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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION THAYER LAND DEVELOPMENT COMPANY, L.L.C., Plaintiff, vs. PEA RIDGE MINING, LLC, Defendants. ) ) ) ) ) ) ) ) ) )

Case No. 4:11-cv-01317-RWS Jury Trial Demanded

SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF COMES NOW Plaintiff Thayer Land Development Company, L.L.C. (Thayer), and for its Second Amended Complaint against Defendant Pea Ridge Mining, LLC (PRM), states the following. 1. Thayer brought this lawsuit seeking damages caused by the actions of Ahti

Vilppula, using his alter ego entity PRM, attempting to convert Thayers bargained-for opportunity to share in the potentially vast profits resulting from Thayers investment of time and resources to reopen a Missouri mine that is replete with scarce resources used in sensitive military applications and critical commercial, high technology, and environmentally beneficial products. In addition, the mine has the potential to produce iron ore and pig iron, an ore that is of such mineral purity that it allows for the domestic production of profitable high-grade steel within the geographic proximity of a cost-effective shipping source (e.g., the Mississippi River), thereby creating the realistic expectation of restoring the American steel industry. 2. PRM has intentionally and knowingly attempted to interfere with Thayers

contractual relationship with Upland Wings, Inc. (Upland), Wings Enterprises, Inc. (Wings), James Kennedy, and Nina Abboud (Upland, Wings, Kennedy, and Abboud are referenced

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collectively as the Kennedy Group). PRM has induced, assisted, and encouraged the Kennedy Group to breach their fiduciary duties. All of this conduct has caused significant damages to Thayer and threatensif PRM does not immediately abate its conduct and cease carrying out its loan to own planto cause significant additional damages to Thayer now and in the future. 3. After filings its First Amended Complaint, Plaintiff asked the Court to enter a

preliminary injunction preventing PRM from continuing its tortious behavior which has induced the Kennedy Group to breach its contract with Thayer and from continuing to induce the Kennedy Group to violate fiduciary duties. After the First Amended Complaint was filed, the Honorable Judge Shawn McCarver, a state court judge in Washington County, Missouri entered a preliminary injunction at 3:08 A.M. on September 1, 2011, which he expanded and amended at 3:30 P.M. the same day. Judge McCarvers injunction held, among other things, that there was a binding and enforceable contract between Thayer and the Kennedy Group; that it is undisputed that Defendants secretly negotiated and entered into transactions with PRM; that the Kennedy Groups transactions with PRM damaged Thayer; that the Kennedy Group, and most notably Kennedy and Abboud, violated fiduciary duties by entering into the deal with PRM; that the Kennedy Groups deal with PRM violates the contract they had with Thayer; that the Kennedy Groups deal with PRM was the product of collusion and was intended to cut Thayer out of the deal; and that PRM was no innocent bystander, but rather was fully aware of the contract when the deal was entered. Judge McCarver specifically ordered that PRM and Vilppula were bound by his injunction under Missouri Rule 92.02(e) as they were acting in concert with the Kennedy Group. 4. Because Judge McCarver has enjoined PRM and Vilppula, Thayer now files this

Second Amended Complaint seeking damages caused by PRMs conduct and seeking final

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equitable relief permanently invalidating the fraudulent transactions purportedly entered by PRM relating to the mine. The Mine 5. This case involves Thayers contract and rights relating to a mine located in

Washington and Crawford counties. 6. 7. 8. The mine was an iron ore mine during the twentieth century, but closed in 2001. The mine contains substantial quantities of iron ore and rare earth elements. Rare earth elements are rarely found in concentrated and economically exploitable

forms. Rare earth elements are particularly scarce outside China. China produces 129,000 of the 132,000 metric tons produced in the world. A report by the federal government released in March 2011 expressed concern about foreign control over the rare earth elements industry, explaining that Chinas dominant position as the producer of over 95 percent of the world output of rare-earth minerals and rapid increases in the consumption of rare earths owing to the emergence of new clean energy and defense-related technologies, combined with Chinas decisions to restrict exports of rare earths, have resulted in heightened concerns about the future availability of rare earths. (Exhibit 1 - Pui-Kwan Tse, Chinas Rare Earth Industry, USGS Open-File Report 2011-1042, pg. 1, available at http://pubs.usgs.gov/of/2011/1042/of20111042.pdf (the China Report).) 9. The China Report also explained the various uses of rare earth elements: Rare

earths are used widely in high-technology and clean-energy products because they impart special properties of magnetism, luminescence, and strength. Rare earths are also used in weapon systems to obtain the same properties. Id. at 1. 10. The discovery of a cache of rare earth elements in the United States is not only

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financially lucrative for those who owned the minelike the Kennedy Group and Thayerbut also plays a critical role in protecting Americans national security and economic future. The Kennedy Group/Thayer Relationship 11. In 2001, the mine was purchased by Kennedy and his wife Abboud, through

corporate entities including Upland and Wings. 12. After years of no mining-related activity, the Kennedy Group contracted with

Alberici Constructors, Inc. (collectively with the Alberici Group, Inc., Alberici) for Alberici to perform construction, reclamation, remediation, and redevelopment work necessary to reopen the mine. Alberici performed services worth more than $7 million. 13. The Kennedy Group was unable to pay Alberici for its work. Rather than sue for

unpaid services, Alberici agreed to become partners in the mine and to obtain an equity interest in the mine. This agreement was memorialized between Alberici and the Kennedy Group in June 2010 (the Joint Development Agreement). A copy of the Joint Development Agreement is attached as Exhibit 2. Among other things, the Joint Development Agreement, as agreed to by the parties, provided that: a. Alberici and the Kennedy Group would be partners and joint venturers and would jointly share control and management of the effort to reopen the mine; b. Alberici and the Kennedy Group would jointly develop and manage the mine through a corporate entity run by a board of three directorsone appointed by Alberici, one by the Kennedy Group, and one jointly designated by Alberici and the Kennedy Group; c. The three-member board would be empowered to review all potential

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investment offers; d. The three-member board would require unanimous and legitimate approval of all game-changing decisions, including creating new debt, admitting a new suitable partner/investor, the sale of a members interest, and the filing of a voluntary bankruptcy; e. Alberici would provide additional financial assistance directly to the Kennedy Group; f. Alberici would continue to provide services, including construction services, related to the reopening and operation of the mine; g. Alberici would manage all business operations and would have financial control of the entity that ran the mine; h. Alberici would have the right to obtain substantial equity interests in the mine, including a right to redeem its investments for a significant equity stake in the owner of the mine determined by a formula outlined in the agreement; i. Alberici would receive a success fee in the form of equity in the owner of the mine. 14. The Kennedy Group accepted the contract and acknowledged the fiduciary nature

of its relationship with Alberici in an email message signed by Jim and Nina to Bob Niemeier, Albericis Director of Business Development, noting that the Kennedy Group and Alberici share[] . . . long-term objectives in developing the project, and have a common goal of working cooperatively together to develop the mine. The Kennedy Groups email also confirmed that the 3-member board of directors would require unanimous approval . . . for any

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game-changing decisions that might adversely impact the interests of [the Kennedy Group] or Alberici in moving forward. The email is attached as Exhibit 3. 15. The Kennedy Groups attorneys at Husch Blackwell LLP (Husch) also

confirmed to Trevor Ladner, Albericis General Counsel, that the Kennedy Group would be bound by the Joint Development Agreement and that Alberici would have a veto power over all game-changing decisions. Husch attorney Jeffrey D. Sigmund left Ladner a voicemail message confirming that the Kennedy Group agreed that Alberici would be able to veto creating new debt, admitting a new partner, a new investor, the sale of a members interest, and specifically . . . the filing of a voluntary bankruptcy . . . . A copy of Sigmunds affidavit with a transcript of his voicemail is attached as Exhibit 4. 16. Alberici performed its obligations under the Joint Development Agreement,

including funding over $9 million of loans to the Kennedy Group and investment of substantial work in the effort to reopen the mine, including performing all EPA-required remediation. All told, Alberici has invested approximately $20 million in services, loans, and other investments in the mine, together with unquantifiable time and expertise. 17. The Kennedy Group failed to perform even the most basic of its obligations under

the Joint Development Agreement, despite receiving Albericis substantial financial assistance and technical expertise. 18. As a result of the Kennedy Groups breaches of the Joint Development

Agreement, Alberici instituted litigation against the Kennedy Group in Washington County, Jefferson County, and Crawford County. Alberici Constructors, Inc. v. Wings Enterprises, Inc., Case No. 11WA-CC00141 (Washington County, Missouri); Alberici Constructors, Inc. v. Wings Enterprises, Inc., Case No. 10WA-MC00295 (Washington County, Missouri); Alberici

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Constructors, Inc. v. Wings Enterprises, Inc., Case No. 11WA-CC00141 (Washington County, Missouri); Alberici Constructors, Inc. v. Wings Enterprises, Case No. 11JE-ML00012 (Jefferson County, Missouri); Alberici Constructors, Inc. v. Wings Enterprises, Case No. 10CF-ML00003 (Crawford County, Missouri); Alberici Constructors, Inc. v. Wings Enterprises, Case No. 11CFCC00011 (Crawford County, Missouri). 19. As the Washington County litigation proceeded, Alberici decided to enter an

agreement to share its financial and other risks related to the mine by entering a joint venture Thayerwith TTT Acquisition Corp., a Nevada company (TTT). Alberici transferred assets, liabilities, and other operations relating to the mine into Thayer. Accordingly, Albericis rights referenced above are now Thayers. Albericis agreement with TTT, and its decision to transfer its interests to Thayer complied with the Joint Development Agreement, were disclosed to the Kennedy Group, and were approved by the Washington County court. For the limited purpose of allowing the transfer of Albericis interests to Thayer Alberici and the Kennedy Group agreed to lift the injunction, at least temporarily. The Vilppula/PRM Plan to Convert Thayers Rights 20. In the Washington County litigation, the Court entered a preliminary injunction in

February 2011 (the February Injunction), limiting the parties abilities to transfer interests in the mine to third parties. The injunction provided that the Kennedy Group could not enter into any letter of intent, memorandum of understanding, summary of understanding, contract or any other agreement by any name, designation or description related to the subject matter of the Washington County litigation. A copy of the Preliminary Injunction Order and Modified Order are attached as Exhibit 5. 21. While the February Injunction was in place, the Kennedy Group was holding

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secret negotiations with Vilppula regarding Vilppulas plans to join with the Kennedy Group to force Alberici (and, therefore, Thayer) out of the effort to reopen the mine. These negotiations were conducted without the knowledge of Alberici, TTT, or Thayer. The Kennedy Group never disclosed any such entreaties or conversations to Alberici or Thayer. The Kennedy Group deliberately evaded providing timely, full, and complete responses to discovery propounded by Thayer in the Washington County litigation. 22. As soon as the February Injunction was lifted for the limited purpose of allowing

Alberici to transfer its interests into Thayer, the Kennedy Group immediately transferred interests in the mine to PRM, a Vilppula-controlled entity which Vilppula created for the purpose of carrying out his plan. 23. As noted above, Thayer had the right under the Joint Development Agreement to

review and approve new investors in the mine, a right whichnecessarily and customarily, under well-established business and common sense practicesincludes performing meaningful due diligence that investigates a prospective investors financial wherewithal, integrity, character, reputation, current and past business associations and transactions, business experience and acumen, the identity and reputations of current and past business associates, relevant mining experience, and the respect that the investment markets and other potential investors would have for the prospective investor. This due diligence would include reviewing information circulated in the public domain, news reports, and information available on the internet. In discharging their fiduciary duties, the board members of the entity reviewing potential investors should have fully examined and investigated in abundant detail the proposed investor before entering into any transaction with him, and should have sought in-depth explanations and answers to information that even marginally appeared unusual, troubling, or of

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concern, even if it later was shown to be inaccurate, in whole or in part, or even dubious. For a project of the importance, scope, and value of this mine, the right to review and approve is vital. A poor or even marginally suspect decision could realistically and reasonably harm and impair the project and the ability to attract additional investors. 24. In the discharge of their fiduciary duties, the Kennedy Group should have

conducted a rigorous and thorough investigation of Vilppula, examining in depth his financial wherewithal, integrity, character, reputation, current and past business transactions, the identity of current and past business associates, his acumen, his mining experience, and the respect that the investment markets and other potential investors would have for him, both as a business man and as a person of integrity. If they had done so, they would have learned of the existence of

abundant information available in the public domain that would have likely put on notice any reasonably prudent board of directorsproperly and genuinely exercising its fiduciary duties in the best interest of Wings and Upland and not their own personal interestsregarding meaningful and relevant negative reports about Vilppula and others with whom he has associated in the past, that rightfully and reasonably created material doubt as to his fitness and suitability as a credible investor in the mine. Some of those reports are attached hereto collectively as Exhibit 6. The Kennedy Groups failure to genuinely conduct due diligence and their failure to reject Vilppula as a potential investor are further breaches of their fiduciary duties that were encouraged, incited, and ratified by Vilppula and PRM; PRMs incitement and encouragement of the Kennedy Group to not conduct due diligence and to not reject Vilppula is all the more evidence of PRMs tortious interference with the Joint Development Agreement. 25. As part of these transactions and in furtherance of Vilppulas plan, the Kennedy

Group purportedly entered a number of game-changing agreements with PRM, including a

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July 1, 2011 Term Sheet (Exhibit 7), the Note and Security Agreement (Exhibit 8), the Option to Purchase Stock Agreement (Exhibit 9), the Escrow Agreement (Exhibit 10), the Irrevocable Durable Proxy Wings Enterprises, Inc. (Exhibit 11), the Irrevocable Durable Proxy Upland Wings, Inc. (Exhibit 12), a Collateral Assignment of Lease (Exhibit 13); and a Deed of Trust (Exhibit 14). The copies attached as exhibits were admitted into evidence at a public hearing in the Washington County litigation, hearings attended by members of the public and by the media. 26. The Kennedy Group/PRM deal including the following transactions pursuant to

which, because it had actual and constructive notice of Thayers rights in the mine, resulted in PRM not being a bona fide purchaser: a. The Kennedy Group purported to sell PRM an option to purchase 70% of the equity in the mine for $1. b. The Kennedy Group purported to grant PRM liens and security interests in the mine to secure up to $20 million of loans made to the Kennedy Group. This transaction resulted in Upland Wingsa Kennedy Group entity taking on debt to support Kennedy and Abbouds sale of their shares for $1. The result is essentially a leveraged buyout, i.e., a fraudulent conveyance. c. The Kennedy Group purported to increase the number of directors on the mine entitys board from 2 to 5, with 3 appointed by PRM and 2 by the Kennedy Group. d. The Kennedy Group agreed that in the event that Thayer succeeded in enforcing its rights under the Joint Development Agreement in the Washington County litigation, the corporate entities would issue

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additional stock to ensure that PRMs share of the mine was never diluted below a 70% interest. e. As the two shareholders of stock in the two corporate entities that own the mine, Kennedy and Abboud purported to execute irrevocable durable proxies to vote 70% of the shares of both entities. f. The Kennedy Group used money obtained from PRM to pay hundreds of thousands of dollars to Nabil AbboudNina Abbouds fatherand to make millions of dollars in additional payments to, among others, media consultants advising PRM and the Kennedy Group on generating publicity during the litigation, law firms, and even a consulting fee to PRMs manager Ulrich Krasukopf. 27. The Kennedy Group did not disclose any of these transactions to Alberici or

Thayer. Even after the Court entered an order compelling the Kennedy Group and enforced a subpoena compelling the Kennedy Groups law firm, Polsinelli Shughart PC, to produce all documents relating to these transactions, both the Kennedy Group and the Polsinelli law firm have refused to produce documents. Although the Kennedy Groups attorney had several times represented that no side deal existed between the Kennedy Group and PRM beyond the 70% for $1 transaction and had represented that the Kennedy Group had produced all documents relating to the PRM transactions, the attorney only hours later admitted to counsel that in fact additional transactions had been fully negotiated and were waiting to be signed in the offices of Lewis Rice. To this day, the Kennedy Group and Polsinelli refuse to produce the documents despite numerous court orders overruling all their objections and providing specific days and times for them to produce documents. Accordingly, it is difficult if not impossible to describe

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the full extent of PRMs attempts to tortiously interfere with the Joint Development Agreement or to induce the violations of fiduciary duties at this time. 28. In addition to reviewing and approving the new investors like Vilppula and PRM,

Thayer had the right under the Joint Development Agreement to review and approve all new investments. Thayer would have thoroughly examined and asked probing questions about the PRM transactions, including whether it was in the corporations best interest to give away 70% of the equity for $1 of investment. A board of directors exercising its fiduciary duties would have rejected any such deal as suspicious, grossly inadequate, and fraudulent. Thayers inability to review and veto such a transaction was a product of the breaches of the Joint Development Agreement and of the fiduciary duties owed by the Kennedy Group, such breaches being substantially assisted, encouraged, and ratified by PRM. 29. These actions violated the Kennedy Groups fiduciary obligations to Alberici and

Thayer, including that the Kennedy Group was acting in secret against Alberici/Thayers interests in an effort to thwart their right to participate as an equity partner in the mines redevelopment. These actions violated the Joint Development Agreement, the Washington County courts injunctions and temporary restraining orders, and the Kennedy Groups obligations under the injunction to act in good faith. 30. PRM and Vilppula knowingly and deliberately interfered with and induced the

Kennedy Group to violate contractual and fiduciary obligations to Thayer. PRM and Vilppulas knowledge of and brazen disregard for Thayers rights is illustrated most boldly by the fact that Vilppula had an undisclosed representative attend a Washington County court hearing. 31. Vilppula and PRM have also sought to recruit other investorsincluding the

Kazakh Trio and the Reuben Brothersto assist their campaign to interfere with Thayers

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contractual rights and to induce the Kennedy Group to violate their fiduciary duties. If Thayer had been allowed its proper seat on the board of directors with the right to veto any potential investor, it would have conducted due diligence and asked questions about Vilppulas widelyknown associations and past dealings with the Kazakh Trioand the three individuals who make up the trio, i.e., Alexander Mashkevich, Patokh Chodiev, and Alijan Ibragimovand the Reuben Brothers. Under the Joint Development Agreement, Thayer would have had the right to object to PRMs investments in the mine and could have exercised that right if it determined that PRMs prior associations with the Kazakh Trio and the Reuben Brothers made PRM and Vilppula unfit to hold equity in the mine. The Kennedy Groups failure to allow Thayer to review and to veto PRMs investments in light of Vilppulas prior associations was a violation of the Joint Development Agreement and a breach of fiduciary duties. The Kennedy Groups failure to object and to conduct due diligence about Vilppulas prior associations with the Kazakh Trio and the Reuben Brothers was a further breach of fiduciary duties. If the Kennedy Group had reviewed widely reported information, available in the public domain and easily available by a simple internet search, they would have seen this information reported and would have, if they were abiding by their fiduciary duties, asked serious, probing questions about this information. If the Kennedy Group had engaged in due diligence required by their fiduciary duties, they would have learned of the existence of abundant information available in the public domain that would have likely put on notice any reasonably prudent board of directors regarding negative information about the Kazakh Trio and the Reuben Brothers. Some of those reports are attached hereto collectively as Exhibit 15. 32. Vilppula and the Kennedy Group brought representatives of the Kazakh Trio

and/or the Reuben Brothers to the mine to discuss potential opportunities for taking over the

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mine, investment opportunities, and equity interests in the mining enterprise. The Kennedy Group did not disclose any of these negotiations, discussions, or offers to Thayer or Alberici. 33. The various documents that described the Kennedy Group/PRM transactions

involving the mine fail in any meaningful way to limit what or with whom PRM subsequently might affiliate or convey all or any portion of its purported interest in the mine. Accordingly, Vilppula and PRM would have the ability under the deal with the Kennedy Group to sell all or part of their interests in the minewhatever those interests areto the Kazakh Trio, the Reuben Brothers, or any other third party. 34. Regardless of whether the news reports were true, these types of reports are

damaging to a prospective investors credibility, suitability, and fitness to be an investor in the mine, a project that is not only commercially significant, but also has genuine implications for this nations military capabilities and its ability to be competitive in high-technology and environmentally sensitive projects. Moreover, the threat identified in the USGS publication quoted and cited above about Chinas stranglehold over the supply of rare earths makes it additionally vital that investors be persons of high standards and free of the cloud of suspicion as to their suitability and fitness as investors. 35. Thayer has suffered injuries due to PRMs wrongful conduct, including that

Thayer now faces being forced out of or required to share its joint venture with the Vilppulacontrolled PRM and its comrades the Kazakh Trio and the Reuben Brothers, without being given proper notice, the right to prevent it from joining the enterprise, or even the right to participate in due diligence and to ask precisely the questions about these new investors that any director would in discharging his fiduciary duties. The Washington County Litigation The September 1 Injunctions

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36.

