alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
exh10-51_16709.htm


 



EXHIBIT 10.5.1









FIRST AMENDMENT TO EMPLOYMENT AGREEMENT


 


THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT is made and entered into as of the 22nd day of February, 2010 by and between NEXX Systems, Inc., a Delaware corporation (“NEXX” or the “Company”) and Stanley D. Piekos (“Officer”).


 


WHEREAS, NEXX and the Officer entered into an Employment Agreement dated as of June 29, 2006  (the “Original Agreement”); and


 


WHEREAS, the parties wish to amend the Original Agreement to provide for the vesting of  equity grants and restricted stock unit awards following certain termination events within one year following a  “Change of Control” (as defined in the Original Agreement; and


 


WHEREAS, the parties wish to amend the Original Agreement to providing for partial vesting upon a termination  without Cause (as defined in the “Original Agreement”);


 


NOW, THEREFORE, for good and valuable consideration, the sufficiency and receipt whereof are hereby acknowledged, the parties agree as follows:


 


1.   ACCELERATED VESTING FOLLOWING  A CHANGE OF CONTROL.  Notwithstanding anything else contained in the Original Agreement, any option grants, restricted stock, and/or restricted stock unit awards granted to the Officer shall not vest upon any Change of Control but instead shall vest 100% upon any termination of the Officer’s employment without Cause or termination by the Officer for Constructive Termination if such termination occurs within twelve (12) months following a Change of Control.   Constructive Termination shall be deemed to have occurred if, following a Change of Control (a) there is a material diminution in your duties and responsibilities (other than a change of title), (b) your office is relocated more than fifty (50) miles from your office location at the time of the Change of Control, or (c) there is a reduction in your salary or benefits.


 


2.   ACCELERATED VESTING.  Notwithstanding anything else contained in the Original Agreement, an additional 12.5% of any original restricted stock options, restricted stock and stock unit awards granted to the Officer shall vest if the Officer’s employment is terminated by the Corporation without Cause, except that in no event shall more than 100% of any original stock options, restricted stock and restricted stock units be deemed vested under the provisions of this Section 2.


 


3.   RATIFICATION OF ORIGINAL AGREEMENT.  Except as set forth herein, all other terms and conditions of the Original Agreement are hereby ratified and confirmed in all respects.


 


IN WITNESS WHEREOF, the parties have executed this First Amendment to Employment Agreement as of the date first written above.




 



	
OFFICER:


 


/s/ Stanley Piekos





	
NEXX SYSTEMS, INC.


 


By:  /s/ Thomas Walsh








Name: Thomas Walsh








Title:  Chief Executive Officer
Order entered April 11, 2019

In The

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-18-01072-CR

THOMAS PAUL GILBERT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 219th Judicial District Court

Collin County, Texas

Trial Court Cause No. 219-80015-2018

ORDER

Appellant’s brief was initially due January 27, 2019. Appellant subsequently filed two 

motions for extensions of time which we granted, making his brief due March 28, 2019. To date, 

appellant’s brief has not been filed, and appellant has had no communication with the Court 

regarding the brief or the appeal.

Therefore, we ORDER the trial court to conduct a hearing to determine why appellant’s 

brief has not been filed. In this regard, the trial court shall make appropriate findings and 

recommendations and determine whether appellant desires to prosecute this appeal or whether 

appellant has abandoned the appeal. See TEX. R. APP. P. 38.8(b). If the trial court cannot obtain 

appellant’s presence at the hearing, the trial court shall conduct the hearing in appellant’s 
absence. See Meza v. State, 742 S.W.2d 708 (Tex. App.–Corpus Christi 1987, no pet.) (per 

curiam). If appellant is indigent, the trial court is ORDERED to take such measures as may be 

necessary to assure effective representation, which may include appointment of new counsel.

We ORDER the trial court to transmit a record of the proceedings, which shall include 

written findings and recommendations, to this Court within THIRTY DAYS of the date of this 

order.

We DIRECT the Clerk to send copies of this order to the Honorable Jennifer Edgeworth, 

Presiding Judge, 219th Judicial District Court; Mitchell Nolte; and to the Collin County District 

Attorney.

This appeal is ABATED to allow the trial court to comply with the above order. The 

appeal shall be reinstated thirty days from the date of this order or when the findings are 

received, whichever is earlier.

/s/ LANA MYERS 

JUSTICE
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

Misc. No. 10-19

IN RE: STANDING PANEL ON ADMISSION AND DISCIPLINE

O R D E R

Pursuant to Rule 1(c) of the Court's Rules of Admission and Practice (Rules), the Court 

created a Standing Panel on Admission and Discipline (Standing Panel) to consider disciplinary 

cases coming before the Court. The Court's March 11, 2011 Resolution regarding the Standing 

Panel provides that on "[e]ach August 1, the longest serving member of the Standing Panel will be 

removed automatically from the Standing Panel with regard to any new cases assigned to the 

Standing Panel." It further provides that "the Clerk shall designate as the next member of the 

Standing Panel the regular active judge with highest precedence among judges who have not yet 

been designated as a member of the Standing Panel, or . . . the regular active judge with the longest 

period of time since last service as a regular member of the Standing Panel."

