alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
**Exhibit 10.40**

AMENDMENT 1 

TO 

LETTER AGREEMENT 

This Amendment (the“Amendment”) to the Letter Agreement entered into on January 14, 2007 by and between AmerisourceBergen Corporation (“AmerisourceBergen”), Kindred Healthcare, Inc. (“Kindred”), PharMerica Corporation, formerly knownas Safari Holding Corporation (the “Company”) and Gregory S. Weishar (hereinafter referred to as “you” or “your”). This Amendment shall amend the Letter Agreement and shall be effective on the 13th day of November, 2007. 

***WHEREAS***, You and the Company have agreed to modify the terms of the Letter Agreement with regard to the integration bonuses; and 

***WHEREAS***, Following the Closing, the Transfer Date occurred and all rights and obligations under the Letter Agreement previously owed by Kindred and AmerisourceBergen transferred to the Company; and

***NOW THEREFORE*****,** in consideration of the premises, and of the mutual covenants and agreements herein contained, theparties agree as follows: 

1. Delete Section 6 of the Letter Agreement in its entirety and replace it with the following new Section 6:

6. *Integration Bonus*. In addition, to the bonuses set forth in Sections 4 and 5 of this Letter Agreement, you will be entitled toreceive two special integration bonuses with respect to the performance of the Company for two specified periods after the Closing, subject to the following terms and conditions: If the Company achieves a $30 million synergy target during the Termand on or before the 18 month anniversary of the Closing, as determined by the Board, or the Committee, in its reasonable discretion, you will receive a one-time cash bonus of $500,000, to be paid (subject to deferral at your election as provided inSection 9(c)) as soon as reasonably practicable following the date that such synergy target is achieved. If the Company achieves a synergy target of $45 million or more during the Term and on or before the 24 month anniversary of the Closing,as determined by the Board, or the Committee, in its reasonable discretion, you will receive a separate bonus of $500,000, to be paid (subject to deferral, at your election, as provided under Section 9(c) below) as soon as reasonablypracticable after the date that such synergy target is achieved. 

2. All terms and conditions of the Letter Agreement which are inconsistent with theprovisions of this Amendment shall be replaced by this Amendment. 

6. All terms and conditions of the Letter Agreement which are not inconsistent with theprovisions of this Amendment shall remain in full force and effect. 

**In Witness Whereof,**the parties hereto have caused this Amendment to be executed on the date hereinabove writtenby their respective officers or representatives duly authorized so to do. 

 
PHARMERICA CORPORATIONBy: 
/s/ Michael J. Culotta
Name: Michael J. CulottaTitle: Executive Vice President and Chief Financial Officer
 
GREGORY S. WEISHAR
/s/ Gregory S. Weishar
663 A.2d 1353

#### W.S. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES AND MIDDLESEX COUNTY BOARD OF SOCIAL SERVICES.

June 21, 1995.

Certification is granted and summarily remanded to the Appellate Division for reconsideration in light of *L.M. v. State of New Jersey, Division of Medical Assistance and Health Services, et al.,*140 N.J. 480, 659 A.2d 450 (1995).
#### Irving GOTTLIEB et al. and all other former stockholders of World Wide Bowling Enterprises, Inc. who care to join v. SANDIA AMERICAN CORPORATION (formerly known as Sandia American Development Corporation) and Sigmund Goldblatt et al., individually and as the officers and directors of Sandia American Corporation (formerly known as Sandia American Development Corporation), and Nathan Wechsler, individually and as agent for Sandia American Corporation (formerly known as Sandia American Development Corporation).

Civ. A. No. 33924.

United States District Court E. D. Pennsylvania.

May 22, 1964.

*224Forman & Rosenberg, Philadelphia, Pa., for plaintiff.

Albert G. Aaron, Baltimore, Md., Pace Reich, of Modell, Pincus, Hahn & Reich, Philadelphia, Pa., for defendants.

BODY, District Judge.

This case, currently before the Court •on defendants’ motion for a more definite .statement under Rule 9(b) of the Federal Rules of Civil Procedure, involves a suit by the plaintiffs, all former shareholders of World Wide Bowling Enterprises, Inc. against Sandia American Corporation, a New Mexico corporation, .and the aforestated individual defendants. The complaint is founded on certain provisions of the Securities Act of 1933 and the Securities Exchange Act of 1934. Plaintiffs allege that the defendants employed acts, practices or courses •of conduct which operated as a fraud upon them thereby inducing the plaintiffs to exchange their stock for the stock of the defendants’ corporation. They seek, among other relief, the re-transfer of shares of stock and debentures of World Wide and an accounting.

