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1 James A. Murphy - 062223
JMurphy@mpbf.com
2 Kristin L. Iversen - 286787
KIversen@mpbf.com ELECTRONICALLY
3 MURPHY,PEARSON,BRADLEY & FEENEY F I L E D
~~ Kearny street, 1 Uth r'loor Superior Court of California,
~1 San rrailcisco, CA 94108-5530 County of San Francisco
Telephone: (415) 788-1900 08/21/2019
5 Facsimile: (415)393-8087 Clerk of the Court
BY: KALENE APOLONIO
Deputy Clerk
6 Attorneys for Defendants
FENWICK &WEST; MICHAEL SOLOMON
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN FRANCISCO
10
11 ~ STEVEN Fi1NK,an individual Case No.: CGC-19-575215
12 0 DECLARATION OF KRISTIN L.IVERSEN
IN SUPPORT OF DEFENDANTS
13 Plaintiff, FENWICK &WEST AND MICHAEL
SOLOMON'S MOTION FOR UltllElt
14 v. REQUIRING PLAINTIFF TO POST BOND
FOR COSTS
15 FENWICK & WEST,a California Limited
Liability Partnership; MICHAEL SOLOMON, Date: September 19, 2019
16 an individual; LELAND PARACHINI Time: 9:00 a.m.
STEINBERG MATZGER MELNICK,a Dept.: 302
17 California Limited Liability Partnership; AND
DOES 1-25, REDACTED
18
Defendants. Action Filed: April 12, 2019
19
Reservation No.: 08150919-10
20
21
22 I, Kristin L. Iversen, declare that:
23 1. I am an attorney duly licensed to practice in all courts ofthe State of California, and am I,
24 an attorney with the law firm of Murphy,Pearson, Bradley &Feeney,attorneys ofrecord for Defendants
25 Fenwick &West("F&W") and Michael Solomon ("Solomon"; collectively "Defendants") herein. I,
26 have personal knowledge ofthe information set forth herein below, unless noted as based on information
27 and belief, all of which is true and correct of my own personal knowledge, and if called upon to testify,
~g I could and would competently testify thereto.
-1-
DECLARATION Off' KRISTIN L. IVERSEN IN SUPPORT OF DEFENDANTS FENWICK &WEST AND
MICHAEL SOLOMON'S MOTION FOR ORDER REQUIRING PLAINTIFF TO POST BOND FOR COSTS
1 2. Plaintiff Steven Funk filed the Complaint in this action on April 12, 2U 19, against
2 Defendant alleging causes of action for legal professional negligence, breach of oral contract and breach
3 of fiau~ia~~y duly. I~~ ll~c Cui~iplaiiit, Pl~iiitiff admits he is a resident of West Vancouver, I3ritisli
4 ~ Columbia, Canada.
5 3. Attached hereto as Exhibit 2 is a true and correct copy of the June 18, 2010 letter from
6 ~ ~ IBS Capital LLC's outside counsel, Jeffrey R. Blumberg of Drinker Biddle &Reath, I,LP, to Plaintiffs
7 counsel at Leland, I'arachini, Steinberg, Matzger & Melnick, LlP, ,Tack Valinoti. This document was
produced by Plaintiff in this action.
9 4. Attached hereto as Exhibit 4 is a true and correct copy ofthe email correspondence from
10 ~ Plaintiff to Chris Donnelly of Leland, Parachini, Steinberg, Matzger & Melnick, Li.,P, dated March 23,
11 2012,stating that he understands "that the security is being called technically imperfect." This document
12 ~ was produced by Plaintiff in this action.
13 5. Attached hereto as Exhibit 5 is a true and correct copy of the November 2, 2017
14 Settlement Agreement between Plaintiff and Elizabeth Funk, which was produced by Plaintiff in this
15 (action and filed under seal.
16 6. Attached hereto as Exhibit 6 is a true and correct copy of the tolling agreement and the
17 ~ signed extensions to the tolling agreement entered into between the parties concerning Plaintiff's claims
18 raised in this action.
19 7, Plaintiff is a resident of West Vancouver, Canada. It is unknown at this time if Plaintiff
20 will agree to attend deposition in California. If he refuses, Defendants will incur significant costs in
21 traveling to West Vancouver to take Plaintiff's deposition, including airfare, hotel accommodations,and
22 court reporter services. Defendants' attorney, James A. Murphy, will have to travel from San Francisco,
23 California to West Vancouver, British Columbia and pay for a hotel for at least two (2) nights in West
24 Vancouver. Airfare is estimated to cost $1,100.00 and hotel accommodations fox 2 nights is estimated
25 to cost $600.00. The deposition reporter service costs are estimated to be $1,500.00 per day. In total,
26 taking Plaintiff's deposition is estimated to cost Defendants $3,200.00. Even if Plaintiff agrees to have
27 his deposition take place in the Bay Area, deposition costs are still anticipated to be $l ,500.00.
28 8. The depositions ofthe defendants will be taken by Plaintiff's counsel and the depositions
_ ~_
DECLARATION OP KR[STIN L. IVERSEN IN SUPPORT OP DEFENDANTS FENW[CK &WEST AND
MICHAEL SOLOMON'S MOTION FOR ORDER REQUIRING PLAINTIFF TO PnST E3(~Nn FnR CnSTS
1 of third party witnesses will need to be taken. While these depositions will likely occur in the Bay Area,
2 there will still be costs associated with those depositions, such as local travel and copies ofthe deposition
3 transcripts, cstimatcd to be about $10,000.00
4 9. ~7efendants will incur a cost of ~~7O.UO to ~tlle their first pleadings in this matter.
5 10. I will file a motion to require Plaintiff to post an undertaking in this matter. Defendants
6 will incur a cost of $60.00 to file this motion.
7 1 1. I expect to file a motion for summary judgment should the demurrer prove unsuccessful.