Judge Pietsch is currently the longest serving member, and Judge Meredith is the regular 

active judge with highest precedence among judges who have not yet been designated as a member 

of the Standing Panel. Accordingly, the current Standing Panel, comprised of Judges Pietsch, 

Bartley, and Allen will be reconstituted effective August 1, 2019, to comprise Judges Bartley, 

Allen, and Meredith.

Upon consideration of the foregoing, it is

ORDERED that, effective August 1, 2019, the Standing Panel consists of Judges Bartley, 

Allen, and Meredith.

DATED: July 24, 2019 FOR THE COURT:

/s/Gregory O. Block

GREGORY O. BLOCK

Clerk of the Court
| ·   | The      Quarterly Report of the Company on Form 10-Q for the quarterly period      ended March 31, 2009, as filed with the Securities and Exchange Commission      as of the date hereof (the “Report”), fully complies with the requirements      of Section 13(a) or 15(d) of the Securities Exchange Act of 1934;      and |
|--------------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

| ·   | The      information contained in the Report fairly presents, in all material      respects, the financial condition and results of operations of the      Company. |
|--------------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------|

| Date:  | May      15, 2009 | By:    | /s/ Mark J. Gabrielson                      |   |
|--------|-------------------|--------|---------------------------------------------|--------|
|   |              |   | Mark      J. Gabrielson                     |   |
|   |              |   | President,      Chief Executive Officer and |   |
|   |              |   | Principal      Financial Officer            |   |
<PAGE>
                                                                    Exhibit 99.1


                               VERTICALNET, INC.

                  CERTIFICATION BY THE CHIEF EXECUTIVE OFFICER
         RELATING TO A PERIODIC REPORT CONTAINING FINANCIAL STATEMENTS



         I, Kevin S. McKay, President and Chief Executive Officer of
Verticalnet, Inc., a Pennsylvania corporation (the "Company"), hereby certify
that:

         (1) The Company's periodic report on Form 10-Q for the period ended
June 30, 2002 (the "Form 10-Q") fully complies with the requirements of Section
13(a) of the Securities Exchange Act of 1934, as amended; and

         (2) The information contained in the Form 10-Q fairly presents, in all
material respects, the financial condition and results of operations of the
Company.


                                      * * *



/s/ Kevin S. McKay
-------------------------------------
Kevin S. McKay
President and Chief Executive Officer
Date: August 14, 2002
<PAGE>
                                                                    Exhibit 99.2


                        CERTIFICATION OF CFO 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 on Form 10-K of Alamosa Holdings, Inc. (the
"Company") for the fiscal year ended December 31, 2002, as filed with the
Securities and Exchange Commission on the date hereof (the "Report"), I, Kendall
Cowan, as Chief Financial Officer of the Company, 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:

      (3)  The Report fully complies with the requirements of Section 13(a) or
           15(d) of the Securities Exchange Act of 1934; and

      (4)  The information contained in the Report fairly presents, in all
           material respects, the financial condition and results of operations
           of the Company.





     /s/ Kendall Cowan
--------------------------------------
Name:    Kendall Cowan
Title:   Chief Financial Officer
Date:    March 28, 2003



This certification accompanies the Report pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002 and shall not, except to the extent required by the
Sarbanes-Oxley Act of 2002, be deemed filed by the Company for purposes of
Section 18 of the Securities Exchange Act of 1934, as amended.

A signed original of this written statement required by Section 906 has been
provided to Alamosa Holdings, Inc. and will be retained by Alamosa Holdings,
Inc. and furnished to the Securities and Exchange Commission or its staff upon
request.


                                       2
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#### The People of the State of New York, Respondent, v Edward Franklin, Appellant.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Heller, J.), rendered August 17, 1987, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s argument, we are of the view that the court did not improvidently exercise its discretion in ruling that the People could cross-examine him regarding the facts underlying two convictions which were of a similar nature to the instant charges, if he chose to testify at trial, since those prior crimes were probative of the defendant’s willingness to put his self-interest before that of society *(People v Thompson,*117 AD2d 637; *People v Williams,*108 AD2d 767). Mangano, J. P., Brown, Kunzeman and Kooper, JJ., concur.
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

MISC. NO. 09-18

IN RE COURT CLOSURE ON MONDAY, DECEMBER 24, 2018, AND MONDAY, DECEMBER 31, 2018.

