just let me just a curiosity question but you say they were promised they actually were running the place or i mean they sort of promised themselves in the record it is an offer of a pension by the appropriately approved by the corporate formalities the question is the decision making about the corporate action came from a group that included mr shand what are you referring to when it was dispute in the record that serve a system the dispute appears to be about section one point three of that agreement which specifies that any and then the terminations of that plan made after the effective date of that plan had to be agreed upon in never been any kind of the location to reach you know i took five children thank goodness both of those individuals on the record were alive at the time and they still apparently seem to be alive i think it would have been a much more difficult conversation and a difficult legal issue if the provision of your became impossible there is nothing in the record to indicate it was impossible and the point is that the the the the actions by the subsequent owner in that case to attempt to raised any challenge to the modification of benefits had been a term it was  this original plan it was an agreement between mr sham and the company right a different type of plan because it was but it was a it was a agreement to which he agreed the company agr their decision to go with the modification and forget of were the right to call that modification the new arrangement let's call it that at the time everyone's pension and shut off they had council process to make inquiry as to the propriety of the terminations it was done was a fish complete people were not receiving their pensions they agreed to a subsequent agreement this court is directed and i hope will follow the strict contract law and interpret in these contract terms the contract that the second contract the two thousand and six agreement is important for what it says and what it doesn't say this court in the shoemaker versus a case steel case which i did not i apologize referenced in my brief but after we have the opportunity to see who's on the panel you get to expand your scope of how many arista cases you're going to study before you file but that case is very clear because it talks about a contract is not only important for what it says it's also important for what it doesn't say may i'm sorry i just can't resist straying into something that really just to ask the question why would the composition of the panel have anything whatever to do with the was one or two at least name changes were these the changes were they changes in names or did they arm's length third party come in and buy the company or just what was what occurred there when mr sharon and the others have this plan offered to them for a lifetime pension it was owned by coke subsequent to that it was purchased by the g c acquisition which is one of the defendant after this all was done and we're certain our complaint that this was done into suppression of a sale after the salt was done it was a benchley then sold about a little over a year to rationing and the stock purchase deal but rationing didn't accept this prior this that the two thousand and six agreement obligation in that agreement they left it with g c acquisition and those payments under the two thousand six agreement were made that if you rent you mention the issue of modification can mr sham have agreed to a modification of survey contractually or otherwise we know that mr green and mr d m p tro purportedly authorized the change by signing a document or at least they say they signed it there's no evidence that we don't have a signed document for the authorization to terminate serve a or weren't they in the same boat as your client no actually they were not in the original survey they were subsequent management they were not in the original circuit they had no authorization and they were not the people mentioned in section one point three often rise to make the change and when you say at some point everybody stopped getting pensions this that mean rank and file employees and so forth are just the group of four dogs  supplement the planned one a one was b b is not before the court but there was a group that was also has also had their pension shut down we don't know the terms and conditions of that supplemental pension be it's not relevant to under any other pensions other than these two supplemental plans yes there were there though shut down there was a regular other pension that was paid to mr self when he retired in one thousand and one but in two thousand and five where those shut down i do not know whether those there's no facts in the record to indicate whether those existed or did not exist at that time that even if we take what the district court said at page ten docket records three eighty four which gives many options as to what this nine point three of surf could have but he can only agree to what he is allowed to agree to he's not allowed to agree to modify nine point three of of the survey but he is allowed to settle release or waive but the those words don't appear in the one six agreement but there's only there's only four people that were affected by this right the plan only covered four people the survey survey at issue before this coverage for people ok and what happened to the other three there's nothing in the record to indicate what happened to the other three on  record ok there was no discovery in this case this was a summary just a motion of the court's aware and then the next your complaint you're asking for monthly retirement benefits under survey from  it was not properly terminated it wasn't properly terminated it still exists now granted you know in the two so does a six agreement though your client makes it pretty clear that he understands that this is in lieu of so he shouldn't be held to that no i don't think he makes and that agreement contains a very explicit statute of limitations he hasn't brought a claim and you know