8 Defendants will incur a cost of $1,000.00 to file this motion. I estimate that I will have approximately
9 100 pages of exhibits to the motion for summary judgment which are reasonably helpful to aid the trier
l0 offact. Defendants will incur a cost of$0.35 to copy each exhibit page. I will have to give a copy of the
exhibits to the court for filing, to department 302, and to the Plaintiff in this matter. Thus, Defendants
12 will incur a total cost of approximately $105 to photocopy exhibits which are reasonably helpful to aid
13 the trier of fact. The approximate cost of filing a motion for summary judgment will be $1,105.00,
14 12. I am informed and believe, based nn prior experience in defending legal malpractice
15 actions through trial, that the following estimated costs will be incurred in the litigation of the above-
16 captioned matter, and that such total costs are reasonable and recoverable pursuant to Code of Civil
17 ~ Procedure §1033.5:
18 a. Out-of-state deposition expenses of Plaintiff - $3,200.00
19 b. Expert Witness (Standard of Care) costs - $20,000.00
20 c. Defendants and percipient witness deposition costs - $10,000.00
21 d. Trial Subpoenas - $250.00
22 e. Filing and Motion Fees - $2,035.00
23 f. Jury Fees - $1,400.00
24 g. Witness fees - $200.00
25 h. Court Reporter fees - $5,300.00
26 i. Models and Blowups - $2,500.00
27 Total Costs: $44,8$5.00
I declare under penalty o1' perjury under• the laws of the State of California that the foregoing is
- 3-
DECLARATION OF KRISTIN L. IVERSFN IN SUPPORT OF DEFENDANTS FENWICK &WEST AND
MICHAEL SOLOMON'S MOTION FUR ORDER REQUIRING PLAINTIF!' TO POST BOND FOR COSTS
1 true and correct and that this Declaration was executed on this 16th day of August 2019,in San Francisco,
2 California.
~3
~' Kristin L. Iversen
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-4-
DECLARATION OF KRISTIN L. IVERSEN IN SUAPORT OF DEFENDANTS FEN WICK & WEST AND
MICHAEL SOLOMON'S MOTION FOR ORDER REQUIRING PLAINTIFF TO POST BOND FOR COSTS
I~rirlkerBiddle~~ath Jeffrey lt. 131um6erg
Paxhier
3i 2-569-]106 llircct
312-569-3106 f'~x
jcEfrcy.blumhcr~; « dbr.com
.Law O~ces
tg~ North Wacker Drive June i$,2UlU
Suite }700
Chicago, IL Mr. Jack Valinoti
6o6o6-i6g8 Leland, Parachini, Steinberg, Matzger 8c Melnick, LLP
3~2-569•~00o phone
199 Fremont Street, 21st Floor
3~2-569-3aoo Fiz San Francisco, California 94105
www,d rinkerbidJlc.cant~
Dear Mr. Valinoli:
I:n I.II~:III\I.l
DF:t ~l\'AHL
n.i.nnis
This firm acts as outside counsel to IBS Capital LLC ("IBS"). I am in receipt of your
nrie It.ns}i
le?ter d~tP~ June ? 5,?J 10.
NE11' YpRA
IBS is aware of Mr. Fui~lc's security interest in Mrs. Funk's capital account in IBS
reNns~ i.~.~ui
"I~ur~t~lrpUnd fund (Q~, I..P. (tl~e "Fund").
1~ASNINGTO\' Pl' However, this sec~u•ity interest is not a
w;u:orsu: perfected security interest in that neither i~S nor the Fund has executed a control
agreement with respect to Ma•s. rank's interest in the Fund, and therefore neither IBS nor
the Fund is hound in any way to condition a withdrawal fa•onl the Fund b~ Mrs. rank
upon consent from Mr, Futile.
Zn the eve~xt tlzai Mz•s. Pu~aIc reinitiates a withdrawal request from the Fuiad, IC3S will take
such actions as Ire necessary to protect its interests in connection with such withd~•awal.
Feel Pree to co~~tact me with any additional questions.
Sine,
i•ey R. 3lumberg
JRB
cc: i~avid i att, lLiS Capital, Li,C;(via email only)
Mindy I,a~rrcn Ross, Esq.(via eix~ail only)
cuoii2sss~ois.i
~''~1
fsrnLhshed 18?9
FUNK 000086
._.
, .
From: Chris Donnelly [mailto:cdonneily@Ipslaw.cnm]
Sent: Monday, March 26, 2012 11:14 AM
To: Steven Funk
Cc: Len Sali {lensali.ls@gmail.com); Donald L. Hile Esq.(dhile@danhile.com)
Subject: RE: loan agreement
Steven,
You are more or less correct conceptually. The details differ, though.
Technically, there was no loan extension. The note's expiry by its terms is
September 17,.417 or "on demand." (See attached note, first page.) The demand
letter (also attached) set June 30, 2009 as the payment date, thus not extending the
note but actually foreshortening it. This was accomplished unilaterally, and not by
agreement with Elizabeth.
As for the interest rate, we have taken the position that on default it kicks up to 11-
plus percent. Elizabeth has complained about this to you directly, perhaps.
However, you should be aware that Elizabe#h has a defense to the effect that the
terms of the note govern, upon which the 5.0 percent stated rate applies "before
and after demand, default, and judgment."
As for the UCC-1 security, it was arranged in 2007. The filing date is December 1 Z,
2407 (which will require renewal within the six-month window this year closing on
December 11, 2012). LPS came into your matter in August 20Q8.
The step that we took (in February 2009)to perfect the security was to place the
IBS Turnaround Fund on written notice of the security's existence. ~~If Michael
Soloman previously notified IBS, then our February 2009 notification was
re dundant. However, we have nothing in our records (of which I am aware)that
indicates Solomon forwarded a copy of the filed UCC-1 to IBS. So our February
2009 notification was at least prudent, and possibly crucial.
After we notified IBS in February 2 09, their attorneys proposed that Elizabeth sign
a "control agreement" relating to the security. We (you and 1) conferred and agreed
that there was no realistic likelihood that Elizabeth would sign such an agreement.
We further determined that in the absence of any authority requiring such a "control
agreement'(I have yet to see any), it could strategically undermine with Elizabeth
your position that the security is valid were we to proffer to Elizabeth such a
document and ask for her cooperation in its sign-off. The implication might be that
n ~~n~r~irr~l nivr.~~rr~nn♦ ~~
nr.} r~r.rfr.n~r.ed ~a~ifh.~~ ~i n~ ~r.h
~4+.~ e~~n~ ~ri4~i in Th.,.-., in n~e~r. n
FUNK 000091
u i~c av~..ui ity
i~ i ~v~ Nci ict,icu vviu ivui au~.,i ia wi iu v~ ayi ~~~ i ici ii. i i ici c is aiav a
legal doctrine, known as "estoppel," that could imperil a security were we to
communicate a position, even mistakenly, that the security was not valid.
Thus far, I have yet to be advised of any fact, circumstance, or legal authority that
undermines fihe validity of the IBS security, at least as of February 2009 when we
notified IBS (in writing) of its existence, and possibly earlier if the records of IBS or
Michael Solomon indicate that a copy of the UCC-1 statement was provided to IBS
in or after December 2007 when it was filed. Insofar as your position on this matter,
believe it has been stated consistently that the security is, in fact, today valid.