Defendants contend the fraud and the allegations with regard to the fraud are not so specifically pleaded so as to designate which parties practiced, committed or participated in the fraudulent conspiracy.

Rule 9(b) provides as follows:

> “ * * * In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.”

The rule does not require that the allegations state all the evidence of fraud but requires merely that plaintiffs set forth facts with sufficient particularity to apprise defendants of charges against them. Union Mutual Life Insurance Company v. Simon, D.C.Pa., 22 F.R.D. 186.

The authorities evince that the elements of fraud which must be pleaded with sufficient particularity are:

> (1) A false representation of a material fact;

> (2) Knowledge of its falsity by the person making it;

> (3) Ignorance of its falsity by the person to whom it is made;

> (4) The intent that it should be acted upon;

> (5) That it was acted upon by. plaintiff to his damage.

See la Barron and Holtzoff, Federal Practice and Procedure, § 302, p. 216 (1960).

In my opinion plaintiffs have pleaded the averments of fraud with sufficient particularity and the defendants are able to prepare an adequate answer from these allegations. Furthermore, defendants may utilize the procedure of discovery to assist them in their defense, should they desire.

Therefore, the motion will be denied.
ARC RCA 6.30.2015 EX 4.3


Exhibit 4.3


SECOND AMENDMENT
TO
SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
AMERICAN REALTY CAPITAL RETAIL OPERATING PARTNERSHIP, L.P.


This SECOND AMENDMENT TO SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF AMERICAN REALTY CAPITAL RETAIL OPERATING PARTNERSHIP, L.P. (this “Amendment”), is made as of June 30, 2015 by American Realty Capital - Retail Centers of America, Inc., a Maryland corporation, in its capacity as the general partner (the “General Partner”) of American Realty Capital Retail Operating Partnership, L.P., a Delaware limited partnership (the “Partnership”).  Capitalized terms used but not otherwise defined in this Amendment shall have the meanings given to such terms in the Second Amended and Restated Agreement of Limited Partnership of the Partnership, dated as of October 24, 2014, as amended (the “Partnership Agreement”).
RECITALS:
WHEREAS, the General Partner desires to amend the Partnership Agreement to amend Section 16.1(a) of the Partnership Agreement relating to the issuance of the Class B Units; and
WHEREAS, pursuant to Section 14.1(a) of the Partnership Agreement, the General Partner has the power to amend Section 16.1(a) of the Partnership Agreement without the consent of the Limited Partners or the Special Limited Partner.
NOW THEREFORE, in consideration of the premises made hereunder, and for 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:
		
	1.
	Effective as of April 1, 2015, Section 16.1(a) of the Partnership Agreement is hereby deleted in its entirety and the following new Section 16.1(a) is substituted in its place:




“16.1    Designation and Number
(a)  A series of Partnership Units in the Partnership, designated as the “Class B Units,” is hereby established.  Except as set forth in this Article 16, Class B Units shall have the same rights, privileges and preferences as the OP Units.  Subject to the provisions of this Article 16 and the special provisions of subparagraph 1(c)(ii) of Exhibit B, Class B Units shall be treated as Partnership Units, with all of the rights, privileges and obligations attendant thereto.”




[SIGNATURE PAGE FOLLOWS]









IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have duly executed this Agreement as of the date and year first aforesaid.


GENERAL PARTNER:


AMERICAN REALTY CAPITAL - RETAIL CENTERS OF AMERICA, INC.




By:     _/s/ William M. Kahane________
Name:    William M. Kahane
Title:     Chief Executive Officer and President
#### Waymon Mickiangelo BERRY, III, Petitioner-Appellant, v. Michael A. KNOWLES, Warden; et al., Respondents-Appellees.

No. 05-16198.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 16, 2006.*

Filed Oct. 18, 2006.

*137Waymon Miekiangelo Berry, III, Sole-dad, CA, pro se.

Pamela B. Hooley, Esq., Office of the California Attorney General, Sacramento, CA, for Respondents-Appellees.

Before: T.G. NELSON, W. FLETCHER and RAWLINSON, Circuit Judges.

*

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

MEMORANDUM **

California state prisoner Waymon Mick-iangelo Berry, III appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Berry contends that his right to due process was violated by the exclusion of certain witnesses at his prison disciplinary hearing. Because the prison officials provided adequate justification for the exclusion of those witnesses, we conclude that his right to due process was not violated. *See Bostic v. Carlson,*884 F.2d 1267, 1273 (9th Cir.1989).