On August 25, 30, and 31, 2011, the Washington County court held an

evidentiary hearing on converting the TRO into a preliminary injunction. 37. At 3:08 A.M. on September 1 (the night of the last day of the hearing), the

Washington County court entered a preliminary injunction. A copy of the initial preliminary injunction, which the court circulated via email, is attached as Exhibit 16. Among other things, the Court entered findings, all of which are true and accurate, that: a. the Joint Development Agreement described in the First Amended Complaint is a fully integrated and binding contract; b. Alberici and Thayer have substantially performed nearly all of their obligations under the contract; c. the Defendants in the Washington County casedescribed in this Court as the Kennedy Grouphave engaged in a pattern of delay, refusals to negotiate and refusals to perform, have acted in violation of the TRO and in violation of various security interests of Alberici/Thayer, and violation of the contract; d. the Defendants violated their fiduciary duties by entering into transactions with PRM, LLC (Ahtis company), using Wings and its interests in the mine, to secure loans in the amount of $20 Million, a substantial portion of which was to be paid to Ms. Abbounds [sic] relatives or for other personal debt of [Kennedy and Abboud]; e. This new deal with Ahti . . . transfers, for consideration of $1.00, an option for Ahti or his company to own 70% of the shares in Wings, a company both sides have valued at several hundred million dollars and

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potentially up to a billion dollars. 38. At 3:30 P.M. on September 1, the Washington County court entered an amended

injunction, which is attached as Exhibit 17. In addition to the previous findings, the court added approximately 30 pages of specific findings, all of which are true and accurate, including: Plaintiffs are highly likely to succeed on the merits of their claims that the June 25, 2010 Memorandum Agreement (the Memorandum Agreement) is an enforceable contract, that Defendants breached the Memorandum Agreement, and that Plaintiffs are entitled to specific performance. . . . Based on the parties communications, their actions, and the circumstances, it appears that the parties intended to be bound by the Memorandum Agreement and that the Memorandum Agreement is a binding contract. Alberici communicated a written offer to Defendants, and Defendants communicated their acceptance of that offer, both in a written e-mail to Alberici and in a verbal confirmation through their attorneys. Thereafter, Defendants took actions that were consistent with a valid and binding contract having been formed. Defendants also reaffirmed in several conversations and communications with Alberici that the Memorandum Agreement was a binding agreement. . . . Alberici and Thayer have substantially performed under the Memorandum Agreement. . . . The Statute of Frauds does not prevent enforcement of the Memorandum Agreement. . . . The terms of the Memorandum Agreement are not indefinite. It is undisputed that Defendants secretly negotiated and entered into transactions with Pea Ridge Mining under which Defendants took on up to $20 million in new secured debt from Pea Ridge Mining, Defendants granted liens in the mine and their assets to Pea Ridge Mining, and Defendants purported to transfer control of the mine owner to Pea Ridge Mining now and give 70 percent of the equity of the mine owner to Pea Ridge Mining in the near future. Defendants have also agreed to issue additional shares of Upland Wings and Wings Enterprises to Pea Ridge Mining at no additional cost to maintain Pea Ridge Minings 70% interest in the event that Plaintiffs are found to be entitled to equity in the companies. . . . Such share issuances to Pea Ridge Mining are not compatible with Plaintiffs rights under the Memorandum Agreement. Additionally, Defendants and Pea Ridge Mining have contemplated transferring ownership rights and mineral interests in the Pea Ridge Mine into various other operating companies.

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By entering into the transactions with Pea Ridge Mining, Mr. Kennedy and Ms. Abboud appear to have failed to act in the best interests Upland Wings and Wings Enterprises in violation of their fiduciary duties as directors of those two corporations. Mr. Kennedy and Ms. Abboud have caused Upland Wings and Wings Enterprises to borrow $20 million from Pea Ridge Mining with a maturity date of October 24, 2011 in part to replace debt that was in permanent forbearance and to pay debts of Upland Wings and Wings Enterprises that are personally guaranteed by Mr. Kennedy and Ms. Abboud or their family members. . . . Defendants have acted in collusion with Pea Ridge Mining in structuring a deal that appears poised to cut Plaintiffs out of their deal with Defendants. . . . Defendants transactions with Pea Ridge Mining, if allowed to proceed further, threaten Plaintiffs collateral, governance, and equity rights in the mine owner and Defendants assets. . . . Pea Ridge Mining is no innocent bystander. Before entering into the agreements with Defendants, Pea Ridge Mining was fully aware of the Memorandum Agreement and Plaintiffs claims in this lawsuit. . . . . Pea Ridge Mining, LLC, Ahti Vilppula, and Ulrich Krasukopf have been affirmatively and knowingly acting in concert and participation with Defendants as to the actions by Defendants that appear to violate Plaintiffs rights under the Memorandum Agreement and the Deed of Trust and Business Security Agreements that Defendants executed in favor of Thayer. 39. The injunction also required the Kennedy Group to immediately cease

implementing the transactions with PRM and Vilppula. The Courts also required that, at least on a preliminary basis pending trial, the two entitiesUpland Wings, Inc., and Wings Enterprises, Inc.appoint a three-person board of directors, a Thayer-designated individual be placed on the Board, and that Thayers consent be required for all corporate activities. PARTIES 40. Thayer is a limited liability company, organized and existing under the laws of the

State of Missouri, that has its principal place of business within this judicial district. Thayer has

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two members, Alberici Group, Inc., a Missouri corporation, and TTT Acquisition Corp., a Nevada corporation. Except where expressly stated otherwise, Thayer is Albericis assignee with respect to Albericis interests in the mine and Albericis rights vis--vis the Kennedy Group and PRM. 41. PRM is a limited liability company organized and existing under the laws of the

State of Delaware with its principal place of business located in St. Peter Port, Bailiwick of Guernsey, Channel Islands. The Channel Islands are one of the worlds hot-spots for offshoring, hiding corporate information, and shielding assets from courts and other authorities. (See, e.g., Offshore Tax Evaders Amnesty Bid, BBC News, Apr. 17, 2007, available at http://news.bbc.co.uk/2/hi/business/6562881.stm; In re Portnoy, 201 B.R. 685, 698 (Bankr. S.D.N.Y. 1996) (noting that application of Channel Islands law offends strong policies of federal law)). 42. On information and belief, PRMs sole member is Belgravia Mining Corporation,

which is, on information and belief, a Mongolian company controlled by Vilppula. Belgravia Mining Corporation is not organized under the laws of Missouri or Nevada and does not maintain its principal place of business in Missouri or Nevada. JURISDICTION AND VENUE 43. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

1332 because there is complete diversity among the parties and the amount in controversy exceeds $75,000.00. 44. This Court has personal jurisdiction over PRM and Vilppula because Thayers

claims and resulting damages arise out of PRM and Vilppulas transaction of business in Missouri and the commission of tortious acts within Missouri.

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45. 46.

The real estate at issue in this litigation is in Missouri. Venue is proper under 28 U.S.C. 1391 because a substantial part of the events

giving rise to Thayers claims occurred in the counties of Washington, Crawford, and St. Louis, all of which are within this judicial district. 47. The damages that Thayer has suffered certainly exceed $75,000, including

because Thayer (through Alberici) has already provided services and investment of almost $20 million at the mine. An adequate legal remedy does not presently exist for those damages, however, because the ultimate outcome of the mine redevelopment remains uncertain in that the ability to redevelop the mine and the value of what the mine will produce remain speculative at this time. Moreover, this case addresses real estate and a mining opportunity that are unique.

COUNT I INTERFERENCE WITH CONTRACT 48. Thayer restates, re-alleges, and incorporates by reference all allegations in the

preceding paragraphs as if fully set forth herein. 49. Alberici and its successor and assignee Thayer had a binding contractual

agreement with the Kennedy Group related to the redevelopment, reopening, and operation of the mine. The terms of this contractual agreement were set forth in the Joint Development Agreement. 50. PRM and Vilppula knew about the Joint Development Agreement between

Thayer and the Kennedy Group and about the Kennedy Groups fiduciary duties to Thayer. This knowledge is demonstrated, for example, by the presence of a Vilppula/PRM representative at a court hearing in Washington County addressing these contractual and fiduciary relationships.

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51.

As the Washington County court held in its injunction order, PRM is no innocent

bystander. Before entering into the agreements with Defendants, Pea Ridge Mining was fully aware of the Memorandum Agreement and Plaintiffs claims in this lawsuit. (Exhibit 17, at 48). 52. PRM and Vilppula interfered with the agreement between Thayer and the

Kennedy Group by inducing the Kennedy Group not to perform and to violate its obligations under the Joint Development Agreement. This interference included PRM and Vippula causing the Kennedy Group to execute the PRM deal documents outlined above, including the PRM Deed of Trust, and to transfer its interests in the mine to PRM (and thus to Vilppula). 53. PRM and Vilppula intended to and intentionally interfered with Thayers

contractual rights. 54. PRM and Vilppulas conduct was not privileged, including because it was

unlawful and aided and abetted Jim Kennedy and Nina Abboud in breaching their fiduciary rights owed to Upland and Wings and fiduciary duties owed by the Kennedy Group to Thayer. PRM and Vilppulas conduct violated the injunction, and constituted a breach of the Kennedy Groups fiduciary obligations to Thayer. 55. PRM and Vilppulas conduct has resulted in additional breaches of the Joint

Development Agreement. In fact, PRM and Vilppulas conduct has sought to ensure that the Kennedy Group will not perform or satisfy its obligations under that agreement. 56. Thayer has been damaged by PRM and Vilppulas conduct, in that, among many

other things, PRM LCC and Vilppulas conduct has diluted and continues to dilute Thayers interest and ability to participation in the mine and its ability to profit from its investments in the mine, and has jeopardized the opportunity for Thayer to enforce its contractual rights to

20

Exhibit D

0100

participate as an equity owner in the mines redevelopment and operations. 57. PRM and Vilppulas conduct was knowing and with reckless disregard for

Thayers rights. WHEREFORE, Thayer requests that the Court enter judgment in its favor and against PRM, and award Thayer: a. Compensatory and punitive damages in an amount adequate to compensate Thayer for the injuries it suffered from the tortious conduct of PRM, and to punish and deter such intentionally wrongful conduct; b. c. Prejudgment interest on all damages awarded as permitted by law; Injunctive relief including to prevent PRM from further interfering with and preventing performance of the agreement between Alberici and its successor and assignee Thayer and the Kennedy Group; d. e. Recovery of attorney fees and costs incurred in this litigation; and All other and further relief that this Court deems just and proper. COUNT II AIDING AND ABETTING BREACH OF FIDUCIARY DUTY 58. Thayer restates, re-alleges, and incorporates by reference all allegations in the

preceding paragraphs as if fully set forth herein. 59. The arrangement between Thayer and the Kennedy Group established a

partnership and/or joint venture relating to the redevelopment, reopening, and future operation of the mine. 60. The Kennedy Group owed fiduciary duties to Thayer, including the duty of

loyalty, the duty of candor, the duty to communicate all material developments, and the duty to

21

Exhibit D

0101

creditors. 61. 62. PRM knew about the Kennedy Groups fiduciary relationship with Thayer. PRM intentionally and deliberately induced and aided the Kennedy Group in

breaching the fiduciary duties owed to Thayer. 63. The Kennedy Group breached its fiduciary duties to Thayer, including that the

Kennedy Group failed to disclose its involvement with Vilppula, executed the PRM Deed of Trust, and transferred to PRM (and through PRM to Vilppula) the right to participate in the effort to redevelop, reopen, and operate the mine in an effort to harm, hinder, and undermine Thayers equitable conversion rights and other rights under the Joint Development Agreement. 64. As the Washington County court held in its injunction order (emphasis added): It is undisputed that Defendants secretly negotiated and entered into transactions with Pea Ridge Mining under which Defendants took on up to $20 million in new secured debt from Pea Ridge Mining, Defendants granted liens in the mine and their assets to Pea Ridge Mining, and Defendants purported to transfer control of the mine owner to Pea Ridge Mining now and give 70 percent of the equity of the mine owner to Pea Ridge Mining in the near future. Defendants have also agreed to issue additional shares of Upland Wings and Wings Enterprises to Pea Ridge Mining at no additional cost to maintain Pea Ridge Minings 70% interest in the event that Plaintiffs are found to be entitled to equity in the companies. Such share issuances to Pea Ridge Mining are not compatible with Plaintiffs rights under the Memorandum Agreement. Additionally, Defendants and Pea Ridge Mining have contemplated transferring ownership rights and mineral interests in the Pea Ridge Mine into various other operating companies. By entering into the transactions with Pea Ridge Mining, Mr. Kennedy and Ms. Abboud appear to have failed to act in the best interests Upland Wings and Wings Enterprises in violation of their fiduciary duties as directors of those two corporations. Mr. Kennedy and Ms. Abboud have caused Upland Wings and Wings Enterprises to borrow $20 million from Pea Ridge Mining with a maturity date of October 24, 2011 in part to replace debt that was in permanent forbearance and to pay debts of Upland Wings and Wings Enterprises that are personally guaranteed by Mr. Kennedy and Ms. Abboud or their family

22

Exhibit D

0102

members. . . . What is known is that Defendants, in entering into the transactions with Pea Ridge Mining, have acted in violation of the agreement with Plaintiffs requiring that game changing decisions up to the $35 Million tranche be only made by unanimous decision of the 3-member board as set forth in the Memorandum Agreement by, among other things, entering into a transaction with Pea Ridge Mining whereby Upland Wings and Wings Enterprises changed their boards to 5-member boards despite Defendants prior agreement with Plaintiffs for a 3-person board. This new deal with Pea Ridge Mining gives Pea Ridge Mining 3 seats on the new board, while Defendants retain only 2 seats. The deal also transfers, for consideration of one dollar, an option for Pea Ridge Mining to own 70% of the shares in Upland Wings and Wings Enterprises, a company both sides have valued at much more than a dollar or so. This transaction with Pea Ridge Mining has resulted in damage to Plaintiffs position. Money needed by Defendants to avoid a foreclosure by Pea Ridge Mining and resultant loss of the mine property is not guaranteed to Defendants under their transactions with Pea Ridge Mining. Pea Ridge Mining has no apparent legal obligation to advance further money, and with its majority now on the corporations boards, Pea Ridge Mining could affirmatively prevent transfer of additional funds needed by Defendants to meet their obligations. Thus, it appears that Defendants have acted in collusion with Pea Ridge Mining in structuring a deal that appears poised to cut Plaintiffs out of their deal with Defendants. Defendants deal with Pea Ridge Mining was signed 3 days after a previous preliminary injunction was lifted to allow the parties to pursue a third-party investor in furtherance of the terms of the Memorandum Agreement. 65. Thayer has been damaged by PRMs conduct. PRM have diluted Thayers

interest and participation in and jeopardized the opportunity for Thayer to enforce its contractual rights to participate as an equity owner in the mines redevelopment. 66. PRMs conduct was knowing and with reckless disregard for Thayers rights.

WHEREFORE, Thayer requests that the Court enter judgment in its favor and against PRM, and award Thayer: a. Compensatory and punitive damages in an amount adequate to

23

Exhibit D

0103

compensate Thayer for the injuries it suffered from the tortious conduct of PRM, and to punish and deter such intentionally wrongful conduct; b. c. Prejudgment interest on all damages awarded as permitted by law; Injunctive relief including to prevent PRM and Vilppula from further interfering with and preventing performance of the agreement between Thayer and the Kennedy Group; d. e. Recovery of attorney fees and costs incurred in this litigation; and All other and further relief that this Court deems just and proper. COUNT III FRAUDULENT CONVEYANCE (INTENT TO DEFRAUD) 67. Thayer restates, re-alleges, and incorporates by reference all allegations in the

preceding paragraphs as if fully set forth herein. 68. The Missouri Uniform Fraudulent Transfer Act provides that a transfer is

fraudulent if it was made with the intent to hinder, delay, or defraud. 428.024.1(1), RSMo. It also allows parties to obtain injunctive relief, including avoidance of the transfer in order to satisfy the creditors claim, an injunction against further disposition by the debtor or transferee, or both, of the asset transferred or of other property, and any other relief the circumstances may require. 428.039, RSMo. 69. The Kennedy Group executed documents, including the PRM Deed of Trust, and

transferred its interests in the mining operation without receiving reasonably equivalent value for those interests from PRM. 70. The Kennedy Groups actions occurred in secret while it was being sued related

to its obligations in the reopening, redevelopment, and operation of the mine. The incurrence of

24

Exhibit D

0104

liability and transfer of property was concealed from the Kennedy Groups creditors. 71. The Kennedy Groups actions were undertaken with the deliberate intent to delay

or avoid the satisfaction of its duties and obligations to Thayer. 72. The Kennedy Groups actions were undertaken with the actual intent to hinder,

delay, and defraud its creditors. 73. As the Washington County court held in its injunction order, the Kennedy Group

acted in collusion with [PRM] in structuring a deal that appears poised to cut Plaintiffs out of their deal with Defendants. (Exhibit 17, at 46). 74. PRM was the transferee of the Kennedy Groups interests in the mine operation,

and was the purported beneficiary of the PRM Deed of Trust. 75. The Kennedy Group was insolvent, or became insolvent when the Kennedy

Group performed the actions described above. WHEREFORE, Thayer requests that the Court enter judgment in its favor and against PRM, and award Thayer: a. b. Avoidance and the setting aside of the PRM Deed of Trust; Avoidance and the setting aside of the transfer of interests from the Kennedy Group to PRM related to the mine; c. Mandatory injunctive relief requiring PRM to file a sufficient deed of release, releasing the PRM Deed of Trust; d. Injunctive relief including to prevent PRM from receiving or disposing of any further interests in the mine; e. f. Recovery of attorney fees and costs incurred in this litigation; and All other and further relief that this Court deems just and proper.