-Chris
From: Steven Funk [mai.lto:steven~funkpartners,com]
Sent: Friday, March 23, 2012 5:57 PM
To: Chris Donnelly
Cc: Len Sali (IensaliJsCo?gmail.com); Donald L. Hile Esq. (dhile~donhile.com)
Subject: loan agreement
Chris,
In the winter/spring of 2009, you organized an extension agreement for the loan from
m e to Elizabeth. That loan was extended until June at the existing rate of interest and then
moved to a rate of 11%. A rate that Elizabeth has complained about.
am hearing that you think you are not aware of this, and have been in shock by this.
also understand that the security is being called technically imperfect — why or how could that
possibly be given all the time and effort you and your firm put into dealing with that security.
Your early response would be most appreciated.
Kindly,
Steven Funk
w ww.race4change_org
~tL ,~
Promissory Note _ROSS 11-21-08
and 1st...5).pdf deman...3),PDF
FUNK 000092
REDACTED
EXHIBIT 5
1 James A. Murphy - 062223
JMurphy@mpb£com
2 Kristin L. Iversen - 286787
KIversen@mpbf.com
3 MURPHY,PEARSONr BRADLEY & FEENEY
88 Kearny Street, 10th Floor
4 Sail Francisco, CA 94108-5530
Telephone: (415)788-1900
5 Facsimile: (415)393-8087
6 Attorneys for Defendants
FENWICK &WEST; MICHAEL SOLOMON
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN FRANCISCO
10
11 ~ STEVEN FUNK,an individual, Case No.: CGC-19-575215
12 EXHIBIT 5 TO DECLARATION OF
Plaintiff, KRISTIN L.IVERSEN IN SUPPORT OF
13 DEFENDANTS FENWICK &WEST AND
v. MICHAEL SOLOMON'S MOTION FOR
14 ORDER REQUIRING PLAINTIFF TO
FENWICK & WEST,a California Limited POST BOND FOR COSTS
15 Liability Partnership; MICHAEL SOLOMON,
an individual; LELAND PARACHINI
16 STEINBERG MATZGER MELNICK,a Date: September 19, 2019
California Limited Liability Partnership; AND Time: 9:00 a.m.
17 DOES 1-25, Dept.: 302
18 Defendants.
Action Filed: April 12, 2019
19
Reservation No.: 08150919-10
20
21
CONDITIONALLY UNDER SEAL
22
The enclosed document is submitted in connection with Defendants Fenwick &West("F&W")
23
and Michael Solomon ("Solomon"; collectively "Defendants") Motion for Order Requiring Plaintiff to
24
Post A Bond for Costs pursuant to Code of Civil Procedure §1030(a), The document is a confidential
25
settlement agreement between Plaintiff and Ms. Funk.
26
27 KLI.3494717.docx
28
-1-
EXHIBIT 5 TO DECLARATION OF KRISTIN L. IVERSEN [N SUPPORT OF DEFENDANTS FENWICK &WEST
AND MICHAEL SOLOMON'S MOTION FOR ORDER REQUIRING PLAINTIFF TO POST BOND FOR COSTS
TOLLING AGREEMENT
"Chis tollingand standstillagreement ("AgreemenC') is entered into by and between
Steven Fw~1c ("Funk"), an the one t~und, and Michael Solomon and Fenwick &West [.LP
(collectively "Fenwick") on the other hand.
WHEREAS, Funit asserts he has claims against ~'enwick relating to and arising out of a
series of transactions involving Elizabeth Funk, individually and as member of Yountville Fund
~.LC, in connection with a promissory note and security agreement ("Nole"); Funk's claim of a
secured interest in the I~iS Turnaround Fund in co~ectinn with the Note and activities related to
liens of the InternalRevenue Service against Elizabeth Funk and Yountville Investment Fund,
LLC, In this Agrecmenl, the reference to "C1aim" is to RIIof the matters set fonh in this
parAgrAph.
WHEREAS, F'enwick expressly denies such contentions, and denies that it represented
Funk, that it engaged sn any actionable conduct, that Funk has been damaged, or that it is Jiable
to Funk for the Claim alleged,
WHEREAS, neither Funk nor Fenwick desire to expend the resources to litigate Funk's
alleged Claim at this time.
NOW, WHEREFORE, Funk and Fcnwick have agreed to a tolling agreement an the
following stipulated tezms and conditions:
1, The undersigned hereby agree to toll and suspend during tt~e term of this Tolling
Agreement in compliance with California Code of Civil Procedure §360,5 any and all statutes of
limitation including, but not limited ta, California Code of Civil Procedure §§340.5, 337, 338,
339, 340 and 3A3, that may be applicable in any action that may be brought against Fcnwick by
Funk, which osserts claims arising out of the transactions as described iii this agzeement, related
to the Nole, Funk's claim of a secured interest in 1T3S Tumaro~.uid Fund and flctivities related to
the liens of the Internal Revenue Service against Elizabeth Funk or Yountville Investment Fund,
I~LC.
2. All statutes of limitation shall ba tolled from January 8, 2Q13 to January 7, 20J 4.
3. Any party to this tolling agreement may revoke it on 3d days' written notice to the
other party, in which CASE thistolling agreement will remain in effect only for a period of
3d days following the date of written notice of revocation, unless fewer than 30 days then remain
in the original period agreed upon, in which case the tolling agreement shall then continue only
up to and including January 7, 2014. Notice of revocation must be sent by certified mail
to:
For ~'uttk:
Steven B. Piser, Esq,
Oakland Ctty Center
499 Fourteenth Street, Suite 210
Onkland, California 9A612
A90)1 ND069/DOCS2DJ)'795 ,1
ror Fenwick:
Tyler A. Bakes, Esq,
Fenwick d'c West LT.P
801 Califbmia Strect
Mountain View, California 94041
4. Thrs tolling agreement does not revive nll or eny portion of any claim against
Fenwick for which the statute of limitations hfld expired prior to January $, 2013, and as to any
such claim, this tolling agreement does not constitute a waiver of the defense that the applicable
statute of limitations has expired, Fenwick reserves the right to challenge the sufficiency of any
complaint against it, or which names it as defendant ar cross-defendant, and fiuther reserves the
right to assert any and all applicable defenses to any claims made by Funk, subject only to the
limitation set out in this tolling agreement,
5. As a condition of this tolling agreement, it isunderstood and agreed that, by
entering into this tolling agreement, Fcnwick is nat hereby acknowledging or conceding in any
way that Punk has any claims against Fenwick. By signing this agreement, Funk agrees not to
argue ar contend otherwise at any time. The parties hereto further agree that this tollictg
agreement is inndmissible for any purpose except to establish a tolling pursuant to its terms,
6. This tolling agrecm~nt is to be constructed, interpreted and enforced in
accordance with California lnw.
7. This tolling agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same agreement, SignQtures by
facsimile shall have the same force and effect es original signatures, This agreement shall not be
cffoctive as to any party unless and until it has been executed by or on behalf ofevery party.