Berry contends that the statute he was convicted of, California Code of Regulations, Title 15, section 3004, is overbroad, abused, and absurd. We conclude that the section reasonably put Berry on notice that the comments he made regarding the racial background and appearance of a correctional officer were prohibited. *See Kolender v. Lawson,*461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). Furthermore, there was some evidence to support the findings of the disciplinary hearing. *See Superintendent v. Hill,*472 U.S. 445, 455-56, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985).

AFFIRMED.

**

 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
#### Paul Kuhne, Appellant, v Cohen & Slamowitz, LLP, et al., Respondents.

Decided September 22, 2009

*See*579 F3d 189.

Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

Concur: Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones. Taking no part: Judge Smith.
<TABLE> <S> <C>


<ARTICLE>                     5
       
<S>                             <C>
<PERIOD-TYPE>                   9-MOS
<FISCAL-YEAR-END>                              DEC-31-1996
<PERIOD-END>                                   SEP-30-1996
<CASH>                                           257,926
<SECURITIES>                                        0
<RECEIVABLES>                                  1,273,359
<ALLOWANCES>                                     100,000
<INVENTORY>                                         0
<CURRENT-ASSETS>                               1,555,707
<PP&E>                                           439,991
<DEPRECIATION>                                   173,957
<TOTAL-ASSETS>                                 2,586,224
<CURRENT-LIABILITIES>                          1,374,887
<BONDS>                                             0
<PREFERRED-MANDATORY>                               0
<PREFERRED>                                         0
<COMMON>                                         190,002
<OTHER-SE>                                       754,850
<TOTAL-LIABILITY-AND-EQUITY>                   2,586,224
<SALES>                                        6,479,412
<TOTAL-REVENUES>                               6,479,412
<CGS>                                          4,079,105
<TOTAL-COSTS>                                  4,079,105
<OTHER-EXPENSES>                               2,399,381
<LOSS-PROVISION>                                    0
<INTEREST-EXPENSE>                                 3,721
<INCOME-PRETAX>                                   (2,795)
<INCOME-TAX>                                      10,000
<INCOME-CONTINUING>                              (11,079)
<DISCONTINUED>                                      0
<EXTRAORDINARY>                                     0
<CHANGES>                                           0
<NET-INCOME>                                     (11,079)
<EPS-PRIMARY>                                      (.001)
<EPS-DILUTED>                                      (.001)
        


</TABLE>
#### In the Matter of: SUN TOOL COMPANY, Debtor. Estate of Sun Tool Company Inc, by and through Joseph M. Hill, Trustee for the Estate of Sun Tool Company, Debtor, Appellant v. Stephen L. Baker; Ross, Banks, May, Cron & Cavin; Estate of Khoi Truong; Hoa Truong, Individually, Appellees.

No. 07-20456.

United States Court of Appeals, Fifth Circuit.

May 9, 2008.

Wayne H. Paris, Wayne H. Paris *&*Associates, Houston, TX, for Appellant.

*521Edward J. Murphy, Beirne, Maynard & Parsons, Gregg Sandler Weinberg, Lyman, Twining, Weinberg *&*Ferrell P.C., Stephen L. Baker, Oppel, Goldberg & Saenz, John H. Risley, John H. Risley, Attorney, P.C., Houston, TX, for Appellees.

Before KING, WIENER, and ELROD, Circuit Judges.

PER CURIAM: *

We have carefully reviewed the briefs and the record, and we have had the benefit of oral argument. We have concluded that the record establishes that attorney Stephen L. Baker made it clear, both before the meeting of June 1, 2003, and during the meeting, that he represented Hoa Truong. Sun Tool Company, Inc. could not have justifiably relied on statements made by Baker during the meeting because the record further establishes that an adversarial relationship existed between Baker and Sun Tool, and that Sun Tool did not believe the alleged representations of Baker and could not justifiably have relied on those statements. Further, lacking any evidence, expert testimony or otherwise, supporting the essential elements on Sun Tool’s breach of fiduciary duty claim, the district court correctly held that Baker did not breach any fiduciary duty to Sun Tool after the June 1, 2003 meeting.

The district court’s Order Adopting Memorandum, Recommendation and Order entered June 8, 2006 is AFFIRMED for essentially the reasons set forth therein; the district court’s Order Adopting Magistrate Judge’s Memorandum, Recommendation, and Order entered February 26, 2007 is AFFIRMED for essentially the reasons set forth therein; and the district court’s Order of Dismissal entered April 9, 2007 is AFFIRMED.

