proceed to the third case s bunn because they were using those polies for the purpose of later on funding their accrued liability under this plan to not only all the executives but to t general liability for all executives and their four point three million dollars well the fact of the bank is specifically purchasing these life insurance policies on each individual executive subject to met all the criteria for an expression to the golden parachute in a situation as to the change of control issue all assets were transferred  evidence in the record to prove to a reasonable jury under the summary judgment standard that the bona fide deferred compensation claim exception when i call the bona fide plant exception  one d two we pointed out in our brief that those elements are not there is no meaningful development of any argument as to those exceptions in the brief to this court we believe that that issue has been waived but going to the second elements that were just discussed by mr freeh were as we set forth in our brave there is no dispute because the record contains evidence that this claim and earlier incarnations of this point and i went back to two thousand and three the important point is with respect to two thousand and nine which is when this bank first became a troubled bank in other words   was first created in two thousand and three we stayed in our brief that there's really no support in the record for the allegation that that items two three and five were satisfied by mr  with respect to two items the issue of whether there are vested benefits what this record contains a statement from mr bond saying that he looked at the general ledger specific amount from year to year there's no evidence in this record of a lot of not to what extent the holding company's stock price appreciated from year to year there is testimony point four of the salary continuation agreement does not use the word vested help help us understand because these are complicated regulations the thing i'm trying to grapple with this is three fifty nine point five point seven are those attention is there a scenario in which such benefits could be recovered and if it is a key point in that direction certainly  and just brand this goes to the fact that as we point out in our brief you know that part three fifty nine for the most part deals with open backs deals with banks where there is no receiver because the regulat for the bank hasn't closed the bank so most part three fifty nine addresses situations where open banks or the i repeat the institution affiliated party like mr pyne and employee of the bank are seeking the says permission to pay golden parachute and what part p fifty nine says is this is what the golden parachute is these are some exceptions to the golden parachute general definition like a bona fide plan and even if it's a golden parachute there are certain situations in which he f d i c would authorize their payment song again for most part three fifty nine we're talking about open banks three fifty nine point seven the the regulation which that that that agreement should that the golden parachute payment think should be repudiated the agreement underlying the golden parachute payment should be repudiated and therefore the employee could only recover what are called actually direct compensatory damages so they're not intention most of part three fifty nine really refers to the open bank's marial three fifty nine point seven is only about situations where the bank where a bank or an employee comes to the f d i c and says we would like your approval for this change of control provision that we want to enter into we know it's a golden parachute but we would like your months worth of salary and under no circumstances will it be approved if the change of control is construed to include the appointment of a receiver no other words not unreasonably the f c c doesn't  regulation which doesn't apply to this case so i'm a lawyer it's not it's not on all fours but if you look at you look at the equities discussion that opinion really put what the difference is this court pointed out in the car all that cadmus not borrow just the basic walked out of her own accord the day before it failed under the terms of her contract she would have gotten full benefits and this court found it improper that the mere happenstance the failure in other words that she happened to come to work on the day the bank failed would take away her benefits that is that are exactly the opposite situation from what we have here mr bond had he walked out of the bank the day before the i want to regulators close that would not have had whether the bank lived on for another ten years or whether it failed the next day you know he could not he was not entitled to a change of control benefit she needed something more to happen what he needed to have happened was the but also because as judge pirro rightly pointed out one of the elements of the breach of contract claims damages the change of control panel that is measured in the agreement as the amount of the crude liability so without knowing the amount of that accru i would ask that the district court's judgment personal knowledge as to what had occurred during the time in which he was serving as a bank executive and was aware of the performance of the bank's stock or the holding in two thousand so the differential is between the two twenty eight and the two forty is eliminated in one year therefore we still believe that we