8. The terns of this tolling agreement constitute the entire ngrecment between and
among Funk and Fenwick regarding any tolling of any period of limitations, repose or laches,
and supersedes all prior communication, understandings, andlor ngrecments, oral or written, if
any, regarding the same subject marier. This tolling agreement may not be mocJificd, altered or
changad in any way except in writing signed by duly authorized representatives of the
parties to this agreement.
9. While this tolling agreement is in effect, the parties
hertto, and their counsel,
agree to keep confidential the existence of this tolling agreement, except that each such party
remnins free to discuss itwith his, her ar its own counsel, with each other, and with their
respective accountants, tax advisors and/or insurerswho need to know of its existence for
legitimate business purposes, but such discussions shall be conducted in a manner that is
consistent with the parties' desire to keep the existence and subject mnttcr of this tolling
agreement confidential. Each party is also free to disclose this tolling agreement in response to a
valid discovery request in any litigation, or in response to n eouR order, but the parties hereto
agree not to volunteer such information without such a valid request or order or to suggest that
such a request be made.
TOLLMG AGREEMENT 2 nv03I1o0069/D005n833795J
1 D, Tn the event that any portion of this Tolling Agreement is held unenforceable, Shen
the partieshereto agree that Funk his and can reasonably rely on the provisions herein, and
Fenwick shall be equitably estopped to asserttha applicability of the statute of limitations for the
tolling period.
l 1. 1'he person executing this agreement an behalf of Fenwick has the authority to
execute this agreement and bind the Limited Liability Partnership.
Steven Funk
Dated; ~_U~ ~-..~
F
Dated: C
TOLLMG A4FiF.EM~N7
3 A90)I~t1D0691DOCSR833795.1
~~
AMENDMIENT TO'T~LLING AGREEMENT
The tolling agreement between Pcnwtck and Wcst LT.P. Micheal Solomon
and Steven Funk Is hereby emended as follows:
Pansgraph J 1 of the ~grecment is deleted and replaced b~ the following;
1 1. Tyler Baker, who his executed this agreement on behalf of Fenwick
and '9Vest I.I,~ and MicbAe! Solonnun wprrants he has the authority to oxecutc thin
agreement and bind the Limittd Liability t'arfiership and Michsel Solomon,
Except as set forth in this amendment, tl~e remains the same.
bated: ,.,,,,,,~~t,;,~ '~
& 1~Jest, LLP snd Michael
By:
Dated; '2 ~ 13
Steven Funk
A b1P.NpMENT'IU70L1,IN0
AflNF.EhtEM
PACB 1
AMT+'~1~t17ME1~iT #2 `TC) T4)LLIN~C~ A.GR~EMEN'~'
Paragraph 2 of the tolling agreement between Fenwick and West LLP,
Michael Solomon and Steven Funk (attached as exhibit a), as amended (attached as
exhibit b)is hereby amended as follows:
2. All statutes oflimitations shall be tolled t'rom January 8, 2013 to
January 7, 201 S.
The individual executing tivs agreement on behalf of Fenwick and Solomon
represents and warrants he has Che authority to execute this amendment and bind
the Limited Liability Partne~•ship and Michael Solomon.
except as set forth in this amendment, the agreement ~râ–ºd amendment
remain the unchanged.
Dated: ~Z ~ ~,~ry •:: ~j [.L-~
Fe ck &West, LLP and Michel
S o on
By: Tyler Bakez•
Dated: ~`1- ~ l~ ~ (,~
V -~u-- Steven Funl<
AMGNDMHNT #2 TO TOLLING AGR[SIiM1:N'f }'AG[:
AMENDMENT NO.3TO TOLLING AGREEMENT
This A.~nendmrnt No. 3 pertains to that "1"ollin~ Agreement originally rntered into between Steven
Funk ("Funk") on dze one hand, and Michael Solomon and Fenwick &West T.LP (collectively,"Fenxvick")
on the other, executed nn January 14, 2013(by Fenwick) and on rebru:uy 5, 2013 (by Funk), and both
Amendments thereto. True and correct copies of the Original Tilling Agreement, and both prior
amendments (collectively, the "Tolling Agreetnen~~ aze attached hereto as Exkubit A.
A. 'T'he To1Wig Agreement is amended as follows:
Paragraph 2 shall Ue deleted in its entirety and replaced with the following:
2. All statutes of limitation shall Ue tolled from January 8,
2093 until January 7,2p16.
Paragraph 3 shall be deleted in its entirety and replaced with the following:
3. Any party to this ec~ll ng agreement rnaq revoke it on 30
days' written notice to the other party, in which case this telling agreement
will remaici in effect only for a period of 30 days following the date of
written notice of revocation, unless fewer than 30 da}'s then remain in the
original period agreed upon,in which case the tolling agreement shall then
continue Dilly up to and including January 7, 2016. Notice of revocation
must be sent by certified mail to:
For Funk:
Karen Johnson-McKewan,Esq.
ORKICK,HERRTNGTON & SUTrI.TFFE LI,P
The Orrick Building
405 Howard Street
San Nrancisco, CA 94105
For Fenwick:
Virgicua DeMazchi, Esq.
Fenwick &West LLI'
801 California Street
Mountain View, CA 94041
Vii. Except as set forth in this amendment, the Tolling Agreement remains Linchanged.
