, State of São Paulo, Brazil, any action or proceeding to resolve any dispute or controversy related to or arising from this Amendment and the parties irrevocably agree that all claims in respect of such action or proceeding may be heard and determined in such courts, with the express waiver of the jurisdiction of any other court, however privileged it may be. IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed in the presence of the undersigned witnesses. Closure Systems International B.V. /s/ Guilherme Rodrigues Miranda By: Guilherme Rodrigues Miranda Title: attorney-in-fact Closure Systems International Holdings Inc. /s/ Guilherme Rodrigues Miranda By: Guilherme Rodrigues Miranda Capacity: attorney-in-fact Closure Systems International (Brazil) Sistemas de Vedação Ltda. /s/ Guilherme Rodrigues Miranda By: Guilherme Rodrigues Miranda Title: Manager The Bank of New York Mellon as Collateral Agent acting as agent of and for the benefit of the Secured Parties /s/ Marcos Canecchio Ribeiro By: Marcos Canecchio Ribeiro Title: attorney-in-fact WITNESSES: /s/ Regina Assayag /s/ Karina Galdino de Oliveira Name: Regina Assayag Name: Karina Galdino de Oliveira ID: 80,14280 SSP-SP ID: RG 25.758.558-8 CPF: 303.180.288-83
s3://data.kl3m.ai/documents/cap/11699482.json	text/markdown	#### Jerry L. SULLIVAN, Appellant, v. The STATE of Texas, Appellee. No. 13-97-867-CR. Court of Appeals of Texas, Corpus Christi. Aug. 20, 1998. 756Randall E. Pretzer, Corpus Christi, for Appellant. Carlos Valdez, District Attorney, Corpus Christi, for the State. Before SEERDEN, C.J., and HINOJOSA and CHAVEZ, JJ. OPINION SEERDEN, Chief Justice. A jury found appellant Jerry Sullivan guilty of burglary of a habitation and assessed punishment at confinement for ten years, probated for ten years. Sentence was imposed in accordance with the jury’s findings on September 16, 1987. On September 4, 1997, the State filed a motion to revoke appellant’s community supervision. Sullivan pleaded true to four of the alleged violations. Upon his plea, and after a hearing, the trial court revoked Sullivan’s community supervision and sentenced Sullivan to five years imprisonment. In a single point of error, Sullivan complains that, having served all but twelve days of his ten year term of community supervision, the punishment assessed by the trial court was disproportionate to the seriousness of the violations alleged in the State’s motion to revoke. This, Sullivan concludes, is in contradiction to the protections inherent in the Eighth Amendment as applied to the States through the Fourteenth Amendment. We disagree. We note at the outset that the five year sentence, although assessed as a result of the State’s motion to revoke, corresponds to the 1987 burglary of a habitation charge. Thus, any review would evaluate the proportionality of the five year sentence to the original charge, not to the violations of Sullivan’s term of community supervision. Furthermore, to the extent Sullivan’s argument equates the time served on his term of community supervision with punishment, we must disagree. Such contention is certainly rejected by the language of the code of criminal procedure. See Tex.Code Crim. Proc. Ann. art. 42.12, § 23(a) (Vernon Supp.1998) (following revocation, judge may dispose of matter as if there had been no community supervision); Krumboltz v. State,945 S.W.2d 757176, 177 (Tex.App.—San Antonio 1997, no pet.). Sullivan, in support of his argument, urges this Court to perform the three-part test set out in Solem v. Helm,463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Under this test, the proportionality of a sentence is evaluated by considering: (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. Solem,463 U.S. at 292, 103 S.Ct. 3001. However, a strict application of the Solemtest has been questioned since the Supreme Court rendered its opinion in Harmelin v. Michigan,501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). Several Texas courts of appeals, in discussing the applicability of Solem,observed that although five members of the Supreme Court in Harmelinrejected application of the three-factor test, seven of the justices in Harmelin supported an Eighth Amendment prohibition against grossly disproportionate sentences. See Simmons v. State,944 S.W.2d 11, 15 (Tex.App.—Tyler 1996, no pet.); Puga v. State,916 S.W.2d 547, 549 (Tex.App.—San Antonio 1996, no pet.) (citing McGruder v. Puckett,954 F.2d 313, 316 (5th Cir.), cert. denied,506 U.S. 849, 113 S.Ct. 146, 121 L.Ed.2d 98 (1992)); Mathews v. State,918 S.W.2d 666, 668-69 (Tex.App.—Beaumont 1996, pet. ref'd); Davis v. State,905 S.W.2d 655, 664 (Tex.App.—Texarkana 1995, pet. ref'd); Lackey v. State,881 S.W.2d 418, 421 (Tex.App.—Dallas 1994, pet. ref'd). Accordingly, these courts applied some form of proportionality analysis. The Fifth Circuit Court of Appeals, in interpreting Harmelin,first reviews the sentence to determine whether it is grossly disproportionate to the crime. McGruder,954 F.2d at 316. Only if the court finds the sentence grossly disproportionate will it then consider the remaining factors of the Solemtest. Id.This test was applied by the San Antonio, Beaumont, and Dallas Courts of Appeals. Puga,916 S.W.2d at 549-50; Mathews,918 S.W.2d at 669; Lackey,881 S.W.2d at 421. The Tyler and Texarkana Courts of Appeals evaluated the proportionality of a sentence to the crime under the elements of Solem. Simmons,944 S.W.2d at 15; Davis,905 S.W.2d at 665. Assuming, arguendo,the viability of a proportionality review,1 application of either test leads us to the conclusion that Sullivan’s sentence was not grossly disproportionate to the offense he committed. As noted above, Sullivan was found guilty of burglary of a habitation. Burglary of a habitation was, at the time of Sullivan’s conviction, a first degree felony. Act of June 14,1973, 63rd Leg., R.S., ch. 399, 1973 Tex. Gen. Laws 927 (amended 1993) (current version at Tex. Penal Code Ann. § 30.02 (Vernon 1994)). At the time Sullivan’s community supervision was revoked, burglary of a habitation had been reduced to a second degree felony. Tex. Penal Code Ann. § 30.02 (Vernon 1994). A felony of the first degree is punishable by a term of imprisonment for life or for any term of not more than ninety-nine years or less than five years, Tex. Penal Code Ann. § 12.32 (Vernon 1994). A felony of the second degree is punishable by a term of imprisonment of not more than twenty years or less than two years. Tex. Penal Code Ann. § 12.33 (Vernon 1994). The five year term imposed by the trial court, aside from representing only one-half of the sentence originally assessed by the jury and imposed by the trial court in 1987, is well below the maximum term of imprisonment permitted for a second degree felony, and represents the minimum term of incarceration for a felony of the first degree. In light of the nature of Sullivan’s offense, the punishment range available, and the reduction of the sentence, we find that Sullivan’s five year sentence is not grossly disproportionate to his crime. This finding ends any analysis under McGruder.In continuing the analysis using the Solemfactors, we note that there is no evidence in the appellate record of the sentences imposed on criminals in Texas or other jurisdictions who committed a similar 758offense; therefore, we may not engage in a comparative evaluation. Simmons,944 S.W.2d at 15. Accordingly, we hold that under either test, Sullivan’s sentence does not violate the cruel and unusual punishment provision of the Eighth Amendment. Sullivan’s sole point of error is overruled, and the judgment of the trial court is affirmed. 1 . Appellant, in his brief, acknowledges that under Harris v. State,*656 S.W.2d 481, 486 (Tex. Crim.App.1983), an appeal prefaced on the grounds of disproportionate punishment may be frivolous. In light of our holding, we need not express an opinion on this issue.
s3://data.kl3m.ai/documents/cap/11689831.json	text/markdown	#### STATE of Utah, Plaintiff and Appellee, v. Roger Eugene PENMAN, Defendant and Appellant. No. 960639-CA. Court of Appeals of Utah. June 25, 1998. 1158Reed L. Martineau, Korey D. Rasmussen, Snow, Christensen & Martineau, Salt Lake City, for Defendant and Appellant. Jan Graham, Atty. Gen., and Kenneth A. Bronston, Asst. Atty. Gen., Criminal Appeals Div., Salt Lake City, for Plaintiff and Appel-lee. Before WILKINS, JACKSON and ORME, JJ. OPINION ORME, Judge: Roger Eugene Penman appeals the denial of his motion to withdraw his no-contest plea to one count of manslaughter, a second degree felony in violation of Utah Code Ann. § 76-5-205 (1995),1 and his guilty plea to robbery, a second degree felony in violation of Utah Code Ann. § 76-6-301 (1978).2 We affirm, concluding that the requirements of Rule' 11(e) of the Utah Rules of Criminal Procedure were satisfied and, therefore, that the trial court properly denied Penman’s motion to withdraw his pleas. We further conclude that the record before us is inadequate to determine whether Penman received ineffective assistance of. counsel; that two of three pieces of allegedly exculpatory evidence are not properly before us and that the third, a ballistics report, was not improperly withheld; and that Penman waived his rights under the Interstate Agreement on Detain-ers (IAD), as codified in Utah Code Ann. § 77-29-5 (1995), when he voluntarily and unconditionally entered his pleas. FACTS On October 31, 1987, or the early morning hours of the following day, Spencer Nielsen was killed in his Midvale home by a blast from a twenty-gauge shotgun, and oriental artifacts were taken from his home. Several weeks later, a high speed chase occurred between the towns of Rawlins and Green River, Wyoming, ending in the apprehension of appellant Penman and Monte “Bo” Johnston. A third person, Wendell Devon Baer, eluded the police and was later apprehended in Craig, Colorado, but he made bail and has not been seen since. The Wyoming authorities recovered artifacts from the vehicle that were identical to those taken from Nielsen’s home. The authorities also recovered twenty-gauge shotgun shells from the vehicle and Penman’s pockets. 1159After his Wyoming arrest, Penman was transferred to Nevada to face probation-violation charges. Meanwhile, in exchange for immunity, Johnston provided Salt Lake County authorities with information on two homicides — one of which was the Nielsen homicide. Johnston informed the authorities that he, Penman, Baer, and Rick Lewis went to the Nielsen residence where they stole oriental artifacts. Johnston also stated that before leaving, he and Penman reentered the home, where Penman shot Nielsen with the twenty-gauge shotgun. Salt Lake County authorities filed theft, burglary, robbery, and second-degree murder charges against Penman, Baer, and Lewis. While incarcerated in Nevada, Penman filed for a 180-day disposition of detainers under the IAD and was returned to Utah on April 4, 1988. Penman subsequently waived his rights under the IAD. Lewis was later arrested and agreed to cooperate with Salt Lake County authorities in exchange for reduced charges. His account substantially supported Johnston’s, except regarding who actually pulled the trigger. Shortly before Penman’s preliminary hearing, Johnston, who was then on probation in Wyoming, fled and remains at large. Lewis therefore became the State’s key witness. On October 28, 1988, following a preliminary hearing at which Lewis testified, Penman entered a no-contest plea to manslaughter and a guilty plea to robbery. Penman received a lengthy prison sentence, which he continues to serve. PROCEDURAL HISTORY In June 1990, Penman filed a pro se Motion for Appointment of Counsel, Motion to Withdraw Pleas, and a Motion in Forma Pauperis. Penman’s Motion for Appointment of Counsel was granted on July 9,1990. After several delays in getting counsel appointed, in March 1992 Penman’s newly appointed attorney filed a memorandum supporting Penman’s motion to withdraw his pleas, arguing that the trial court failed to comply with Rule 11 of the Utah Rules of Criminal Procedure in accepting Penman’s guilty and no-contest pleas. Specifically, Penman argued that the plea colloquy and affidavits were inadequate and that he did not enter the pleas voluntarily. Penman contended that he entered the pleas based upon the belief that both Johnston and Lewis would be testifying against him. He also asserted that Lewis gave perjured testimony at the preliminary hearing. Penman’s motion to withdraw his pleas was denied on August 14, 1992. His attorney withdrew during the ensuing thirty-day appeal period without first filing a notice of appeal. Penman’s next move was to file a pro se Petition for Writ of Habeas Corpus on April 29, 1994. In his petition, Penman made a number of arguments, including those raised in his motion to withdraw his pleas, but also alleged ineffective assistance of counsel, violation of the IAD, and prosecutorial misconduct. On June 15, 1995, the trial court granted summary judgment to the State, concluding that the claims Penman raised in his petition were procedurally barred due to his failure to directly appeal the denial of his motion to withdraw his pleas, that his pleas were knowing and voluntary, and that he was not prejudiced by his counsel’s withdrawal during the thirty-day appeal period following the denial of his motion to withdraw pleas. Penman appealed to this court, and in an unpublished memorandum decision,3 we reversed and remanded the case to the trial court for reentry of the order denying Penman’s motion to withdraw his pleas, thereby enabling him to pursue belatedly the first appeal as of right which he had been theretofore denied. The trial court reentered the order “tunc pro nunc”4 on August 27, 1996. 1160Penman now appeals from that order.5' ' ISSUES Penman raises several arguments in this appeal. First, he argues that the trial court failed to comply with Rule 11 of the Utah Rules of Criminal Procedure in taking his guilty and no-eontest pleas, and, therefore, good cause’ exists for the withdrawal of his pleas. Second, Penman contends that he was denied effective assistance of counsel in entering his guilty and no-contest pleas. Third, Penman claims that he would not have entered his pleas had he known of certain exculpatory and impeachment evidence which he obtained in 1994. Fourth, Penman argues that the State of Utah lost jurisdiction over him because his waiver of rights under the IAD was not made knowingly, intelligently, and voluntarily. ALLEGED RULE 11 VIOLATION Penman first contends that he did not understand the nature and elements of manslaughter and robbery when he entered his pleas and that the plea affidavits and colloquy fail to demonstrate Rule 11 compliance. He therefore argues that the trial court erred in denying his motion to withdraw his pleas. “A plea of guilty or no contest may be withdrawn only upon good cause shown and with leave of the court.” Utah Code Ann. § 77-13-6(2)(a) (1995). “We review a trial court’s denial of a motion to withdraw a guilty plea under an abuse-of-discretion standard.” State v. Blair,868 P.2d 802, 805 (Utah 1993). Consequently, “[t]he trial court’s findings of fact made in conjunction with its decision will not be set aside unless they are clearly erroneous.” Id.