O R D E R

By direction of the Chief Judge, the United States Court of Appeals for Veterans Claims 

will be closed on Monday, December 24, 2018, and Monday, December 31, 2018.

For purposes of computation and extension of time under the Court's Rules of Practice 

and Procedure, Monday, December, 24, 2018, and Monday, December 31, 2018, will be 

considered days when the Court is closed. See U.S. VET. APP. R. 26(a)(1).

DATED: November 5, 2018 FOR THE COURT:

/s/ Gregory O. Block

GREGORY O. BLOCK

Clerk of the Court
* 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

November 9, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 05-50648

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID SANCHEZ-MONTES, also known

as Daniel Gaytan-Montes,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:04-CR-2680-ALL

--------------------

Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges. 

PER CURIAM:*

Appealing the Judgment in a Criminal Case, David SanchezMontes raises arguments that are foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224, 235 (1998), which held that a

prior conviction is a sentencing factor under 8 U.S.C. 

§ 1326(b)(2) and not a separate criminal offense. The

Government’s motion for summary affirmance is GRANTED, and the

judgment of the district court is AFFIRMED.
#### Richard J. GLAIR, Plaintiff—Appellant, v. NATIONAL EVALUATION SERVICES, Erroneously Sued As National Evaluation Systems, Defendant—Appellee.

No. 09-56161.

United States Court of Appeals, Ninth Circuit.

Submitted March 8, 2011.*

Filed March 25, 2011.

Richard J. Glair, Los Angeles, CA, pro se.

Raymond J. Carey, Esquire, Foley & Lardner, LLP, Detroit, MI, Christopher Ward, Foley & Lardner, LLP, Chicago, IL, for Defendant-Appellee.

Before: FARRIS, LEAVY, and BYBEE, Circuit Judges.

*

 The panel unanimously concludes this case is suitable for decision without oral argument. *See*Fed. R.App. P. 34(a)(2).

MEMORANDUM **

Richard J. Glair appeals pro se from the district court’s summary judgment in his action alleging breach of contract, negligence, and constitutional claims, arising from Glair’s failure to pass the California Subject Examination of Teachers (“CSET”). We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s grant of summary judgment. *Olsen v. Idaho State Bd. of Med.,*363 F.3d 916, 922 (9th Cir.2004). We review for an abuse of discretion the denial of leave to amend. *Lipton v. Pathogenesis Corp.,*284 F.3d 1027, 1038 (9th Cir.2002). We affirm.

The district court properly granted summary judgment because Glair’s claims were barred by the limitation and waiver of liability provisions in the registration for the CSET. *See Armendariz v. Found. Health Psychcare Servs., Inc.,*24 Cal.4th 83, 99 Cal.Rptr.2d 745, 6 P.3d 669, 690 (2000) (contract provision is enforceable unless it is procedurally and substantively unconscionable); *Tunkl v. Regents of Univ. of Cal,*60 Cal.2d 92, 32 CaL.Rptr. 33, 383 P.2d 441, 445-46 (1963) (enumerating factors to determine whether an exculpatory provision is invalid because it involves the “public interest”).

The district court did not abuse its discretion in denying Glair’s motion for leave to file a first amended complaint. *See Lipton,*284 F.3d at 1039 (affirming denial of leave to amend where amendment would be futile).

Glair’s remaining contentions are unpersuasive.

*654We deny Glair’s motion to supplement the record.

AFFIRMED.

**

 This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
**EXHIBIT 23.1**

 

**INDEPENDENT AUDITORS’ CONSENT**

 

We consent to the incorporation by reference in Registration Statement No. 333-41567 on Form S-8, filed on December 5, 1997, RegistrationStatement No. 333-98051 on Form S-8, filed on August 14, 2002, and Registration Statement No. 333-112299 on Form S-3, filed on January 29, 2004, of Prolong International Corporation (the “Company”) of our report dated February 11, 2004,except for Note 3, as to which the date is April 7, 2004, which expresses an unqualified opinion and includes an explanatory paragraph regarding the Company’s restatement of its 2002 and 2001 consolidated financial statements, appearing in theAnnual Report on Form 10-K of Prolong International Corporation for the year ended December 31, 2003. 