i mean until way pants there i'm not claiming so what he's done is he's now contesting an agreement under which he received been fits for a number of years no he's were company one and the four individuals on the other pursuant to that are they signatories to a contract that affects you why did that plant or is it just some i mean i had the notion that the replacement to the plane differed from the plane in that it was a clearly a contract signed by both individuals i thought that the original sarpa was more beneficiaries well ok but that means they're their intended their third party bitch fisheries or whatever but they're not their status difference under the to arrange sharp understood this and so with his payments and in december of two thousand and five he had choices he had options he understood his rights with competent counsel who advised him about his rights who reviewed the relevant documents and analyzed what he could have done his options alone or otherwise his counsel with him mr schempp negotiated with the company a new arrangement a new deal and what is most important the actions of mr sherman he accepted payments under the new deal in the exact same monthly amount four thousand five hundred fifty six dollars per month every single month from january two thousand and six or actually march of two thousand and six retroactive to january of two thousand and six forward for more than seven years without complaint i might add in fact the correspondence of the parties that's relevant to the time period here and was considered by the district court properly for the purpose of understanding what the parties intent was more clearly the district court noted that in a letter from mr shanks counsel which mr schempp himself provided to counsel for my client at the time for example january seventeenth two thousand and six the council refers to the document the two thousand and six agreement the new deal between the parties as quote a bilateral contract with the company what could be more clear than that a week later go ahead scuse me january twenty fourth two thousand and six mr shep's counsel context counsel for the company at the time this is all in the record referring to quote a proposed settlement arrangement that the parties would reach counsel points out that where there is not released language in the subsequent agreement what was the subsequent agreement if it were not as it says by its own words a modification of the original agreement what was it if it was not an intent by the parties as confirmed with the correspondence that i'm referencing that's in the record as the district court correctly pointed out a settlement of whatever it was that happened in december of two thousand and five when payments under the original plan stopped let's stop there a minute because if they sent the letter or whatever they notified them that they were terminating why did they enter into some new arrangement at had no obligation as discord pointed out to enter into the new agreement but perhaps the company at the time thought that mr sherman would bring an action and even an offer in compromise to avoid the uncertainty the expense and the lost opportunity cost for example associated with litigation the company for those reasons perhaps maybe others decided to enter into an agreement with mr schempp that the company really did have no obligation to enter into what it did that for him and pursuant to the terms of the second agreement for example which continued all the way through july of two thousand and fourteen the plaintiff appellant mr sheppard seized an additional nearly five hundred thousand dollars in payments under the original plan document but whether it's an agreement or otherwise the plaintiff appellant received post retirement in his supplemental executive retirement plan an additional million dollars on top of all of the benefits that he received pursuant to his ordinary regular retirement plan that i heard counsel referred to moments ago that until given here this morning i didn't even know mr schempp had been receiving so we're talking about a man who had ben the chief executive officer judge guy of blessed  corporation from nine hundred seventy seven until nine hundred ninety two and served with the company from one nine hundred fifty nine until his retirement until nine hundred ninety two millions of dollars in post separation  benefit payments and here we are asking the court apparently as i understand the answer from moments ago to receive double payments every single month from two thousand and six forward and then under the previous document payments from apparently two thousand and six until the end of his life even though he knew pursuant to an option that he selected in the original document that there was a different arrangement because under the original document the plaintiffs did not select the ability to appoint a beneficiary to receive whatever payments he might receive but under the second agreement the two thousand and six agreement and this is one of the three forms of consideration that the district court noted exists to support the subsequent agreement in two thousand and six mr champed the plaintiff appellant had the ability to appoint a beneficiary to receive any payments that he was not alive to receive if he were to pass away before receiving all one hundred three monthly payment benefits that he received which by the way were in the exact same amount as the monthly period benefits that he received under the original document what happened did they make the same arrangement they being the company with the other three people of my understanding that two of the other three people may have received a lump sum payment he did say something about a lump sum yes or and if you were still wondering i could no no no it's just curious how these things play out yes or and so again to return to the point here and i'm yellow now so i want to make this point again it's the actions and the words of mr sherman that confirm that the