* The version of Rule 11 in effect when Penman entered his plea provided, in pertinent part, that > . [t]he court ... shall not accept ... a [guilty or no contest] plea until the court has made the findings: > > (2) That the plea is voluntarily made; > (3) That the defendant knows he has rights against compulsory self-incrimination, to a jury trial and to confront and cross-examine in open court the witnesses against him, and that by entering the plea he waives all of those rights; > (4) That the defendant understands the nature and elements of the offense to which he is entering the plea; that upon trial the prosecution would have the burden of proving each of those elements beyond a reasonable doubt; and that the plea is an admission of all those elements.... Utah R.Crim. P. ll(e)(2)-(4) (1988).6 The trial judge bears the burden of establishing, on the record, strict compliance with Rule 11(e). See State v. Abeyta,852 P.2d 993, 995 (Utah 1993) (per curiam); State v. Gibbons,740 P.2d 1309, 1313 (Utah 1987). However, “strict compliance can be accomplished by multiple means so long as no requirement of the rule is omitted and so long as the record reflects that the requirement has been fulfilled.” State v. Maguire,830 P.2d 216, 218 (Utah 1991). We conclude that the trial court complied with Rule 11(e) and therefore did not abuse its discretion in denying Penman’s motion to withdraw his pleas. > [The] record may reflect [Rule 11 compliance] by multiple means, e.g., transcript of the oral colloquy between the court and defendant, contents of a written affidavit that the record reflects was read, understood, and acknowledged by defendant and the court, contents of other documents such as the information, presentence reports, exhibits, etc., similarly incorporated into the record, and so on. Id.In open court and in accordance with Rule ll(e)’s requirements, Penman executed two affidavits, one for each charge, wherein he stated that his pleas were voluntarily made, that he knew he had rights against compulsory self-incrimination and to a jury trial, that he understood the prosecutor must prove every element of the charged crimes 1161beyond a reasonable doubt if Penman proceeded to trial, and that his pleas waived the constitutional rights discussed in the affidavits. With regard to the elements of the crimes, the affidavits stated that Penman had received a copy of the information, which set forth the robbery charge and further recited that Penman was charged with “criminal homicide, murder in the second degree, [for] intentionally or knowingly caus[ing] the death of Spencer Nielson.” The information also contained a probable cause statement describing the facts supporting the charges, including the allegation that “defendant Penman shot Nielson at close range with a 20 g[au]ge sawed-off shotgun.” Cf. Jolivet v. Cook,784 P.2d 1148, 1150 (Utah 1989) (looking to information to support conclusion that plea was knowingly and voluntarily made), cert. denied,493 U.S. 1033, 110 S.Ct. 751, 107 L.Ed.2d 767 (1990). The criminal homicide affidavit also stated the elements of manslaughter were “[t]hat the defend[a]nt as a party to the offense recklessly caused the death of another.” The affidavit pertaining to the robbery charge similarly stated the elements of that offense. Both affidavits recited: “I have read this Affidavit, or I have had it read to me by my attorney and I know and understand its contents.” Penman signed the affidavits beneath statements that he could read and understand the English language and that he had earned his GED and completed one year of college. Both of his attorneys signed the affidavits, as did the trial judge and prosecutor. Thus, the affidavits Penman executed in court complied with Rule 11(e). See Gibbons,740 P.2d at 1313-14 (listing requirements of sufficient plea affidavit). In addition to the in-court affidavits, the trial court engaged Penman in a meaningful plea colloquy. In the colloquy, the trial judge verified that Penman could read, write, and understand English; that he was not under the influence of drugs or alcohol; that he was not mentally ill; that he understood that by entering pleas to criminal manslaughter and robbery he would be giving up certain constitutional rights; that he understood the penalty for a second degree felony; and that he was satisfied with his attorney’s advice. Despite the foregoing, Penman contends that the trial court did not strictly satisfy Rule 11 because it failed to engage him in a colloquy about each element of criminal manslaughter and robbery. Of course, such a discussion' is not necessarily required. While Rule 11 must be strictly satisfied, the trial court need not “perform a verbatim recitation of each and every statement made in the defendant’s affidavit.” State v. Trujillo-Martinez,814 P.2d 596, 599 (Utah Ct.App.1991), cert. denied,843 P.2d 516 (Utah 1992). In Trujillo-Martinez,the defendant similarly argued that Rule 11 had not been satisfied because the trial court failed to specifically inquire into the defendant’s understanding of the nature and elements of the charged crime. See id.We held that the trial court satisfied Rule 11 because the defendant’s affidavit “strictly complied with Rule 11, and the colloquy established] that [the defendant] knowingly and voluntarily signed the affidavit.” Id.at 600. Here, as in Trujillo-Martinez,the affidavit fully complied with Rule 11 and the trial court established that Penman signed the affidavits knowingly and voluntarily in open court. We therefore hold that the requirements of Rule 11 were satisfied and that the trial court did not abuse its discretion by denying Penman’s motion to withdraw his pleas. INEFFECTIVE ASSISTANCE OF COUNSEL Penman also contends that he was denied his constitutional right to the effective , assistance of counsel. Specifically, he alleges that his original attorney “fraudulently” stipulated that Monte “Bo” Johnston had been served with a subpoena, failed to inform the trial court that Johnston had not been subpoenaed, and failed to take appropriate action in light of the lack of subpoena. Additionally, Penman alleges that his attorney knew or should have known that Rick Lewis gave perjured testimony regarding an immunity agreement and that his attorney failed to take appropriate action. 1162We are unable to address the merits of Penman’s ineffective assistance claims. In our previous decision in this case, we ordered as follows: “[W]e reverse and remand this ease to the trial court for reentry of the order denying Penman’s motion to withdraw guilty pleas, so that he will be able to pursue a first appeal as of right from that order.” Appendix at A-2. Thus, the instant appeal is necessarily limited to the trial court’s denial of Penman’s motion to withdraw his pleas. In his original motion to withdraw, Penman touched upon what he perceived to be some of trial counsel’s shortcomings, but he failed to specifically raise an ineffective assistance claim. This is therefore a new argument raised for the first time on appeal. “[PJroof of ineffective assistance of counsel cannot be a speculative matter but must be a demonstrable reality.” Fernandez v. Cook,870 P.2d870, 877 (Utah 1993). When a defendant raises an ineffective assistance claim for the first time on appeal, the claim will be reviewed only “if the ... record is adequate to permit decision of the issue.” State v. Humphries,818 P.2d 1027, 1029 (Utah 1991). The record is not adequate in this case. First, regarding to trial counsel’s acts or omissions surrounding the Johnston subpoena, there is inadequate evidence in the record pertaining to counsel’s actions and/or knowledge and insufficient evidence relating to whether Johnston was in fact served. Therefore, we have no ability to address this claim. Second, regarding Lewis’s allegedly perjured testimony, there is also insufficient evidence in the record for us to determine this issue. Penman contends that his counsel failed to take any action after Lewis twice mentioned a “deal” with prosecutors — once at the preliminary hearing and again in a sworn statement to the prosecutor. However, defendant failed to include, as part of the record on appeal, a sufficient transcript of the preliminary hearing. The record does contain, as an exhibit to defendant’s memorandum in support of his motion to withdraw his pleas, two photocopied pages purportedly from the preliminary hearing transcript. However, two isolated pages of transcript is inadequate, most importantly because it does not permit us to place the testimony in any context whatsoever. Penman contends that he should not be held responsible for the absence of a complete transcript, claiming the parties agreed that the entire record in the case would be made part of the appellate record and that it was his understanding that the trial court clerk would provide those records in their entirety. Despite Penman’s contentions, he is ultimately responsible for ensuring that we receive all portions of the record necessary to his arguments on appeal. ‘When a defendant predicates error to [an appellate court], he has the duty and responsibility of supporting such allegation by an adequate record.” State v. Wulffenstein,657 P.2d 289, 293 (Utah 1982), cert. denied,460 U.S. 1044, 103 S.Ct. 1443, 75 L.Ed.2d 799 (1983). Accord Turner v. Nelson,872 P.2d 1021, 1024 (Utah 1994); Call v. City of West Jordan,788 P.2d 1049, 1052 (Utah Ct.App.) (“[T]he appellant has the burden of providing the reviewing court with an adequate record on appeal to prove his allegations.”), cert. denied,800 P.2d 1105 (Utah 1990). “Absent that record, defendant’s assignment of error stands as a unilateral allegation which the review[ing] court has no power to determine. [An appellate court] simply cannot rule on a question which depends for its existence upon alleged facts unsupported by the record.” Wulffenstein,657 P.2d at 293. Consequently, in the face of “an [inadequate record on appeal, [we] must assume the regularity of the proceedings below.” State v. Miller,718 P.2d 403, 405 (Utah 1986) (per curiam). See State v. Blubaugh,904 P.2d 688, 699 (Utah Ct.App.1995) (assuming regularity of proceedings below because appellant failed to include transcript), cert. denied,913 P.2d 749 (Utah 1996). Given our obligation to assume the regularity of the preliminary hearing, the transcript of Lewis’s sworn statement given to prosecutors is the only remaining document in the record we could consider in addressing Penman’s ineffective assistance claim. Standing alone, it is inadequate to establish ineffective assistance. However, in ruling 1163that the record on appeal is presently inadequate for us to address these claims, we do not foreclose the possibility that they could be pursued by other more appropriate means, for instance through a habeas corpus petition. EXCULPATORY EVIDENCE Penman next argues that after filing his initial motion to withdraw his pleas, he uncovered exculpatory evidence that should have been provided to him. He contends that, had he been aware of this evidence, he would not have entered his pleas. Penman points to three alleged items of exculpatory evidence: an F.B.I. ballistics report; a Salt Lake County Sheriffs report, purportedly establishing that Rick Lewis entered into an immunity agreement with prosecutors; and documents allegedly showing that a subpoena was never served on the State’s key witness, Monte “Bo” Johnston. As previously indicated, this appeal is from the denial of Penman’s motion to withdraw his pleas. All three pieces of allegedly exculpatory evidence fall outside the scope of Penman’s motion to withdraw his pleas and are therefore not properly before us in an appeal from the denial of that motion. Cf. Chapman v. Chapman,728 P.2d 121, 123 (Utah 1986) (per curiam) (stating that appellate court cannot consider matters outside the record); In re Estate of Cluff,587 P.2d 128, 129 n. 1 (Utah 1978) (same). Concerning Penman’s exculpatory evidence claims relating to the Johnston subpoena and Lewis’s alleged deal with prosecutors, we note that Penman raised these arguments in conjunction with his initial petition for writ of habeas corpus. It was the appeal from the denial of this petition that resulted in our remand to the trial court, instructing it to reenter the order denying Penman’s motion to, withdraw his pleas, thereby enabling Penman to undertake this direct appeal. The trial court, in denying the habeas petition, failed to address the exculpatory evidence claims relating to Johnston and Lewis. Thus, while these claims are not properly before us on direct appeal and we therefore decline to address them, Penman is not foreclosed from raising them in a future habeas corpus petition. See infranote 8. Penman’s final piece of allegedly exculpatory evidence is an FBI ballistics report. Penman identified this report in the proceedings on his initial habeas corpus petition, and the trial court addressed it in its Findings of Fact, Conclusions of Law and Order. While the ballistics report is also not properly within the scope of this direct appeal from the denial of Penman’s motion to withdraw his pleas, given the likelihood that the issue will recur, we nonetheless address it in the interest of judicial economy. See, e.g., Vitale v. Belmont Springs,916 P.2d 359, 363 (Utah Ct.App.1996) (addressing issue in interest of judicial economy, even though case decided on other grounds). Cf. State v. James,819 P.2d 781, 795 (Utah 1991) (“Issues that are fully briefed on appeal and are likely to be presented on remand should, be addressed by [an appellate] court.”); State v. Bell,770 P.2d 100, 108 (Utah 1988) (addressing issue in interest of judicial economy, since issue likely to recur, to provide trial court- with guidance); Atlas Corp. v. Clovis Nat’l Bank,737 P.2d 225, 231 (Utah 1987) (same). We hold that regardless of the ballistics report’s exculpatory or inculpatory nature, it was not improperly withheld by the prosecution because Penman and/or his attorney knew or should have known of it. In its decision on Penman’s habeas corpus petition, the trial court addressed this aspect of his claim, specifically finding it was “not persuaded that [Penman] was unaware of the ballistics report.” This finding is amply supported by the State’s Preliminary Response to Request for Discovery, which refers to correspondence between an investigating detective and the F.B.I. concerning evidence in the case. The State asserts that this evidence shows Penman and/or his counsel knew or had reason to know of the F.B.I. ballistics report. Penman fails to refute this contention or otherwise address it in his reply brief. Given the trial court’s finding, the evidence apparently supporting it, and Penman’s lack of explanation or argument concerning it, we must conclude that he or his counsel knew or should have known that the 1164ballistics test had been conducted and a report prepared. “[EJvidence is not improperly withheld if the defense has knowledge of that evidence and defense counsel simply fails to request it.” State v. Jarrell,608 P.2d 218, 225 (Utah 1980). INTERSTATE AGREEMENT ON DETAINERS Penman’s final argument on appeal is that under the IAD, the State lost jurisdiction over him because he did not waive his IAD rights knowingly, intelligently, and voluntarily. More specifically, Penman alleges that he did not waive his IAD rights knowingly, intelligently, and voluntarily because of a series of errors prior to his waiver. Penman contends that he was not properly bound over on the homicide charge and was deprived of his right to a meaningful preliminary hearing on the charges against him because the prosecutor failed to disclose the grant of immunity to Lewis, suborned perjury from Lewis concerning the existence of a deal between Lewis and prosecutors, allowed Lewis’s testimony regarding the lack of a “deal” to stand uneorrected, and misrepresented that Johnston had been subpoenaed to appear in court. The State correctly asserts that Penman’s IAD argument is not properly within the scope of this appeal. As previously explained, this appeal is limited to the denial of defendant’s motion to withdraw his pleas. Penman’s IAD argument was never raised in conjunction with the motion to withdraw, and it is therefore not properly before us.7 However, given the likelihood that this issue will resurface in a future habeas proceeding, we nonetheless address it now in the interest of judicial economy. See State v. James,819 P.2d 781, 795 (Utah 1991); State v. Bell,770 P.2d 100, 108 (Utah 1988); Atlas Corp. v. Clovis Nat’l Bank,737 P.2d 225, 231 (Utah 1987). We held above that Penman’s unconditional pleas were consistent with Rule 11 and, therefore, that the trial court did not abuse its discretion in denying Penman’s motion to withdraw his pleas. “A voluntary [and unconditional] plea of guilty or no contest constitutes a waiver of the right to appeal all nonjurisdictional issues.... ” State v. Smith,833 P.2d 371, 372 (Utah Ct.App.1992). Accord State v. Brocksmith,888 P.2d 703, 705 (Utah Ct.App.1994). Contrary to Penman’s position, “the ‘rights created by the IAD[] are statutory, not fundamental, constitutional, or jurisdictional in nature.’ ” Brocksmith,888 P.2d at 705 (alteration in original) (quoting Greathouse v. United States,655 F.2d 1032, 1034 (10th Cir.1981) (per curiam), cert. denied,455 U.S. 926, 102 S.Ct. 1289, 71 L.Ed.2d 469 (1982)). We therefore conclude that Penman conclusively waived his statutory IAD rights when he entered his voluntary and unconditional pleas to criminal manslaughter and robbery. CONCLUSION First, we conclude that Rule 11 was satisfied and, therefore, that the trial court properly denied Penman’s motion to withdraw his pleas. Second, we hold that the record is inadequate for us to decide on direct appeal Penman’s claims of ineffective assistance of counsel. Third, regarding the three pieces of allegedly exculpatory evidence which Penman contends were improperly withheld, we conclude that the evidence relating to the Johnston subpoena and to Lewis’s alleged deal with prosecutors is not properly before us. We hold that the trial court’s finding that the ballistics report was not improperly withheld is not clearly erroneous because of evidence in the record showing Penman and/or his attorney knew or should have known of it. Fourth, we conclude that Penman waived his rights under the IAD by voluntarily and unconditionally pleading no 1165contest to manslaughter and guilty to rob-beiT-8 Affirmed. WILKINS, Associate P.J., and JACKSON, J., concur. APPENDIX* TO OPINION IN CASE NO. 960639-CA IN THE UTAH COURT OF APPEALS Roger Eugene Penman, Petitioner and Appellant, v. Scott Carver, et al., Respondent and Appellee. Case No. 950484-CA FILED (April 25, 1996) Third District, Salt Lake County The Honorable William B. Bohling Attorneys: Reed L. Martineau and Korey D. Rasmussen, Salt Lake City, for Appellant. Jan Graham and Angela Mieklos, Salt Lake City, for Appellee MEMORANDUM DECISION Before Judges Orme, Greenwood, and Wilkins. MEMORANDUM DECISION GREENWOOD, Judge: Roger Penman appeals the trial court’s summary judgment dismissal of his petition for a writ of habeas corpus. Penman claims that the trial court erred in determining that: (1) Penman’s failure to directly appeal the denial of his motion to withdraw guilty pleas proeedurally barred him from receiving collateral review; and (2) the withdrawal of court-appointed counsel during the thirty-day appeal period did not prejudice or deny Penman his right to a first appeal. We reverse and remand for reentry of the order denying Penman’s motion to withdraw his guilty plea. In reviewing an appeal from a dismissal of a petition for a writ of habeas corpus, “no deference is accorded the lower court’s conclusions of law that underlie the dismissal of the petition. We review those for correctness.” Fernandez v. Cook,783 P.2d 547, 549 (Utah 1989). Penman claims that the improper withdrawal of his court-appointed counsel during the appeal period is an unusual circumstance which entitles him to the writ and justifies his failure to directly appeal the denial of his motion to withdraw his guilty pleas.1 We believe the Utah Supremé Court’s opinion in State v. Gordon,[913 P.2d 350] (Utah 1996) is controlling. In Gordon,the defendant claimed his attorney had caused him to be denied his constitutional right to an appeal. On appeal from the trial court’s denial of the defendant’s petition for a writ for postconviction relief, the supreme court 1166issued an order remanding to the trial court for resentencing in order to allow for a first appeal as of right. Id.at [352]. The supreme court did not engage in a plenary review of defendant’s claims of ineffective counsel or whether the denial of the “constitutional right to an appeal” was wrongful. Instead, it merely remanded in order to facilitate an opportunity for a first appeal as of right. Id.The supreme court also repeated its admonition in an earlier case, as follows: > Once [an appellate] court on habeas review determines that a defendant has been denied the constitutional right to appeal, a direct appeal should be provided immediately, without adjudication of any other claims,such as ineffective assistance of counsel. Id.at [357] (emphasis added) (quoting State v. Hallett,856 P.2d 1060, 1062 (Utah 1993)). Therefore, once a court determines that a defendant has been denied the constitutional right to appeal, the case should be remanded “to the trial court for resentencing, so that [the defendant] may raise the issues ... presented in a first appeal as of right.” Id.at [353]. Penman’s claim is largely identical to the defendant’s in Gordon.Both claimed that because of their legal counsel, they were prevented from pursuing a first appeal as of right. Accordingly, following the opinions in Gordonand Hallett,we reverse and remand this case to the trial court for reentry of the order denying Penman’s motion to withdraw guilty pleas, so that he will be able to pursue a first appeal as of right from that order. We note that this differs slightly from Gordon,in that Penman seeks to appeal from the order denying his motion to withdraw guilty pleas, rather than from an adjudication of guilt and sentencing, as was the case in Gordon.It is therefore appropriate to remand for reentry of the order denying the motion in this case. /S/* Pamela T. Greenwood, Judge I CONCUR: WGregory K. Orme, Presiding Judge 1 . As a convenience to the reader, and because the provisions in effect at the relevant times do not differ materially from the statutory provisions currently in effect, we cite to the most recent statutory codifications throughout this opinion, unless otherwise noted. 2 . Section 76-6-301 was subsequently amended. 3 . Because the memorandum decision established "law of the case" which plays a central role in our analysis, the decision is set forth for that limited purpose in the Appendix to this opinion. SeeUtah Code Jud. Admin. R4-508(l), (3), - 605. 4 . "Nunc pro tunc, which means 'now for then,’ is probably a misnomer for this circumstance, where the court is resentencing to give the judgment of conviction not retroactive but present effect — ‘then for now.’ Perhaps the action being authorized here should be termed tunc pro nunc.” State v. Johnson,635 P.2d 36, 38 n. 1 (Utah 1981). 5 . We acknowledge the assistance of Penman's counsel, who represented Penman in these proceedings pro bono. 6 . Rule 11 has since been amended. 7 . Even if Penman's IAD argument were within the scope of this appeal, his failure to provide a sufficient transcript of the preliminary hearing would prevent us from addressing the alleged errors in that proceeding and any bearing they had on his decision to waive his IAD rights. Due to defendant’s failure to provide an adequate record, we would be obligated to assume the regularity of that hearing. See Miller,718 P.2d at 405; Wulffenstein,657 P.2d at 293; Blubaugh,904 P.2d at 699. 8 . Those matters that were not properly before us, and which we were therefore unable to address, may best be dealt with in a habeas corpus proceeding where evidence can he taken. As the Utah Supreme Court has explained: > Numerous cases have arisen that have called in question the fundamental justice of a conviction where the issue was not, or could not be, dealt with on direct appeal. Prime examples involve cases in which issues arise outside the record, e.g., the subsequent discovery of the suppression of exculpatory evidence, the ineffective assistance of counsel, especially in the investigation and preparation of a case, the discovery of new exculpatory evidence, and fraud committed on the court by the knowing use of false evidence. Hurstv. Cook,777 P.2d 1029, 1036 n. 6 (Utah 1989) (citations omitted). However, we in no way comment on whether such a petition would be well taken. See generally id.at 1036-37 & nn. 6-8. We do note that, aside from those claims which we have treated on the merits, the usual concern about successive habeas petitions should not bar Penman from pursuing such a petition. This is because his previous habeas corpus petition was effectively derailed by our prior decision putting him on a more orderly "direct appeal” track. We did this. rather than entertain the appeal from the denial of his habeas petition, which we essentially regarded as premature. SeeAppendix. 1 . Penman raises several other issues on which the trial court ruled against him. Because of our disposition we do not reach those issues. WILKINS, Judge (concurring): I concur in the reasoning and result expressed in the main opinion. However, while I agree that the plain meaning of State v. Gordon,[913 P.2d 350] (Utah 1996) appears to require remand in this case, I fear that both Gordonand our opinion here may be misunderstood. As I read Gordon,it stands for the proposition that once the court has reviewed the case sufficiently to determine that the petitioner has been deniedthe right of appeal, no fartherreview is necessary. I do not read Gordonas saying that any failure to file an appeal mandates a nunc pro tunc resentenc-ing to allow the opportunity to file an otherwise untimely appeal. Unfortunately, only a very careful reading of Gordonand our decision here will reveal the consistent use of the word “denied” in relation to the preliminary determination of how it came to be that Gordon, and Penman, ended up without a timely appeal in the first place. I understand the word to be used in the sense that Gordon, and Penman, have been prevented in some meaningful way from proceeding with their appeals. Had we concluded that Penman simply waived his right to appeal by his own knowing inaction, he would not have been deniedthe opportunity to appeal, and remand would be inappropriate. (Si Michael J. Wilkins, Judge
s3://data.kl3m.ai/documents/recap_docs/1999/05/28/Crandall_vs._Sumner_County.pdf.json	text/plain	* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. F I L E D United States Court of Appeals Tenth Circuit MAY 28 1999 PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS TENTH CIRCUIT LOUIE WESLEY CRANDALL, Petitioner-Appellant, v. SUMNER COUNTY DISTRICT ATTORNEY; SUMNER COUNTY DISTRICT COURT; STATE OF KANSAS, Respondents-Appellees. No. 98-3317 (D.C. No. 98-CV-3283) (D. Kan.) ORDER AND JUDGMENT* Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. After examining the briefs and appellate record, the panel has determined oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Therefore, the case is ordered submitted without oral argument. Petitioner Louie Wesley Crandall, appearing pro se, seeks a certificate of -2- appealability to appeal the district court’s dismissal of his habeas petition for failure to exhaust state court remedies. As Crandall has failed to make a “substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny a certificate of appealability and dismiss the appeal. I. In September 1993, Crandall pleaded guilty in Kansas state court to one count of obstruction of an officer’s official duty, see Kan. Stat. Ann. § 21- 3808(b), and was sentenced to fourteen months’ imprisonment. The record reflects no direct appeal from the Kansas sentence. Immediately after sentencing, Crandall was extradited to Missouri where he was convicted of two counts of felony sodomy in Missouri state court and was sentenced to two consecutive thirty-year terms of imprisonment. He is currently serving his Missouri sentence in a Missouri state penitentiary. In August 1998, Crandall filed a “pro se petition and motion in mandamus” in Kansas federal district court, attacking the validity of his 1993 Kansas guilty plea. He initially named as defendants the Sumner County District Court and the Sumner County District Attorney, but subsequently changed the defendant to the State of Kansas. The federal district court denied mandamus relief, construed the petition as one requesting a writ of habeas corpus, and ordered Crandall to show cause why the petition should not be dismissed for failure to exhaust state court -3- remedies, as required under 28 U.S.C. § 2254(b)(1). After Crandall failed to demonstrate compliance with § 2254(b)(1), the court dismissed his petition without prejudice. II. The district court stated Kansas authorities had lodged a detainer against Crandall to ensure he returned to serve his Kansas sentence after completion of his Missouri sentence. Crandall is thus entitled to seek habeas relief on his Kansas sentence. See Maleng v. Cook , 490 U.S. 488, 493 (1989) (per curiam) (prisoner may attack conviction/sentence for which he is not currently confined but for which he may be subject to future incarceration) (citing Peyton v. Rowe , 391 U.S. 54 (1968)). The fact that Crandall is presently confined in Missouri does not prevent him from challenging his Kansas sentence in Kansas federal court. See Braden v. 30th Judicial Circuit Ct. , 410 U.S. 484, 498-99 (1973) (habeas petitioner incarcerated in one state may attack detainer lodged against him by another state in federal court sitting in state lodging the detainer). To do so, Crandall must file a petition naming as respondents the officer having present custody over him (i.e., the warden of the Missouri prison) and the Kansas Attorney General. See Rule 2(b) of Rules Governing Section 2254 Cases in the United States District Courts. Nevertheless, before Crandall may file a habeas petition in federal court, he -4- must exhaust all available state court remedies or demonstrate circumstances that render such state remedies ineffective. See 28 U.S.C. § 2254(b)(1). Having failed to satisfy either requirement, Crandall’s habeas petition is not ripe for review and the district court acted properly in dismissing the petition without prejudice. We DENY Crandall’s application for a certificate of appealability and DISMISS his appeal. The mandate shall issue forthwith. Entered for the Court Mary Beck Briscoe Circuit Judge
s3://data.kl3m.ai/documents/govinfo/BILLS/BILLS-107hr3333ih/pdf.json	text/plain	I 107TH CONGRESS 1ST SESSION H. R. 3333 To amend title 4, United States Code, to declare English as the official language of the Government of the United States. IN THE HOUSE OF REPRESENTATIVES NOVEMBER 16, 2001 Mr. STUMP (for himself, Mr. ISTOOK, Mr. NORWOOD, Mr. PAUL, Mr. DEAL of Georgia, Mr. BARTLETT of Maryland, Mr. KING, Mr. TANCREDO, Mr. SHOWS, and Mr. GOODE) introduced the following bill; which was referred to the Committee on Education and the Workforce, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisidiction of the committee concerned A BILL To amend title 4, United States Code, to declare English as the official language of the Government of the United States. 1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 SECTION 1. SHORT TITLE. 4 This Act may be cited as the ‘‘Declaration of Official 5 Language Act of 2001’’. 2 •HR 3333 IH 1 SEC. 2. ENGLISH AS OFFICIAL LANGUAGE. 2 (a) IN GENERAL.—Title 4, United States Code, is 3 amended by adding at the end the following new chapter: 4 ‘‘CHAPTER 6—LANGUAGE OF THE GOVERNMENT ‘‘Sec. ‘‘161. Declaration of official language. ‘‘162. Preserving and enhancing the role of the official language. ‘‘163. Duties of citizenship. ‘‘164. Reform of naturalization requirement. ‘‘165. Exceptions. ‘‘166. Preemption. ‘‘167. Construction. ‘‘168. Enforcement. ‘‘169. Prohibition. 5 ‘‘§ 161. Declaration of official language 6 ‘‘English is the official language of the Government 7 of the United States. 8 ‘‘§ 162. Preserving and enhancing the role of the offi9 cial language 10 ‘‘The Government of the United States shall preserve 11 and enhance the role of English as the official language 12 of the United States of America. Unless specifically stated 13 in applicable law, no person has a right, entitlement, or 14 claim to have the Government of the United States or any 15 of its officials or representatives act, communicate, per16 form or provide services, or provide materials in any lan17 guage other than English. If exceptions are made, that 18 does not create a legal entitlement to additional services 19 in that language or any language other than English.’’. 3 •HR 3333 IH 1 ‘‘§ 163. Duties of citizenship 2 ‘‘All United States citizens should be encouraged to 3 read, write, and speak English to the extent of their phys4 ical and mental abilities. 