Virginia DeMaschi, who has executed this Amendment No. 3 on behalf of Fenovick &West LLI~ and
Michael Solomon, warrants that she has the authority to execute this agreement and bind the Lunited Liability
Partnership and Michael Solomon
Dated Ia o~~ ~~ - ,~-
Fenwick West,LLP and Michael olomon
By: Virginia DeMazchi
A mendment No. 3 to Tolling Agreement Page 1
l~u~~~l. ~~ht,~lnâ–ºhR,.~r'
~, d,~~~~i
Steven dunk
,Amendment Nv. 3 to Tolling Agreement Page 2
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1 James A. Murphy - 062223 JMurphy@mpbf.com 2 Kristin L. Iversen - 286787 KIversen@mpbf.com ELECTRONICALLY 3 MURPHY,PEARSON,BRADLEY & FEENEY F I L E D ~~ Kearny street, 1 Uth r'loor Superior Court of California, ~1 San rrailcisco, CA 94108-5530 County of San Francisco Telephone: (415) 788-1900 08/21/2019 5 Facsimile: (415)393-8087 Clerk of the Court BY: KALENE APOLONIO Deputy Clerk 6 Attorneys for Defendants FENWICK &WEST; MICHAEL SOLOMON 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN FRANCISCO 10 11 ~ STEVEN Fi1NK,an individual Case No.: CGC-19-575215 12 0 DECLARATION OF KRISTIN L.IVERSEN IN SUPPORT OF DEFENDANTS 13 Plaintiff, FENWICK &WEST AND MICHAEL SOLOMON'S MOTION FOR UltllElt 14 v. REQUIRING PLAINTIFF TO POST BOND FOR COSTS 15 FENWICK & WEST,a California Limited Liability Partnership; MICHAEL SOLOMON, Date: September 19, 2019 16 an individual; LELAND PARACHINI Time: 9:00 a.m. STEINBERG MATZGER MELNICK,a Dept.: 302 17 California Limited Liability Partnership; AND DOES 1-25, REDACTED 18 Defendants. Action Filed: April 12, 2019 19 Reservation No.: 08150919-10 20 21 22 I, Kristin L. Iversen, declare that: 23 1. I am an attorney duly licensed to practice in all courts ofthe State of California, and am I, 24 an attorney with the law firm of Murphy,Pearson, Bradley &Feeney,attorneys ofrecord for Defendants 25 Fenwick &West("F&W") and Michael Solomon ("Solomon"; collectively "Defendants") herein. I, 26 have personal knowledge ofthe information set forth herein below, unless noted as based on information 27 and belief, all of which is true and correct of my own personal knowledge, and if called upon to testify, ~g I could and would competently testify thereto. -1- DECLARATION Off' KRISTIN L. IVERSEN IN SUPPORT OF DEFENDANTS FENWICK &WEST AND MICHAEL SOLOMON'S MOTION FOR ORDER REQUIRING PLAINTIFF TO POST BOND FOR COSTS 1 2. Plaintiff Steven Funk filed the Complaint in this action on April 12, 2U 19, against 2 Defendant alleging causes of action for legal professional negligence, breach of oral contract and breach 3 of fiau~ia~~y duly. I~~ ll~c Cui~iplaiiit, Pl~iiitiff admits he is a resident of West Vancouver, I3ritisli 4 ~ Columbia, Canada. 5 3. Attached hereto as Exhibit 2 is a true and correct copy of the June 18, 2010 letter from 6 ~ ~ IBS Capital LLC's outside counsel, Jeffrey R. Blumberg of Drinker Biddle &Reath, I,LP, to Plaintiffs 7 counsel at Leland, I'arachini, Steinberg, Matzger & Melnick, LlP, ,Tack Valinoti. This document was produced by Plaintiff in this action. 9 4. Attached hereto as Exhibit 4 is a true and correct copy ofthe email correspondence from 10 ~ Plaintiff to Chris Donnelly of Leland, Parachini, Steinberg, Matzger & Melnick, Li.,P, dated March 23, 11 2012,stating that he understands "that the security is being called technically imperfect." This document 12 ~ was produced by Plaintiff in this action. 13 5. Attached hereto as Exhibit 5 is a true and correct copy of the November 2, 2017 14 Settlement Agreement between Plaintiff and Elizabeth Funk, which was produced by Plaintiff in this 15 (action and filed under seal. 16 6. Attached hereto as Exhibit 6 is a true and correct copy of the tolling agreement and the 17 ~ signed extensions to the tolling agreement entered into between the parties concerning Plaintiff's claims 18 raised in this action. 19 7, Plaintiff is a resident of West Vancouver, Canada. It is unknown at this time if Plaintiff 20 will agree to attend deposition in California. If he refuses, Defendants will incur significant costs in 21 traveling to West Vancouver to take Plaintiff's deposition, including airfare, hotel accommodations,and 22 court reporter services. Defendants' attorney, James A. Murphy, will have to travel from San Francisco, 23 California to West Vancouver, British Columbia and pay for a hotel for at least two (2) nights in West 24 Vancouver. Airfare is estimated to cost $1,100.00 and hotel accommodations fox 2 nights is estimated 25 to cost $600.00. The deposition reporter service costs are estimated to be $1,500.00 per day. In total, 26 taking Plaintiff's deposition is estimated to cost Defendants $3,200.00. Even if Plaintiff agrees to have 27 his deposition take place in the Bay Area, deposition costs are still anticipated to be $l ,500.00. 28 8. The depositions ofthe defendants will be taken by Plaintiff's counsel and the depositions _ ~_ DECLARATION OP KR[STIN L. IVERSEN IN SUPPORT OP DEFENDANTS FENW[CK &WEST AND MICHAEL SOLOMON'S MOTION FOR ORDER REQUIRING PLAINTIFF TO PnST E3(~Nn FnR CnSTS 1 of third party witnesses will need to be taken. While these depositions will likely occur in the Bay Area, 2 there will still be costs associated with those depositions, such as local travel and copies ofthe deposition 3 transcripts, cstimatcd to be about $10,000.00 4 9. ~7efendants will incur a cost of ~~7O.UO to ~tlle their first pleadings in this matter. 5 10. I will file a motion to require Plaintiff to post an undertaking in this matter. Defendants 6 will incur a cost of $60.00 to file this motion. 7 1 1. I expect to file a motion for summary judgment should the demurrer prove unsuccessful. 