AFFIRMED. Costs shall be borne by Appellants.

*

 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.
<TABLE> <S> <C>

<ARTICLE> 5
<MULTIPLIER> 1
<CURRENCY> U.S. DOLLARS
       
<S>                             <C>
<PERIOD-TYPE>                   3-MOS
<FISCAL-YEAR-END>                          DEC-31-1997
<PERIOD-START>                             JAN-01-1997
<PERIOD-END>                               MAR-31-1997
<EXCHANGE-RATE>                                      1
<CASH>                                          71,935
<SECURITIES>                                   496,390
<RECEIVABLES>                                        0
<ALLOWANCES>                                         0
<INVENTORY>                                          0
<CURRENT-ASSETS>                               568,805
<PP&E>                                               0
<DEPRECIATION>                                       0
<TOTAL-ASSETS>                                 741,555
<CURRENT-LIABILITIES>                           13,000
<BONDS>                                              0
<PREFERRED-MANDATORY>                                0
<PREFERRED>                                    109,356
<COMMON>                                         4,851
<OTHER-SE>                                   (114,519)
<TOTAL-LIABILITY-AND-EQUITY>                   741,555
<SALES>                                              0
<TOTAL-REVENUES>                                     0
<CGS>                                                0
<TOTAL-COSTS>                                        0
<OTHER-EXPENSES>                                 5,147
<LOSS-PROVISION>                                     0
<INTEREST-EXPENSE>                                   0
<INCOME-PRETAX>                              (158,847)
<INCOME-TAX>                                         0
<INCOME-CONTINUING>                          (158,847)
<DISCONTINUED>                                       0
<EXTRAORDINARY>                                 42,445
<CHANGES>                                            0
<NET-INCOME>                                 (201,292)
<EPS-PRIMARY>                                    (.02)
<EPS-DILUTED>                                    (.02)
        

</TABLE>
<PAGE>

                                    FORM 6-K

                       SECURITIES AND EXCHANGE COMMISSION
                             WASHINGTON, D.C. 20549

                        REPORT OF FOREIGN PRIVATE ISSUER

                        PURSUANT TO RULE 13A-16 OR 15D-16
                     OF THE SECURITIES EXCHANGE ACT OF 1934

                           For the month of April 2004

                        Commission File Number 333-101591

                          GERDAU AMERISTEEL CORPORATION

                              5100 W. Lemon Street
                                   Suite 3100
                                 Tampa, Florida
                                      33609

Indicate by check mark whether the registrant files or will file annual reports
under cover Form 20-F or Form 40-F.

                          Form 20-F [ ]    Form 40-F  [X]

Indicate by check mark if the registrant is submitting the Form 6-K in paper as
permitted by Regulation S-T Rule 101(b)(1): [ ]

Indicate by check mark if the registrant is submitting the Form 6-K in paper as
permitted by Regulation S-T Rule 101(b)(7): [ ]

Indicate by check mark whether by furnishing the information contained in this
Form, the registrant is also thereby furnishing the information to the
Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.

                                Yes [ ]     No [X]

       If "Yes" is marked, indicate below the file number assigned to the
            registrant in connection with Rule 12g3-2(b): 82-________


<PAGE>



                                  EXHIBIT LIST

<Table>
<Caption>
     Exhibit        Description
     -------        -----------
<S>                 <C>
       99.1         Press Release, dated April 28, 2004
</Table>



<PAGE>
                                   SIGNATURES

         Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.

Date: April 28, 2004

                                       GERDAU AMERISTEEL CORPORATION


                                       By:    /s/ Tom J. Landa
                                           -------------------------------------
                                       Name:  Tom J. Landa
                                       Title: Vice-President, Chief Financial
                                              Officer and Secretary
Exhibit 32.2




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 Targa Resources, Inc.
(the “Company”) for the year ended December 31, 2008 as filed with the
Securities and Exchange Commission on the date hereof (the “Report”), Jeffrey J.
McParland, as Chief Financial Officer of Targa Resources, Inc., hereby
certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002, that, to his
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.




Date:
February 26, 2009




By:
            
            /s/    JEFFREY J. MCPARLANDName:
            
            Jeffrey
      J. McParlandTitle:
            
            Executive
      Vice President and Chief Financial
Officer




A signed
original of this written statement required by Section 906, or other
document authenticating, acknowledging, or otherwise adopting the signature that
appears in typed form within the electronic version of this written statement
required by Section 906, has been provided to the Company and will be
retained by the Company and furnished to the Securities and Exchange Commission
or its staff upon request.