5 ‘‘§ 164. Reform of naturalization requirements 6 ‘‘(a) It has been the long-standing national belief that 7 full citizenship in the United States requires fluency in 8 English. English is the language of opportunity for all im9 migrants to take their rightful place in American society. 10 ‘‘(b) The Immigration and Naturalization Service 11 shall— 12 ‘‘(1) enforce the established English language 13 proficiency standard for all applicants for United 14 States citizenship, and 15 ‘‘(2) conduct all naturalization ceremonies en16 tirely in English. 17 ‘‘§ 165. Exceptions 18 ‘‘This chapter does not apply to the use of a language 19 other than English for— 20 ‘‘(1) religious purposes, 21 ‘‘(2) training in foreign languages for inter22 national communication, 23 ‘‘(3) use of non-English terms of art in govern24 ment documents, 25 ‘‘(4) law enforcement, or 26 ‘‘(5) scientific terminology. 4 •HR 3333 IH 1 ‘‘§ 166. Preemption 2 ‘‘This chapter preempts any Federal law, regulation, 3 policy guidance, agency ruling or determination, or any 4 other Federal action or policy which is inconsistent with 5 this chapter. 6 ‘‘§ 167. Construction 7 ‘‘This Act is not intended to affect programs in 8 schools designed to encourage students to learn foreign 9 languages. 10 ‘‘§ 168. Enforcement 11 ‘‘(a) CAUSE OF ACTION.—Whoever is injured by a 12 violation of this chapter may, in a civil action, obtain ap13 propriate relief. 14 ‘‘(b) ATTORNEY’S FEES.—In any action under this 15 chapter, the court may allow a prevailing party, other than 16 the United States, a reasonable attorney’s fee as part of 17 costs. 18 ‘‘§ 169. Prohibition 19 ‘‘No agency or department of the United States shall 20 require the government of any State or subdivision there21 of, or any person or organization, to communicate or pro22 vide materials in any language other than English.’’. 23 (b) CLERICAL AMENDMENT.—The table of chapters 24 for title 4, United States Code, is amended by adding at 25 the end the following new item: ‘‘6. Language of the Government ................................................. 161’’. 5 •HR 3333 IH 1 SEC. 3. REPEAL OF BILINGUAL EDUCATION ACT. 2 (a) REPEAL OF BILINGUAL EDUCATION ACT.—The 3 Bilingual Education Act (20 U.S.C. 7401 et seq.) is re4 pealed. 5 (b) TERMINATION OF OFFICE OF BILINGUAL EDU6 CATION AND MINORITY LANGUAGES AFFAIRS.— 7 (1) IN GENERAL.—The Office of Bilingual Edu8 cation and Minority Languages Affairs in the De9 partment of Education is terminated. 10 (2) REPEAL OF CONFORMING PROVISIONS.— 11 Sections 209, 216, and 413(b)(1)(A) of the Depart12 ment of Education Organization Act are repealed. 13 (c) UNOBLIGATED FUNDS.—At the end of the transi14 tion period described in subsection (d)(2), the Secretary 15 shall deposit in the general fund of the Treasury any funds 16 that have not been awarded or obligated for grants under 17 the Bilingual Education Act (20 U.S.C. 7401 et seq.). 18 (d) TRANSITIONAL PROVISIONS.— 19 (1) COMPLETION OF PROGRAMS DURING CUR20 RENT SCHOOL YEAR.—Subsection (a) shall not apply 21 to any program under the Bilingual Education Act 22 (20 U.S.C. 7401 et seq.) until completion of the 23 most recent school year of the program that com24 mences after the date of the enactment of this Act. 25 (2) ASSISTANCE FOR TRANSITION TO SPECIAL 26 ALTERNATIVE INSTRUCTIONAL PROGRAMS.—During 6 •HR 3333 IH 1 the 1-year period beginning on the date of the enact2 ment of this Act, the Secretary of Education may 3 assist local educational agencies in the transition of 4 children enrolled in programs assisted under the Bi5 lingual Education Act (20 U.S.C 7401 et seq.) to 6 special alternative instructional programs (as such 7 programs are described in section 7501 of the Ele8 mentary and Secondary Education Act of 1965 (20 9 U.S.C. 7601) that do not make use of the native 10 language of the student. 11 SEC. 4. CONSTRUCTION. 12 Nothing in this Act shall be construed as requiring 13 that a State or local educational agency develop, imple14 ment, provide, or maintain a program of bilingual edu15 cation. 16 SEC. 5. RELEASE FROM DECREE. 17 Any consent decree entered into with a State, locality, 18 or local educational agency, and either the Department of 19 Health, Education, and Welfare, or the Department of 20 Education that requires such State, locality, or local edu21 cational agency to develop, implement, provide, or main22 tain any form of bilingual education is void. 7 •HR 3333 IH 1 SEC. 6. EFFECTIVE DATE. 2 Except as provided in subsections (c) and (d) of sec3 tion 3, this Act shall take effect on the date of the enact4 ment of this Act. 5 SEC. 7. REPEAL OF BILINGUAL VOTING REQUIREMENTS. 6 (a) IN GENERAL.— 7 (1) BILINGUAL ELECTION REQUIREMENTS.— 8 Section 203 of the Voting Rights Act of 1965 (42 9 U.S.C. 1973aa–1a) is repealed. 10 (2) VOTING RIGHTS.—Section 4 of the Voting 11 Rights Act of 1965 (42 U.S.C. 1973b) is amended 12 by striking subsection (f). 13 (b) CONFORMING AMENDMENTS.— 14 (1) REFERENCES TO SECTION 203.—The Voting 15 Rights Act of 1965 (42 U.S.C. 1973 et seq.) is 16 amended— 17 (A) in section 204, by striking ‘‘or 203,’’; 18 and 19 (B) in the first sentence of section 205, by 20 striking ‘‘, 202, or 203’’ and inserting ‘‘or 21 202’’. 22 (2) REFERENCES TO SECTION 7.—The Voting 23 Rights Act of 1965 (42 U.S.C. 1973 et seq.) is 24 amended— 8 •HR 3333 IH 1 (A) in sections 2(a), 3(a), 3(b), 3(c), 4(d), 2 5, 6, and 13, by striking ‘‘, or in contravention 3 of the guarantees set forth in section 4(f)(2)’’; 4 (B) in paragraphs (1)(A) and (3) of sec5 tion 4(a), by striking ‘‘or (in the case of a State 6 or subdivision seeking a declaratory judgment 7 under the second sentence of this subsection) in 8 contravention of the guarantees of subsection 9 (f)(2)’’; and 10 (C) in paragraphs (1)(B) and (5) of sec11 tion 4(a), by striking ‘‘or (in the case of a State 12 or subdivision which sought a declaratory judg13 ment under the second sentence of this sub14 section) that denials or abridgments of the right 15 to vote in contravention of the guarantees of 16 subsection (f)(2) have occurred anywhere in the 17 territory of such State or subdivision’’. Æ
s3://data.kl3m.ai/documents/edgar/0000950112/0000950112-95-002975/2.json	text/plain	<TABLE> <S> <C> <ARTICLE> 5 <MULTIPLIER> 1 <S> <C> <PERIOD-TYPE> 6-MOS <FISCAL-YEAR-END> MAR-31-1996 <PERIOD-END> SEP-30-1995 <CASH> 4,683,190 <SECURITIES> 300,186 <RECEIVABLES> 11,968,839 <ALLOWANCES> 0 <INVENTORY> 0 <CURRENT-ASSETS> 19,130,094 <PP&E> 32,899,702 <DEPRECIATION> 16,980,294 <TOTAL-ASSETS> 47,334,607 <CURRENT-LIABILITIES> 8,978,110 <BONDS> 18,821,521 <COMMON> 66,328 <PREFERRED-MANDATORY> 0 <PREFERRED> 0 <OTHER-SE> 19,771,594 <TOTAL-LIABILITY-AND-EQUITY> 47,334,607 <SALES> 0 <TOTAL-REVENUES> 10,060,738 <CGS> 0 <TOTAL-COSTS> 8,221,315 <OTHER-EXPENSES> 168,669 <LOSS-PROVISION> 0 <INTEREST-EXPENSE> 742,346 <INCOME-PRETAX> 928,408 <INCOME-TAX> 335,500 <INCOME-CONTINUING> 592,908 <DISCONTINUED> 0 <EXTRAORDINARY> 0 <CHANGES> 0 <NET-INCOME> 592,908 <EPS-PRIMARY> .11 <EPS-DILUTED> .11 </TABLE>
s3://data.kl3m.ai/documents/edgar/0001056404/0001056404-17-001107/15.json	text/markdown	(logo) Grant Thornton Report of Independent RegisteredPublic Accounting Firm Regulation AB Item 1122Servicing Platform Audit ∙ Tax ∙Advisory Grant Thornton LLP 1201 Walnut Street Suite 2200 Kansas City, MO 64106-2176 T 816.412.2400 F 816.412.2404 www.GrantThornton.com Board of Directors National Cooperative Bank,N.A. We have examinedmanagement’s assertion, included in the accompanying Management’sAssertion on Compliance with Applicable Servicing Criteria(“Management’s Report”), that National Cooperative Bank, N.A.(“NCB”, the “Bank”, or the “Company”)complied with the criteria set forth in Item 1122(d) of the U.S. Securities andExchange Commission’s Regulation AB for the servicing of asset-backedsecurities transactions conducted by the Bank (the “Platform”) asof and for the year ended December 31, 2016 (the “ReportingPeriod”), excluding criteria 1122(d)(1)(iii), 1122(d)(3)(i-iv),1122(d)(4)(ii) and 1122(d)(4)(xv), which the Bank determined are not applicableto the activities it performs with respect to the Platform. The Platformconsists of the asset-backed transactions and securities for which the Companyacted as servicer and as defined by management in Management’s Report.Management is responsible for the Company’s compliance with theapplicable servicing criteria. Our responsibility is to express an opinion onthe Company’s compliance with the applicable servicing criteria for thePlatform based on our examination. Our examination was conductedin accordance with the attestation standards established by the AmericanInstitute of Certified Public Accountants, as adopted by the Public CompanyAccounting Oversight Board (United States) and, accordingly, includedexamining, on a test basis, evidence about the Company’s compliance withthe applicable servicing criteria for the Platform and performing such otherprocedures as we considered necessary in the circumstances. Accordingly, ourtesting may not have included servicing activities related to each asset-backedtransaction or security constituting the Platform. Further, our examination wasnot designed to detect material noncompliance that may have occurred prior tothe period covered by this report and that may have affected theCompany’s servicing activities during the period covered by this report.We believe that our examination provides a reasonable basis for our opinion.Our examination does not provide a legal determination on the Company’scompliance with the applicable servicing criteria. As described inManagement’s Report, the Company engaged various vendors to performservicing activities with respect to criteria 1122(d)(4)(xi). The Companydetermined that each vendor is not considered a “servicer,” as thatterm is defined in Item 1101(j) of Regulation AB, and therefore, the Company isassuming responsibility for compliance with such servicing criteria applicableto each vendor’s servicing activities. In accordance with Regulation ABand its related interpretations, the requirement for management to assesscompliance with the servicing criteria applicable to a vendor’sactivities is satisfied if the Company has instituted policies and proceduresto monitor whether such vendor’s activities comply in all materialrespects with such criteria. Compliance with the applicable servicing criteriais achieved if those policies and procedures are designed to provide reasonableassurance that such vendor’s activities comply with such criteria andthose policies and procedures are operating effectively for the period coveredby Management’s Report. Our examination does not provide a legaldetermination of whether a vendor is or is not considered a servicer, andtherefore, on whether the Company, in its Management Report, is eligible toelect to take responsibility for assessing compliance with the servicingcriteria applicable to each vendor’s servicing activities. In our opinion,management’s assertion that the Bank complied with the aforementionedservicing criteria as of and for the year ended December 31, 2016, for thePlatform is fairly stated, in all material respects. /s/ Grant Thornton LLP Kansas City, Missouri February 1, 2017
s3://data.kl3m.ai/documents/edgar/0001888524/0001888524-22-002557/13.json	text/markdown	(logo) pwc Report of IndependentRegistered Public Accounting Firm To the Audit Committee ofComputershare Trust Company, National Association We have examined management’sassertion, included in the accompanying Assessment of Compliance with theApplicable Servicing Criteria: Computershare Corporate Trust - CMBS Platformthat Computershare Trust Company, National Association (the “Company”) compliedwith the servicing criteria set forth in Item 1122(d) of the Securities andExchange Commission's Regulation AB for the commercial mortgage-backedsecurities (“CMBS”) transactions backed by pools of commercial mortgage loansand/or backed by CMBS for which the Company provides trustee, securitiesadministration and/or paying agent services, either directly in the relatedrole for such services or as the agent of the party performing such services,and for which either (a) some or all of the issued securities for such CMBStransactions were publicly offered pursuant to a registration statementdelivered under the Securities Act of 1933, as amended, or (b) the issuedsecurities for such CMBS transactions were privately offered pursuant to anexemption from registration and either the Company (and/or the party for whomit acts agent) has an obligation under the transaction agreements to deliver anassessment of compliance with the applicable servicing criteria under Item1122(d) of Regulation AB; provided however that, the platform excludes anytransactions for which the offered securities were issued, sponsored and/orguaranteed by any agency or instrumentality of the U.S. government or anygovernment-sponsored entity (the “CMBS Platform”), as of December 31, 2021 andfor the period from November 1, 2021 to December 31, 2021 (the “Period”),excluding criteria 1122(d)(4)(ii), 1122(d)(4)(iv), 1122(d)(4)(v),1122(d)(4)(vi), 1122(d)(4)(vii), 1122(d)(4)(viii), 1122(d)(4)(ix),1122(d)(4)(x), 1122(d)(4)(xi), 1122(d)(4)(xii), 1122(d)(4)(xiii) and1122(d)(4)(xiv), which Management has determined are not applicable to eitherthe Company’s obligations, or the obligations of the party for whom the Companyultimately acts as agent, in either case under the related transactionagreements with respect to the CMBS Platform for the Period (as applicable, the“Company’s Obligations”); provided however that, with respect to the CMBSPlatform (a) servicing criterion 1122(d)(1)(v) is applicable only to theCompany’s Obligations related to the aggregation of information received andthe conveyance of such information, in each case, as required by thetransaction agreements, and (b) servicing criterion 1122(d)(4)(iii) isapplicable only to the Company’s Obligations related to the process of makingor effecting an addition, removal or substitution to the asset pool inaccordance with the transaction agreements. As described in management'sassertion, for servicing criteria 1122(d)(4)(i) and 1122(d)(2)(vi), the Companyhas engaged various vendors to perform the activities required by theseservicing criteria. The Company has determined that these vendors are notconsidered "servicers" as defined in Item 1101(j) of Regulation AB,and the Company has elected to take responsibility for assessing compliancewith the servicing criteria applicable to each vendor as permitted byCompliance and Disclosure Interpretation 200.06 of the SEC Division ofCorporation Finance’s interpretations of the rules adopted under Regulation ABand the Securities Act and the Exchange Act ("Interpretation200.06"). As permitted by Interpretation 200.06, the Company has assertedthat it has policies and procedures in place designed to provide reasonableassurance that the vendors' activities comply in all material respects with theservicing criteria applicable to each vendor. The Company is solely responsiblefor determining that it meets the SEC requirements to apply Interpretation200.06 for the vendors and related criteria as described in its assertion, andwe performed no procedures with respect to the Company's determination of itseligibility to use Interpretation 200.06. Appendix A to management'sassertion identifies the individual asset-backed transactions and securitiesdefined by management as constituting the CMBS Platform. The Company’s management isresponsible for its assertion and for the Company's compliance with theapplicable servicing criteria. Our responsibility is to express an opinion onmanagement's assertion about the Company’s compliance with the applicableservicing criteria based on our examination. Our examination was conductedin accordance with the standards of the Public Company Accounting OversightBoard (United States) and in accordance with attestation standards establishedby the American Institute of Certified Public Accountants. Those standardsrequire that we plan and perform the examination to obtain reasonable assuranceabout whether management’s assertion about compliance with the applicableservicing criteria is fairly stated, in all material respects, and,accordingly, included examining, on a test basis, evidence about the Company’scompliance with the applicable servicing criteria and performing such otherprocedures as we considered necessary in the circumstances. Our examinationincluded testing of selected asset-backed transactions and securities thatcomprise the CMBS Platform, testing of selected servicing activities related tothe CMBS Platform, and determining whether the Company processed those selectedtransactions and performed those selected activities in compliance with theapplicable servicing criteria. Our procedures were limited to the selectedtransactions and servicing activities performed by the Company during theperiod covered by this report. Our procedures were not designed to detectnoncompliance arising from errors that may have occurred prior to or subsequentto our tests that may have affected the balances or amounts calculated orreported by the Company during the period covered by this report. We believethat our examination provides, and that the evidence we obtained is sufficientand appropriate to provide, a reasonable basis for our opinion. Our examinationdoes not provide a legal determination on the Company’s compliance with theservicing criteria. We are required to beindependent and to meet our other ethical responsibilities in accordance withrelevant ethical requirements related to the engagement. In our opinion, management’sassertion that Computershare Trust Company, National Association complied withthe aforementioned applicable servicing criteria as of and for the period ended December 31, 2021 for the CMBS Platform is fairly stated, in all materialrespects. /s/ PricewaterhouseCoopersLLP Boston, Massachusetts February 18, 2022 PricewaterhouseCoopers LLP, 101Seaport Boulevard, Boston, MA 02210 T: (617) 530 5000,www.pwc.com/us