8 Defendants will incur a cost of $1,000.00 to file this motion. I estimate that I will have approximately 9 100 pages of exhibits to the motion for summary judgment which are reasonably helpful to aid the trier l0 offact. Defendants will incur a cost of$0.35 to copy each exhibit page. I will have to give a copy of the exhibits to the court for filing, to department 302, and to the Plaintiff in this matter. Thus, Defendants 12 will incur a total cost of approximately $105 to photocopy exhibits which are reasonably helpful to aid 13 the trier of fact. The approximate cost of filing a motion for summary judgment will be $1,105.00, 14 12. I am informed and believe, based nn prior experience in defending legal malpractice 15 actions through trial, that the following estimated costs will be incurred in the litigation of the above- 16 captioned matter, and that such total costs are reasonable and recoverable pursuant to Code of Civil 17 ~ Procedure §1033.5: 18 a. Out-of-state deposition expenses of Plaintiff - $3,200.00 19 b. Expert Witness (Standard of Care) costs - $20,000.00 20 c. Defendants and percipient witness deposition costs - $10,000.00 21 d. Trial Subpoenas - $250.00 22 e. Filing and Motion Fees - $2,035.00 23 f. Jury Fees - $1,400.00 24 g. Witness fees - $200.00 25 h. Court Reporter fees - $5,300.00 26 i. Models and Blowups - $2,500.00 27 Total Costs: $44,8$5.00 I declare under penalty o1' perjury under• the laws of the State of California that the foregoing is - 3- DECLARATION OF KRISTIN L. IVERSFN IN SUPPORT OF DEFENDANTS FENWICK &WEST AND MICHAEL SOLOMON'S MOTION FUR ORDER REQUIRING PLAINTIF!' TO POST BOND FOR COSTS 1 true and correct and that this Declaration was executed on this 16th day of August 2019,in San Francisco, 2 California. ~3 ~' Kristin L. Iversen 5 6 7 8 KLI.3494440.docx 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- DECLARATION OF KRISTIN L. IVERSEN IN SUAPORT OF DEFENDANTS FEN WICK & WEST AND MICHAEL SOLOMON'S MOTION FOR ORDER REQUIRING PLAINTIFF TO POST BOND FOR COSTS I~rirlkerBiddle~~ath Jeffrey lt. 131um6erg Paxhier 3i 2-569-]106 llircct 312-569-3106 f'~x jcEfrcy.blumhcr~; « dbr.com .Law O~ces tg~ North Wacker Drive June i$,2UlU Suite }700 Chicago, IL Mr. Jack Valinoti 6o6o6-i6g8 Leland, Parachini, Steinberg, Matzger 8c Melnick, LLP 3~2-569•~00o phone 199 Fremont Street, 21st Floor 3~2-569-3aoo Fiz San Francisco, California 94105 www,d rinkerbidJlc.cant~ Dear Mr. Valinoli: I:n I.II~:III\I.l DF:t ~l\'AHL n.i.nnis This firm acts as outside counsel to IBS Capital LLC ("IBS"). I am in receipt of your nrie It.ns}i le?ter d~tP~ June ? 5,?J 10. NE11' YpRA IBS is aware of Mr. Fui~lc's security interest in Mrs. Funk's capital account in IBS reNns~ i.~.~ui "I~ur~t~lrpUnd fund (Q~, I..P. (tl~e "Fund"). 1~ASNINGTO\' Pl' However, this sec~u•ity interest is not a w;u:orsu: perfected security interest in that neither i~S nor the Fund has executed a control agreement with respect to Ma•s. rank's interest in the Fund, and therefore neither IBS nor the Fund is hound in any way to condition a withdrawal fa•onl the Fund b~ Mrs. rank upon consent from Mr, Futile. Zn the eve~xt tlzai Mz•s. Pu~aIc reinitiates a withdrawal request from the Fuiad, IC3S will take such actions as Ire necessary to protect its interests in connection with such withd~•awal. Feel Pree to co~~tact me with any additional questions. Sine, i•ey R. 3lumberg JRB cc: i~avid i att, lLiS Capital, Li,C;(via email only) Mindy I,a~rrcn Ross, Esq.(via eix~ail only) cuoii2sss~ois.i ~''~1 fsrnLhshed 18?9 FUNK 000086 ._. , . From: Chris Donnelly [mailto:cdonneily@Ipslaw.cnm] Sent: Monday, March 26, 2012 11:14 AM To: Steven Funk Cc: Len Sali {lensali.ls@gmail.com); Donald L. Hile Esq.(dhile@danhile.com) Subject: RE: loan agreement Steven, You are more or less correct conceptually. The details differ, though. Technically, there was no loan extension. The note's expiry by its terms is September 17,.417 or "on demand." (See attached note, first page.) The demand letter (also attached) set June 30, 2009 as the payment date, thus not extending the note but actually foreshortening it. This was accomplished unilaterally, and not by agreement with Elizabeth. As for the interest rate, we have taken the position that on default it kicks up to 11- plus percent. Elizabeth has complained about this to you directly, perhaps. However, you should be aware that Elizabe#h has a defense to the effect that the terms of the note govern, upon which the 5.0 percent stated rate applies "before and after demand, default, and judgment." As for the UCC-1 security, it was arranged in 2007. The filing date is December 1 Z, 2407 (which will require renewal within the six-month window this year closing on December 11, 2012). LPS came into your matter in August 20Q8. The step that we took (in February 2009)to perfect the security was to place the IBS Turnaround Fund on written notice of the security's existence. ~~If Michael Soloman previously notified IBS, then our February 2009 notification was re dundant. However, we have nothing in our records (of which I am aware)that indicates Solomon forwarded a copy of the filed UCC-1 to IBS. So our February 2009 notification was at least prudent, and possibly crucial. After we notified IBS in February 2 09, their attorneys proposed that Elizabeth sign a "control agreement" relating to the security. We (you and 1) conferred and agreed that there was no realistic likelihood that Elizabeth would sign such an agreement. We further determined that in the absence of any authority requiring such a "control agreement'(I have yet to see any), it could strategically undermine with Elizabeth your position that the security is valid were we to proffer to Elizabeth such a document and ask for her cooperation in its sign-off. The implication might be that n ~~n~r~irr~l nivr.~~rr~nn♦ ~~ nr.} r~r.rfr.n~r.ed ~a~ifh.~~ ~i n~ ~r.h ~4+.~ e~~n~ ~ri4~i in Th.,.-., in n~e~r. n FUNK 000091 u i~c av~..ui ity i~ i ~v~ Nci ict,icu vviu ivui au~.,i ia wi iu v~ ayi ~~~ i ici ii. i i ici c is aiav a legal doctrine, known as "estoppel," that could imperil a security were we to communicate a position, even mistakenly, that the security was not valid. Thus far, I have yet to be advised of any fact, circumstance, or legal authority that undermines fihe validity of the IBS security, at least as of February 2009 when we notified IBS (in writing) of its existence, and possibly earlier if the records of IBS or Michael Solomon indicate that a copy of the UCC-1 statement was provided to IBS in or after December 2007 when it was filed. Insofar as your position on this matter, believe it has been stated consistently that the security is, in fact, today valid. -Chris From: Steven Funk [mai.lto:steven~funkpartners,com] Sent: Friday, March 23, 2012 5:57 PM To: Chris Donnelly Cc: Len Sali (IensaliJsCo?gmail.com); Donald L. Hile Esq. (dhile~donhile.com) Subject: loan agreement Chris, In the winter/spring of 2009, you organized an extension agreement for the loan from m e to Elizabeth. That loan was extended until June at the existing rate of interest and then moved to