 

/s/    HASKELL & WHITE LLP 

 

HASKELL & WHITE LLP 

 

Irvine, California 

April 13, 2004
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 05-4523

UNITED STATES OF AMERICA, Plaintiff - Appellee,
versus MICHAEL POINDEXTER, Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph Robert Goodwin, District Judge. (CR-04-12) Submitted: December 22, 2005 Decided: December 29, 2005 Before WIDENER, NIEMEYER, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. David Schles, Charleston, West Virginia, for Appellant. Charles T. Miller, Acting United States Attorney, John J. Frail, Assistant United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).- 2 - PER CURIAM: Michael Poindexter pled guilty to making an enclosure available for the distribution of cocaine base (crack) and cocaine, 21 U.S.C.A. § 856(a)(2) (West Supp. 2005), and was sentenced to a term of thirty-seven months imprisonment. Poindexter appeals his sentence. Relying on United States v. Booker , 543 U.S. 220 (2005), he asserts that his sentence was imposed in violation of the Ex Post Facto Clause and that the district court erred in finding by a preponderance of the evidence that an enhancement for possession of a weapon was applicable under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2004). He also contends that the 100:1 statutory sentencing ratio for cocaine and crack offenses violates the Equal Protection Clause and renders his sentence unreasonable. We affirm. We first find the Ex Post Facto claim to be without merit. SeeUnited States v. Jamison , 416 F.3d 538 (7th Cir. 2005); United States v. Lata , 415 F.3d 107 (1st Cir. 2005); United States v. Scroggins , 411 F.3d 572 (5th Cir. 2005); United States v. Duncan , 400 F.3d 1297, 1306-08 (11th Cir.), cert. denied , 126 S. Ct. 432 (2005). Poindexter’s argument that, post-Booker , the district court must make factual findings concerning the guideline calculation beyond a reasonable doubt is also without merit. See United States v. Dalton , 409 F.3d 1247, 1252 (10th Cir. 2005); United States v. Mares , 402 F.3d 511, 519 (5th Cir.), cert. denied,- 3 - 126 S. Ct. 43 (2005); McReynolds v. United States , 397 F.3d 479, 481 (7th Cir.), cert. denied , 125 S. Ct. 2559 (2005). Finally, and Poindexter concedes, we have rejected previous equal protection challenges to the sentencing ratio for crack and cocaine offenses. United States v. Fisher , 58 F.3d 96, 99 (4th Cir. 1995). The sentence in this case was imposed within a correctly calculated guideline range and was within the statutory range. We conclude that the sentence was reasonable. United States v. Hughes , 401 F.3d 540, 546-47 (4th Cir. 2005) (sentence imposed after Booker will be affirmed if it is within statutory range and is reasonable). We therefore affirm the sentence imposed by the district court. 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
(85 South. 379)

#### MILLER-BRENT LUMBER CO. v. THOMPSON.

(4 Div. 868.)

(Supreme Court of Alabama.

April 22, 1920.)

Railroads i&wkey;>44l(l) — Owner has burden or proving that defendant’s train killed cows.

In action for death of plaintiff’s cows by defendant’s train, the burden was on plaintiff to reasonably satisfy the jury- that the defendant’s train killed the cows.

Appeal from Circuit Court, Covington County; A. B. Foster, Judge.

Suit by N. A. Thompson against the Miller-Brent Lumber Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.

Affirmed.

Suit by appellee against appellant to recover damages for the death of certain cows alleged to have been negligently killed by the appellant’s train. From the judgment in favor of the plaintiff (appellee), this appeal is prosecuted.

E. O. Baldwin, of Andalusia, for-appellant.

The burden was on plaintiff to reasonably satisfy the jury that one of defendant’s trains killed the cow, and under the evidence in this case the defendant should have had the affirmative charge. 80 South. 880; 197. Ala. 454, 73 South. 14.

A. R. Powell, of Andalusia, for appellee.

Counsel discusses assignments of error, but without citation of authority.

GARDNER, J.

The burden was of course upon the plaintiff to reasonably satisfy the jury that one of the defendant’s trains killed the cows, and to this effect they were clearly charged by the trial judge.

Counsel for appellant strenuously insists that the evidence to this effect was insufficient, and asked the affirmative charge upon -this theory. Counsel also urges that the evidence was particularly insufficient as to one of the cows, designated as the “old cow,” which was found some 60 steps from the track, and a separate affirmative charge was ■asked as to this particular cow. In support of this insistence we are cited to the recent case of Central of Ga. R. Co. v. Williams, 202 Ala. 496, 80 South. 880. The facts of the two cases are different, and the Williams Case cannot be looked to as a guide here,

A discussion of the testimony will sefve no useful purpose. Suffice it to say that we have examined the evidence and its tendencies with much care in consultation and have reached the conclusion that it was sufficient for submission to the jury upon this issue, and that these two charges were properly refused.

Charge 2 requested by the defendant was also properly refused, and needs no discussion. The rule here governing in reference to reviewing the action of the trial court in refusing to grant a new trial is well understood and need not be h.ere repeated. In the light of this rule we are unwilling to disturb the ruling of the court below.

One or two questions of evidence are assigned as error. These questions have been given careful consideration, but we do not consider that they are of sufficient importance to require separate treatment here and are given but scant attention in brief. They clearly disclose no reversible error.

Finding no reversible error in the record, the judgment will accordingly be affirmed.

Affirmed.

ANDERSON, C. J., and McOLELLAN and SAYRE, JJ., concur.