s3://data.kl3m.ai/documents/fr/02-25022/html.json	text/markdown	Document Headings Document headings vary by document type but may contain the following: - the agency or agencies that issued and signed a document - the number of the CFR title and the number of each part the document amends, proposes to amend, or is directly related to - the agency docket number / agency internal file number - the RIN which identifies each regulatory action listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions See the Document Drafting Handbook for more details. ###### Department of Energy ###### Federal Energy Regulatory Commission - [Docket No. RP02-557-000] Take notice that on September 24, 2002, Algonquin LNG, Inc. (ALNG) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, Fifth Revised Sheet No. 66, to be effective October 25, 2002. ALNG states that the purpose of this filing is to revise the capacity release provisions in Section 14 of the General Terms and Conditions with the addition of a new Section 14.12 which sets forth its right to terminate temporary capacity releases by shippers who are not creditworthy or who have become non-creditworthy. ALNG states that copies of its filing have been mailed to all affected customers and interested state commissions. Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at http://www.ferc.gov using the “FERRIS” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For Assistance, call (202) 502-8222 or for TTY, (202) 502-8659. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site under the “e-Filing” link. Linwood A. Watson, Jr., Deputy Secretary. [FR Doc. 02-25022 Filed 10-1-02; 8:45 am] BILLING CODE 6717-01-P
s3://data.kl3m.ai/documents/fr/02-25036/html.json	text/markdown	Document Headings Document headings vary by document type but may contain the following: - the agency or agencies that issued and signed a document - the number of the CFR title and the number of each part the document amends, proposes to amend, or is directly related to - the agency docket number / agency internal file number - the RIN which identifies each regulatory action listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions See the Document Drafting Handbook for more details. ###### Federal Reserve System # AGENCY: Board of Governors of the Federal Reserve System # ACTION: Notice # SUMMARY: Background. On June 15, 1984, the Office of Management and Budget (OMB) delegated to the Board of Governors of the Federal Reserve System (Board) its approval authority under the Paperwork Reduction Act, as per 5 CFR 1320.16, to approve of and assign OMB control numbers to collection of information requests and requirements conducted or sponsored by the Board under conditions set forth in 5 CFR 1320 Appendix A.1. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the OMB 83-I's and supporting statements and approved collection of information instruments are placed into OMB's public docket files. The Federal Reserve may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number. Request for Comment on Information Collection Proposal. The following information collection, which is being handled under this delegated authority, has received initial Board approval and is hereby published for comment. At the end of the comment period, the proposed information collection, along with an analysis of comments and recommendations received, will be submitted to the Board for final approval under OMB delegated authority. Comments are invited on the following: a. whether the proposed collection of information is necessary for the proper performance of the Federal Reserve's functions; including whether the information has practical utility; b. the accuracy of the Federal Reserve's estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used; c. ways to enhance the quality, utility, and clarity of the information to be collected; and d. ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology. # DATES: Comments must be submitted on or before December 2, 2002. # ADDRESSES: Comments may be mailed to Ms. Jennifer J. Johnson, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue, N.W., Washington, DC 20551. However, because paper mail in the Washington area and at the Board of Governors is subject to delay, please consider submitting your comments by e-mail to [email protected], or faxing them to the Office of the Secretary at 202-452-3819 or 202-452-3102. Comments addressed to Ms. Johnson may also be delivered to the Board's mail facility in the West Courtyard between 8:45 a.m. and 5:15 p.m., located on 21st Street between Constitution Avenue and C Street, NW. Members of the public may inspect comments in Room MP-500 between 9:00 a.m. and 5:00 p.m. on weekdays pursuant to 261.12, except as provided in 261.14, of the Board's Rules Regarding Availability of Information, 12 CFR 261.12 and 261.14. A copy of the comments may also be submitted to the OMB desk officer for the Board: Joseph Lackey, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 3208, Washington, DC 20503. # FOR FURTHER INFORMATION CONTACT: A copy of the proposed form and instructions, the Paperwork Reduction Act Submission (OMB 83-I), supporting statement, and other documents that will be placed into OMB's public docket files once approved may be requested from the agency clearance officer, whose name appears below. Mary M. West, Federal Reserve Board Clearance Officer (202-452-3829), Division of Research and Statistics, Board of Governors of the Federal Reserve System, Washington, DC 20551. Telecommunications Device for the Deaf (TDD) users may contact Diane Jenkins (202-452-3544), Board of Governors of the Federal Reserve System, Washington, DC 20551. # SUPPLEMENTARY INFORMATION: ## Proposal to approve under OMB delegated authority the extension for three years, without revision, of the following report: 1. Report title: Recordkeeping and Disclosure Requirements Associated with Loans Secured by Real Estate Located in Flood Hazard Areas Pursuant to Section 208.25 of Regulation H. Agency form number: Reg H-2 OMB control number: 7100-0280 Frequency: Event-generated Reporters: State member banks Annual reporting hours: 111,420 hours Estimated average hours per response: Notice of special flood hazards to borrowers and servicers, 0.08 hours; notice to the Federal Emergency Management Agency (FEMA) of servicer, 0.08 hours; notice to FEMA of change of servicer, 0.08 hours; and retention of standard FEMA form, 0.04 hours. Number of respondents: 976 Small businesses are affected. General description of report: This information collection is mandatory (12 U.S.C. 248(a)(1)). Because the Federal Reserve does not collect any of FEMA forms this information collection is not ( print page 61887) given confidential treatment. However, should any of these records come into the possession of the Federal Reserve, such information may be protected from disclosure by exemption 4 and 6 of the Freedom of Information Act (5 U.S.C. 552(b)(4) and (b)(6)). Abstract: Regulation H requires state member banks to notify a borrower and servicer when loans secured by real estate are determined to be in a special flood hazard area and notify them whether flood insurance is available; notify FEMA of the identity of, and any change of, the servicer of a loan secured by real estate in a special flood hazard area; and retain a completed copy of the Standard Flood Hazard Determination Form used to determine whether property securing a loan is in a special flood hazard area. Board of Governors of the Federal Reserve System, September 27, 2002. Jennifer J. Johnson, Secretary of the Board. [FR Doc. 02-25036 Filed 10-1-02; 8:45 pm] BILLING CODE 6210-01-S
s3://data.kl3m.ai/documents/recap/gov.uscourts.caed.396505/gov.uscourts.caed.396505.16.0.pdf.json	text/markdown	U.S. District Court – Pro Hac Vice Application Revised July 6, 2021 Page 1 P laintiff(s) V. ## United States District Court Eastern District of California Case Number: APPLICATION FOR PRO HAC VICE AND ORDER Defendant(s) Pursuant to Local Rule 180(b)(2) of the United States District Court for the Eastern District of California, ### Lauren Watts Staniar hereby applies for permission to appear and participate as counsel in the above entitled action on behalf of the following party or parties: ### SNAPPLE BEVERAGE CORP. and KEURIG DR. PEPPER INC., On ### 02/05/2015 (date), I was admitted to practice and presently in good standing in the ### Supreme Court of the State of Washington (court). A certificate of good standing from that court is submitted in conjunction with this application. I have not been disbarred or formally censured by a court of record or by a state bar association; and there are not disciplinary proceedings against me. I have I have not concurrently or within the year preceding this application made a pro hac vice application to this court. (If you have made a pro hac vice application to this court within the last year, list the name and case number of each matter in which an application was made, the date of application and whether granted or denied.) Matthews v. Reckitt Benkiser LLC ; Case No. 1:20-c v -0 0854 -N ONE -E PG Date: ### 07 /26/2021 Signature of Applicant: / s/ Lauren Watts Staniar X 2:21 -cv- 01164 - MCE - JDP DARLENE HARRIS, ET AL. SNAPPLE BEVERAGE CORP., ET AL. Case 2:21-cv-01164-MCE-JDP Document 16 Filed 08/18/21 Page 1 of 2U.S. District Court – Pro Hac Vice Application Revised July 6, 2021 Page 2 Pro Hac Vice Attorney Applicant's Name: ### Lauren Watts Staniar Law Firm Name: ### Perkins Coie LLP Address: ### 1201 Third Ave., 49th Floor City: ### Seattle State: ### WA Zip: ### 98101 Phone Number w/Area Code: ### (206) 359 - 8000 City and State of Residence: Primary E - mail Address: ### Seattle, WA [email protected] Secondary E - mail Address: I hereby designate the following member of the Bar of this Court who is registered for ECF with whom the Court and opposing counsel may readily communicate regarding the conduct of the case and upon whom electronic notice shall also be served via the Court’s ECF system: Lo cal Counsel's Name: Law Firm Name: Address: ### David T. Biderman Perkins Coie LLP 505 Howard St., Ste. 1000 City: ### San Francissco State: ### CA Zip: ### 94105 Phone Number w/Area Code: ### (415) 344 -7000 Bar # ### 101577 ORDER The Pro Hac Vice Application is APPROVED. The Pro Hac Vice Attorney is DIRECTED to request filing access through PACER. DATED: August 17, 2021 Case 2:21-cv-01164-MCE-JDP Document 16 Filed 08/18/21 Page 2 of 2
s3://data.kl3m.ai/documents/recap/gov.uscourts.cand.192289.54.1.pdf.json	text/markdown	IvJarch 12, 2007 ivir. Abhrnav Bhatnagar 36927 Papaya Court ### Newark. CA94560 .!vir.Bhatnagar: # ®ffice 11£ ## ±lp~ ~tp2:riff Warren E. Rupf Sheri!! This letter is to irifonn you that the investigation ofyour Citizen Complaint report that you dated November 16, 2006 is completed For the record, the investigationfocllsed on your allegations ofmisconduct by Officer J. Ingrassia on two separate occasions. Internal Affairs Sergeant, T.Anderson, conducted an exhaustive investigation. Commander S. Daly, Captain D. Pascoe and Interim Police Chief, J. Hatchell, reviewed his report. There wasfurther review by Undersheriff G. Lawrence. Your allegation(s) ofmisconduct, specifically treatment ofthepublic and equality C!f enforcement. have both concluded with an unfoumledfinding. That means the investigation has disclosed sufficient evMence toprove the acts complained ofdid not occur as alleged. Should you have any questions, orfeel I can be of further assistance, please call the number hsted below. Sincerely, ### W,4RRENE. RUPF, ### Sheriff Eric Navarro. Lieutenant Professional Standards Unit (925) 335-1519 Post Office Box391 0 Martinez, California 94553-0039 (925) 335-1500 ### «Community Policing Since 1850 ...." ### Case 3:07-cv-02669-CRB Document 54-2 Filed 03/15/2008 Page 1 of 1
s3://data.kl3m.ai/documents/recap_docs/2006/03/10/michelle_gower_v._james_harkema_md.pdf.json	text/markdown	_______________________________________ __ _____________ _______________ _____________ v Michigan Supreme Court # Order Lansing, Michigan March 10, 2005 Clifford W. Taylor, Chief Justice Michael F. Cavanagh Elizabeth A. Weaver 128158 Marilyn Kelly 128159 Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman, Justices MICHELLE GOWER, Pers onal Representative of the Estate of EDWIN GOWER, Deceased, Plaintiff-Appellant, SC: 128158, 128159 COA: 256824, 257967 Ingham CC: 03-000299-NH JAMES HARKEMA, M.D., CH RISTOPHER SEIP, M.D., BENJAMIN B. MOSHER, M.D.,CHRISTOPHER ABOOD, M.D., TONIA REIN CKE, PA-C, SPARROW HOSPITAL, GREG A. HO WELLS, M.D., KEITH BLUM, D.O., CHRISTINA MASER OHM, M.D., KEVIN KRAUSE, M.D., GREGOR Y NOWINSKI, M.D., JULIE STEIN, M.D., and WILLIAM BEAUMONT HOSPITAL, ROYAL OAK Defendants-Appellees, and GEORGE ARTHUR WILL IAMS, M.D., and ASSOCIATED RETINAL CONSULTANTS, P.C., Defendants. AMENDMENT TO ORDER On order of the Court, the order of November 2, 2005 is amended to correct a clerical error by correcting the text th ereof to read as follows: “On order of the Court, th e application for leave to appeal the January 25, 2005 and February 1, 2005 orders of the Court of Appeals is considered, and it is DENIED, because we are not persuaded th at the questions presented should be revie wed by this Court. C AVANAGH and K ELLY , JJ., would grant l eave to appeal.” I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. March 10, 2005 Clerk
s3://data.kl3m.ai/documents/recap_docs/1999/06/17/USA_v._Jackson_1.pdf.json	text/plain	* 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. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-41173 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANGELO JACKSON, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:98-CR-16-2 - - - - - - - - - - June 17, 1999 Before EMILIO M. GARZA, BENAVIDES, and PARKER, Circuit Judges. PER CURIAM:* The federal public defender (FPD) appointed to represent Angelo Jackson has moved for leave to withdraw and has filed a brief as required by Anders v. California, 386 U.S. 738 (1967). Jackson has responded arguing that the district court erred in denying his motion to suppress and in sentencing him based on crack cocaine. Our independent review of counsel’s brief, Jackson’s response, and the record discloses no nonfrivolous issue. Accordingly, the motion for leave to withdraw is GRANTED, No. 98-41173 -2- counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.