a rate of 11%. A rate that Elizabeth has complained about. am hearing that you think you are not aware of this, and have been in shock by this. also understand that the security is being called technically imperfect — why or how could that possibly be given all the time and effort you and your firm put into dealing with that security. Your early response would be most appreciated. Kindly, Steven Funk w ww.race4change_org ~tL ,~ Promissory Note _ROSS 11-21-08 and 1st...5).pdf deman...3),PDF FUNK 000092 REDACTED EXHIBIT 5 1 James A. Murphy - 062223 JMurphy@mpb£com 2 Kristin L. Iversen - 286787 KIversen@mpbf.com 3 MURPHY,PEARSONr BRADLEY & FEENEY 88 Kearny Street, 10th Floor 4 Sail Francisco, CA 94108-5530 Telephone: (415)788-1900 5 Facsimile: (415)393-8087 6 Attorneys for Defendants FENWICK &WEST; MICHAEL SOLOMON 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN FRANCISCO 10 11 ~ STEVEN FUNK,an individual, Case No.: CGC-19-575215 12 EXHIBIT 5 TO DECLARATION OF Plaintiff, KRISTIN L.IVERSEN IN SUPPORT OF 13 DEFENDANTS FENWICK &WEST AND v. MICHAEL SOLOMON'S MOTION FOR 14 ORDER REQUIRING PLAINTIFF TO FENWICK & WEST,a California Limited POST BOND FOR COSTS 15 Liability Partnership; MICHAEL SOLOMON, an individual; LELAND PARACHINI 16 STEINBERG MATZGER MELNICK,a Date: September 19, 2019 California Limited Liability Partnership; AND Time: 9:00 a.m. 17 DOES 1-25, Dept.: 302 18 Defendants. Action Filed: April 12, 2019 19 Reservation No.: 08150919-10 20 21 CONDITIONALLY UNDER SEAL 22 The enclosed document is submitted in connection with Defendants Fenwick &West("F&W") 23 and Michael Solomon ("Solomon"; collectively "Defendants") Motion for Order Requiring Plaintiff to 24 Post A Bond for Costs pursuant to Code of Civil Procedure §1030(a), The document is a confidential 25 settlement agreement between Plaintiff and Ms. Funk. 26 27 KLI.3494717.docx 28 -1- EXHIBIT 5 TO DECLARATION OF KRISTIN L. IVERSEN [N SUPPORT OF DEFENDANTS FENWICK &WEST AND MICHAEL SOLOMON'S MOTION FOR ORDER REQUIRING PLAINTIFF TO POST BOND FOR COSTS TOLLING AGREEMENT "Chis tollingand standstillagreement ("AgreemenC') is entered into by and between Steven Fw~1c ("Funk"), an the one t~und, and Michael Solomon and Fenwick &West [.LP (collectively "Fenwick") on the other hand. WHEREAS, Funit asserts he has claims against ~'enwick relating to and arising out of a series of transactions involving Elizabeth Funk, individually and as member of Yountville Fund ~.LC, in connection with a promissory note and security agreement ("Nole"); Funk's claim of a secured interest in the I~iS Turnaround Fund in co~ectinn with the Note and activities related to liens of the InternalRevenue Service against Elizabeth Funk and Yountville Investment Fund, LLC, In this Agrecmenl, the reference to "C1aim" is to RIIof the matters set fonh in this parAgrAph. WHEREAS, F'enwick expressly denies such contentions, and denies that it represented Funk, that it engaged sn any actionable conduct, that Funk has been damaged, or that it is Jiable to Funk for the Claim alleged, WHEREAS, neither Funk nor Fenwick desire to expend the resources to litigate Funk's alleged Claim at this time. NOW, WHEREFORE, Funk and Fcnwick have agreed to a tolling agreement an the following stipulated tezms and conditions: 1, The undersigned hereby agree to toll and suspend during tt~e term of this Tolling Agreement in compliance with California Code of Civil Procedure §360,5 any and all statutes of limitation including, but not limited ta, California Code of Civil Procedure §§340.5, 337, 338, 339, 340 and 3A3, that may be applicable in any action that may be brought against Fcnwick by Funk, which osserts claims arising out of the transactions as described iii this agzeement, related to the Nole, Funk's claim of a secured interest in 1T3S Tumaro~.uid Fund and flctivities related to the liens of the Internal Revenue Service against Elizabeth Funk or Yountville Investment Fund, I~LC. 2. All statutes of limitation shall ba tolled from January 8, 2Q13 to January 7, 20J 4. 3. Any party to this tolling agreement may revoke it on 3d days' written notice to the other party, in which CASE thistolling agreement will remain in effect only for a period of 3d days following the date of written notice of revocation, unless fewer than 30 days then remain in the original period agreed upon, in which case the tolling agreement shall then continue only up to and including January 7, 2014. Notice of revocation must be sent by certified mail to: For ~'uttk: Steven B. Piser, Esq, Oakland Ctty Center 499 Fourteenth Street, Suite 210 Onkland, California 9A612 A90)1 ND069/DOCS2DJ)'795 ,1 ror Fenwick: Tyler A. Bakes, Esq, Fenwick d'c West LT.P 801 Califbmia Strect Mountain View, California 94041 4. Thrs tolling agreement does not revive nll or eny portion of any claim against Fenwick for which the statute of limitations hfld expired prior to January $, 2013, and as to any such claim, this tolling agreement does not constitute a waiver of the defense that the applicable statute of limitations has expired, Fenwick reserves the right to challenge the sufficiency of any complaint against it, or which names it as defendant ar cross-defendant, and fiuther reserves the right to assert any and all applicable defenses to any claims made by Funk, subject only to the limitation set out in this tolling agreement, 5. As a condition of this tolling agreement, it isunderstood and agreed that, by entering into this tolling agreement, Fcnwick is nat hereby acknowledging or conceding in any way that Punk has any claims against Fenwick. By signing this agreement, Funk agrees not to argue ar contend otherwise at any time. The parties hereto further agree that this tollictg agreement is inndmissible for any purpose except to establish a tolling pursuant to its terms, 6. This tolling agrecm~nt is to be constructed, interpreted and enforced in accordance with California lnw. 7. This tolling agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement, SignQtures by facsimile shall have the same force and effect es original signatures, This agreement shall not be cffoctive as to any party unless and until it has been executed by or on behalf ofevery party. 