25

Exhibit D

0105

COUNT IV FRAUDULENT CONVEYANCE (LACK OF CONSIDERATION) 76. Thayer restates, re-alleges, and incorporates by reference all allegations in the

preceding paragraphs as if fully set forth herein. 77. The Missouri Uniform Fraudulent Transfer Act provides that a transfer is

fraudulent if it was made without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was engaged in a business for which its assets were unreasonably small or the debtor intended to incur debts beyond his ability to pay as they became due. 428.024.1(2), RSMo. It also allows parties to obtain injunctive relief, including avoidance of the transfer in order to satisfy the creditors claim, an injunction against further disposition by the debtor or transferee, or both, of the asset transferred or of other property, and any other relief the circumstances may require. 428.039, RSMo. 78. The Kennedy Group executed documents, including the PRM Deed of Trust, and

transferred its interests in the mining operation without receiving reasonably equivalent value for those interests from PRM. 79. As the Washington County court held in its injunction order, the Kennedy

Groups deal with PRM transfers, for consideration of one dollar, an option for [PRM] to own 70% of the shares in Upland Wings and Wings Enterprises, a company both sides have valued at much more than a dollar or so. (Exhibit 17, at 45). Moreover, the court held that Mr. Kennedy and Ms. Abboud have caused Upland Wings and Wings Enterprises to borrow $20 million from [PRM] with a maturity date of October 24, 2011 in part to replace debt that was in permanent forbearance and to pay debts of Upland Wings and Wings Enterprises that are personally guaranteed by Mr. Kennedy and Ms. Abboud or their family members. (Id. at 42).

26

Exhibit D

0106

80.

The Kennedy Groups actions occurred in secret while it was being sued related

to its obligations in the reopening, redevelopment, and operation of the mine. The incurrence of liability and transfer of property was concealed from the Kennedy Groups creditors. 81. PRM was the transferee of the Kennedy Groups interests in the mine operation,

and was the purported beneficiary of the PRM Deed of Trust. 82. At the time it executed the PRM Deed of Trust and related documents, the

Kennedy Group was engaged in a business for which its remaining assets were unreasonably small in relation to the business. 83. The Kennedy Group believed or reasonably should have believed that it would

incur debts beyond its ability to pay as they came due. WHEREFORE, Thayer requests that the Court enter judgment in its favor and against PRM, and award Thayer: a. b. Avoidance and the setting aside of the PRM Deed of Trust; Avoidance and the setting aside of the transfer of interests from the Kennedy Group to PRM related to the mine; c. Mandatory injunctive relief requiring PRM to file a sufficient deed of release, releasing the PRM Deed of Trust; d. Injunctive relief including to prevent PRM from receiving or disposing of any further interests in the mine; e. f. Recovery of attorney fees and costs incurred in this litigation; and All other and further relief that this Court deems just and proper. COUNT V FRAUDULENT CONVEYANCE (LACK OF CONSIDERATION)

27

Exhibit D

0107

84.

Thayer restates, re-alleges, and incorporates by reference all allegations in the

preceding paragraphs as if fully set forth herein. 85. The Missouri Uniform Fraudulent Transfer Act provides that a transfer is

fraudulent if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange and the debtor was insolvent or became insolvent as a result of the transfer. 428.029, RSMo. It also allows parties to obtain injunctive relief, including avoidance of the transfer in order to satisfy the creditors claim, an injunction against further disposition by the debtor or transferee, or both, of the asset transferred or of other property, and any other relief the circumstances may require. 428.039, RSMo. 86. The Kennedy Group executed documents, including the PRM Deed of Trust, and

transferred its interests in the mining operation without receiving reasonably equivalent value for those interests from PRM. 87. The Kennedy Groups actions occurred in secret while it was being sued related

to its obligations in the reopening, redevelopment, and operation of the mine. The incurrence of liability and transfer of property was concealed from the Kennedy Groups creditors. 88. PRM was the transferee of the Kennedy Groups interests in the mine operation,

and was the purported beneficiary of the PRM Deed of Trust. 89. At the time it executed the PRM Deed of Trust and related documents, the

Kennedy Group was engaged in a business for which its remaining assets were unreasonably small in relation to the business. 90. As a result of the transfer, one of the Kennedy Groups entities, Upland Wings,

became liable for, and transferred property interests to secure, the obligations of Kennedy and Abboud to PRM.

28

Exhibit D

0108

91.

As the Washington County court held in its injunction order, the Kennedy

Groups deal with PRM transfers, for consideration of one dollar, an option for [PRM] to own 70% of the shares in Upland Wings and Wings Enterprises, a company both sides have valued at much more than a dollar or so. (Exhibit 17, at 45). Moreover, the court held that Mr. Kennedy and Ms. Abboud have caused Upland Wings and Wings Enterprises to borrow $20 million from [PRM] with a maturity date of October 24, 2011 in part to replace debt that was in permanent forbearance and to pay debts of Upland Wings and Wings Enterprises that are personally guaranteed by Mr. Kennedy and Ms. Abboud or their family members. (Id. at 42). 92. The Kennedy Group believed or reasonably should have believed that it would

incur debts beyond its ability to pay as they came due. WHEREFORE, Thayer requests that the Court enter judgment in its favor and against PRM, and award Thayer: a. b. Avoidance and the setting aside of the PRM Deed of Trust; Avoidance and the setting aside of the transfer of interests from the Kennedy Group to PRM related to the mine; c. Mandatory injunctive relief requiring PRM to file a sufficient deed of release, releasing the PRM Deed of Trust; d. Injunctive relief including to prevent PRM from receiving or disposing of any further interests in the mine; e. f. Recovery of attorney fees and costs incurred in this litigation; and All other and further relief that this Court deems just and proper.

29

Exhibit D

0109

Respectfully submitted, ARMSTRONG TEASDALE LLP BY: /s/ Richard Scherrer Richard B. Scherrer # 22667MO David L. Going #34435MO Sara Finan Melly #57501MO Winston E. Calvert #57421MO Michael P. Downey # 47757MO 7700 Forsyth Blvd., Suite 1800 St. Louis, Missouri 63105 T: 314.621.5070; F: 314.621.5065 rscherrer@armstrongteasdale.com doing@armstrongteasdale.com melly@armstrongteasdale.com wcalvert@armstrongteasdale.com mdowney@armstrongteasdale.com ATTORNEYS FOR PLAINTIFF THAYER LAND DEVELOPMENT COMPANY, L.L.C.

CERTIFICATE OF SERVICE I hereby certify that on this 7th day of September, 2011, I electronically filed the foregoing with the Clerk of the Court using the ECF system, which sent electronic notification of the filing on the same day to the following: Andrew Rothschild Thomas P. Berra, Jr. R. Brad Ziegler Lewis Rice Fingersh L.C. 600 Washington, Ste. 2500 St. Louis, MO 63101 /s/ Richard Scherrer

30

Exhibit D

0110

IN THE CIRCUIT COURT OF WASHINGTON COUNTY, MISSOURI ALBERICI CONSTRUCTORS, INC., et al., ) ) Plaintiffs, ) ) v. ) ) UPLAND WINGS, INC., et al, ) ) Defendants. )

Cause No. 10WACC00476

AMENDED ORDER GRANTING PRELIMINARY INJUNCTION This matter came before the Court on the Motion for Temporary Restraining Order and Preliminary Injunction filed by Plaintiffs Alberici Constructors, Inc. (Alberici), and Thayer Land Development Company, L.L.C. (Thayer). On August 11, 2011, the Court entered a Temporary Restraining Order against Defendants Upland Wings, Inc. (Upland Wings), Wings Enterprises, Inc. (Wings Enterprises), James Kennedy, and Nina Abboud. On August 25, 30, and 31, 2011, the Court held an evidentiary hearing on Plaintiffs motion for preliminary injunction. The evidentiary hearing was conducted at the St. Francois County Courthouse with the consent of all parties. Plaintiffs appeared by counsel Lawrence Friedman, Eric C. Harris, Richard Scherrer, and David Going. Defendants appeared by counsel David Baylard. The Court heard testimony of three witnessesRobert Niemeier (Mr. Niemeier) (Director of Special Projects for Alberici), Herschel Burrow (Mr. Burrow) (an employee of Wings Enterprises), and Nina Abboud (Ms. Abboud), who, with her husband James Kennedy (Mr. Kennedy), are the shareholders, officers, and directors of Wings Enterprises and Upland Wings. The Court also heard arguments of the parties counsel.

Exhibit E

0111

After considering Plaintiffs motion for preliminary injunction, the testimony, the evidence, and counsels arguments, the Court entered an Order granting the preliminary injunction at 3:08 a.m. on September 1, 2011. The Order was sent to Plaintiffs counsel Mr. Harris by e-mail at 3:08 a.m. on September 1, 2011 with a request to forward to the other counsel. At 5:33 a.m. on September 1, 2011, Plaintiffs counsel sent a copy of the Order to Defendants counsel. The Courts Order entered at 3:08 a.m. stated, among other things, that the Court would enter a typed amended version of the preliminary injunction after submission by Plaintiffs of a proposed amended version. This Order amends the preliminary injunction as follows: The Court had the opportunity to consider the testimony and the demeanor of the witnesses. The Court finds that the testimony of Mr. Niemeier was credible on all issues. The Court finds that Mr. Burrows testimony was credible on all issues. The Court finds that the testimony of Ms. Abboud was not credible on any disputed issues. 1. Defendants were given notice and an opportunity to be heard as required by law

and Rule 92.02(c)(1). 2. Plaintiffs have demonstrated that the temporary restraining order should be

converted to a preliminary injunction because immediate and irreparable injury, loss, or damage will result in the absence of relief. 3. The Court weighs four factors in considering a motion for a preliminary

injunction: (a) the movants probability of success on the merits; (b) the threat of irreparable harm to the movant absent the injunction; (c) the balance between this harm and the injury that the injunctions issuance would inflict on other interested parties; and (d) the public interest.

-2-

Exhibit E

0112

State ex rel. Director of Revenue, State of Missouri v. Gabbert, 925 S.W.2d 838, 839 (Mo. banc 1996). 4. Based on the evidence adduced, the Court finds that Plaintiffs are highly likely to

succeed on the merits of their claims that the June 25, 2010 Memorandum Agreement (the Memorandum Agreement) is an enforceable contract, that Defendants breached the Memorandum Agreement, and that Plaintiffs are entitled to specific performance. 5. Based on the parties communications, their actions, and the circumstances, it

appears that the parties intended to be bound by the Memorandum Agreement and that the Memorandum Agreement is a binding contract. Alberici communicated a written offer to Defendants, and Defendants communicated their acceptance of that offer, both in a written email to Alberici and in a verbal confirmation through their attorneys. Thereafter, Defendants took actions that were consistent with a valid and binding contract having been formed. Defendants also reaffirmed in several conversations and communications with Alberici that the Memorandum Agreement was a binding agreement. 6. Defendants engaged the services of Alberici for construction work at the mine site

and then to assist them in resolving the United State Environmental Protection Agency (EPA) injunction and site remediation issues. Defendants did not pay for this work, instead entering into negotiations with Alberici to allow Alberici to convert the construction debt into equity in the overall mine project. The terms of the agreement were set forth first in a memorandum agreement dated June 4, 2010, then finalized with only minor changes in the June 25, 2010 Memorandum Agreement. 7. More specifically, in 2001, Defendant Upland Wings purchased the Pea Ridge

Mine property that is located partially within Washington County, Missouri. At the time of

-3-

Exhibit E

0113

Upland Wings purchase, the Pea Ridge Mine property had little value as a mine because the price of iron was low. 8. In 2006, Defendants began operations at the Pea Ridge Mine property to reclaim

salvage material that was left over from 38 years of prior operations at the property. In 2008, Defendants engaged Alberici to provide construction services to improve the reclaim salvage operations and to construct an iron ore processing facility in Crystal City, Missouri. In 2010, Defendants further engaged Alberici to perform removal and remediation work that had been ordered by the EPA. Defendants risked losing key operating permits if the removal and remediation work were not timely completed. 9. By May 2010, Defendants were at serious risk of losing the Pea Ridge Mine

property to foreclosure because they had borrowed approximately $7 million dollars from Minmetals, Inc. (Minmetals), and did not have any means to repay those amounts. Defendants were also not paying Alberici for the ongoing construction services that Alberici was performing. Alberici and Defendants discussed entering into an agreement to jointly develop the Pea Ridge Mine property (Pea Ridge Mine project) that would allow Defendants to keep the Pea Ridge Mine property and give Alberici an upside return for the investments it had already made and would make under the agreement to jointly develop the Pea Ridge Mine property. Defendants were represented at all times in those discussions by the Husch Eppenberger LLC law firm, now Husch Blackwell LLP. 10. Those discussions led to a memorandum agreement dated June 4, 2010 for the

joint development and operation of the Pea Ridge Mine. On June 11, Mr. Niemeier sent the June 4, 2010 memorandum agreement to Defendants via an e-mail. (Exhibit 19). On June 13, 2010, Defendants accepted the June 4, 2010 memorandum agreement via an e-mail. (Exhibit 20).

-4-

Exhibit E

0114

Under the June 4, 2010 memorandum agreement, Alberici agreed to loan Defendants $7 million in exchange for, among other things, governance and equity conversion rights in Wings Enterprises, which was to become the owner of the Pea Ridge Mine Property. (Exhibit 19). 11. It is apparent that Defendants thought this earlier June 4, 2010 memorandum

agreement was a binding contract. (Exhibits 20 and 18 - Defendants communicated their agreement that the June 4, 2010 memorandum agreement was accurate as to the terms agreed, and when Defendants were seeking funding from other sources during the same weekend that they finally agreed to the June 25, 2010 Memorandum Agreement, Defendants told John Cahill that Alberici was bound to fund $7 Million, indicating that Defendants considered Alberici bound by the terms of the June 4, 2010 memorandum agreement before the minor changes were made to that agreement resulting in the Memorandum Agreement at issue in the lawsuit). 12. After the June 4, 2010 memorandum agreement was entered into, Alberici and

Defendants learned that 0884002 B.C. Ltd. acquired the Minmetals secured loan and that the amount needed to pay off the secured loan was more than the $7 million contemplated in the June 4, 2010 memorandum agreement. (Niemeier Affidavit (Aff.) Exhibit B). Defendants had discussions with representatives of 0884002 B.C. Ltd. Based on those discussions, Defendants viewed their options as: (1) surrender everything and lose all their rights and interests due to foreclosure; (2) pay off the note; or (3) file for bankruptcy protection. (Exhibit 18). 13. Alberici and Defendants began discussing new terms for the joint development

and operation of the Pea Ridge Mine project under which Alberici would provide the necessary funds for Defendants to pay off 0884002 B.C. Ltd. The terms of the new agreement were set forth in the Memorandum Agreement that is at issue in this lawsuit. (Niemeier Aff. Exhibit B). At the same time Defendants were in discussions with Alberici about the Memorandum

-5-

Exhibit E

0115

Agreement, Defendants were searching for an investor besides Alberici willing to provide Defendants money to pay off 0884002 B.C. Ltd., but Defendants were unsuccessful in finding anyone willing to commit the necessary funds. (Exhibit 18). 14. On June 27, 2010 Mr. Niemeier sent the Memorandum Agreement, which at that

point contained all of the fundamental and essential terms agreed upon by the parties, to Defendants via e-mail. (Niemeier Aff. Exhibit A). Mr. Niemeier requested from Defendants a return e-mail confirming, among other things, acceptance of the terms in the Memorandum Agreement by Defendants. The Memorandum Agreement stated as follows: With regard to terms agreed between Wings Enterprises (Wings) and Alberici (Alberici) on Friday, June 4, 2010 related to purchasing Minmetals security interests in all related Wings assets and agreements, and subsequent discussions over Wings paying-off 0884002 B.C. Ltd (0884002) for what has been reported as 0884002s purchase of those same security interests from Minmetals; please accept this correspondence as a summary of updated terms needed because of the incremental investment needed above the $7m previously committed on 6-4-10. In an effort to support development of the Wings Iron Ore project, Alberici is attempting to help Wings pay-off 0884002s security interests in all related Wings assets and agreements, all of which is extremely sensitive and all parties acknowledged needs to be kept confidential. However in providing the incremental investment needed above the $7m previously committed on 6-4-10, additional terms are needed for the additional investment. Therefore predicated on the success of removing 0884002s formal involvement with Wings: A. Alberici will form a Limited Liability Corporation (FundCo) which will provide the funding to Wings to pay its obligations to 0884002. FundCo will be secured with a note / second deed of trust / UCC filing for the Pea Ridge mine property and all mineral rights associated with that property as collateral (FundCo-Security Interest). Alberici and Wings will form SalvageCo, LLC for the purpose of reclaiming and selling existing magnetite run-off from the former Pea Ridge Iron Ore sediment ponds along Marys Creek. Upland Wings will convey it rights to process and sell run-off magnetite to SalvageCo under a Retrieval and Storage Agreement. o Essentially SalvageCo will provide the EPA compliance work and relocation of existing processing equipment in return for SalvageCo having

B.

C.

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Exhibit E

0116

the right to process and sell the run-off magnetite. o SalvageCo will pay all expenses to process and sell the run-off magnetite material.

D.

Alberici and Wings will execute a SalvageCo Operating Agreement to define roles, responsibilities, and distribution of proceeds. In addition to the SalvageCo Operating Agreement, Alberici and Wings will also execute a Side Letter of Agreement summarizing the intent for establishing SalvageCo, compensating Wings beyond the proceeds of SalvageCo, and governance / equity development of the overall Wings Pea Ridge Iron project. SalvageCo Operating Agreement

E.

1.) 2.)

Alberici will fund SalvageCo, LLC with $3.2m of equity. SalvageCo will use $3m to pay: a.) The costs to remove the run-off magnetite from the former sediment ponds along Marys Creek and complete the remediation work per the EPA Compliance Order. Relocate and refurbish the existing cleansing process equipment into the existing Central Services Building on the Pea Ridge Iron Ore site. Stockpile the magnetite salvaged from the former sediment ponds along Marys Creek outside the Central Service Building (where the relocated plant is located). Initial start-up of the processing operation before revenues from sales are collected (approximately 60-days).

b.)

c.)

d.)

3.)

SalvageCo will use the remaining $200k to immediately begin payments to existing Wings trade creditors which threaten Wings ability to resume uninterrupted operation of the processing and sale of the magnetite removed from the former sediment ponds along Marys Creek. SalvageCo will pay the operating expenses during routine magnetite cleansing and loading of sold finished product. This generally includes direct labor, equipment leases, fuel, utilities, consumables, taxes, insurance, maintenance, etc to process the material, and corresponding overhead (G&A) costs. These operating expenses will be subtracted from sales revenues collected to create the profit proceeds to be distributed each month. Sale of salvaged (cleansed) magnetite will be marketed and invoiced under the

4.)

5.)