s3://data.kl3m.ai/documents/recap_docs/1999/05/20/state_v._thomas_lewis.pdf.json	text/plain	FILED May 20, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON STATE OF TENNESSEE, ) ) CCA No: 02C01-9707-CR-00254 Appellee, ) ) Shelby County v. ) ) Hon. Joseph Dailey, Judge ) THOMAS LEWIS, ) (Especially Aggravated Kidnaping – ) 2 Counts; Aggravated Robbery – Appellant. ) 2 Counts) ) FOR THE APPELLANT: FOR THE APPELLEE: Loys A. “Trey” Jordan, III John Knox Walkup 80 Monroe Avenue, Suite 550 Attorney General and Reporter Memphis, TN 38103 Elizabeth Ryan Bradley J. Cordts Assistant Attorney General 6263 Poplar Avenue, Suite 1132 425 Fifth Avenue North Memphis, TN 38119 2 nd Floor, Cordell Hull Building Nashville, TN 37243-0493 William L. Gibbons District Attorney General Terrell L. Harris James Morton Lammey, Jr. Assistant District Attorneys General 201 Poplar Avenue, Third Floor Memphis, TN 38103 OPINION FILED: CONVICTIONS AFFIRMED; SENTENCES MODIFIED ROBERT W. WEDEMEYER, Special Judge 1 Because the appellant challenges the trial court’s denial of his motion to suppress, the facts established at the suppression hearing and at trial are set forth herein. 2 O P I N I O N On May 16, 1996, the appellant was charged with two counts each of especially aggravated kidnaping and aggravated robbery. At the March 1997 jury trial, the appellant was convicted on all charges. The trial court imposed twenty-year sentences for the especially aggravated kidnaping convictions and ten-year sentences for the aggravated robbery convictions. The trial court further ordered the sentences to run consecutively for an effective sentence of sixty years. In this appeal, the appellant makes the following claims of error: 1. The trial court erred in denying defendant’s motion to suppress; 2. The evidence was insufficient to support the verdict; 3. The trial court erred when it required the defendant to make in-court statements; and 4. The trial court improperly sentenced him. Following our review, we affirm the convictions and modify the sentences as set out below. FACTUAL BACKGROUND1 Suppression Hearing On November 6, 1995, while investigating the robbery of Exline Pizza, Officer Tim Cook of the Memphis Police Department developed the appellant and Carlos Malone as suspects. Officer Cook located both men and asked them to come to the police station to answer questions about the robbery. At approximately 12:50 p.m. on November 8, 1995, Malone and the appellant went to the station where they were placed in separate interview rooms. Officer Cook and Officer C.D. Gordon entered the appellant’s interview room at 1:30 p.m. and asked the appellant to read aloud his Miranda rights as contained on the advice of rights form. Upon reading his rights, the appellant signed the form and indicated to the officers that he understood his rights and wished to invoke his right to remain silent. Officer Cook advised the appellant that he was under arrest. Officer Cook also told the appellant that after Malone’s statement was taken, the appellant would be taken downstairs for booking. Honoring the appellant’s wish not to speak with the police, no one with the 3 department spoke with the appellant. Malone was interviewed and taken home. At approximately 3:30 p.m., Officer Cook re-entered the appellant’s interview room to get statistical information for the arrest ticket. Lt. Steve Cole, also of the Memphis Police Department, testified that he also took some of the statistical information for the arrest ticket. When the appellant asked Cook why he was under arrest, Cook responded that a witness had identified the telephone in the appellant’s possession as being taken during the Exline Pizza robbery. The appellant told Officer Cook that he wanted to talk about the telephone; however, Cook told the appellant to think about it and left the room. When Officer Cook returned a few minutes later, the appellant expressed his continued desire to talk. Both Officers Cook and Gordon witnessed the appellant’s execution of a second advice of rights form at 3:50 p.m. The appellant did not request an attorney. During the ensuing conversation, the appellant admitted to his involvement in a number of robberies. At 11:05 a.m. the next morning, Officers Cook and Gordon took several statements from the appellant, including a statement about his involvement in the robbery of Christa Richards and Sean Greene. The appellant admitted to the aggravated robbery of these victims. Before giving each statement, the appellant executed a waiver of rights form; however, he did not ask for an attorney on any of these occasions. The appellant testified that he was at his mother’s home when he was surrounded by police and taken to the station in the back of the patrol car. He added that he did not feel he was free to leave. At the station, he said he was placed in a small interrogation room and leg-shackled to the chair. The appellant maintained that he had asked for an attorney during the investigation and made a statement to Officer Cook based on the promise of leniency. Trial On May 22, 1995 at approximately 8:30 p.m., Sean Greene escorted his fiancé, Christa Richards, to her car following a visit. The two spent several minutes talking by the car when Ms. Richards noticed a man, later identified as the appellant, walking past the other side of the car. The appellant turned around and walked back towards her. The appellant then opened his jacket and pulled out what Richards described as a little black revolver. Mr. Greene was not facing the appellant but turned around when he saw the frightened look on Ms. Richards’ face. The appellant stated “I’m prepared to go to jail. I just need some money.” When Ms. 4 Richards told the appellant that she only had six dollars, the appellant became angry at which time Mr. Greene offered the appellant his cellular phone. Next, the appellant asked who owned the car and demanded the keys. Ms. Richards told the appellant that the keys were in the apartment; however, they dropped from her hands. The appellant remarked “Oh, so you want to lie to me. We’re all going for a little ride now.” The appellant instructed Mr. Greene to drive while he sat in the backseat holding a gun to Mr. Greene’s head. Ms. Richards sat in the front passenger seat. The appellant ordered Ms. Richards to remove her watch and engagement ring. After they drove some distance, Mr. Greene urged the appellant to let them go by saying that they would deny seeing him. Mr. Greene went on to offer the car to the appellant in exchange for their release. After some thought, the appellant released Mr. Greene and Ms. Richards and fled in the car. The victims walked back to the apartment and called the police. They described the appellant as a fit, young, black male, approximately 5'7" tall with medium-colored skin wearing a hat and black leather jacket. The appellant was eventually arrested and charged with two counts each of especially aggravated kidnaping and aggravated robbery. At trial, Ms. Richards testified concerning her contact with the appellant. As to her certainty to the identity of the perpetrator, she stated that she could recognize the voice of the perpetrator as he had said to her “Turn around, bitch.” Over defense objection, the trial court ordered the appellant to utter that statement; however, the appellant declined. Ms. Richards then stated that the phrase “I don’t want to hurt anybody. All I need is some money” was spoken by the perpetrator. Again, the trial court asked the appellant to repeat the phrase. The appellant complied. ISSUES I. Motion to Suppress The appellant’s first complaint is that the trial court erred in denying his motion to suppress. In his motion, the appellant argued that his statements were taken in violation of his Miranda rights. Specifically, he maintained that the officers failed to “scrupulously honor” his invocation of his right to counsel. Within this issue, the appellant insists that his resulting confession was not knowing and voluntary. 5 An appellate court should uphold a trial court’s decision on a motion to suppress, unless the evidence in the record preponderates against the finding. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Questions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact. The party prevailing in the trial court is entitled to the strongest legitimate view of the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences that may be drawn from that evidence. Id. So long as the greater weight of the evidence supports the trial court’s findings, those findings shall be upheld. Id. However, the application of the law to the facts found by the trial court, is a question of law which this Court reviews de novo. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). In the instant case, the trial court made its findings on the record following the suppression hearing. The trial judge concluded that the officers had acted conscientiously by having the appellant execute the advice of rights form. The judge further found that the appellant read the rights aloud and understood what he was reading. According to the Court, the re-entry into the interview room for the purpose of obtaining statistical information for the arrest ticket did not constitute a violation of the appellant’s Miranda rights. The trial court stated that it “did not find [the appellant’s] testimony to be credible today.” The appellant’s testimony that the officers used trickery or coercion was unsupported by the evidence. The judge said that by the appellant’s own admission, the appellant was fully advised of his rights and signed the advice of rights forms. Finally, the trial court found no inconsistency in the testimonies of Officer Cook and Lt. Cole. In fact, the court concluded that their testimony was consistent with the evidence that more than one person contributed to the completion of the arrest ticket. The appellant complains that the officers violated his Miranda rights by seeking statistical information from him. We disagree. Upon the appellant’s arrival at the police station, the officers sought to question him about his involvement in various robberies. The appellant was given an advice of rights form which he read aloud and executed. The officers honored the appellant’s decision to invoke his rights. After the officers spoke with Carlos Malone, they placed the appellant under arrest. Officer Cook entered the interview room to obtain information for the arrest ticket. As cited by the state, in State v. Williams, 623 S.W.2d 118, 121 (Tenn. Crim. App. 1981) 6 the Court held that Miranda did not prohibit an officer from asking statistical information and concluded that the disclosure of a name, age and address “is essentially a neutral act.” Id. (citations omitted). Absent some compulsion or coercion, “defendant’s statement of his place of residence cannot conflict with any constitutional guarantees of the [Fifth Amendment] privilege.” Id. Finally, the Williams court concluded that an arrest ticket is not a “statement” under Rule 16 of the Tennessee Rules of Criminal Procedure. Id. As to the presence of any compulsion, the appellant argues that his confession was not knowing and voluntary and that the officers failed to scrupulously honor his request not to speak with them. Without question, the officers had the legal obligation to honor the appellant’s right to remain silent. However, the record is devoid of evidence that his resulting statements were not freely given or that the officers in any way coerced the appellant into confessing. At the suppression hearing, the appellant testified that he had been held in the interview room for several hours and eventually chained to a chair. He adds that he was not permitted to use the restroom facilities. The record indicates that the appellant was held initially for approximately two hours once he had asserted his Miranda rights. However, once the interview with Malone was complete, the appellant was placed under arrest. Some time later, he made the statements that implicated him in various robberies, including the robbery and kidnaping at issue. As the trial court found, the evidence simply does not support a claim that the resulting statements were not freely and voluntarily given. The appellant was given two opportunities to read his advice of rights form. Upon the first reading, he invoked his rights and the officers honored the invocation. The appellant then initiated the subsequent conversation which lead to the reading of the second advice of rights form. Only after reading these rights did the appellant volunteer the information which made up his statements. The appellant’s claim of compulsion is unsupported by the evidence. Finally, the appellant argues that the conflict in the testimonies of Officer Cook and Lt. Cole supports his position that his Miranda rights were not honored and that the statements were not freely given. At the hearing, Officer Cook testified that he obtained certain information for the arrest ticket and Lt. Cole testified that some of the statistical information on the arrest ticket was in his handwriting. We are not convinced that this discrepancy in the testimony supports the appellant’s claims. The trial judge found no inconsistency in the two witnesses and concluded that both played 7 some role in completing the arrest ticket. As the sole judge of the credibility of the witnesses, the trial judge was in a much better position to resolve any conflicts in the testimony. Having resolved such conflicts against the appellant, we will not usurp the trial court’s function. Finding no coercion or compulsion, we conclude that the officer’s request for statistical information did not constitute a statement, and therefore, did not violate the appellant’s previouslyinvoked Miranda rights. Accordingly, this issue is without merit. II. Sufficiency of the Evidence Next, the appellant contends that the evidence was insufficient to support his convictions. In Tennessee, great weight is given to the result reached by the jury in a criminal trial. A jury verdict approved by the trial judge accredits the state’s witnesses and resolves all conflicts in favor of the state. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). On appeal, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Moreover, a guilty verdict removes the presumption of innocence which the appellant enjoyed at trial and raises a presumption of guilt on appeal. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of overcoming this presumption of guilt. Id. Where sufficiency of the evidence is challenged, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime or crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); T.R.A.P. 13(e). The weight and credibility of the witnesses’ testimony are matters entrusted exclusively to the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). The indictments charging the appellant with two counts of especially aggravated kidnaping read as follows: “Thomas Lewis on May 22, 1995, in Shelby County, Tennessee . . . did unlawfully and knowingly remove Christa Richards [and Sean Greene] so as to interfere substantially with the liberty of the said Christa Richards [and Sean Greene], by use of a deadly weapon, to wit: a handgun, in violation of T.C.A. 39-13-305 . . .” The evidence presented at trial revealed that Mr. Greene and Ms. Richards were standing beside Ms. Richards’ vehicle when the appellant held them at gunpoint. The appellant eventually 8 ordered them into the vehicle and placed the gun towards Mr. Greene’s head while he drove. Only upon the victims’ pleas did the appellant free the victims and take the vehicle. The victims were then forced to walk some distance back to the apartment to telephone the police. The presence of the deadly weapon, the unquestionable interference with their liberty and the removal of the victims provide the elements necessary to support the appellant’s convictions for especially aggravated kidnaping. As to the aggravated robbery charges, the respective indictments stated that “Thomas Lewis on May 22, 1995, in Shelby County, Tennessee, and before the finding of this indictment, did unlawfully, intentionally, knowingly and violently, by use of a deadly weapon, to wit: a handgun, obtain from the person of Christa Richards [and Sean Greene], a sum of money, a motor vehicle and a cellular telephone, proper goods and chattels of Christa Richards [and Sean Greene], in violation of T.C.A. 39-13-402 . . .” The trial testimony indicated that the appellant approached the victims while standing next to Ms. Richards’ vehicle. At gunpoint, he ordered them to produce their money. When he determined that the victims had no money, he asked for the keys to the vehicle. After Ms. Richards told him the keys were inside the apartment but then dropped them, the appellant became angry, uttered various phrases and ordered them into the vehicle. Once inside the vehicle, the appellant ordered Ms. Richards to give him her engagement ring and watch. He also took the cellular telephone offered to him by Mr. Greene. Finally, after releasing the victims, he drove away in their vehicle. Without question, the necessary elements of aggravated robbery have been met. Within this issue, the appellant challenges the sufficiency of the evidence in part on the fact that the victims had difficulty in identifying him as the perpetrator of the robbery and kidnaping. However, this challenge is misplaced. While it is true that the victims’ testimony as to whether the appellant was the perpetrator revealed some uncertainty, the remaining evidence supports the convictions. Further, the court gave a jury instruction on how to evaluate the eyewitness identification. Additionally, the appellant admitted in his statements to police that he had robbed the victims. This statement was corroborated by the evidence. On appeal, the burden is on the appellant to demonstrate that the evidence was insufficient to support his convictions at trial. Here, the appellant has failed to meet his burden on any charge. This issue is without merit. 