district court's ruling was exactly right for example in the january twenty fourth two thousand and six letter by email from counsel for mr shop at the law firm of tucker ellis in cleveland a fine law from i believe mr counsel notes that the two thousand and six agreement your honour's is a proposed settlement arrangement and by the way in that correspondence counsel for mr schempp indicates that he's going to be receiving counsel for the company that is the letter that mr spence counsel wrote to mr schempp which is also part of the record that's the january seventeenth two thousand and six letter that i mentioned moments ago finally on funerary thirty one two thousand  honour's the and this is what i found to be perhaps most striking counsel for mr shop refers to the two thousand and six agreement judge betcha little as a proposed settlement agreement in lieu of the current service plans what other conclusion could the parties have clearly intended with the two thousand and six agreement if it were not going to be as counsel for pla himself points out so clearly a proposed settlement agreement in lieu of the current survey plants serve excuse me the two thousand and six agreement as the district court noted the following shell construe the terms and conditions of this agreement it's in the very first introductory paragraph even above the word recitals this document clearly says quote it is the intent of the parties to this agreement a modification of the original plan the original plan is defined as survey mr schempp through council negotiated this two thousand and six agreement understood its terms understood that there was a value to him in receiving five hundred thousand dollars over the course of more than seven years under this document in lieu of pursuing his litigation rights if you were to have decided to pursue those on the last page of this document mr shipped and this is again evidencing that this is a bilateral modification a valid bilateral modification of the original plan document mr schempp himself signed this document in his own pen he writes next to his signature the date three eleven two thousand and six for more than seven years sieved every single payment on time in full in certified funds or otherwise that he immediately took to his financial institution presumably with out complaint even in june of two thousand and twelve this letter is also in the record in june of two thousand and twelve mr champagne self wrote to the company and he said in summary i'm wondering when my payments are going to end why didn't they have a twenty fourteen terminations date or something of that nature yes or did and maybe sort of waited right up to bumping into that date and then this all started that's exactly right your honor and so even as late as two thousand and twelve he knew that his payments would end four days later on june eighth two thousand and twelve the company wrote back in summary dear mr schempp your payments will end in july of two thousand and fourteen he received his last payment the supplemental additional payment under section four of the two thousand and six agreement in the amount of approximately forty thousand dollars in july of two thousand and fourteen he accepted that payment without complaint and here we are today my time is up i appreciate your time and your consideration we would ask that you please affirm the decision of the district court thank you thank you please the court if we're looking at this backwards we don't interpret a contract first by talking about how derived we look at the contract first we look at each contract in a vacuum we assess what that contract terms what they mean why if this was a settlement agreement doesn't it say it yes mr competent counsel maybe there's a reason why it doesn't say settlement agreement waiver or release in the two thousand and six agreement we have to as looking at this contract interpretation we assess it purely in a vacuum do we understand what it says do we know what it says do we know what it not says and this court i hope will find that the plain language of the two thousand six agreement cannot be backwards created into a solomon agreement it is easy to have done so and that wasn't the case the information that's been submitted with respect to settlement negotiations i've already argued is not admissible are supposed to be outside the scope of the evidence the course to consider the court went backwards the district court unfortunately looked to see that this was a settlement if it was a subtle meant it would have been easy to say that it was now judge batchelder you asked me does he get both the fact is the court in equity under arrest if i go to a three allows the district court to apply equity i'm not suggesting that if the facts demonstrate equity should apply that there might be some kind of a subtle i understand but i should also have the opportunity to prove what i've alleged which was this is a roups this was a set up designed to position the company for sale and then i have my countervailing equity argument to make to the district court and the district court can in equity determine what i'm asking this court to do is say look at the clear terms of circuit you didn't do it right well the reason why they did something that's and have anything to do with the effect of what they did i agree we should look specifically at the terms first and we go only go to extrinsic evidence if we can't understand what does that paragraph mean that uses the word modification it's a four hundred nine a provision i apologize i see that my time is up may i have leave to finish by the thought is that that provision relates to four on a complicated tax provision that relates to the taxability of benefits and it refers to the prior agreement in order to make sure the i r s understands this deferred compensation agreement that judge gibbons had reference is a different kind of agreement and she's correct is more like a pension so that the taxing authority should not tax them on the