-7-

Exhibit E

0117

name of Wings Enterprises as agent for SalvageCo. However payments will be directly received and managed by SalvageCo. 6.) Nineteen percent (19%) of the proceeds (profits) from sale of the salvaged magnetite shall be distributed to Wings Enterprises, and the remaining eighty one percent (81%) to Alberici. Wings shall be responsible for the processing (cleansing) the stockpiled magnetite; however SalvageCo will directly fund these expenses as a COGS on behalf of Wings. Wings shall also provide all sales / customer service activities which will be paid by Wings from its distribution of proceeds. Alberici shall provide overall governance of SalvageCo, and responsibility of all financial transactions / reporting. SalvageCo shall operate as a stand alone enterprise independently from equity invested into the development Wings Pea Ridge Iron Ore project. An early termination / buy-out clause will not be included in the SalvageCo operating agreement. This will allow evaluation of equity investment offers and (upon the mutual agreement of Wings and Alberici) can allow establishing terms for development of the overall Wings-Iron Ore project. Alberici agrees to forebear collection of Wings current debt with Alberici Constructors; and none of Albericis distribution of profit proceeds shall be applied to reduction of Wings current debt with Alberici Constructors FundCo will release their magnetite security interests corresponding with payments Alberici receive from their SalvageCo distribution of proceeds. Wings Alberici, Side Letter of Agreement 14.) Upon execution of a SalvageCo Operating Agreement and corresponding Side Letter of Agreement between Wings and Alberici; Alberici will issue a $100k closing fee to Jim Kennedy. Upon execution of a SalvageCo Operating Agreement and corresponding Side Letter of Agreement between Wings and Alberici, the remaining mine assets in Upland Wings (after conveyance of the run-off magnetite discussed in item B) will be transferred into Wings Enterprises. Wings Enterprises will become the NewCo needed to further develop the Wings Iron Ore Project. Governance of Wings Enterprises (NewCo) shall originate from a 3-person

7.)

8.)

9.)

10.)

11.)

12.)

13.)

15.)

16.)

17.)

-8-

Exhibit E

0118

Board of Directors; where Wings will designate 1-director, Alberici will designate 1-director, and the 3rd director will be mutually selected by Wings and Alberici. a.) The mission of Wings Enterprises (NewCo) is Planned methodical development of the Wings Iron Ore Project; with priorities to: Refurbish the existing Pea Ridge Mine. Build a pig iron production and bulk shipping facility in Crystal City. iii. Construct an underground magnetite slurry pipeline from the Pea Ridge mine to the Crystal City property. The objectives of Wings Enterprises (NewCo) are: Attracting Investor Equity Completing the Pincock Allen and Holt bankability validation Raising capital to build and operate the facilities outlined in item # 17a 18.) In the event Wings Enterprises (NewCo) is unable to attract adequate investor equity to develop the overall Wings Iron Ore Project, it was agreed that construction of a benefaction facility capable of processing tailings from the upper lake (aka DredgeCo) will be the successor enterprise to SalvageCo. Accordingly, the development priority for refurbishing the mine property (Item 17a-i) is: a.) b.) c.) d.) 19.) Site infrastructure Reclamation of the tailings lake Construction of shipping facilities Rebuilding the underground mining capability

i. ii.

b.) i. ii. iii.

FundCo will only require a note / second deed of trust / UCC filing for the Pea Ridge mine property and all mineral rights associated with that property as collateral for the funds FundCo provides to Wings to pay-off 0884002 (FundCo-Security Interest). The FundCo-Security Interest and the current debt from Wings to Alberici Constructors for services performed under the current CM-GC construction contract (approximately $2.9m as of 5-30-10) shall remain in forbearance. Additionally to improve development opportunities of the Wings Pea Ridge Iron Ore project, Alberici may elect to convert their FundCo-Security Interest and current Wings debt (Item-20) into Wings Enterprises (NewCo) equity per a sliding scale conversion rate: Initial Alberici $7m FundCo Investment and Current Wings Debt

20.)

21.)

-9-

Exhibit E

0119

a.)

At a tranche where the total accumulated value of invested equity is greater than $35m, Alberici will receive 1.1 times the equity purchased per dollar by new investors. At a tranche where the total accumulated value of invested equity is greater than $300m, Alberici will receive 2.0 times the equity purchased per dollar by new investors. If Alberici chooses to convert its FundCo-Security Interest and current Wings debt into Wings Enterprises (NewCo) equity at any tranche when the total accumulated value of invested equity is between a $35m $300m; it shall be at a multiplier linearly calculated between 1.1 and 2.0 based upon the total accumulated value of invested equity.

b.)

c.)

Incremental Alberici Investment for 0884002 Pay-Off (approx $2.25m) d.) e.) Initial Tranches which total less than $15m are not eligible for conversion. At a tranche where the total accumulated value of invested equity is between $15m and $35m, Alberici has the right to convert its incremental investment greater than $7m at 1.8 times the equity purchased per dollar by new investors. At a tranche where the total accumulated value of invested equity is between $35m and $50m, Alberici has the right to convert its incremental investment greater than $7m at 2.0 times the equity purchased per dollar by new investors. At a tranche where the total accumulated value of invested equity is greater than $50m, Alberici has the right to convert its incremental investment greater than $7m at 2.5 times the equity purchased per dollar by new investors.

f.)

g.)

22.)

At Albericis option, its current debt from Wings for services performed under the current CM-GC construction contract can be paid at a tranche where the total accumulated value of invested equity is at least $35m. Until such time as Wings Enterprises (NewCo) completes a tranche where the total accumulated value of invested equity is at least $300m and is able to hire competent full time staff, Alberici will provide interim personnel as needed to develop the Wings-Iron Ore Project and manage all business operations (i.e. SalvageCo, DredgeCo, etc). This includes control of financial control of Wings Enterprises (NewCo) where designated Alberici interim personnel shall manage the 19% distribution of SalvageCo proceeds and issue payments from Wings Enterprises (NewCo) to current (and future) trade creditors of Wings Enterprises (NewCo).

23.)

- 10 -

Exhibit E

0120

24.)

All equity investment offers will be reviewed with regard to development of the overall Wings-Iron Ore project, and that upon mutual agreement of Wings and Alberici modify governance and/or operations oversight of Wings Enterprises per the terms of an acceptable 1st tranche equity investment offer. Payments to Westbridge Bank shall always be the first priority of SalvageCo proceeds debited from Wings 19%. Payments to Husch-Blackwell per a reestablished schedule shall be a second priority of proceeds debited from Wings 19%. Alberici shall be given 5% equity of Wings Enterprises (NewCo) as a Success Fee per a Carry Provision in consideration of resources provided for the betterment of the project since June-2008 and the forbearances provided per item-20 above. This 5% equity Success Fee shall be issued to Alberici at a tranche where the total accumulated value of invested equity is greater than $300m OR when the Alberici chooses to convert its FundCo-Security Interest and / or current Wings debt as noted in Item-21 above (whichever comes first). Alberici shall be given an additional 3% equity of Wings Enterprises (NewCo) as a Success Fee per a Carry Provision in consideration of resources provided for the betterment of the project by providing the incremental investment into FundCo (greater than the $7m previously committed) as needed to pay-off 0884002. The 3% equity Success Fee shall be issued to Alberici at a tranche where the total accumulated value of invested equity is greater than $400m OR when Alberici chooses to convert its FundCo-Security Interest as noted in Item-21 above (whichever comes first). Attached with this memorandum is an updated flow diagram of this same information. Under separate cover, the terms outlined in this correspondence will be utilized as the guiding principles in preparing the various operating agreements (SalvageCo, NewCo, etc.). Please contact my office with any questions or comment to the content of this memorandum.

25.)

26.)

27.)

(Niemeier Aff. Exhibit B) 15. Defendants communicated their acceptance and agreement to the terms of the

Memorandum Agreement. On June 28, 2010, Defendants Mr. Kennedy and Ms. Abboud sent a return e-mail to Mr. Niemeier stating, among other things, that we agree to the terms set forth in the attached 6-25-10 memorandum entitled updated Wings-Alberici Terms. Defendants also stated in their e-mail that we also agree to the clarification of Item #17, such that unanimous

- 11 -

Exhibit E

0121

board approval should be required, at any time prior to the initial raise of the $35M tranche, for any 'game-changing decisions that might adversely impact the interests of Wings or Alberici in moving forward. (Niemeier Aff. Exhibit C). 16. Item # 17 referred to paragraph 17 of the Memorandum Agreement , which

states that governance of Wings Enterprises (NewCo) shall originate from a 3-person Board of Directors where Wings will designate 1-director, Alberici will designate 1-director, and the third director will be mutually selected by Wings and Alberici. (Niemeier Aff. Exhibit B). Also on June 28, 2010, Defendants attorney, Jeff Sigmund, further clarified the parties intent in a voicemail wherein he stated, among other things, the issues that we talked about in terms of unanimous board approval for Newco or what you guys are referring to as game changing events, that is all agreeable from the Wings Camp. And, just so you know in describing examples of game changing events, we specifically discussed creating new debt, admitting a new partner/investor, the sale of a members interest, and specifically said the filing of a voluntary bankruptcy by Wings. (Exhibits 1 and 1A). 17. Alberici would not have provided to Defendants the money necessary to pay off

0884002 B.C. Ltd. if Defendants had not accepted and agreed to be bound by all of the terms of the Memorandum Agreement and had not agreed that there would be unanimous board approval (i.e, approval by Alberici) for any game-changing events such as creating new debt of the entity that owns the mine property, admitting a new partner or investor in the entity that owns the mine property, the sale of a members interest in the entity that owns the mine property, and the filing of a voluntary bankruptcy by the entity that owns the mine property.

French, meaning a portion or slice and in financial transactions, referring to a level of structured financing.

- 12 -

Exhibit E

0122

18.

The Court finds that the Memorandum Agreement was intended by the parties to

be a fully integrated and binding contract, not merely an agreement to agree later or a nonbinding set of guiding principles. The Memorandum Agreement was negotiated between and among the parties and their respective counsel, was offered and accepted, consideration was given, and very substantial performance thereunder has occurred. 19. On June 28, 2011, the Court approved a transaction whereby Alberici transferred

to Thayer its interests under the Memorandum Agreement with the exception of Albericis interests in SalvageCo and Albericis interest in the construction debt incurred by Defendants since the mechanics liens were filed.2 Thereafter, Thayer became a party to this lawsuit. 20. The cardinal principle for contract interpretation is to ascertain the intention of

the parties and to give effect to that intent. In order to determine the intent of the parties, it is often necessary to consider not only the contract between the parties, but subsidiary agreements, the relationship of the parties, the subject matter of the contract, the facts and circumstances surrounding the execution of the contract, the practical construction the parties themselves have placed on the contract by their acts and deeds, and other external circumstances that cast light on the intent of the parties. Butler v. Mitchell-Hugeback, Inc., 895 S.W.2d 15, 21 (Mo. banc 1995).3
2

Defendants unpersuasively argue that unanimous board approval for any game-changing decisions also applied to decisions made by Alberici, including Albericis decision to enter into an agreement to transfer its interests under the Memorandum Agreement to Thayer. Defendants do not have the right to designate a director of Alberici. Accordingly, Defendants cannot require unanimous board approval for decisions made by Albericis board. Defendants have requested that the Court read the July 29, 2010 Demand Notes in isolation and find that Defendants have a right to pay the notes at any time without regard to the other agreements of the parties. The Court declines to do so. As instructed by the Missouri Supreme Court, it is often necessary to ascertain the intent of the parties from other external circumstances that cast light on the parties intent. That is the case here. The Demand Notes were never intended by the parties to replace or supersede the Memorandum Agreement. - 13 -

Exhibit E

0123

21.

The intent of Alberici and Defendants as reflected in the terms of the

Memorandum Agreement and the acceptance communicated by Defendants, was, among other things, that Alberici was required to form an affiliate company to provide approximately $9.2 million of funding to Defendants. Defendants were required to provide the funding company formed by Alberici with a note, business security agreement, and second deed of trust for the Pea Ridge Mine property and all mineral rights associated with that property as collateral. Upland Wings was required to convey all of its mine assets, which included real property and mineral rights, to Wings Enterprises. Wings Enterprises is to become Wings Enterprises (NewCo), the entity to develop the Pea Ridge Mine project. Thayer, having obtained Albericis rights under the Memorandum Agreement, has the right to designate one of the three directors of Wings Enterprises (NewCo), and the right to have that designated director mutually select, with the director designated by Wings Enterprises, the third director. Thayer has the right to review all equity investment offers with regard to the overall Wings-Iron Ore project and to approve any offers that modify governance and/or operations oversight of Wings Enterprises (NewCo). Thayer has the right to require unanimous board approval for any game-changing decisions that might adversely impact the interests of Thayer, including creating new debt, admitting a new partner/investor, the sale of a members interest, and filing of a voluntary bankruptcy by Wings. Thayer has the right to convert Albericis cash investment and the outstanding amounts owed under the existing Construction Contract into equity in Wings Enterprises (NewCo) based on a defined sliding scale as well as additional equity pursuant to two success fees. 22. Additional evidence of Defendants intent to be bound by the terms of the

Memorandum Agreement is found in Defendants communications. On June 27, 2010, Mr. Kennedy sent an e-mail to John Cahill confirming his understanding that Alberici was making

- 14 -

Exhibit E

0124

equity demands in return for Albericis additional investments, which is consistent with Alberici having equity conversion rights and equity success fees under the Memorandum Agreement. (Exhibit 18). The claim by Defendants that Alberici only intended to get equity conversion rights if that was something another investor wanted is not credible and not supported by the evidence. (Exhibit 18 - Defendants said that Alberici was making insane demands for equity conversion rights and that the claim for equity conversion rights is what Alberici wanted). The court finds the equity conversion rights were an integral part of the agreement as a whole, and that the parties never intended to only be bound by each piece or phase of the deal under the theory advanced by Defendants. 23. On July 7, 2010, Mr. Kennedy sent an e-mail stating Jeff has suggested that

CDG draft a property description for the mine-use area so that it can be transferred along with all mineral rights some time [sic] this week, which is consistent with Defendant Upland Wings having a duty to transfer its mine assets under the Memorandum Agreement. (Niemeier Aff. Exhibit G). On September 20, 2010, Mr. Kennedy sent an e-mail to Greg Kozicz of Alberici stating in the context of discussing a transaction with Glencore, Ltd. that Wings and Alberici will communicate our response and work through terms and other issues, which is consistent with Alberici having rights to governance and requiring unanimous board approval for game changing events under the Memorandum Agreement. (Niemeier Aff. Exhibit H). On November 5, 2010, Mr. Niemeier and Mr. Kennedy had a telephone conversation where Mr. Kennedy stated, among other things, Alberici gets, you know, four, five, six percent conversion And thats fine, which is consistent with Alberici having equity conversion rights and equity success fees under the Memorandum Agreement. (Exhibits 26 and 27).

- 15 -

Exhibit E

0125

24.

Alberici and Thayer have substantially performed under the Memorandum

Agreement. Alberici formed an affiliate company to provide $9.2 Million of funding to Defendants. (Exhibits C, D, E). Alberici and Thayer have also performed all of their remaining obligations under the Memorandum Agreement including, among others, forming SalvageCo, funding SalvageCo, executing a SalvageCo Retrieval and Stockpiling Agreement, executing a SalvageCo Operating Agreement, providing overall governance for SalvageCo, paying Mr. Kennedy $100,000, and forbearing on the collection of the $9.2 million of funding provided to Defendants and the amounts owed by Defendants under the construction contracts. (Exhibit I). A party will not be allowed to assume the inconsistent position of affirming a contract in part by accepting or claiming its benefits, and disaffirming it in part by repudiating or avoiding its obligations, or burdens. Cornelius v. CJ Morrill, 302 S.W.3d 176, 180 (Mo. App. 2009). 25. The Statute of Frauds does not prevent enforcement of the Memorandum

Agreement. Alberici requested that Defendants accept the Memorandum Agreement via a reply e-mail and Defendants so did. The context and surrounding circumstances here show that the parties consented to conducting transactions by electronic means. Mr. Niemeier testified that it was customary for Alberici to correspond with Defendants via e-mail. In addition, the parties had established a practice of sending written contract terms via an e-mail and sending an acceptance via a reply e-mail. That was the procedure used by Alberici and Defendants when they entered into the June 4, 2010 memorandum agreement that Defendants stated was enforceable against Alberici in a June 27, 2011 e-mail. (Exhibits 19 and 20). The Uniform Electronic Transactions Act, R.S.Mo. 432.200 et seq., gives legal effect to contracts formed by in this manner. Crestwood Shops, L.L.C. v. Hilkene, 197 S.W.3d 641, 651 (Mo. App. 2006). Even if an electronic signature were not made here, Alberici and Thayers substantial

- 16 -

Exhibit E

0126

performance under the Memorandum Agreement would provide an exception to the Statute of Frauds. [One] equitable exception to the Statute of Frauds is where there has been partial performance in furtherance of the agreement. Piazza v. Combs, 226 S.W.3d 211, 223 (Mo. App. 2007). 26. The terms of the Memorandum Agreement are not indefinite. [W]hen parties

have written down an agreement in terms to which they both have acceded, the courts are reluctant to hold the agreement ineffectual for indefiniteness. Especially is that true when the other party has performed his part of the agreement and has, in a manner of speaking, burned his bridges behind him. Maupin v. Hallmark Cards, Inc., 894 S.W.2d 688, 695 (Mo. App. 1995). That is the case here. The Memorandum Agreement contains all of the essential terms. It is not necessary that the Memorandum Agreement be detailed as to every matter mentioned. Where [] the essential elements of the agreement are set forth, specific performance is proper. Bayless Building Materials Company v. Peerless Land Company, 509 S.W.2d 206, 211(Mo. App. 1974). 27. Defendants argument that the Memorandum Agreement is unenforceable because

additional documents were necessary to implement its terms is unavailing. The language of the contract that the actual legal documents would be drawn up later is no proof that the parties were still negotiating. The mere fact that parties contemplate a formal written draft of their agreement at a later time is not sufficient in itself to demonstrate that they did not intend to be bound at the time of their original agreement. If there is intent not to be bound, it must be specifically set out in their original agreement. Hunt v. Dallmeyer, 517 S.W.2d 720, 724-25 (Mo. App. 1974). Application of this concept is evident in the July 1, 2011 Term Sheet that Defendants signed with Pea Ridge Mining LLC (Pea Ridge Mining) wherein the parties to that

- 17 -

Exhibit E

0127

agreement included specific language that the Term Sheet, with some exceptions, is nonbinding. No such language exists in the Memorandum Agreement. 28. Plaintiffs have performed all of their obligations under the Memorandum

Agreement, and Defendants performed some of their obligations. There has been very substantial performance of the Memorandum Agreement that has greatly benefited Defendants. The Memorandum Agreement allowed Defendants to continue to pursue the mine project and retain some ownership interest in the mine. Without the Memorandum Agreement, Defendants would not have received from Plaintiffs, among other things, the $9.2 million that Defendants used to pay off a secured creditor (which enabled Defendants to avoid foreclosure of the Pea Ridge Mine Property and Defendants other assets) and Plaintiffs forbearance of the multimillion dollar construction debt. 29. It appears that Defendants have breached the Memorandum Agreement.