9 III. In-Court Voice Identification The appellant’s third claim of error is that the trial court committed reversible error when it ordered him to utter various statements in court. At trial, during the testimony of Ms. Richards, the witness, responding to a question posed by the state, said that she remembered certain statements the perpetrator made to her at the time of the incident. At the request of the state, the trial court asked the appellant to repeat various phrases. When defense counsel objected, the court held a “jury out” hearing. During this hearing, the court stated various facts of the case that supported the necessity of a voice exemplar. The court also concluded that the word “bitch” was not being offered to inflame the jury but to reflect the actual statement made by the perpetrator. Recognizing the need for the voice-identification, the trial court ordered the appellant to utter the phrase, “Turn around, bitch.” Upon a return to court and in the presence of the jury, the appellant refused to utter the phrase “Turn around, bitch.” When the trial court asked the witness for other statements of the perpetrator, the witness offered the phrase “I don’t want to hurt anybody, I just want some money.” The appellant uttered the phrase. The defendant now complains that the forced utterance of these phrases and the jury’s viewing of him refusing to utter one of the statements violated his right to remain silent. It is undisputed that an appellant in a criminal case has the constitutional right to remain silent and cannot be compelled to testify. However, “[a] defendant may be compelled to give evidence which does not have testimonial significance because such evidence is not protected by the constitutional privilege against self-incrimination.” State v. Meeks, 867 S.W.2d 361, 376 (Tenn. Crim. App. 1993) (citations omitted). Citing United States v. Wade, 388 U.S. 218, 222-223 (1967), the Meeks court reiterated the well-settled principle that “the privilege against self-incrimination was not violated by compelling a defendant to speak and to utter words purportedly uttered by the assailant in order for witnesses to consider the utterances for identification purposes.” Id. The appellant contends that the statements made by him had testimonial significance; however, this Court finds that the utterances made by the appellant during the trial constituted voice exemplars. As such, the statements made by the appellant did not rise to the level of testimony and did not violate his right to remain silent. The Court would note, however, as suggested by the appellant, that when such voice exemplars became a useful or necessary part of a case, the preferred 10 timing of obtaining these exemplars would be prior to the trial of the matter. In this case, we do not find that the utterances required of appellant during the trial, the nature of the utterances or the appellant’s refusal to make one such utterance so prejudiced his trial as to require a reversal. Error, if any, was harmless. This issue is without merit. IV. Sentencing Finally, the appellant maintains that the judge erred in sentencing him to an effective sentence of sixty (60) years. Specifically, the appellant contends that the trial court improperly considered certain enhancement factors and errantly ran the sentences consecutively. When a challenge is made to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety of the sentence. There are, however, exceptions to the presumption of correctness. First, the record must demonstrate that the trial court considered the sentencing principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Second, the presumption does not apply to the legal conclusions reached by the trial court in sentencing. Third, the presumption does not apply when the determinations made by the trial court are predicated upon uncontroverted facts. A. Length of Sentences Aggravated robbery, a Class B felony, carries a range of 8 to 12 years for a Standard Range I offender. Without consideration of enhancing and mitigating factors, the presumptive sentence for a Class B felony is the minimum sentence in the statutory range. Tenn. Code Ann. § 40-35-210(c). In each of the especially aggravated kidnaping convictions, the trial judge imposed twentyyear sentences. Especially aggravated kidnaping, a Class A felony, carries a range of 15 to 25 years for a Standard Range I offender. Although the statute changed in 1995, at the time this offense, the presumptive sentence in a Class A felony was the minimum within the statutory range. Where the trial court finds one or more enhancing but no mitigating factors, the court may sentence above the presumptive sentence within the range. Tenn. Code Ann. § 40-35-201(d). Where 11 both enhancing and mitigating factors apply, the trial court must start at the presumptive sentence and then enhance within the statutory range based on any appropriate enhancing factors and reduce the sentence within the statutory range based on any appropriate mitigating factors. Tenn. Code Ann. § 40-35-210(e). So long as the trial court complies with the purposes and principles of the Tennessee Criminal Sentencing Reform Act of 1989 and its findings are supported by the record, the weight afforded to any enhancing and/or mitigating factors is left to the discretion of the trial court. State v. Moore, 942 S.W.2d 570 (Tenn. Crim. App. 1996). Following a sentencing hearing, the trial court considered as enhancement factors that: the appellant has no hesitation about committing the offense when the risk to human life was high and that the offense was committed under circumstances under which the potential for bodily injury to a victim was great. Tenn. Code Ann. §§ 40-35-114(10) & (16). In addition, the trial court gave some weight, as required by statute, to the fact that the appellant released the victims. However, the court indicated that the release was not necessarily voluntary and resulted only after the victims begged to be released. The trial judge refused to consider the age of the appellant as a mitigating circumstance as the appellant was in his twenties when the incident occurred. Initially, the Court would note, and the state concedes, that the trial court improperly considered enhancement factors (10) and (16) in the aggravated robbery convictions. As resolved in State v. Claybrooks, 910 S.W.2d 868, 872 (Tenn. Crim. App. 1994), this Court held that because these factors are inherent in the offense of aggravated robbery, they may not be used to enhance the resulting sentence. Accordingly, these sentences are reduced to the minimum eight years in each aggravated robbery conviction. This Court has further held that enhancement factors (10) and (16) are inapplicable in especially aggravated kidnaping convictions where a deadly weapon is used. See State v. Kern, 909 S.W.2d 5 (Tenn. Crim. App. 1993). Accordingly, these sentences are similarly modified to the minimum fifteen years in each especially aggravated kidnaping conviction. . B. Consecutive Sentences The appellant also alleges that the trial court errantly imposed consecutive sentences. As stated above, the trial judge found that the appellant was a dangerous offender and imposed an 12 effective sentence of 60 years. With the modifications made by this Court, the effective sentence is reduced to 46 years. Tennessee Code Annotated Section 40-35-115 provides that “[i]f a defendant is convicted of more than one (1) criminal offense, the court shall order sentences to run consecutively or concurrently as provided by the criteria in this section.” Tenn. Code Ann. § 40-35-115(a). “The Court may order sentences to run consecutively if the court finds by a preponderance of the evidence that: . . . (4) The defendant is a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high.” Tenn. Code Ann. § 40-35-115(b)(4). The trial court concluded that the appellant should be classified as a “dangerous offender.” Citing the statute, the court reasoned that: These two victims were minding their own businesses in the evening, standing outside the apartment building in which one of them lived, talking, not harming a soul, minding their own business, when Mr. Lewis elected to approach them, stick a gun in their face, rob them, force them into the car, kept the gun at the head of, I believe it was, the male victim that was driving as they went down, if I’m not mistaken. . . . When people are forced into a car at gunpoint and are made to start driving and they’re heading toward desolate areas, it spells trouble. And I think these two victims in this case were lucky to be alive today to tell the tale. And for an individual to have committed the crimes that Mr. Lewis committed in the manner in which they were committed, in my judgment there can be no question that he is a dangerous offender as contemplated in the statute. In State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), the Tennessee Supreme Court delineated the following requirements for imposing consecutive sentences when the defendant is classified as a “dangerous offender”: (1) Proof that an offender’s behavior indicated little or no regard for human life and no hesitation about committing a crime when the risk to human life was high. (2) The proof must establish that the terms imposed are reasonably related to the severity of the offenses committed. (3) An extended sentence is necessary to protect the public against further criminal conduct by the defendant. Id. at 938-39. The testimony at trial indicates that the appellant approached the victims with a weapon, robbed them at gunpoint and forced them into one of the victim’s car. Holding the gun to Mr. 13 Greene’s head, the appellant forced Greene to drive away. While in the car, the appellant demanded Ms. Richards’ engagement ring and her watch. Only after pleading with the appellant were the victims released. Without question, the appellant’s behavior indicated little or no regard for human life and no hesitation about committing a crime when the risk to human life was high. We agree that the appellant is a dangerous offender. The appellant’s decision to rob the victims was taken a step further when he also decided to kidnap them. The robbery itself placed the victims in harms way; however, when the appellant unnecessarily kidnaped them, the danger to them was increased exponentially. As such, the consecutive sentences reasonably relate to the offenses committed. Finally, based on the proof in the record, this Court finds that an extended sentence is necessary to protect society from the appellant. As stated above, the appellant shows little regard for the sanctity of human life. His dangerousness warrant the extended sentence imposed in this case. This issue is similarly without merit. CONCLUSION For the foregoing reasons, this Court affirms the appellant’s convictions. The sentences are modified as set forth herein. ROBERT W. WEDEMEYER, Special Judge CONCUR: JOE G. RILEY, Judge CURWOOD WITT, Judge
s3://data.kl3m.ai/documents/cap/1170113.json	text/markdown	#### In the Matter of the Town of Hempstead on Behalf of the Town of Hempstead Park District, Relative to Acquiring Title to Real Property for Park Purposes (Newbridge Avenue) at East Meadow in the Town of Hempstead, Nassau County. In the Matter of the County of Nassau, Relative to Acquiring Title to Real Property for Drainage and/or Other Public Purposes on the Easterly Side of Newbridge Avenue in the Town of Hempstead, Nassau County. Supreme Court, Special Term, Nassau County, March 18, 1966. Arthur A. Kaye,special counsel for Town of Hempstead. Harnett $ Powellfor claimant. 102Howard T. Hogan, J. Proceedings in eminent domain have been instituted by the Town of Hempstead and the County of Nassau. The claimant has served a notice to examine the “ Town of Hempstead, by its engineer having knowledge of the facts and who will testify for the Town of Hempstead on said issue at the trial ” and to testify “more specifically as to all the facts and circumstances relied upon, reviewed and contained in his appraisal of engineering costs necessary to be incurred in the development of claimant’s damage parcel so as to make same available for residential use in the future,” and calls for the production at the examination of “ All material and data including, but not limited to, surveys, maps, relied upon, reviewed and rejected by said witness in arriving at his opinion of engineering cost.” By a separate notice, claimant directs the town to produce one F. Lee Woodley to be examined upon similar items relating to ‘ ‘his appraisal and findings of value for the damage parcel of claimant, made at the behest of the Town of Hempstead ”. He is also called upon produce “All sales, leases, engineering surveys and data including, but not limited to, all maps of all nature and description relied upon or reviewed by the witness in the preparation of his appraisal.” Two similar notices were also served upon the county, one to examine the County Engineer and another to examine Frank Wittman (an appraiser), which notices call for examinations on the exact same subjects as above and for production of the same data with respect to the county taking. Both the town and the county seek protective orders asserting that claimant is not entitled to the examinations of these experts. The claimant bases his right to such examination upon CPLR, article 31, and upon section 11-32.0 of the Nassau County Administrative Code (L. 1939, ch. 272, as amd). The latter provides, in part, that: ‘ ‘ The pendency of such an acquisition shall constitute special circumstances which render it proper that the deposition of any person not an owner be taken, pursuant to section two hundred eighty-eight of the civil practice act. Such deposition may be taken upon any question or issue in the acquisition and for the purpose of obtaining testimony as to any sale or lease as described in subdivision a of section 11-35.0 of the code at the instance of the county or of any owner or at the direction of the court at any time after the expiration of the date fixed for filing claims ”. Furthermore, subdivision a of section 11-35.0 of the Code provides in part as follows: “No 103such evidence [of comparable sales], however, shall be admissible as to any sale or lease, which shall not have been the subject of an examination before trial, either at the instance of the county or of an owner, unless at least twenty days before the trial the attorney for the party proposing to offer such evidence shall have served a written notice in respect to such sale or lease, which notice shall specify the names and addresses of the parties to the sale or lease, the date of making the same, the location of the premises, the office, liber and page of the record of the same, if recorded, and the purchase price or rent reserved and other material terms, or unless such sale or lease shall have occurred within twenty days before the trial ’ ’. When the CPLR became effective in 1963, the successor to Civil Practice Act section 288 provided not only a conditional privilege concerning material prepared for litigation (CPLR 3101, subd. [d]), but also an absolute privilege as to the undefined “work product of an attorney” (3101, subd. [c]). These sections provide: § 3101 (c) Attorney’s work product. The work product of an attorney shall not be obtainable. (d) Material prepared for litigation. The following shall not be obtainable unless the court finds that the material can no longer be duplicated because of a change in conditions and that withholding it will result in injustice or undue hardship: 1, any opinion of an expert prepared for litigation; and 2. any writing or anything created by or for a party or his agent in preparation for litigation. An examination of the affidavits herein indicates that the claimant asserts that the privilege does not apply since he is presenting not a request for the expert’s reports and appraisals, but merely the right to ascertain what information was assembled and relied upon or rejected by the experts in preparing their reports. This cannot be sustained, for it is manifest that an opinion is more than an abstract thought and is the product of investigation, computation, experience and reason. If the end result cannot be obtained, the component parts must be similarly protected. Article 2 of title B of chapter XI of the Nassau County Administrative Code is a specific statute regulating the procedure in land acquisition. The CPLR is a general statute which regulates practice throughout the State and in all cases and proceedings. While the two should be read together, any ambiguity or inconsistency generally must be resolved in favor of the specific statute. (See Papiernickv. City of New York,202 Misc. 717; 104 East End Trust Co.v. Otten,255 N. Y. 283; People ex rel. Leetv. Keller,157 N. Y. 90; People ex rel. Savory, Inc.v. Plunkett,295 N. Y. 180; Robia Holding Corp.v. Walker, 257 N. Y. 431; Strauchv. Town of Oyster Bay,263 App. Div. 833.) The Administrative Code in section 11-35.0 is clear with respect to the two areas sought to be examined herein. The claimant is entitled to ask the following limited questions as expressly stated in the code with respect to each comparable sale: 1. the names and addresses of the parties to the sale or lease; 2. the date of making same; 3. the office, liber and page of the record of the same, if recorded; 4. the purchase price or rent reserved and other material terms. Subdivision b of section 11-35.0 relates to items such as excavation and fill. It provides not for any examination before trial on these issues but merely that a notice of intention to offer evidence as to these items, together with the particulars as explained in that subdivision, must be served upon the adverse party at least 30 days prior to the trial. At that time, the claimant is also entitled to a true copy of the map or plan or drawing of the excavation or filling or piling. Outside of the limited permissible questions, the examination of the experts is barred by CPLR 3101 (subd. [d]). It is not necessary to add to the developing body of law which attempts to define the ‘‘ work product of the attorney. ’ ’ The expert opinion of the appraiser and the engineer is not obtainable under CPLR 3101 (subd. [d], par. 2). (See Valley Stream Lawnsv. State of New York,6 Misc 2d 607. See, also, Renewal Prods,v. Kleen-Stik Prods.,43 Misc 2d 644.) There is nothing in the instant case to indicate that the information sought by the claimant is not available to him through his own investigation. There is no proof of either injustice or undue hardship that would make the material available to the claimant. Once each side is armed with the answers to the above questions, its own experts can evaluate the sales and at the trial each can testify and be cross-examined as to their opinions. The motions are accordingly denied to the extent that the examinations shall take place at a date and time to be fixed in the order to be entered herein, but are granted to the extent that the said examinations shall be limited to the questions hereinbefore specified. 105Naturally, the parties are free to stipulate that the answers may be supplied without the necessity of a formal examination, or through the usual procedures of exchanging comparable sales and other information as provided in the Administrative Code.