8. The terns of this tolling agreement constitute the entire ngrecment between and among Funk and Fenwick regarding any tolling of any period of limitations, repose or laches, and supersedes all prior communication, understandings, andlor ngrecments, oral or written, if any, regarding the same subject marier. This tolling agreement may not be mocJificd, altered or changad in any way except in writing signed by duly authorized representatives of the parties to this agreement. 9. While this tolling agreement is in effect, the parties hertto, and their counsel, agree to keep confidential the existence of this tolling agreement, except that each such party remnins free to discuss itwith his, her ar its own counsel, with each other, and with their respective accountants, tax advisors and/or insurerswho need to know of its existence for legitimate business purposes, but such discussions shall be conducted in a manner that is consistent with the parties' desire to keep the existence and subject mnttcr of this tolling agreement confidential. Each party is also free to disclose this tolling agreement in response to a valid discovery request in any litigation, or in response to n eouR order, but the parties hereto agree not to volunteer such information without such a valid request or order or to suggest that such a request be made. TOLLMG AGREEMENT 2 nv03I1o0069/D005n833795J 1 D, Tn the event that any portion of this Tolling Agreement is held unenforceable, Shen the partieshereto agree that Funk his and can reasonably rely on the provisions herein, and Fenwick shall be equitably estopped to asserttha applicability of the statute of limitations for the tolling period. l 1. 1'he person executing this agreement an behalf of Fenwick has the authority to execute this agreement and bind the Limited Liability Partnership. Steven Funk Dated; ~_U~ ~-..~ F Dated: C TOLLMG A4FiF.EM~N7 3 A90)I~t1D0691DOCSR833795.1 ~~ AMENDMIENT TO'T~LLING AGREEMENT The tolling agreement between Pcnwtck and Wcst LT.P. Micheal Solomon and Steven Funk Is hereby emended as follows: Pansgraph J 1 of the ~grecment is deleted and replaced b~ the following; 1 1. Tyler Baker, who his executed this agreement on behalf of Fenwick and '9Vest I.I,~ and MicbAe! Solonnun wprrants he has the authority to oxecutc thin agreement and bind the Limittd Liability t'arfiership and Michsel Solomon, Except as set forth in this amendment, tl~e remains the same. bated: ,.,,,,,,~~t,;,~ '~ & 1~Jest, LLP snd Michael By: Dated; '2 ~ 13 Steven Funk A b1P.NpMENT'IU70L1,IN0 AflNF.EhtEM PACB 1 AMT+'~1~t17ME1~iT #2 `TC) T4)LLIN~C~ A.GR~EMEN'~' Paragraph 2 of the tolling agreement between Fenwick and West LLP, Michael Solomon and Steven Funk (attached as exhibit a), as amended (attached as exhibit b)is hereby amended as follows: 2. All statutes oflimitations shall be tolled t'rom January 8, 2013 to January 7, 201 S. The individual executing tivs agreement on behalf of Fenwick and Solomon represents and warrants he has Che authority to execute this amendment and bind the Limited Liability Partne~•ship and Michael Solomon. except as set forth in this amendment, the agreement ~r►d amendment remain the unchanged. Dated: ~Z ~ ~,~ry •:: ~j [.L-~ Fe ck &West, LLP and Michel S o on By: Tyler Bakez• Dated: ~`1- ~ l~ ~ (,~ V -~u-- Steven Funl< AMGNDMHNT #2 TO TOLLING AGR[SIiM1:N'f }'AG[: AMENDMENT NO.3TO TOLLING AGREEMENT This A.~nendmrnt No. 3 pertains to that "1"ollin~ Agreement originally rntered into between Steven Funk ("Funk") on dze one hand, and Michael Solomon and Fenwick &West T.LP (collectively,"Fenxvick") on the other, executed nn January 14, 2013(by Fenwick) and on rebru:uy 5, 2013 (by Funk), and both Amendments thereto. True and correct copies of the Original Tilling Agreement, and both prior amendments (collectively, the "Tolling Agreetnen~~ aze attached hereto as Exkubit A. A. 'T'he To1Wig Agreement is amended as follows: Paragraph 2 shall Ue deleted in its entirety and replaced with the following: 2. All statutes of limitation shall Ue tolled from January 8, 2093 until January 7,2p16. Paragraph 3 shall be deleted in its entirety and replaced with the following: 3. Any party to this ec~ll ng agreement rnaq revoke it on 30 days' written notice to the other party, in which case this telling agreement will remaici in effect only for a period of 30 days following the date of written notice of revocation, unless fewer than 30 da}'s then remain in the original period agreed upon,in which case the tolling agreement shall then continue Dilly up to and including January 7, 2016. Notice of revocation must be sent by certified mail to: For Funk: Karen Johnson-McKewan,Esq. ORKICK,HERRTNGTON & SUTrI.TFFE LI,P The Orrick Building 405 Howard Street San Nrancisco, CA 94105 For Fenwick: Virgicua DeMazchi, Esq. Fenwick &West LLI' 801 California Street Mountain View, CA 94041 Vii. Except as set forth in this amendment, the Tolling Agreement remains Linchanged. Virginia DeMaschi, who has executed this Amendment No. 3 on behalf of Fenovick &West LLI~ and Michael Solomon, warrants that she has the authority to execute this agreement and bind the Lunited Liability Partnership and Michael Solomon Dated Ia o~~ ~~ - ,~- Fenwick West,LLP and Michael olomon By: Virginia DeMazchi A mendment No. 3 to Tolling Agreement Page 1 l~u~~~l. ~~ht,~ln►hR,.~r' ~, d,~~~~i Steven dunk ,Amendment Nv. 3 to Tolling Agreement Page 2 Ani~•.rvnnii,nrr No.4 ~rn Tc~~.~,rrvc ACRr•.rr~xr list« l~etr~,~cc~i :ilc~~ru "17~i:~ .1n►cudtncnt ,V thar'I'~rlltng .1~rccmc~s~t <,rs~inall~ rcttc#~d :\Gchnc! !°unk {.`I^utik'") cn~ Qti~• ~,nc band. and ~nlrtimnnnnc.~f~rnw~cic .P 1.i \~K'ess ~.t , "I`cn•ti~ic:k" (criilrrrn~rl}' ~s~nuar~•id, (U~• ?til:i ancj 1~cn~~icF:) on f~cbniarr5.3f11'~ 1'cmk), {I~t' znd thrcr can t17c c~t4~arr, r~c~ttatc~l isn acid pri<~r all 'i'rur anc~ cc~rrcct a~pic~ oC d~c t)ri}~is:d 'fill»ig :1~;rcc~ncnc, • aincnJ~T~c~rs .1,nc•rc~tmcnt, thcrrtcr. 1~:xhilyit .\. {Ct~I~CCltl~clti•, the `"1` iiiis tt>lli~i~ a~;rrrment tna}' r~~•<>kc it rsi~ 3(l ci~cs' ~rrittcn n«ticc cn tlic nthcr p;irt}•, in ~ohic}a rasr this tc~lli>>~ ,~}rrrrment ~c~il! rrinxin itt riCcct {fnl►~ fcrr:► prriad of 3+i c~a1"w {nll+rtvill~ iltc cl:Iic cl~ wttttrn t~~siicr i,t r~-~~~cnn«n, cu~kfs f'rurr th.i» 3tt ciaex tlarn remain in thr ~~ei~ina! perind a},reed upon, in u•hieh clsr the te~llir~~ x~ree~~u~at sl~alf then Notice c>f rc~~~zr;~di:»~ contint~r nnit• up 1~> anci inchiding~:inuart• ?. ?t)1'. itrt~st be ~r~ti btu crrtifird mail r~r. 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