Defendants have not performed several of the obligations in the Memorandum Agreement. Defendants have not transferred the Pea Ridge Mine Property and the other mine assets from Upland Wings to Wings Enterprises. Defendants have not allowed Plaintiffs to participate in the governance of the mine owner (whether it is Upland Wings or Wings Enterprises), and Defendants have refused to recognize Plaintiffs appointed director. Defendants have not allowed Plaintiffs to review and approve offers to invest in or provide capital for the mine project. Defendants have refused to recognize Plaintiffs approval rights over game-changing decisions that affect the mine owner, such as taking on new debt or a new investor. Defendants have taken on new debt and a new investor in their transactions with Pea Ridge Mining without Plaintiffs knowledge or approval. Defendants have also disavowed Plaintiffs rights under the

- 18 -

Exhibit E

0128

Memorandum Agreement to have an equity interest in the mine owner and to convert Defendants debt and other financial obligations to Plaintiffs into equity in the mine owner. 30. Defendants have engaged in a pattern of delay, refusals to negotiate, and refusals

to perform in an effort to put off further performance once Alberici acted in good faith under the Memorandum Agreement and saved Defendants from what was thought to be imminent foreclosure or loss of the Pea Ridge Mine property prior to execution of the Memorandum Agreement. Defendants have repeatedly attempted to find other investors to pay off certain notes and security interests of Plaintiffs in an effort to deprive Plaintiffs of equity conversion rights in the enterprise. 31. Defendants only performed under the Memorandum Agreement enough to get

Albericis help to stave off loss of the mine and related property to buy Defendants time to find a more favorable investment partner, even though e-mails and communications acknowledged that Defendants understood and agreed to Plaintiffs demand for governance and equity conversion rights and a very high return on its investment. (Exhibit 18). 32. On October 12, 2010, Defendants entered into an agreement with Glencore Ltd.

without Albericis prior knowledge or approval in violation of the terms of the Memorandum Agreement, and after telling Alberici that Wings and Alberici will communicate our response [to Glencore] and work through terms and other issues. (Exhibit 24). 33. On March 5, 2011, Defendants entered into a Fee Agreement with, among others,

Navis General Trading FZE that conditionally promised rights to minerals at the Pea Ridge Mine, without Albericis prior knowledge or approval in violation of the terms of the Memorandum Agreement. (Exhibit 2). The Fee Agreement was also entered into at a time that a

- 19 -

Exhibit E

0129

preliminary injunction was in place enjoining Defendants from otherwise promising to transfer any interest in the Pea Ridge Mine, including the minerals in and on the Pea Ridge Mine. 34. On May 20, 2011, Defendants offered 30% equity in the Pea Ridge Mine to

PlasMet LLP for a $60 million investment without Albericis prior knowledge or consent in violation of the Memorandum Agreement. (Niemeier Supplemental Aff. Exhibit A). 35. Defendants, through Mr. Kennedy, represented to the Court on June 28, 2011 that

they planned to remove 25 tons (1 dump trailer load) of minerals and other materials from the Pea Ridge Mine property. It is undisputed that the minerals and other materials are Thayers collateral. The record reflects that as of June 21, 2011, Defendants had plans to remove a total of 100 tons (5 dump trailer loads) of minerals and other materials from the Pea Ridge Mine property and Defendants hid this fact from Plaintiffs and the Court on June 28, 2011. (Niemeier Supplemental Aff. Exhibits B and C). 36. Mr. Burrow testified that on August 26, 2011, Defendants made arrangements to

sell two Heatmor furnaces owned by either Upland Wings or Wings Enterprises for $6,000.00 and planned to have the payment for the heaters made out to either Mr. Kennedy or Ms. Abboud individually. It is undisputed that the furnaces are Thayers collateral. Even if the furnaces were scap metal as Defendants contend, Thayers contractual rights would have been violated if the furnaces had been sold without Thayers knowledge and express consent. 37. Defendants have acted in violation of the temporary restraining order and in

violation of the various security interests of Thayer by attempting to sell the two Heatmor furnaces owned by either Upland Wings or Wings Enterprises the weekend between the first and second day of the evidentiary hearing on Plaintiffs motion for preliminary injunction. Ms. Abboud only stopped the sale after she got caught. Ms. Abboud had directed proceeds of the

- 20 -

Exhibit E

0130

sale in the amount of $6,000.00 to be made payable to her individually or her husband Mr. Kennedy instead of to Upland Wings or Wings Enterprises, even after the purported deal with Pea Ridge Mining, in which Pea Ridge Mining allegedly acquired an option for 70% of Upland Wings and Wings Enterprises. This sale, had it been completed, would have not only cheated Plaintiffs, but also Pea Ridge Mining. 38. The record reflects that Defendants, on numerous occasions, stated a desire to cut

Alberici out of its rights under the Memorandum Agreement. On November 7, 2010, Mr. Kennedy wrote in an e-mail to Anthony Georgiou or Citadel World that the current issue is eliminating Alberici. (Exhibit 8). On November 9, 2010, Mr. Kennedy wrote in an e-mail to Dan Rubino of 787 Capital that we want to get rid of Alberici ASAP (Exhibit 9). On November 11, 2010, Mr. Kennedy responded perfect to a stated plan that Wings will seek to remove [Alberici] from the equation. (Exhibit 10). On May 4, 2011, Mr. Kennedy wrote in an e-mail to Bill Raffety that We need to get a $30,000,000 commitment to get rid of Alberici (Exhibit 12). On May 20, 2011, Mr. Kennedy told Mark Borst Alberici will be forcefully purchased out of their position today. (Niemeier Supplemental Aff. Exhibits D). These statements show that if not enjoined, Defendants may take further actions that threaten Plaintiffs contractual rights. 39. Mr. Kennedy and Ms. Abboud have acted in violation of the Memorandum

Agreement by failing to change the structure of the corporate boards of Upland Wings and Wings Enterprises to a 3-person board, with one director selected by Defendants, one by Plaintiffs and the third by mutual agreement. Plaintiffs designated Gregory T. Hesser, Albericis Chief Financial Officer, as their appointed director, but Defendants refused to recognize Plaintiffs appointed director. As a result, none of the actions taken by Upland Wings or Wings

- 21 -

Exhibit E

0131

Enterprises since June 28, 2010 have been authorized or approved by a properly-constituted board of directors of either entity. 40. The Court finds that unless a preliminary injunction is entered, Plaintiffs will

suffer immediate and irreparable injury, loss, or damage to their collateral, governance, and equity rights in the mine owner and Defendants assets. 41. It is undisputed that Defendants secretly negotiated and entered into transactions

with Pea Ridge Mining under which Defendants took on up to $20 million in new secured debt from Pea Ridge Mining, Defendants granted liens in the mine and their assets to Pea Ridge Mining, and Defendants purported to transfer control of the mine owner to Pea Ridge Mining now and give 70 percent of the equity of the mine owner to Pea Ridge Mining in the near future. Defendants have also agreed to issue additional shares of Upland Wings and Wings Enterprises to Pea Ridge Mining at no additional cost to maintain Pea Ridge Minings 70% interest in the event that Plaintiffs are found to be entitled to equity in the companies. (Exhibits 3, 4, 5, 6, 7). Such share issuances to Pea Ridge Mining are not compatible with Plaintiffs rights under the Memorandum Agreement. Additionally, Defendants and Pea Ridge Mining have contemplated transferring ownership rights and mineral interests in the Pea Ridge Mine into various other operating companies. 42. By entering into the transactions with Pea Ridge Mining, Mr. Kennedy and Ms.

Abboud appear to have failed to act in the best interests Upland Wings and Wings Enterprises in violation of their fiduciary duties as directors of those two corporations. Mr. Kennedy and Ms. Abboud have caused Upland Wings and Wings Enterprises to borrow $20 million from Pea Ridge Mining with a maturity date of October 24, 2011 in part to replace debt that was in

- 22 -

Exhibit E

0132

permanent forbearance and to pay debts of Upland Wings and Wings Enterprises that are personally guaranteed by Mr. Kennedy and Ms. Abboud or their family members. 43. Defendants claim that the Pea Ridge Mining transaction was necessary to prevent

Plaintiffs from foreclosing on a first deed of trust is not credible. Plaintiffs sent a default notice to Defendants because Plaintiffs believed such a notice was required under applicable law following a default. If Plaintiffs desired foreclosure, it had the option soon after the June 29, 2010 Demand Notes were executed and when Plaintiffs knew that Defendants had no other options. Plaintiffs did not foreclose at that time. Plaintiffs appear to have acted in good faith in their dealings with Defendants, including paying Ms. Abboud $10,000 per month while under no obligation to do so. 44. The Court is not certain that the entire transactions between Defendants and Pea

Ridge Mining have been disclosed to Plaintiffs or the Court. During the hearing on August 31, 2011, Defendants represented that further documents were drafted relating to the transactions between Defendants and Pea Ridge Mining. Defendants and the Polsinelli law firm have not produced those documents, although they were requested by Plaintiffs in discovery and the Court has previously ordered that such documents be produced. 45. What is known is that Defendants, in entering into the transactions with Pea Ridge

Mining, have acted in violation of the agreement with Plaintiffs requiring that game changing decisions up to the $35 Million tranche be only made by unanimous decision of the 3-member board as set forth in the Memorandum Agreement by, among other things, entering into a transaction with Pea Ridge Mining whereby Upland Wings and Wings Enterprises changed their boards to 5-member boards despite Defendants prior agreement with Plaintiffs for a 3-person board. This new deal with Pea Ridge Mining gives Pea Ridge Mining 3 seats on the new board,

- 23 -

Exhibit E

0133

while Defendants retain only 2 seats. The deal also transfers, for consideration of one dollar, an option for Pea Ridge Mining to own 70% of the shares in Upland Wings and Wings Enterprises, a company both sides have valued at much more than a dollar or so. 46. This transaction with Pea Ridge Mining has resulted in damage to Plaintiffs

position. Money needed by Defendants to avoid a foreclosure by Pea Ridge Mining and resultant loss of the mine property is not guaranteed to Defendants under their transactions with Pea Ridge Mining. Pea Ridge Mining has no apparent legal obligation to advance further money, and with its majority now on the corporations boards, Pea Ridge Mining could affirmatively prevent transfer of additional funds needed by Defendants to meet their obligations. Thus, it appears that Defendants have acted in collusion with Pea Ridge Mining in structuring a deal that appears poised to cut Plaintiffs out of their deal with Defendants. Defendants deal with Pea Ridge Mining was signed 3 days after a previous preliminary injunction was lifted to allow the parties to pursue a third-party investor in furtherance of the terms of the Memorandum Agreement. The potential for irreparable harm is great, and the Court has every reason to believe that without a preliminary injunction, Defendants will act in contravention of the Memorandum Agreement. Defendants should not be permitted to do this until a full trial can be concluded. Without a preliminary injunction, there will likely be no asset over which the parties can fight. 47. The mine and the equity of the mine owner have a unique value such that

Plaintiffs are entitled to specific performance of their rights under the Memorandum Agreement as to the mine and the mine owner. Defendants transactions with Pea Ridge Mining, if allowed to proceed further, threaten Plaintiffs collateral, governance, and equity rights in the mine owner and Defendants assets. By issuing a preliminary injunction, the Court will preserve Plaintiffs contractual rights until the merits of Plaintiffs claims are adjudicated and, assuming that the

- 24 -

Exhibit E

0134

Court rules in Plaintiffs favor, will be able to grant specific performance and permanent injunctive relief enforcing Plaintiffs contractual rights. 48. A preliminary injunction will not impose undue injury on Defendants or third

parties. It appears that Defendants agreed to the Memorandum Agreement. Thus, they should be preliminarily enjoined so that they can still perform their obligations under the Memorandum Agreement if the Court ultimately rules in Plaintiffs favor on the merits. Moreover, while a preliminary injunction might impact Pea Ridge Mining, Pea Ridge Mining is no innocent bystander. Before entering into the agreements with Defendants, Pea Ridge Mining was fully aware of the Memorandum Agreement and Plaintiffs claims in this lawsuit. Finally, Defendants have repeatedly acted in violation of this Courts orders, including temporary restraining orders and preliminary injunctions. 49. A preliminary injunction is in the public interest. Absent a preliminary

injunction, Defendants may enter into agreements with third parties that purportedly affect the equity, assets, and governance of the mine owner. If the Court denies a preliminary injunction and Plaintiffs eventually prevail on the merits of their claims under the Memorandum Agreement, there could be an irreconcilable conflict between Plaintiffs collateral, equity, and governance rights under the Memorandum Agreement and similar rights purportedly granted to third parties (such as Pea Ridge Mining) by Defendants under other agreements. The public interest favors the Court taking whatever action is necessary to protect the sanctity of contract, to protect creditors rights, to protect the rights of shareholders and those parties holding equity conversion rights, to prevent interference with any of those rights, to enforce fiduciary duties, to enforce this Courts jurisdiction, and to protect the status quo. From the publics perspective, the

- 25 -

Exhibit E

0135

best course is to issue a preliminary injunction and preserve the status quo until the merits of this case are decided. 50. It appears that Plaintiffs are likely to succeed on the merits of their claim that the

Memorandum Agreement is a valid contract. Plaintiffs have requested specific performance and the Court would have the authority to declare void any game changing actions taken since June 28, 2010 without the consent of the director appointed by Plaintiffs. Gieselmann v. Stegeman, 443 S.W.2d 127, 135-36 (Mo. 1969); Faber v. Parent, 164 Fed.Appx. 596, 598-99 (9th Cir. 2006).4 To maintain the status quo pending final resolution of the case and because the Defendants have repeatedly refused to obey the Courts prior orders which sought to maintain the status quo, and have attempted to put in place a series of transactions behind the backs of the Plaintiffs and of the Court which seek to undermine the Courts authority and to circumvent this Courts attempts to protect and to maintain the status quo pending an ultimate resolution of this case, the Court will enjoin the Defendants from further implementing any of those agreements and will require the Defendant corporations to be governed in accordance with the terms of the Memorandum Agreement. 51. Accordingly, Defendants Upland Wings, Inc., Wings Enterprises, Inc., James

Kennedy, and Nina Abboud and their respective directors, officers, affiliates, employees, shareholders, those holding or purporting to hold proxies to vote shares of any such shareholders, agents, and any other person or entity which holds or purports to hold any authority, power, or

The Missouri Supreme Court has recognized the need to rely on federal case law concerning preliminary injunction proof because there is relatively little Missouri case law concerning the elements required to obtain a preliminary injunction or a stay because such matters are interlocutory and generally not appealable. In State ex rel. Director of Revenue, State of Mo. v. Gabbert, 925 S.W.2d 838 (Mo. 1996).

- 26 -

Exhibit E

0136

right in any of the Defendants, either individually or acting in concert, are each hereby enjoined from doing any of the following without the prior written consent of Thayer: (A) taking any actions in furtherance of the July 1, 2011 Term Sheet, the Note and

Security Agreement, the Option to Purchase Stock Agreement, the Escrow Agreement, the Irrevocable Durable Proxy Wings Enterprises, Inc., the Irrevocable Durable Proxy Upland Wings, Inc., the Collateral Assignment of Lease, all with Pea Ridge Mining, LLC, or any other agreements with Pea Ridge Mining, LLC, or its affiliates, shareholders, officers, and agents, including, but not limited to: (1) taking any further loan advances under the Note and Security Agreement

or any other agreement with Pea Ridge Mining, LLC; (2) transferring any assets of, or any stock, securities, or equity interest in,

Upland Wings, Inc., or Wings Enterprises, Inc., to Pea Ridge Mining, LLC or Enterprise Bank & Trust, as Escrow Agent under the Escrow Agreement; (3) taking any actions to effect or recognize the transfer of any assets of, or

any stock, securities, or equity interest in, Upland Wings, Inc., or Wings Enterprises, Inc., to Pea Ridge Mining, LLC; (4) entering into any Definitive Agreements (as defined in the July 1, 2011

Term Sheet between Defendants and Pea Ridge, Mining, LLC) or any other new agreements with Pea Ridge Mining, LLC; (5) transferring any stock, securities, or equity interest in Upland Wings, Inc.,

or Wings Enterprises, Inc., pursuant to the terms of the Escrow Agreement; (6) exercising any conversion or other rights under the Option to Purchase

Stock Agreement;

- 27 -

Exhibit E

0137

(7)

issuing any new shares or other securities of Upland Wings, Inc., or Wings

Enterprises, Inc.; (8) exercising or permitting the exercise of any voting or other shareholder

rights pursuant to either the Irrevocable Durable Proxy Wings Enterprises, Inc., or the Irrevocable Durable Proxy Upland Wings, Inc.; and (9) recognizing or giving effect to in any manner the exercise or the purported

exercise of any voting or other shareholder rights pursuant to either the Irrevocable Durable Proxy Wings Enterprises, Inc., or the Irrevocable Durable Proxy Upland Wings, Inc. (B) discussing, negotiating, or entering into any letter of intent, memorandum of

understanding, summary of understanding, contract, or agreement by any name, designation, or description that involves or is related in any way to the subject matter of this litigation, the Pea Ridge Mine Property, or the minerals in or on the Pea Ridge Mine Property; (C) conducting or having conducted any appraisals, feasibility studies, engineering

assessments, site plans, or surveys related in any way to the Pea Ridge Mine Property; (D) taking any action to grant or transfer or otherwise promising to grant or transfer

any type of interest, whether as security or otherwise, in the Pea Ridge Mine Property, the minerals in or on the Pea Ridge Mine Property, or the assets, property, equity, or securities of any incorporated or unincorporated entity that directly or indirectly owns the Pea Ridge Mine Property or the minerals in and on the Pea Ridge Mine Property; (E) taking any actions that cause any incorporated or unincorporated entity that

directly or indirectly owns the Pea Ridge Mine Property or the minerals in or on the Pea

- 28 -

Exhibit E

0138

Ridge Mine Property to borrow any additional monies or accept any investments from any source; (F) paying or attempting to pay any indebtedness or other obligations owed to

Plaintiffs that Plaintiffs claim is subject to equity conversion rights in the June 25, 2010 Memorandum Agreement; (G) removing any minerals or other materials or any equipment from the Pea Ridge

Mine Property; (H) entering on the Pea Ridge Mine Property except in accordance with applicable

laws and with the express prior written consent of Plaintiff Thayer Land Development Company L.L.C. or Alberici Constructors, Inc., which consent shall not be unreasonably withheld; (I) directing or causing the filing of any petition for relief under the federal

Bankruptcy Code by Upland Wings, Inc., or Wings Enterprises, Inc. 52. The current boards of directors of Upland Wings, Inc., and Wings Enterprises,

Inc., and each director thereon are hereby suspended and enjoined from taking any further action on behalf of Upland Wings, Inc., or Wings Enterprises, Inc., including, but not limited to, incurring new debt, issuing or transferring any stock, security, or equity interest, accepting any investor, or filing any petition for relief under the federal Bankruptcy Code. 53. Effective immediately, the boards of directors of Upland Wings, Inc., and Wings

Enterprises, Inc., each consist of three directors: (1) one director jointly appointed by Defendants James Kennedy and Nina Abboud with written notice to Thayer; (2) one director appointed by Thayer with written notice to Defendants; and (3) and one director to be mutually selected by Thayer and Defendants James Kennedy and Nina Abboud. Defendant Nina Abboud is

- 29 -

Exhibit E

0139

designated as the initial director jointly appointed by Defendants James Kennedy and Nina Abboud and shall serve until and unless Defendants James Kennedy and Nina Abboud jointly appoint a different director. Gregory T. Hesser is designated as the initial director appointed by Thayer and shall serve until and unless Thayer appoints a different director. Joseph Murray, attorney at law in Park Hills, Missouri, is designated as the initial third director and shall serve until and unless Thayer and Defendants James Kennedy and Nina Abboud mutually select a different director. Unless specifically authorized by this Court, Upland Wings, Inc., and Wings Enterprises, Inc., shall take no action without the prior express written approval of the director appointed by Thayer, including, but not limited to incurring new debt, issuing or transferring any stock, security, or equity interest, accepting any investor, or filing any petition for relief under the federal Bankruptcy Code. 54. Defendants Upland Wings, Inc., Wings Enterprises, Inc., James Kennedy, and