s3://data.kl3m.ai/documents/fr/02-2499/pdf.json	text/plain	Federal Register / Vol. 67, No. 22 / Friday, February 1, 2002 / Notices 5001 Terry L. Clark, Esq.—American Arbitration Association Jerry Cohen, Esq.—JAMS John W. Cooley, Esq.—Judicial Dispute Resolution, Inc Mark J. Davis, Esq.—American Arbitration Association The Honorable Gino L. DiVito—Judicial Dispute Resolution, Inc. Edward Dreyfus, Esq.—American Arbitration Association The Honorable Charles W. Fowler— Arbitration and Mediation Services Sandra J. Franklin, Esq.—National Arbitration Forum William D. Friend, Esq.—American Arbitration Association The Honorable Michael B. Getty—JAMS Margery F. Gootnick, Esq.—Arbitration and Mediation Services The Honorable Jerry Grissom—JAMS The Honorable Jeffrey S. Gulin— Arbitration and Mediation Services William E. Hartgering, Esq.—JAMS Katherine Hendricks, Esq.—American Arbitration Association Harold Himmelman, Esq.—JAMS The Honorable Louis N. Hurwitz— Arbitration and Mediation Services Jane Juliano, Esq.—JAMS The Honorable Lewis A. London— Arbitration and Mediation Services The Honorable Harlan A. Martin—JAMS The Honorable William F. McDonald— JAMS Gloria Messinger, Esq.—American Arbitration Association The Honorable James R. Miller, Jr.— JAMS Cecilia H. Morgan, Esq.—JAMS Cheryl I. Niro, Esq.—Judicial Dispute Resolution, Inc. Timothy T. Patula, Esq.—American Arbitration Association Alex S. Polsky, Esq.—JAMS Richard H. Sayler, Esq.—American Arbitration Association The Honorable Philip E. Schwab—JAMS Vivien B. Shelanski, Esq.—JAMS The Honorable Judith S. Singleton— Arbitration and Mediation Services The Honorable James E. Sullivan— JAMS The Honorable Pamela A. Tynes—JAMS Eric E. Van Loon, Esq.—JAMS The Honorable Curtis E. von Kann— JAMS Frank M. Wentworth, Jr., Esq.— American Arbitration Association The Honorable Ronald P. Wertheim— JAMS The Honorable Michael Wolf— Arbitration and Mediation Services Michael D. Young, Esq.—JAMS Gregg R. Zegarelli, Esq.—American Arbitration Association Dated: January 29, 2002. David O. Carson, General Counsel. [FR Doc. 02–2519 Filed 1–31–02; 8:45 am] BILLING CODE 1410–33–P NATIONAL AERONAUTICS AND SPACE ADMINISTRATION [Notice (02–014)] NASA Advisory Council (NAC), Space Science Advisory Committee (SScAC), Astronomical Search for Origins and Planetary Systems Subcommittee (OS); Meeting AGENCY: National Aeronautics and Space Administration. ACTION: Notice of meeting. SUMMARY: In accordance with the Federal Advisory Committee Act, Pub. L. 92–463, as amended, the National Aeronautics and Space Administration announces a forthcoming meeting of the NASA Advisory Council, Space Science Advisory Committee, Astronomical Search for Origins Planetary Systems Subcommittee. DATES: Monday, February 25, 2002, 8:30 a.m. to 5:30 p.m. ADDRESSES: Doubletree Hotel Pasadena, 191 N Los Robles, Pasadena, California 91101. FOR FURTHER INFORMATION CONTACT: Ms. Marian Norris, Code SB, National Aeronautics and Space Administration, Washington, DC 20546, (202) 358–4452. SUPPLEMENTARY INFORMATION: The meeting will be open to the public up to the capacity of the room. The agenda for the meeting includes the following topics: —SS Budget —SIRTF Update —Wide Field Camera 3 (HST instrument) Update —Origins Theme Update —Roadmapping Update It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants. Visitors will be requested to sign a visitor’s register. Sylvia K. Kraemer, Advisory Committee Management Officer, National Aeronautics and Space Administration. [FR Doc. 02–2536 Filed 1–31–02; 8:45 am] BILLING CODE 7510–01–P NUCLEAR REGULATORY COMMISSION [Docket No. 50–461] Amergen Energy Company, LLC; Notice of Consideration of Issuance of Amendment to Facility Operating License and Opportunity for a Hearing The U.S. Nuclear Regulatory Commission (the Commission) is considering issuance of an amendment to Facility Operating License No. NPF– 62, issued to AmerGen Energy Company, LLC (AmerGen, the licensee), for operation of the Clinton Power Station (CPS) located in DeWitt County, Illinois. The proposed amendment would allow an increase in the licensed power from 2894 megawatts thermal (MWt) to 3473 MWt. This change represents an increase of approximately 20 percent above the current licensed power at CPS, and is considered an extended power uprate. The proposed amendment would also change the operating license and the technical specifications appended to the operating license to provide for implementing uprated power operation. AmerGen submitted the amendment request by letter dated June 18, 2001. The application was supplemented by letters dated September 7 and 28, October 17, 23, 26, and 31, November 8 (2 letters), 20, 21, 29, and 30, and December 5, 6, 7, 13 (2 letters), 20, 21, and 26, 2001, and January 8, 15, and 16, 2002. Before issuance of the proposed license amendment, the Commission will have made findings required by the Atomic Energy Act of 1954, as amended (the Act), and the Commission’s regulations. By March 4, 2002, the licensee may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license, and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission’s ‘‘Rules of Practice for Domestic Licensing Proceedings’’ in 10 CFR Part 2. Interested persons should consult a current copy of 10 CFR 2.714, which is available at the Commission’s Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland or electronically on the Internet at the NRC Web site http://www.nrc.gov/NRC/CFR/ index.html. If there are problems in 5002 Federal Register / Vol. 67, No. 22 / Friday, February 1, 2002 / Notices accessing the document, contact the Public Document Room Reference staff at 1–800–397–4209, 301–415–4737, or by e-mail to [email protected]. If a request for a hearing or petition for leave to intervene is filed by the above date, the Commission or an Atomic Safety and Licensing Board, designated by the Commission or by the Chairman of the Atomic Safety and Licensing Board Panel will rule on the request and/or petition; and the Secretary or the designated Atomic Safety and Licensing Board will issue a notice of hearing or an appropriate order. As required by 10 CFR 2.714, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition must specifically explain the reasons why intervention should be permitted with particular reference to the following factors: (1) The nature of the petitioner’s right under the Act to be made a party to the proceeding; (2) the nature and extent of the petitioner’s property, financial, or other interest in the proceeding; and (3) the possible effect of any order that may be entered in the proceeding on the petitioner’s interest. The petition must also identify the specific aspect(s) of the subject matter of the proceeding as to which petitioner wishes to intervene. Any person who has filed a petition for leave to intervene or who has been admitted as a party may amend the petition without requesting leave of the Board up to 15 days prior to the first prehearing conference scheduled in the proceeding, but such an amended petition must satisfy the specificity requirements described above. Not later than 15 days prior to the first prehearing conference scheduled in the proceeding, a petitioner shall file a supplement to the petition to intervene that must include a list of the contentions that the petitioner seeks to have litigated in the hearing. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide a brief explanation of the bases of each contention and a concise statement of the alleged facts or expert opinion that support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion. The petitioner must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one that, if proven, would entitle the petitioner to relief. A petitioner who fails to file such a supplement that satisfies these requirements with respect to at least one contention will not be permitted to participate as a party. Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing, including the opportunity to present evidence and cross-examine witnesses. A request for a hearing and petition for leave to intervene must be filed with the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemakings and Adjudications Staff, or may be delivered to the Commission’s Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, by the above date. A copy of the request for a hearing and the petition should also be sent to the Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555– 0001, and to Edward J. Cullen, Jr., Vice President and General Counsel, Exelon Generation Company, LLC, 300 Exelon Way, KSB 3-W, Kennett Square, PA 19348, attorney for the licensee. Nontimely filings of petitions for leave to intervene, amended petitions, supplemental petitions and/or requests for a hearing will not be entertained absent a determination by the Commission, the presiding officer, or the Atomic Safety and Licensing Board that the petition and/or request should be granted based upon a balancing of the factors specified in 10 CFR 2.714(a)(1)(i)-(v) and 2.714(d). If a request for a hearing is received, the Commission’s staff may issue the amendment after it completes its technical review and prior to the completion of any required hearing if it publishes a further notice for public comment of its proposed finding of no significant hazards consideration in accordance with 10 CFR 50.91 and 50.92. For further details with respect to this action, see the application for amendment dated June 18, 2001, as supplemented by letters dated September 7 and 28, October 17, 23, 26, and 31, November 8 (2 letters), 20, 21, 29, and 30, and December 5, 6, 7, 13 (2 letters), 20, 21, and 26, 2001, and January 8, 15, and 16, 2002, which are available for public inspection at the Commission’s Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management Systems (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site, http:// www.nrc.gov/NRC/ADAMS/index.html. Persons who do not have access to ADAMS or who encounter problems in accessing the documents located in ADAMS, should contact the NRC Public Document Room Reference staff by telephone at 1–800–397–4209, 301– 415–4737 or by e-mail to [email protected]. Dated at Rockville, Maryland, this 28th day of January 2002. For the Nuclear Regulatory Commission. Jon B. Hopkins, Senior Project Manager, Section 2, Project Directorate III, Division of Licensing Project Management, Office of Nuclear Reactor Regulation. [FR Doc. 02–2499 Filed 1–31–02; 8:45 am] BILLING CODE 7590–01–P NUCLEAR REGULATORY COMMISSION [Docket Nos. 50–352 and 50–353] Exelon Generation Company, LLC; Notice of Withdrawal of Application for Amendments to Facility Operating Licenses The U.S. Nuclear Regulatory Commission (the Commission) has granted the request of Exelon Generation Company, LLC, (the licensee) to withdraw its June 13, 2001, application for proposed amendments to Facility Operating License Nos. NPF–39 and NPF–85 for the Limerick Generating Station, Units 1 and 2, located in Montgomery County, Pennsylvania. The proposed amendments would have modified the facility and the facility Technical Specifications by replacing the interim corrective actions for thermal-hydraulic power oscillations with an automatic reactor scram from the output of the oscillation power range monitor. However, by letter dated December 13, 2001, the licensee withdrew the proposed change. For further details with respect to this action, see the application for amendment dated June 13, 2001, and the licensee’s letter dated December 13, 2001, which withdrew the application for license amendments. Documents may be examined, and/or copied for a fee, at the NRC’s Public Document Room (PDR), located at One White Flint