Nina Abboud shall immediately prepare, execute, and file with the proper authorities, in proper form, all needed and necessary resolutions, amendments to articles of incorporation, amendments to by-laws, or other amendments to any other appropriate documents and all other documents as may be required, to reduce the size of the boards of directors of Upland Wings, Inc., and Wings Enterprises, Inc., to three members, to replace the existing directors with those set forth in this Order, and to take such other action required in the preceding paragraph of this Order. This action is to be taken immediately. Plaintiffs are directed to prepare all needed and necessary documents to give full effect hereto, and Defendants shall execute these documents immediately upon presentation and return them to Plaintiffs, who shall file said documents. 55. In accordance with Rule 92.02(e), this Preliminary Injunction Order is binding

upon Defendants and their officers, agents, servants, employees, and attorneys and upon those

- 30 -

Exhibit E

0140

persons in active concert or participation with them who receive actual notice of this Preliminary Injunction Order by personal service or otherwise. 56. Plaintiffs shall a serve a copy of this injunction upon Pea Ridge Mining, LLC and

any other person or entity Plaintiffs desire, from time to time. The Court specifically finds that, in light of the evidence introduced at the hearing, Pea Ridge Mining, LLC, Ahti Vilppula, and Ulrich Krasukopf have been affirmatively and knowingly acting in concert and participation with Defendants as to the actions by Defendants that appear to violate Plaintiffs rights under the Memorandum Agreement and the Deed of Trust and Business Security Agreements that Defendants executed in favor of Thayer. The Court was also informed that the attorney for Pea Ridge Mining LLC and Ahti Vilppula consented to be bound by this Order before the Honorable Judge Rodney Sippel of the United States District Court for the Eastern District of Missouri. Accordingly, Pea Ridge Mining, LLC, Ahti Vilppula, and Ulrich Krasukopf and their attorneys, agents, directors, managers, and anyone acting on their behalf or in concert with them are individuals and entities bound by this Order to the fullest extent permissible under Rule 92.02(e). 57. Likewise, the Court specifically finds that Enterprise Bank & Trust, as the

Escrow Agent under the purported Escrow Agreement, is bound by this Order to the fullest extent permissible under Rule 92.02(e). 58. Nothing in this Preliminary Injunction Order shall prevent SalvageCo, LLC, from

continuing operations under its governing corporate documents. 59. Plaintiffs have posted security in the amount of $3,100,000 with the Court in the

form of a preliminary injunction bond. The Court finds that this amount is adequate to protect Defendants from any potential harm or injury that they may suffer as a result of the entry of this amended preliminary injunction. Defendants have argued that the Court should consider a bond

- 31 -

Exhibit E

0141

in the amount of $1 billion based on Defendants projections about the value of a fully operational project. Defendants argument is not credible because, among other reasons, the record reflects that on July 1, 2011, Defendants purported to grant an option to transfer 70% of the equity of each of Upland Wings and Wings Enterprises for $1. While the Court does not believe that the option price reflects the real value of the project, Defendants should not be permitted to argue that an injunction bond should be based on a much higher valuation of the venture when they purported to value the equity at such a low amount. Further, the parties have said the mine project may be worth substantial sums in the future, but not at the present time given the early stages of development of the overall project. The 3.1 Million Dollar bond posted with the preliminary injunction entered earlier today is sufficient in light of a consideration of all relevant factors. Further, the preliminary injunction bond posted with the preliminary injunction posted earlier today shall apply to this amended preliminary injunction. 60. The Temporary Restraining Order entered on August 11, 2011 is hereby

dissolved. The Clerk shall release to Plaintiffs the original Temporary Restraining Order Bond.

This Order is issued on September 1, 2011 at 3:30 oclock P.M.

SO ORDERED:

/s/ Shawn McCarver 9-1-11 3:30 pm Shawn McCarver, Judge

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Exhibit E

0142

Overland-based Alberici partners with Canadian firm to buy mine


BY LISA BROWN lbrown@post-dispatch.com > 314-340-8127 | Posted: Wednesday, January 4, 2012 9:58 am Canadian commodities supply chain firm MFC Industrial Ltd. has partnered with Alberici Constructors, an Overland-based construction firm, to acquire the Pea Ridge iron ore mine in Washington County. MFC and Alberici will jointly develop the Pea Ridge mine near Sullivan, which has been at the center of efforts to mine valuable rare earth elements in Missouri since businessman Jim Kennedy bought the mine in 2001. Kennedy is president of Wings Enterprises, which is based in the St. Louis area. The Pea Ridge mine has been embroiled in a legal dispute over ownership and development rights for months. In a July lawsuit filed in federal court, an entity affiliated with Alberici asked the court to void a transfer of Alberici's interest in the mine to Pea Ridge Mining LLC, an affiliate of Belgravia Mining Corp. The lawsuit alleged Alberici negotiated a joint development agreement in 2010 that assigned the construction company an equity interest in Wings Enterprises and allowed the construction company to participate in management of the mine's operation. Alberici says it got the deal in exchange for the construction of processing facilities at the Pea Ridge Mine and work at a shipping facility in Crystal City. In a statement released today, MFC said numerous contractual disputes and lawsuits related to Pea Ridge have all been settled. "We are pleased to have settled all legal disputes with the owners of the Pea Ridge mine," MFC's Chairman and Chief Executive Michael Smith said in a statement. MFC said that it paid $13 million for its stake in the mine and assumed an unspecified amount of debt. Alberici declined to comment on its interest and a spokesman referred questions to MFC. MFC and Alberici appear to be more interested in Pea Ridge's iron than its rare earth elements. Rare earth elements, which are used in cell phone batteries, flat screen TVs and weapons systems, shot up in price after China signaled in 2009 that it would cut rare earth exports. China produces more than 90 percent of rare earth output. However, the Chinese government said in late December that it will keep its rare earth export quotas unchanged from 2011. As part of MFC and Albericis acquisition, Pea Ridges previous owners will retain a 2.6 percent royalty on iron, or ferrous, mineral returns and will hold a 70 percent ownership stake mineral rights on non-ferrous minerals at the mine. The two companies didnt detail who were the previous owners. Kennedy couldnt be reached for comment. MFC and Alberici jointly own the remaining 30 percent in the entity that controls non-ferrous minerals. The Pea Ridge mine was originally developed by a partnership between Bethlehem Steel and St. Joe Minerals and operated as a underground mine from 1963 to 2001. The mine was owned by Woodridge Resources when it closed in 2001. The mine, which has been estimated to contain more than 150 million metric tons of high-grade magnetite iron ore reserves, was to supply ore for a smelter in Crystal City on the site of the former Pittsburgh Plate Glass plant, which shuttered in 1990. The Crystal City project has been hailed as an economic boon that would bring 1,000 jobs to the city, but only weeds have grown on the site since Kennedy signed a 100-year lease for the property in 2007. Crystal City Mayor Tom Schilly, a supporter of the smelter, said Wednesday he did not know how the Pea Ridge acquisition would affect the plans for the smelter and that he needs to confer with city attorneys. Leah Thorsen of the Post-Dispatch contributed to this report.

Exhibit F

0143

Exhibit G

0144

Case: Alberici Constructors v. Upland Wings, et al.

Volume No.

Transcript of the Testimony of Audio Recording

Date: December 21, 2011

This transcript is printed on 100% recycled paper

515 Olive Street, Suite 300 St. Louis, MO 63101 Phone:314.241.6750 1-800-878-6750 Fax:314.241.5070 Email:schedule@goreperry.com

Exhibit H

0145

Alberici Constructors v. Upland Wings, et al.

Audio Recording

12-21-2011
Page 1
IN THE CIRCUIT COURT OF THE COUNTY OF WASHINGTON STATE OF MISSOURI

ALBERICI CONSTRUCTORS, INC.,

Plaintiff,

vs.

No. 10WC-CC00476

UPLAND WINGS, et al.,

Defendants.

HEARING Taken on December 21st, 2011

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Exhibit H

0146

Alberici Constructors v. Upland Wings, et al.

Audio Recording

12-21-2011
Page 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

Page 4

IN THE CIRCUIT COURT OF THE COUNTY OF WASHINGTON 1 STATE OF MISSOURI 2 ALBERICI CONSTRUCTORS, INC., Plaintiff, vs. No. 10WC-CC00476

APPEARANCE OF COUNSEL (CONTINUED):

UPLAND WINGS, et al., Defendants. TRANSCRIPTION OF AUDIOTAPED HEARING taken on the 21st day of December, 2011, by Gretta G. Cairatti, RPR, CRR, MO-CCR #790, IL-CSR #084-003418, and Notary Public.

3 FOR THE DEFENDANT: 4 DAVID L. BAYLARD, ESQ. 5 Baylard, Billington, Dempsy & Jenson, PC 6 30 South McKinley 7 Union, MO 63084 8 636/239-8400 9 dbaylard@bbd-law.com 10 11 _ _ _ _ _ _ _ _ 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Page 5

Page 3

1 APPEARANCES OF COUNSEL: 2 3 FOR THE PLAINTIFF: 4 RICHARD B. SCHERRER, ESQ. 5 WINSTON CALVERT, ESQ. 6 ERIC HARRIS, ESQ. 7 Armstrong Teasdale LLP 8 7700 Forsyth Boulevard, Suite 1800 9 St. Louis, MO 63105 10 314/621-5070 11 rscherrer@ArmstrongTeasdale.com 12 wcalvert@ArmstrongTeasdale.com 13 eharris@ArmstrongTeasdale.com 14 AND 15 LAWRENCE C. FRIEDMAN, ESQ. 16 Thompson Coburn LLP 17 One US Bank Plaza 18 St. Louis, MO 63101 19 314/552-6000 20 lfriedman@thompsoncoburn.com 21 22 23 24 25

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

INDEX PAGE Direct Examination By Mr. Scherrer EXHIBITS PAGE Plaintiff's Exhibit 41 Plaintiff's Exhibit 42 Plaintiff's Exhibit 43 Plaintiff's Exhibit 44 Plaintiff's Exhibit 46 Plaintiff's Exhibit 46 Plaintiff's Exhibit 47 20 25 26 33 37 44 51 15

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Exhibit H

0147

Alberici Constructors v. Upland Wings, et al.

Audio Recording

12-21-2011
Page 6 Page 8

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(WHEREUPON, the following tape-recorded hearing was transcribed on January 16, 2012.) THE COURT: Okay. The Court calls the case of Alberici Constructors, et al., versus Upland Wings, et al., 10WA-CC00476. This is a Washington County case being heard for trial today in St. Francis County by agreement of all parties. The parties that are present are Alberici Constructors represented by Mr. Laurence Friedman. Thayer Land Development by Mr. Richard Scherrer. Local counsel for the Plaintiffs is Eric Harris. He's present as well. Are you with -MR. HARRIS: I'm with Winston Calvert at Armstrong Teasdale. THE COURT: All right. And you -- you represent Thayer; is that correct? MR. HARRIS: Correct. THE COURT: Mr. Winston Calvert, also of Armstrong Teasdale, is present here representing Thayer Land Development, all on the side of the Plaintiffs. The Defendants are represented here by Mr. David Baylard, attorney at law. To make the record clear, the Defendants, Jim Kennedy and Nina Abboud are not present but I
Page 7

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with respect to the question of -- and Mr. Friedman, do I understand that for purposes of today's trial, Mr. Scherrer is sort of taking the lead for the plaintiffs; is that correct? MR. FRIEDMAN: That's correct, Your Honor. He'll be putting on the evidence. THE COURT: Does everyone then agree that -Typically I go -- From my perspective, I go clockwise around to ask people -- to ask the lawyers or parties questions. Does everyone agree, then, that Mr. Scherrer can answer for all of -- everyone who's here for the Plaintiffs, Mr. Baylard, of course, for the Defendant's. Is that okay with everybody? UNIDENTIFIED SPEAKERS: Yes, Sir. THE COURT: Mr. Scherrer, do you agree that this trial can be -- you don't have to keep standing, we're not that formal here. Do you -Mr. Scherrer, do you agree that this Washington County matter can be heard -- the trial of it can be heard here in St. Francis County? MR. SCHERRER: Yes, Your Honor. THE COURT: And you -- your side has not requested and therefore affirmatively waives any right to a jury trial that you may or may not have?
Page 9

understand that's by design and with agreement of counsel; is that correct, Mr. Baylard? MR. BAYLARD: Yes, Sir, that is correct. THE COURT: All right. The docket sheet in the Washington County case lists Rose Marie Abboud also as a Defendant. I don't think she was ever joined. I think there was a request, maybe at one point. I don't think it was ever acted on. Does everyone agree that she is not a party? MR. BAYLARD: Yes, Sir. MR. SCHERRER: Plaintiff's do, Your Honor. MR. FRIEDMAN: She's not a party, Your Honor. That may have been a reference to the fact a subpoena was served on her. She's never been -THE COURT: All right. MR. FRIEDMAN: -- a Defendant. THE COURT: All right. I did not think so and I have handled most of this stuff in this case since it came up, anyway, so I did not ever remember her being a party. So she's not a party even though she's on the docket sheet, and I want the record to be clear that that's on there by mistake. Is Mr. Going here? UNIDENTIFIED SPEAKER: No, he is not. THE COURT: No, he is not. Okay. Folks,

MR. SCHERRER: That is correct, Your Honor. MR. BAYLARD: All right. THE COURT: And Mr. Baylard, do you also agree that this final trial can be held in St. Francis County? MR. BAYLARD: I do. THE COURT: Do you also waive, on behalf of you and your clients, any jury trial rights that you may have had? MR. BAYLARD: Yes, Sir, I do. THE COURT: All right. Now, the other issue is with respect to the notice that was filed, noticing this up for trial. The parties contacted me wanting to have a hearing date sometime quickly to get this matter resolved by trial. I said we could do it today if we did it here. Unfortunately that didn't comply with our local five-day notice rule. Mr. Scherrer, has your side been asked, I presume that you're waiving any objection to the -related to the five-day notice requirement? MR. SCHERRER: That is correct, Your Honor. THE COURT: And Mr. Baylard, on behalf of the Defendants, I understand that you've probably had some phone calls, but as far as an actual

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Exhibit H

0148

Alberici Constructors v. Upland Wings, et al.

Audio Recording

12-21-2011
Page 10 Page 12

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

written notice, I believe we got it yesterday, do you, Sir, also waive any objections related to time period of the notice on this trial. MR. BAYLARD: Yes, I do, Your Honor. THE COURT: All right. Mr. Scherrer, have we covered everything that you would like me to cover in pretrial before you start introducing your evidence? MR. SCHERRER: Yes, Your Honor, with perhaps one thing, and that is, we are going to move to dismiss without prejudice certain counts. I have those -THE COURT: Why don't you do that after your evidence, that way we'll see where we're at in terms of, you know, proof and some of that kind of stuff. MR. SCHERRER: That's fine. THE COURT: You know, when you get ready to finish up your case, you can do that. And just for the record, it's my understanding that you're going to be proceeding primarily at this trial on your breach of contract count requesting a remedy of specific performance; is that correct? MR. SCHERRER: Yes. THE COURT: And just because it's my usual
Page 11

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this trial. THE COURT: Okay. The -- And this applies to all claims and causes of action that have been raised by the Defendants at any time during this case; is that correct? MR. BAYLARD: That is correct. THE COURT: And Mr. Scherrer, the dismissal I've been handed by Mr. Baylard, I'm going to mark it as filed today on December 21st. Do you agree that -- It says it's without prejudice. MR. SCHERRER: We agree, Your Honor. THE COURT: All right. Very well. Any other pretrial matters, folks? UNIDENTIFIED SPEAKER: I don't believe so. THE COURT: Oh, wait, I'm sorry, we may have another one. Because we talked about it in pretrial, I believe the parties are in agreement that I would take judicial notice of all pleadings, orders, judgment, findings, as well as all testimony heard at all prior hearings in this matter. I know Rule 92 allows me to consider for purposes of the trial, all evidence heard over our three-day hearing on the request to turn the TRO into a preliminary injunction. It would be my intention to do that. I want to make sure no one has any -- I'm sure there's
Page 13

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policy, I would ask ahead of time, do you have a proposed judgment? MR. SCHERRER: Yes, we do, Your Honor. THE COURT: All right. And since it's specific performance and since my understanding of the case law is that in the judgment, you're going to have to have real specific ideas of what you want done, not just a -- a list of things. I presume your judgment is very specific as to what you're going to have me order; is that correct? MR. SCHERRER: That is correct, Your Honor. THE COURT: All right. MR. SCHERRER: In addition, Your Honor, we seek a permanent injunction as well. THE COURT: That's fine. Yes, you told me that in pretrial and I forgot to mention it. So you're going to be proceeding on the breach of contract and the request for permanent injunction; is that correct? MR. SCHERRER: Yes, Your Honor. THE COURT: Mr. Baylard, any proposed judgment on your side of the case? MR. BAYLARD: No, Your Honor, we do not. The Defendants do voluntarily dismiss, without prejudice, their counterclaim in order to shorten

a valid objection to it, but I'm going to ask Mr. Scherrer, do you agree to that? MR. SCHERRER: Yes, we do, Your Honor. THE COURT: Okay. And Mr. Baylard? MR. BAYLARD: Yes. THE COURT: And now, are there any other pretrial matters? MR. BAYLARD: None that I know of, Your Honor. MR. SCHERRER: None for the Plaintiffs, Your Honor. THE COURT: Very well. Mr. Scherrer, you may call your first witness. MR. SCHERRER: Robert Niemeier, please. THE COURT: Mr. Niemeier, come on up. You testified here for about two full days before, so I know you know to speak loudly and if a question calls for yes or no, say it. I give that speech about hundred times a day. All right. Now, raise your right hand please. Do you swear the tell the truth, the whole truth, and nothing you the truth, so help you God? THE WITNESS: Yes, Sir. THE COURT: Very well. Mr. Scherrer, you may proceed.

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Exhibit H

0149

Alberici Constructors v. Upland Wings, et al.

Audio Recording

12-21-2011
Page 14 Page 16

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MR. SCHERRER: Thank you, Your Honor.

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

Q And you're the principal contact for Alberici and Thayer with respect to this project, are you not, Sir? A Yes, I am. Q It is under your direct supervisory control? A Yes, it is. Q What is your title? A I am project director for that. Q And by -- by the mining project, we're referring to what is commonly called the Pea Ridge Mine located primarily in Washington County and some portions of Crawford County in the State of Missouri; correct? A Yes. Q Now, you were present for depositions, virtually all of them, taken in this case; correct? A Yes, I have been. Q And in addition, you've had an opportunity to review, as they came in, documents that were produced in discovery and identified during the course of the deposition; is that right, Sir? A That is correct. Q In the course of the depositions, have you come to know the name of an individual named Ahti Vilppula?
Page 17

Page 15

ROBERT NIEMEIER, of lawful age, having been first duly sworn on behalf of the Plaintiffs to testify the truth, the whole truth, and nothing but the truth in the case aforesaid, says in reply to oral interrogatories propounded as follows, to-wit: DIRECT EXAMINATION QUESTIONS BY MR. SCHERRER: Q You are Robert Niemeier, an employee of one of the Plaintiffs, Alberici Construction? A Yes. Q You reside in St. Louis County; is that right, Sir? A Yes. Q Now, you previously, as the Court noted, testified for a number of days at the preliminary hearing of this matter; correct? A Yes, I did. Q One of the aspects of the preliminary injunction, Mr. Niemeier, involved the Court enjoining the Defendants from going ahead with any business transactions involving a company called Pea Ridge Mining, LLC; is that your understanding? A Yes, it is.

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

A Yes, I have. THE COURT: Let me stop you, as another matter of pretrial announcement, I think it goes without saying, since I said I was taking judicial notice of all the previous testimony and so forth, I didn't specifically mention the voluminous notebooks filled with exhibits. Those were admitted before. I want the record to be clear that I'm taking all of those as admitted at this trial as well since they were brought in at the hearing on the preliminary injunction. Mr. Scherrer, do you agree? MR. SCHERRER: Yes, I do, Your Honor. THE COURT: Mr. Baylard. MR. BAYLARD: Yes, I do. THE COURT: My apologies for interrupting you. When you started talking about exhibits, I realized I had forgotten to say that. MR. SCHERRER: Thank you, Your Honor. THE COURT: The last question, are you familiar with Ahti Vilppula? THE WITNESS: I'm familiar with his name, yes. THE COURT: All right. Go ahead. QUESTIONS BY MR. SCHERRER: Q What is his relationship with Pea Ridge

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Exhibit H

0150

Alberici Constructors v. Upland Wings, et al.

Audio Recording

12-21-2011
Page 18 Page 20

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Mining, LLC, as you've come to know it, Sir? A As I've come to know it, he is the sole owner, if you will, of Pea Ridge Mining. Q When considering -- Well, strike that. In the memorandum agreement, which was marked and identified as an exhibit during the preliminary junction hearing, contained certain provisions relating to the approval and consent of the Plaintiffs with respect to investors; is that correct? A Correct. Q And obviously that approval and consent was never obtained from the Plaintiffs, as we know, with respect to Mr. Vilppula or his company, PRM, LLC, making an investment in the mining project; is that right? A That is correct, we were unaware. Q How did you come to know that Mr. Vilppula had any relationship with the Pea Ridge Mine? A As I had previously testified, we were alerted to the -- the security that was filed as a second Deed of Trust against the mining property in Washington County, Missouri, and -- and his name is listed on the face of that document. Q Among other things, when you learned of that
Page 19

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confidence that you share values and that we're not placing ourselves at risk through that association. Q Subsequently, when you learned that Mr. Vilppula had an interest as an investor in the project, did you take a closer look at the information that you were able to locate from your Google searches and other things within the public domain and the public media? A Yes, I did. MR. SCHERRER: I lost an exhibit, Your Honor, I apologize. THE COURT: Take your time, we're fine. MR. SCHERRER: I don't know where they are. Here it is. QUESTIONS BY MR. SCHERRER: Q Let's -THE COURT: If he's going to testify about it, he might as well have them. MR. SCHERRER: Absolutely. QUESTIONS BY MR. SCHERRER: Q I'm going to hand you with the Court's permission -THE COURT: Go ahead. QUESTIONS BY MR. SCHERRER: Q -- Plaintiff's Exhibit 41. And actually,
Page 21

name from that document, did you endeavor to determine or obtain any information from public sources with respect to Mr. Vilppula? A Yes, I did. Q Can you generally tell us what you did, please? A The first thing I did is went to Google and -- and frankly there was all kinds of articles that -- that popped up about him. Q Very well. Now, I'll get -- I'll get to that with more specificity in a moment, but as it relates to the approval process to approve an investor, what, if anything, would the Plaintiffs be looking for in terms of an investor? A Well, as I had previously testified, we would be looking first for someone that has the experience to be a partner in this endeavor, to be able to meet their obligations. The second issue would be their financial wherewithal to, again, to meet what those obligations would be. And then thirdly, not necessarily in priority, is the culture. If they're going to be your partner and you're all going to be at risk in some form of venture together, you want to have

it -- there's another copy of it which contains some highlights. I'll hand up a courtesy copy to the court. THE COURT: Thank you. And just -- just so we know, you're starting your exhibits at 41 today, I'm assuming that that takes into account the fact that we had a bunch of exhibits before? MR. SCHERRER: Correct. THE COURT: So in other words, what you're doing today starts sequentially from what we had at the preliminary injunction hearing? MR. SCHERRER: That is correct, Your Honor. THE COURT: Very well. QUESTIONS BY MR. SCHERRER: Q Now, you have before you Plaintiff's Exhibit 41. Would you identify that generally? What is that and how did you come by it? A This is an article from the Helsinki Times in Finland from 2000 -- May of 2008, yeah. Q Is that a document that you came across pursuant to this Googling process that you described? A Yes. Q And that that -- does that particular document which you downloaded or printed off of

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Exhibit H

0151

Alberici Constructors v. Upland Wings, et al.

Audio Recording

12-21-2011
Page 22 Page 24

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the -- after your Googling efforts with Mr. Vilppula does it contain information about his background? A It does. Q Now, you're not standing here and saying that the information that is contained therein or that any of the others -- two other documents that I'm going to present you, is necessarily true. You're not testifying as to the -- or contending that they are true; is that right, Sir? A Correct, I don't know if they are true. Q This is just information as we understand it that you gleaned in order to determine who Mr. Vilppula was and whether or not there would be any issue as to his suitability as an investor; correct? A That's correct. MR. SCHERRER: And I'll read -- Well, I'll move that -- for admission into evidence, Plaintiff's Exhibit 41, Your Honor. THE COURT: Obviously we don't have to prove the stuff is true. You can base your decision on whether you want to invest with somebody on any number of factors, including an article that may or may not be true. Clearly it's admissible. Exhibit 41 is in. And I presume it's coming in to
Page 23

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correctly -- are not regarded as exactly shiny white knights or business angels. They are heavyweight investors who are used to meeting serious returns on the sums that they lay out. The caveman, this was a name that Ahti Vilppula and Kai Makela started to use about themselves a few years ago. Q All right. And is the theme of the article generally the notion about contributions they've made to political candidates in Finland? A It is primarily that, although it also references the fact that they've been involved in more third world type countries and political payoffs in terms of other paper mining industries. Q And what other parts of the article in particular caught your attention which is Plaintiff's Exhibit 41? A The relationship with a group commonly known as the Costocontrio (phonetic) but it's three former ministry directors of the -- of -- before the Soviet Union was disbanded into everything else. And they're expected -- Vilppula is tied to this group of billionaires that are suspected by the Belgian authorities of money laundering counterfeited document, links to organized crime, I could go on. Q All right. You may set that aside. Now, as
Page 25

explain why Alberici didn't want to do business. MR. SCHERRER: Why they had concerns, Your Honor. THE COURT: Understand. Continue. MR. SCHERRER: Yes. QUESTIONS BY MR. SCHERRER: Q So you've highlighted certain portions so we can shorten this up. Would you read into the record what you've highlighted that are part of Plaintiff's Exhibit 41? A Sure. This talks about how Mr. Vilppula is -- is a part of -THE COURT: You want him to read it verbatim or -- or did you just want to put -- give me the highlights? QUESTIONS BY MR. SCHERRER: Q Why don't you give the Court the highlights, please? A That Mr. Vilppula and two other Finnish gentlemen are aggressive Finnish businessmen. They're in a variety of industries, and they traditionally work together in several different types of projects, and it says, By reputation, Vilppula, Makela (phonetic), and Sam Oduri (phonetic) -- I'm sure I'm not pronouncing it

a result of what you read about the -- this trio of individuals, did you then do a search with respect to the Costocontrio (phonetic)? A Yes, yes. Q And did that then result in information that you located which is contained within Plaintiff's Exhibit 42, a copy of which I'm going to hand up to the Court? THE COURT: Thank you. QUESTIONS BY MR. SCHERRER: Q And would you identify Plaintiff's Exhibit 42? A This is an article from Forbes Magazine from March of 2006. Q And does it reference the Costocontrio (phonetic)? A It does. And it talks, again, about all these sweetheart deals with long-serving presence of various countries and steel tycoons and money laundering charges, the inappropriate sales against the laws that are in those countries, that type of thing. Q Anything else that we didn't cover? A No, I think that's the gist of it. MR. SCHERRER: All right. Move for

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1222217d-d77a-48aa-b4bb-6612168447fd

Exhibit H

0152

Alberici Constructors v. Upland Wings, et al.

Audio Recording

12-21-2011
Page 26 Page 28

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admission into evidence, Your Honor, please, Plaintiff's Exhibit 42? THE COURT: 42 is admitted. QUESTIONS BY MR. SCHERRER: Q And then did you also have occasion to download -- download a -- another document which is Plaintiff's Exhibit 43? A Yes, I did. Q And what is the publication? A It is The -- The Independent, which is one of London's daily newspapers. Q What's the date of the article? A August 8, 2004. Q And what, if anything, caught your interest in terms of your due diligence or your efforts to find out more information about Mr. Vilppula and his colleagues or business acquaintances? THE COURT: You handed me two of those. What's interesting I find that I only need one copy. MR. SCHERRER: Thank you, Your Honor. THE WITNESS: That they have actually been brought to trial in Brussels and other countries. They're in constant surveillance by the National Criminal Intelligence Services for money laundering and agreements that do not follow law.
Page 27

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admitted. QUESTIONS BY MR. SCHERRER: Q Mr. Niemeier, did there come a time when you attended a deposition on November 22nd of 2011, in Pittsburgh, Pennsylvania, of an individual named Buli Koskov (phonetic)? A Yes, I did. Q And you had heard that name before? A Yes, I had heard it, and I read it because he was the individual that signed all of the Pea Ridge Mining agreements that were entered into. Q And what did you understand from the deposition and/or information that you have before you? THE COURT: Hold on one second, because we don't have a court reporter, we're on audio, let's wait until these emergency vehicles pass. I don't want any of the record to be spoiled by the noise. All right. They seem to be far enough away now. Go ahead. MR. SCHERRER: Thank you. QUESTIONS BY MR. SCHERRER: Q What was your understanding, based upon the deposition of Mr. Koskov (phonetic) as well as any information you had before that, as to Mr. Koskov's
Page 29

QUESTIONS BY MR. SCHERRER: Q If Mr. Vilppula, pursuant to the process set forth in the memorandum agreement, had been brought to Alberici and Thayer, the Plaintiffs in this case, as a possible investor, would it, based upon the information that's set forth in Plaintiff's Exhibit 41, 42, and 43, have caused any concern? A Absolutely. Q And that would have impacted the issues about whether or not Mr. Vilppula and his business, Pea Ridge Mining, LLC, would have been a suitable investor in the mining project? A Correct. Going back to my earlier example, it's the one if they're going to be your partner, you're now putting your reputation and interests at risk with the person you're in partnership with, so we would want to vet whether or not those allegations are true. THE COURT: Exhibit 43, are you offering it now? MR. SCHERRER: Yes, I am, Your Honor. THE COURT: It's admitted. Mr. Baylard, I assume you have no objection? MR. BAYLARD: No objection, Your Honor. THE COURT: It's admitted. Forty-three is

(phonetic) title and role with respect to Pea Ridge Mining, LLC? A Well, he's titled as the manager of Pea Ridge, LLC -- Pea Ridge Mining, LLC, pardon me, and he said during testimony that he was the sole employee of Pea Ridge Mining, LLC, and that he receives regular compensation in that role through checks that are disbursed by the Lewis Rice law firm in St. Louis. MR. SCHERRER: Now, Your Honor, this is a little unorthodox, but I'm going to read, if I may, with the Court's permission, a brief portion of the deposition that was taken in this case of Mr. Koskov (phonetic), and then ask Mr. Niemeier some questions. So that's why it sort of flows, perhaps. THE COURT: You bet, go ahead. MR. SCHERRER: Thank you, Sir. THE COURT: You're welcome. You said the deposition of Mr. Koskov (phonetic) was in Pennsylvania? THE WITNESS: Pittsburgh, Pennsylvania. QUESTIONS BY MR. SCHERRER: Q He appeared pursuant to a subpoena that was served on him? A Yes.

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1222217d-d77a-48aa-b4bb-6612168447fd

Exhibit H

0153

Alberici Constructors v. Upland Wings, et al.

Audio Recording

12-21-2011
Page 30 Page 32

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Q And there was some resistance to the subpoena and documents that he was asked to produce, was there not? A For four months. Q For four months. But finally and ultimately, on November 22nd of 2011, he did appear for his deposition? A Yes, he did. Q Although there were certain questions that he declined to answer with respect to the Pea Ridge Mining, LLC, transaction? A There were many questions he declined. Q But in any event, at one point during the course of his deposition, this question was asked by Counsel for the plaintiffs, Mr. Friedman: Mr. Koskov (phonetic), is Exhibit 55 a copy of an e-mail from your files identified as Metal Resources 010690, on the first page, an e-mail from you to Mr. Kennedy on June 3rd of 2011? Answer: The e-mail is from me addressed to Mr. Kennedy. And did you prepare the chart that's on the second and third pages? Answer: Yes, I did. Question by Mr. Friedman: And you called
Page 31

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either Mr. Kennedy or his wife, and I put it together. This chart -- I put together this chart and sent it to him for verification. Question: And you wrote, quote, stop Alberici action, find leverage to negotiate walk-away note down at a minimum pay, majority out of earnings, remove Alberici from project, end of quote. Answer: I see that sentence. Now, for the record -- Well, I've got just a few more. You then wrote -- Question: You then wrote, quote, remove Alberici from project, end of quote. Do you see that? Answer: Yes, I see that. And why did you put that as part of the strategy; the question asked. Answer: Well the strategy, as I said before, is forward looking. At this point I assumed we had some kind of an agreement. As I lined it out here, once we had an agreement, Alberici had no further role in the project. Question: And I take it, then, you wanted to remove Alberici from the project? Answer: As I stated before, assuming we had
Page 33

it, quote, Wings critical death summary, end of quote; correct? Answer by Mr. Koskov (phonetic): Yes. Questions: And why did you prepare that? Answer: Just as a better visual to pull -pull those numbers together and put it in front of the peoples -- people discussing it. Question: You said, quote, Just boiling down the parameters to focus lawyers on the immediate subjects, end of quote. Do you see that on the first page? Answer: Yes. Question: Which lawyers were you referring to there? Answer: Lewis Rice. Question: If this was the information for the lawyers on your side, why did you send it to Mr. Kennedy? Answer: Because it is a condensed visual of the points we are facing, and Mr. Kennedy, if anybody, would be able to point out our mistakes or wrong assumptions or wrong amounts. Question: Where do the numbers come from that you used? Answer: The numbers were given by, I think,

reached an agreement that there would be no further role for Alberici on the project. Now, you generally remember, obviously, him testifying to that; is that correct? A Yes, I do. Q And that exhibit was particularly vivid to you, was it not? A Yes, it was. Q I'm going to hand you what's been marked as Plaintiff's Exhibit 44, and a copy to the Court. THE COURT: Thank you. QUESTIONS BY MR. SCHERRER: Q Now, is -- in looking at that document, Plaintiff's Exhibit 44, which is a three page document, is that the Exhibit 55 that you just heard me read from the deposition testimony of Mr. Koskov (phonetic)? A Yes, it is. Q And as a person who participated and listened in the deposition, looked at -- at virtually every document produced in this case, and I know that because I know you, Mr. Niemeier, and you did, and what do you deduce from that document? What inferences do you draw from it as you look at it with respect to what Pea Ridge Mining, LLC, if

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1222217d-d77a-48aa-b4bb-6612168447fd

Exhibit H

0154

Alberici Constructors v. Upland Wings, et al.

Audio Recording

12-21-2011
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they had gone forward and hadn't been preliminarily enjoined, intended to do to Alberici? A They were going to forcibly push us out of the project which mirrors what Mr. Kennedy told Plasmid (phonetic) in one of the other exhibits that he had in there as to what the intent of Pea Ridge Mining was. Q Should I be standing closer to the mikes? THE COURT: I'm sure you're fine. MR. SCHERRER: All right, good. THE COURT: Just keep -- stand anywhere, keep your voice up, you'll be fine. QUESTIONS BY MR. SCHERRER: Q Anything else that you -- you didn't cover? A Just that, you know, through a bunch of other discovery that came around, I mean, it was the intent of Mr. Vilppula since late May to forcibly push Alberici out of the project. He had hired attorneys to start to, you know, draft documents, procedures, he -- in making Koskov (phonetic) the manager. There were further communications to Kennedy that this is our project, you take your direction from Mr. Koskov (phonetic), I mean, it was all part of a cadence of activities. MR. SCHERRER: Your Honor, at this time I
Page 35

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Question: This is an e-mail from Mr. Short's files that he produced to us. Do you recognize it? It's identified as S Short 022874. Answer: I see that. Question: Do you recognize it as an e-mail that you sent to Mr. Holts and Mr. Short on July 13? Answer: I see that. Question: And you wrote, quote, please find a way to keep communication away from Jim's and Nina's e-mail which we know is monitored. Do you see that? Answer: Yes. Question: What did you mean when you said their e-mail is being monitored? Answer: I was under the impression that at that time, correspondence from Mr. Kennedy and his wife was monitored. Question: What do you mean? Who was monitoring it? Answer: I don't know who was monitoring it. I think everybody is aware that there was a very big and widespread problem with AOL e-mail accounts in general. Question: What was the big and widespread problem with AOL accounts at that time?
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would move for admission into evidence of Plaintiff's Exhibit 44, which is Exhibit 55 to the deposition of Mr. Koskov (phonetic). MR. BAYLARD: No objection. THE COURT: Thank you. Exhibit 44, Trial Exhibit 44, Deposition Exhibit 55, is admitted into evidence. QUESTIONS BY MR. SCHERRER: Q Now, one more portion -THE COURT: I'm sorry, I note on here also that the footnote on page 2 of this Exhibit 44 mentions the PortCo (phonetic) scenario. Is that the same PortCo (phonetic) that I considered and ruled on some discovery issues concerning a CPA accountant named Sylvia Aronrine (phonetic). MR. SCHERRER: Yes, it is, Your Honor. THE COURT: Okay. Thank you. MR. SCHERRER: Now, at this point in time, again, a bit unorthodox, I propose to read from certain portions. THE COURT: Go ahead, that's fine. MR. SCHERRER: Question by Mr. Friedman of Mr. Koskov (phonetic): Mr. Koskov (phonetic), you've been handed Exhibit 79. Answer: Thank you.

Answer: They were widely hacked in and abused and monitored, I don't know by whom, but they are insecure. Question: Were you aware that Alberici had filed several motions with the court in Missouri asking the Defendants to produce copies of the e-mails that they were sent from that account that involved the Pea Ridge Mine? Answer: I didn't know that there was a portion -- there were motions filed. It wouldn't surprise me, but I wasn't -- but I wasn't aware of it. Do you generally remember that discussion with respect to that e-mail? A I do, yes. Q I'm going to hand you what's been marked as Plaintiff's Exhibit 46. THE COURT: Did we skip 45? MR. SCHERRER: Yes, we did. THE COURT: That's okay, I just wanted to make sure. MR. SCHERRER: And I intended to present the witness -- thank you, Your Honor -- with Plaintiff's Exhibit 45, which I'll put before you, and a copy to the Court.

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1222217d-d77a-48aa-b4bb-6612168447fd

Exhibit H

0155

Alberici Constructors v. Upland Wings, et al.

Audio Recording

12-21-2011
Page 38 Page 40

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THE COURT: Thank you. QUESTIONS BY MR. SCHERRER: Q And in looking at Plaintiff's Exhibit 45, is that an e-mail which was just referenced by the deposition testimony of Mr. Koskov (phonetic)? A Yes, it was. Q And you heard his explanation -- Well, you heard his explanation as to why he was advising that folks cease to use AOL and come up with a different e-mail account? A I did hear that explanation, yes. Q And at or about the time that this e-mail was written, was there active discovery that was endeavoring to find out e-mails with respect to the parties that are involved in this litigation? A Yes, there was. In fact, at this point in time, there was failures to produce documents and we were going through additional motions to compel, and Mr. Koskov (phonetic) was on distribution in the e-mail from Dan Short, where this came from, and others such that he should have been aware. Q Are you somewhat dubious of the explanation that Mr. Koskov (phonetic) gave that he was only giving this advice because he was worried about the insecurity of the AOL e-mail system?
Page 39

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A These are various newspaper articles as well as valuations from the courts from other third party type organizations like Morgan Stanley, for example, that discuss the value of the products that would be produced from the Pea Ridge Mine, and then subsequently, the means and methods that would be used to produce those projects -- products, pardon me, which of course ripples into jobs both temporary from a construction standpoint as well as permanent jobs, and then revenue, obviously, that comes from it. Q You believe that the information that you're looking at from which you're about to testify are -is reliable data and admittedly looking forward, but based upon existing projects and existing mine projects? A I believe it to be reliable data, as did director, David Kerr, of the Missouri Department of Economic Development. Q Did you interact with Mr. Kerr -A Yes. Q -- with respect to the economic prospect? A Yes, I did, on behalf of Mr. Kennedy. Q And you had correspondence with him? A I do, yes.
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A I'm frankly very skeptical of it, yes. Q Do you draw the inference that perhaps this might have been something to make sure that maybe some discovery was not forthcoming in this case? A That -- That would be my opinion, yes. MR. SCHERRER: I would move for admission into evidence of Plaintiff's Exhibit 45, Your Honor. MR. BAYLARD: No objection, Your Honor. THE COURT: Forty-five is admitted into evidence. QUESTIONS BY MR. SCHERRER: Q Mr. Niemeier, as part of your duties as the project manager of the mine project, have you from time to time done research and analysis with respect to the projected economic impact of this mine project if it goes forward with respect to Washington County, surrounding counties, the State of Missouri? A Yes, I have. Q And you have certain documents, I don't think we're going to mark those as exhibits to shorten things up, but do you have those before you? A I have them here. Q Okay. Just generally tell the Court what those are, please.

Q What -- What information -- What have you learned with respect to the potential number of jobs for people who would be involved in activities with respect to the construction of the mine project? A We've -- We believe that the project will peak with as many as 2,000 people through its three-year duration. Just as a reminder, there is the Pea Ridge Mine site that is 12 miles south of Sullivan, or between Sullivan and Potosi, but then there is also the property leased in Crystal City, Missouri, that's on the site of the former PPG manufacturing complex that would be used to create pig iron from the iron ore, and then bulk ship it by rail in March. So between those two locations, which will be going on simultaneously, we would peak at about 2,000. Overall, we're guessing that there would be about 2,500 people at some point that would receive a paycheck related to that, and in our business, often times we equate that to full-time equivalence, in other words, if it full time work, and it would be about 950. Of course, we went into -- Alberici had already established a labor agreement for the project earlier on with 17 basic trades, and, you

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1222217d-d77a-48aa-b4bb-6612168447fd

Exhibit H

0156

Alberici Constructors v. Upland Wings, et al.

Audio Recording

12-21-2011
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know, you're looking at a salary of probably $75,000 a year, on average, for the folks at Pea Ridge. Q And of course, Alberici, as you just stated, did do construction work at the Pea Ridge Mine project, so Alberici was familiar with the project from that perspective? A Yes. Q Even though there's a lot more work if this mine project goes forward in terms of construction alone; isn't that right? A That is correct. Q Now, what, if anything, did you find from your analysis and your study with respect to a reasonable estimate of the future number of jobs that would be created if this mine project goes operational? A It would be approximately 1,000 jobs, about 350 at the Pea Ridge Mine location, and then the 650 that would be at the PPG site, that those we've estimated those to be at $55,000 a year of compensation package with full benefits. Q Per person. A Yes. Yes, I apologize. Q And the 75,000, for clarity, was per worker. A Correct.
Page 43

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A Yes. Q As well as documents from the State, as well as some documents that are news articles? A Correct, like this article from the Post Dispatch with Senator Bond. Q Senator Bond? A Yes, he was a big supporter of it. Q You may set that aside. Let's move on to one other item for your testimony, I think, and that is, I'm putting before you Plaintiff's Exhibit 46, and in particular, referring to -THE COURT: Thank you. MR. SCHERRER: Sorry, Your Honor. THE COURT: That's all right. QUESTIONS BY MR. SCHERRER: Q -- page 51. And actually, for some reason, I marked -- it's entitled China Rare Earth Industry. A Yes. Q Before we get into the highlighted portion, tell me what Plaintiff's Exhibit 46 is, Sir. A This is a -- a report or an assessment by the US Geological Society as to the -- the use and value of rare earth elements in the global economy. Q What's the date of the document? I think it says 2011.
Page 45

Q On the construction aspects. A Yes. Q Now, did you also come to a reasonable conclusion as to the future revenue, if this mine is feasible and goes forward, that would be generated on an annual basis -A Mm-mm. Q -- dollars? A Based upon the plan capacity of the systems we put in, which was 4 million tons a year, and using what then was a $325 per ton sell price of the pig iron, it was estimated that there would be around $750,000 -- million dollars a year, pardon me, of revenue that would be generated from the Pea Ridge Iron Ore Company. Q Is there any estimate as to the life of this mine if it goes operational? A It is -- It's estimated to be a 100-year source of supply between the proven reserves and the probable reserves. Q Am I correct amongst the documents that you have there which you're testifying support your testimony about the economic impact would be, including things that were authored by Mr. Kennedy, one of the Defendants in this case?

A It does say 2011. I was looking for the date. Yes, it's 2011. Q The second page, it says US Geological Survey, Reston, Virginia -A 2011, correct. Q So this is current? A Yes, this is current. Q Put out by the Federal Government? A Yes. Q And it's an overview of the rare earth industry; is that correct? A It is. Q And what, if anything, does rare earth have to do -- First of all, tell us whether this -- where you got this document. Does this come from your files? A It does. It would have been part of -- of various -- the documents that we accumulated in continuing our -- our project development type activities. Q Why is rare earth germane to the Pea Ridge Mine project? A In addition to the very unique chemistry of iron ore that's at the Pea Ridge Mine deposit, there is also a somewhat unique deposit of rare earth

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1222217d-d77a-48aa-b4bb-6612168447fd

Exhibit H

0157

Alberici Constructors v. Upland Wings, et al.

Audio Recording

12-21-2011
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elements, frankly, for the most part, only known to exist in North America at the Pea Ridge Mine. Q And what does -- what use or value is rare earth? A Rare earths are an additive. You don't make anything out of a rare earth, but the various types of them are added with other minerals to enhance the performance, specifically electrical or mechanical performance. For example, high performance Lithium batteries that are now used in computers and televisions and -- and cars rely heavily on rare earth elements. It's what continues to make microprocessor are chips smaller, but able to do many more functions as relates to it. In the large motors in the wind tower industry, it is additive for the magnet where frankly there's -- they're more contacts between the shaft and the armature. So it's a high performance, low wear type apparatus. Q And you have read Plaintiff's Exhibit 46 -A I have. Q -- in its entirety at some point in time? A Yes. Q Generally tell the Court what the overall theme is of it, and then I'll just have a few
Page 47

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to be able to get the elements, or you have to but the key subassemblies that go into your final report. Senator Bond's key interest which this addresses is, most of our strategic nation defense products such as guided missiles or navigational gear rely on this intense products such that companies Honeywell or Boeing or Johnson Control, Rockwell, they would have to build factories in China to build our nation's defense products. Q That doesn't sound like a good idea. A No, it doesn't. THE COURT: That's the understatement of the year. MR. SCHERRER: So I would move for admission into evidence of Plaintiff's Exhibit 46, Your Honor. MR. BAYLARD: No objection. THE COURT: Forty-six is admitted. QUESTIONS BY MR. SCHERRER: Q So I don't think we need to refer to specific things because I think you already did in your testimony. A By the way, the economic numbers that I spoke to before never included a rare earth impact, because when we originally started assembling those
Page 49

questions on specific sections. A Through the late 1990s, China started to dramatically develop what are rare earth deposits that exist in that country. And being a monopolistic society, they were able to control what is the price that went with that. And what they systematically did is sell rare earth elements below what was production costs for darn near everybody else in the world, not the least of which was a large mine that was started in the early '50s in the Mohave desert, and it called the Mountain Pass Mine. It was own by Chevron Corporation, which is certainly no small outfit. And they dropped their prices so low that Chevron, after they had much money for three years, and said, it's not worth it, they shuttered the mine. The net result was is that the Chinese ended up controlling over 95 percent of the world's rare earth supply. And in the recent year, year and a half, it actually started in July of 2010, they announced that they were going to start restricting exports of rare earth elements such that if you are a manufacturer of a product that needs them, you either have to build a manufacturing place in China

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quotes and models, it -- that was before the upcoming Chinese restriction on exports. So we hadn't put it in the business model because you'd never be able to cover the cost of capital to have a facility for it, because you couldn't sell it and make a profit at it. Those dynamics have changed and certainly would increase the economic value. Q So there are commercial and military strategic issues at play with respect to the rare earth industry? A Yes. Q And the United States Government reported on those concerns and worries and facts that you've testified to in Plaintiff's Exhibit 46; right? A Yes, and other documents. Q And other documents. MR. SCHERRER: I believe that's all the questions I have of this witness, Your Honor. THE COURT: Mr. Niemeier, I'm going to tender you now to Mr. Baylard to see if he has any cross-examination for you. Mr. Baylard? MR. BAYLARD: No questions, Your Honor. THE COURT: Very well. Mr. Niemeier, thank you very much for your testimony, and you may step down. Mr. Scherrer, your next witness?

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1222217d-d77a-48aa-b4bb-6612168447fd

Exhibit H

0158

Alberici Constructors v. Upland Wings, et al.

Audio Recording

12-21-2011
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MR. SCHERRER: I -- The last thing that I propose to do is read a very brief portion -- thank you, Mr. Niemeier -- from the deposition of Nina Abboud which was taken in this action on September 20th of 2011, which was after the preliminary injunction was entered, so it's new evidence. And in particular, I'm reading from page 319, Lines 16 through 25, of Miss Abboud's testimony. Question by Mr. Scherrer: Based upon your dealings with Mr. Vilppula, did you have an understanding of -- as to whether or not he had an appreciation and understanding of the position of the Plaintiff, Alberici, and the Defendants Wings Uplands, you and your husband? Answer: Yes, I believe he understood. Question: So it's your belief that he was fully informed about the background of the litigation? Answer: Yes. And then the next -THE COURT: And you're referring there to Mr. Ahti Vilppula being informed about the litigation? MR. SCHERRER: Yes, that is correct.
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Honor. And I would then move for admission into evidence of Plaintiff's Exhibit 47, please. MR. BAYLARD: No objection. THE COURT: Exhibit 47 is admitted. MR. SCHERRER: I believe that's all that we have to offer, Your Honor, and so the Plaintiff rests. THE COURT: Plaintiff has rested. Mr. Baylard, do you wish to produce any evidence on this trial? MR. BAYLARD: No, Your Honor, I'll rely on the evidence previously presented. THE COURT: And therefore you are resting? MR. BAYLARD: We are resting. THE COURT: Very well. Folks, I heard evidence over about three days in this preliminary injunction matter which I've said that I would consider, and which I'm allowed to consider under Rule 92. I do find that there's been a breach of contract, that specific performance should be ordered. I will enter a final judgment, probably later today. Mr. Scherrer, I know you said you brought a proposed judgment, I will review it for any changes. I do want to make it clear that during the
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THE COURT: The litigation being this litigation. MR. SCHERRER: That's right, Sir. THE COURT: Thank you. MR. SCHERRER: At this point in time, I have Plaintiff's Exhibit 47. It is a document that bears the signature of Miss Abboud and Mr. Kennedy, and it has at the top Pea Ridge Mining, LLC. It's dated in St. Louis, Missouri, on July 14, 2011, and it's entitled, To Whom It May Concern. And it states -and I can read it because it's fairly brief -- To the best of their knowledge, the undersigned -- that would be Miss Abboud and Mr. Kennedy -unequivocally and irrevocably confirm that they have made Pea Ridge Mining, LLC, aware of and have presented any and all information that they are aware of about anything connected or referring to the Pea Ridge Mine actions against the Kennedys, or any other involved party, that any and all debts that are outstanding are declared, and that any other issues/items that may impact the project are fully stated. And, of course, the reference there to actions against the Kennedys would, for clarity, refer to this case that puts us here today, Your

course of this litigation, in reliance upon the memorandum agreement, there were two of them, the second one, which was deemed to be the final one, which had on a few minor changes to it, I appointed Mr. Murray as interim director to serve only until both sides could agree upon a third director pursuant, that -- the agreement as to the third director never occurred. Mr. Murray put in substantial time on this. I do intend to award him a fee as part of my judgment. Mr. Murray, I believe you have -- you are present in the courtroom and have been here for most of the proceedings this morning. Did you bring with you an itemization of your time. MR. MURRAY: I did, Judge. THE COURT: Would you bring it up to the Court, please? MR. MURRAY: I will. THE COURT: Have you provided copies to the Plaintiffs and Defendant? MR. MURRAY: To Mr. Harris and then also to Miss Abboud last night, gave it to her attorneys. THE COURT: Mr. Baylard, have you seen it? MR. BAYLARD: I have not, but I think the Polsinelli group has.

14 (Pages 50 to 53)

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1222217d-d77a-48aa-b4bb-6612168447fd

Exhibit H

0159

Alberici Constructors v. Upland Wings, et al.

Audio Recording

12-21-2011
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1 Honor, with your permission, Plaintiffs voluntarily THE COURT: All right. It is my intention, 2 move to dismiss our -- or dismiss, without because the Plaintiffs were seeking enforcement of 3 prejudice, Count 2, which had to do with the breach an agreement, the burden of proof was on them, 4 of duty of good faith and fair dealing, Count 3, the because of that it is my intention to tax 5 anticipatory breach of contract, and Count 4, Mr. Murray's fee against the Plaintiffs, not against 6 tortious interference, and I have a document for your clients. However, if you wish to review the 7 filing, I believe I've provided a copy to time statement before we close the evidence here, 8 Mr. Baylard. I'll allow you time to do that. 9 MR. SCHERRER: That's fine, Judge. THE COURT: Counts 2, 3 and 4 will be deemed 10 dismissed without prejudice pursuant to the filing THE COURT: All right. Very well. I'm 11 by Mr. Scherrer. That means I'm granting relief going to admit -- And you folks on the Plaintiffs 12 essentially on Count -- Counts 1 and 5? side have also reviewed this already; is that 13 correct? MR. SCHERRER: That is correct, Your Honor. MR. SCHERRER: Yes, we have, Your Honor. We 14 THE COURT: One being the breach of 15 contract, and five being the injunction count. have -16 THE COURT: Are there any objections to MR. SCHERRER: Yes, Your Honor. 17 Mr. Murray's time statement? THE COURT: Whatever it is, it is. If I 18 recited it wrong, I'll make sure it's correct in the MR. SCHERRER: -- no objection and are very 19 judgment. But -grateful of Mr. Murray's service, Your Honor. 20 THE COURT: All right. Okay. Any other MR. SCHERRER: Count 1 is breach of 21 contract, Count 5, specific performance, and Count 6 evidence for the Plaintiffs? 22 injunctive. MR. SCHERRER: No, Your Honor. 23 THE COURT: All right. Mr. Baylard, THE COURT: Counts, 1, 5 and 6. All right. 24 Plaintiffs, anything else? anything else from you, Sir? 25 MR. BAYLARD: No, Sir. MR. SCHERRER: No, Your Honor. The only
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THE COURT: Do either of you -- I probably should have asked if anyone wanted to make closing arguments, since you didn't introduce evidence, I did not think we would want to. But if anyone does, I will be happy to consider that. MR. SCHERRER: None from the Plaintiff, Your Honor. In addition to the specific performance, we are seeking a permanent injunction as proposed in our judgment. THE COURT: It is my intention to grant the permanent -- It is my intention to find that there's been a breach of contract, grant specific performance and grant a permanent injunction, and also tax Mr. Murray's fee against the Plaintiffs. Court costs, I presume, will be taxed -MR. SCHERRER: It's in our proposed judgment. THE COURT: Okay. If you have it in your proposed judgment, I will undoubtedly do what you have written in there about Court costs. The main thing I want to do is make sure that nobody's intending to waive the court costs. Everybody's got -- Washington County is a poor county, but in any event, anything else for the Plaintiff? MR. SCHERRER: At this point in time, Your

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other thing is that we have an order -- the proposed judgment, if you find in favor of the Plaintiffs, contains a section that asks the Court to order the release of stock that is being held in escrow pursuant to the Pea Ridge Mining, LLC, agreement, and we're asking you to authorize us to do that. In addition, we have a separate order, just so the escrow company can see a separate order if -assuming you find for the Plaintiffs, in which they are instructed by the Court to turning over those shares of stock which are being held in escrow. It tracks the escrow agreement and we believe we're entitled to those. THE COURT: The stock was put into escrow why originally? MR. SCHERRER: The stock was put into escrow pursuant to the Pea Ridge Mining, LLC, transaction, which it voided -THE COURT: So the Defendants did that? MR. SCHERRER: Yes. THE COURT: All right. Yes, I will sign that order as well. Anything else the Plaintiffs want? MR. SCHERRER: I've looked at my battalion of lawyers --

15 (Pages 54 to 57)

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1222217d-d77a-48aa-b4bb-6612168447fd

Exhibit H

0160

Alberici Constructors v. Upland Wings, et al.

Audio Recording

12-21-2011
Page 58 Page 60

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THE COURT: Yes, battalion of lawyers back there, and Mr. Baylard, as usual, it's about 18 against one, and you've done a fine job representing your clients all throughout this case, given the amount of opposition you had; okay? Is there anything else you want? MR. BAYLARD: No, Sir. THE COURT: Very well. That will be all. We'll go off the record. I'll take it under advisement and review your proposed judgment and. MR. SCHERRER: Thank you for your courtesy. THE COURT: Thank very much, for being here in St. Francis County.

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related to nor interested in any of the parties or their attorneys. Witness my hand and notarial seal at St. Louis, Missouri, this 16th day of January, 2012. My Commission expires October 29, 2012. _ _ _ _ _ _ _ _ _ _ _ _ Notary Public in and for the State of Missouri

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STATE OF MISSOURI. SS. CITY OF ST. LOUIS I, Gretta G. Cairatti, RPR, CRR, MO-CCR #790, IL-CSR #084-003418, and Notary Public in and for the State of Missouri, duly commissioned, qualified and authorized to administer oaths and to certify to depositions, do hereby certify that pursuant to agreement in the civil cause now pending and undetermined in the Circuit Court of the County of Washington, State of Missouri, to be used in the trial of said cause in said court, I was attended at the offices of Gore Perry Reporting & Video Company, 515 Olive Street, Suite 300, St. Louis, Missouri, with the audio recording on the 21st day of December, 2012. That the said proceedings are shown in the foregoing transcript, said proceedings being by me reported in shorthand and caused to be transcribed into typewriting, and that the foregoing pages correctly set forth the proceedings, and is in all respects a full, true, correct and complete transcript. I further certify that I am not of counsel or attorney for either of the parties to said suit, not

16 (Pages 58 to 60)

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1222217d-d77a-48aa-b4bb-6612168447fd

Exhibit H

0161